What's Happening

The 16th Council of Ministers and Steering Group Meetings were held from October 2nd to 4th, 2024 in Miami, Florida. These Meetings focused on several key matters and decisions, such as securing the CFATF's financial stability and sustainability and preparations 5^th Round of Mutual Evaluations. The CFATF Chair and Director of the Financial Intelligence Unit of Aruba, Mr. Angelo Brete, the CFATF  Executive Director, Ms. Dawne Spicer, Deputy Executive Directors, Mr. Wendell Lucas (in-person) and Mr. Héctor Sevilla (virtually) and Chief Operating Officer, Ms. Magdalene Walcott were in attendance.

The Ministers present (picture below) were the Honourable Minister of Finance of Aruba, the Honourable Minister of Finance of Curaçao, a representative of Honourable Minister of Finance of Jamaica, the Honourable Minister of Justice from Suriname and the Honourable Attorneys General of Grenada, the Virgin Islands, Belize, the Grand Cayman, Barbados, St. Vincent and the Grenadines, The Bahamas, Dominica, Turks and Caicos Islands, St. Lucia and Trinidad and Tobago. Venezuela participated virtually in the Meetings.

Having now fully satisfied the action plan given by the Financial Action Task Force (FATF), the Cayman Islands is eligible to be removed from the list of countries the FATF is monitoring for deficiencies in their anti-money laundering and countering the financing of terrorism (AML/CFT) regimes, subject to successful completion of an onsite visit by the FATF.

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Introduction

It was submitted by the parties to the claim, the Jamaican Bar Association (JBA) and the General Legal Council (GLC), that certain aspects of AML/CFT regime¹ of Jamaica, as it related to Attorneys-at-Law, erodes the essential confidentiality of the lawyer-client relationship and is incompatible with the Constitution of Jamaica, thus putting the continued integrity of legal professional privilege (LPP) at risk. The ability of Jamaican citizens to obtain reliable legal advice and representation rests on LPP.

The JBA is a company incorporated in Jamaica whose members are Attorneys–at–Law and whose objectives are (among other things) to promote the interests of attorneys in Jamaica. The GLC is the statutory body in Jamaica responsible for regulating the legal profession.

Litigation History

The JBA brought a claim seeking declaratory relief, injunctive relief, and other constitutional redress against the Attorney General and the GLC. On 4 May 2017, the Full (Constitutional) Court of Jamaica dismissed the JBA's claim and declared that the AML/CFT regime was constitutional. The JBA appealed. On 30 July 2020, the Court of Appeal of Jamaica allowed the JBA’s appeal in part. The Court of Appeal considered that certain of the provisions which form the AML/CFT regime contravened the Charter of Fundamental Rights and Freedoms whereas other provisions were valid and lawful. With leave of the Court of Appeal, the GLC and the Attorney General appealed to the JCPC.

Facts

Paragraphs 2 and 3 of the Proceeds of Crime (Designated Non- Financial Institution[DNFI]) ² (Attorneys -at-law) Order 2013, defined Attorneys-at-law as NFIs because of certain activities they engaged in on behalf of any client which fell within any the following six categories of professional services: (a) purchasing or selling real estate; (b) managing money, securities or other assets; (c) managing bank accounts or savings accounts of any kind, or securities accounts; (d) organizing contributions for the creation, operation or management of companies; (e) creating, operating or managing a legal person or legal arrangement (such as a trust or settlement); or (f) purchasing or selling a business entity as reflected by FATF Recommendation 22.

Being designated as an NFI meant that Attorneys-at-Law were subject to the relevant provisions of the Jamaican Proceeds of Crime Act (POCA). The GLC has previously argued that the inclusion of Attorneys-at-Law in the regulated sector gave rise to additional obligations (over and above any which currently apply) which impact on the general duties of confidentiality owed by attorneys to their clients and their duty to preserve the privilege of their clients not to disclose certain communications.

The JBA considered that the duties imposed by the AML/CFT regime upon Attorneys-at-Law are unconstitutional because, inter alia, they undermined legal constitutional rights to liberty [s.13(3)(a) and s.14 of The Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act, 2011, privacy (including LPP) [s. 94 POCA-Suspicious Transaction reporting obligation] and protection from search of property [s. 91A POCA - inspection].

