May it please you my Lady Chief Justice,

My Lady Justice Joyner,

I am pleased to rise once again at your invitation to move the motion for the traditional Opening of the Legal term for the Supreme Court of the Turks and Caicos Islands. 

My Lady with your leave, I would wish to recognize the presence of the specially invited guests –

HE the Acting Governor Mrs. Anya Williams

Hon. Premier Mrs. Sharlene Cartwright Robinson

Hon. Deputy Premier Mr. Sean Astwood

Hon. Ministers of Health Mr. Edwin Astwood

His Honour the Speaker of the House of Assembly Mr. Dwayne Taylor

Hon. Elected and Appointed members of the House of Assembly

Hon. Chief Magistrate Mrs. Tonya Loban-Jackson and other Hon. Magistrates

Madam Director of Public Prosecutions

President of the Bar Council and  other colleagues at the Public

and Private Bars

Acting Commissioner of Police Mr. Trevor Botting and senior ranks present

Superintendent of Prisons Mr. Steve Barrett

Canon Mark Kendall

Distinguished ladies and gentlemen all

At the opening of the legal term on 11^th January 2017, I remarked that as the service in Westminster Abbey where judges prayed for guidance at the start of the legal term, in these Islands, years ago, this tradition was marked by a church service and included the judiciary and attorneys walking through the streets back to the courts, that practice alternated between Grand Turk and Providenciales.  I urged my Lady Chief Justice to consider holding this year’s ceremonies on Grand Turk.  It therefore gives me great pleasure to rise this morning here in the nation’s capital of Cockburn Town, Grand Turk on this fourth year since my Lady has restored this important and meaningful tradition.

With my Lady’s leave, I propose in moving this motion, to reflect on 2017 as well as to make a few observations on some of the work before us for 2018.

My Lady, 2017 was a year tremendous challenge, especially following the two storms that ravaged our islands in September and caused so many to lose their lives along with the tremendous damage done across our region.  But, we are a resilient people.

My Lady, my Chambers legal staff compliment has grown from 9 to 12 by the introduction of three new counsel into our fold and one promotion.  I take this opportunity to welcome the three top candidates for the post of senior crown counsel following an open competition in Ms. Shayone Handfield Gardiner, Ms. Vanica Sobers Joseph and Ms. Libby Charlston whose appointments were somewhat overshadowed by the arrival of hurricanes Irma and Maria.  Each new Senior Crown Counsel has added tremendous value to the work of my Chambers since taking up their appointments particularly in respect of the civil, commercial and international divisions.  I take this opportunity to especially congratulate Mrs. Shayone Handfield-Gardiner on the successful completion of her master’s degree in international law.  Her achievements are a testament to her own strong work ethic and determination.  I am very pleased to welcome Ms. Chassidy Swan into my Chambers as Crown Counsel following her period of in service training and admission to the TCI Bar. Ms. Swan was also appointed to the post of Crown Counsel as the top candidate in open competition.  These appointments and promotions form part of my efforts at institutional strengthening and succession planning.  These officers have worked with due diligence and admirable determination in the performance of their duties and I am very grateful for the professionalism and comradery of all of my team in Chambers.   

My Lady, I am pleased to report that 2017 was yet another very active legislative year and with the cooperation and involvement of members of the legal profession, associations and the general public, the House of Assembly saw through to passage some 21 Ordinances whilst the executive made some 82 pieces of subsidiary legislation in accordance with the Government’s legislative agenda.  Whilst the elected Government and the public officers who work in the various Ministries and departments are to be credited for this laudable achievement, it is appropriate for me to also publicly recognize the tremendous efforts of my Legislative Drafting division for their commitment to the highest standards of professionalism and their willingness to go beyond the call of duty on many occasions to ensure that the Government’s agenda was delivered.

It is worth making special mention of some of these legislative initiatives in this setting –

The Companies Ordinance 2017 which will repeal and replace a 1981 Ordinance and modernizes the company law in the Turks and Caicos Islands.  It also establishes a beneficial ownership registry in the Islands.  It further establishes a better business environment for the incorporation of companies in the islands.