The JBA focussed its challenge on those provisions of the AML/CFT regime which, it says, violated for them or for their clients the guaranteed rights of privacy, liberty and freedom from search.

JCPC Judgment

The JCPC heard the appeals on November 29 and 30, 2022 and declared on February 9, 2023 that the AML/CFT regime of Jamaica does not contravene constitutional rights of attorneys and clients.3 Therefore, the decision of the Full (Constitutional) Court of Jamaica upholding the relevant AML/CFT legislation as it applies to Attorneys-at-Law should be restored.

Footnotes

1 The Jamaican statutory regime to combat money laundering is comprised of primary legislation, secondary legislation, and non–statutory guidance.

2 Equivalent to the FATF definition of Designated Non-Financial Businesses and Professions (DNFBPs).

3 The Attorney General (Appellant) v The Jamaican Bar Association (Respondent) (Jamaica); The General Legal Council (Appellant) v The Jamaican Bar Association (Respondent) (Jamaica) [2023] UKPC 6
On appeal from The Court of Appeal of Jamaica

The Minister of Finance of Trinidad and Tobago, the Honourable Mr. Colm Imbert stated that there were 958 suspicious transaction reports/suspicious activity reports (STRs/SARs) valued at TTD $1,937,211,057 up to September 30^th, 2022 reported by the Financial Intelligence Unit of Trinidad and Tobago (FIUTT). The STRs/SARs were based on tax evasion, fraud, money laundering and drug trafficking activities. The Minister elaborated by noting that the most prevalent reason for STRs/SARs  filings was suspicious activity, which accounted for 301 persons, “followed by tax evasion (211 persons), fraud (196 persons), money laundering (155 persons) and drug trafficking (35 persons).” The Minister further disclosed that these accounted for 94 percent of the total STRs/SARs received by the FIUTT and 60 per cent of the total monetary value of all STRs/SARs submitted.

Regarding the type of transaction, it was revealed that 844 reports were completed transactions while 195 were attempted transactions, valued at TTD $1,586,346,802 and $350,864,255 respectively. However, 16 STRs/SARs contained both completed and attempted transactions. He further stated that “this represented a 24 percent decrease in completed transactions and a 68 percent decrease in attempted transactions when compared to the previous reporting period.”

Minister Imbert also highlighted that there was an increase in requests from foreign law enforcement agencies and FIUs with the local FIU for cooperation on these matters. More specifically, the requests were related to 85 subjects in comparison to 26 for the comparative period in 2021.  Four (4) other requests sought intelligence on 34 subjects. Requests from foreign authorities originated mainly originated in the Caribbean, the Middle East and Europe. Similarly, the FIUTT sent 23 requests about 45 subjects to foreign authorities for financial intelligence and information to foreign authorities mainly in the Caribbean, the Americas and Asia. The requests sent included 11 cases of suspected fraud and five (5) cases of drug trafficking.

Additionally, the FIUTT disseminated 12 spontaneous disclosures to foreign FIUs and law enforcement agencies. Minister Imbert said, “the spontaneous dissemination of intelligence was linked to the suspected criminal conduct related to fraud and money laundering, accounting for 83 per cent and 17 percent of the total number of spontaneous intelligence reports disseminated, respectively.” He also noted that the FIUTT has 36 Memoranda of Understanding (MOUs) with foreign FIUs, with the most recent being with the superintendency of banks in Guatemala in 2022.

The Minister indicated that the FIUTT reported higher levels of compliance with anti-money laundering, counter terrorism financing and counter proliferation financing. However, based on Quarterly Property Terrorist Reports (QTRs) which continued to be implemented during its reporting period, he added that “there is a need for improved compliance by the credit union sector.” There were 457 new entities were registered with the FIUTT, with the highest number of new registrants coming from the real estate and attorney-at-law sectors.

Minister Imbert said that the FIU will improve its internal operations and “place priority on matters relating to increasing the number of intelligence products to a wider section of stakeholders.”