The Insolvency Ordinance 2017 establishes a new regime providing for the insolvency of companies, individuals and partnerships. The Ordinance is the result of extensive consultation with the Financial Services Commission and the industry, the first draft having been released for comments in December 2016 and finally passed in the House in December 2017.

Before this Ordinance, there has never been a personal insolvency regime or a regime for insolvent partnerships in the Turks and Caicos Islands.  The Ordinance empowers the Financial Services Commission (the Commission) to appoint an Official Assignee. This is an important development for the credibility of the Insolvency regime in the Turks and Caicos Islands, and the reputation of the Islands, that somebody or person has responsibility for acting as the liquidator of companies, and the trustee in bankruptcy of individuals, in cases where no licensed insolvency practitioner is willing or able to act. This will usually be the case if the insolvent company or individual has insufficient assets to fund the costs of the liquidation or bankruptcy. Without a liquidator and trustee of last resort, companies and individuals that dissipate or hide their assets would be unlikely to enter into liquidation or bankruptcy and would never be investigated. It is also important that there is a person or body with responsibility for investigating insolvencies where the public interest requires, even where an insolvency practitioner has been appointed. The Official Assignee fulfils these roles, as an officer of the Court and with a right of audience before the Court for directions.

The Insolvency Ordinance also establishes a regime for the licensing, regulation and supervision of insolvency practitioners by the Commission. Insolvency is a specialised and technical area of work. If insolvencies are handled incompetently or fraudulently, it is likely that the interests of creditors will be adversely impacted and the reputation of the Islands will be damaged. In the circumstances, only individuals licensed by the Commission as insolvency practitioners will be able to act in most of the insolvency proceedings established under the Ordinance. Recognising that international companies operate outside the Islands, the Ordinance allows foreign insolvency practitioners to act, but only jointly with a licensed insolvency practitioner.

The Ordinance also establishes a new administration procedure for companies as an alternative to liquidation. The administrator, who must be a licensed insolvency practitioner, unlike a liquidator, has the power to trade the company with a view to rescuing it or obtaining a better outcome for creditors, for example by selling the business as a going concern. The principle difference between an administrator and a supervisor is that an administrator takes over the management of the company from the directors.

Additionally, Receivership in the Islands is currently governed principally by common law. The Ordinance codifies the common law provisions and makes specific provision for administrative receiverships in respect of the property of a company. Insolvency Rules that will contain the detailed procedures necessary to support the Ordinance are currently being finalised.

The Rehabilitation of Offenders Ordinance was enacted in 2014 and has been in force since 1 August 2014. Since its enactment, there has been uncertainty amongst stakeholders and the users of the legislation on the interpretation of certain provisions. In particular, clarity of section 3(c) of the Ordinance was required, as issues arose, amongst others, whether a person who was convicted and sentenced during the rehabilitation period of his first conviction is excluded from rehabilitation.

The uncertainty of the above provision in addition to the absence of forms and regulations to be used by the Police for police clearance certificates and guidelines to explain the Ordinance has hampered the effective implementation of the Ordinance.

In an attempt to address the issue of the requisite guidelines, my Chambers produced draft of the Rehabilitation of Offenders Guidelines in June 2016 and those guidelines have been the subject of lengthy consultation amongst the relevant stakeholders for comments and feedback. A review of the Ordinance was made and this necessitated the passage of the Rehabilitation of Offenders (Amendment) Ordinance 2017, the making of the Rehabilitation of Offenders Order and an update of the draft guidelines. Valuable feedback was received from the relevant stakeholders including the Police, the Judiciary, the Office of the Director of Public Prosecutions and the Bar Council and Association.

In December 2017, the Rehabilitation of Offenders (Amendment) Ordinance made further provisions for rehabilitation by clarifying the entitlement to rehabilitation and providing for the applicable rehabilitation periods. The amendment also introduced the provisions for the process of application of criminal records certificate and explicitly set out the types of certificate to be issued, dependent on what the criminals records are required for.

The Amendment Ordinance clarified section 3 of the principal Ordinance so that a person is excluded from rehabilitation if he or she commits another offence and is convicted and sentenced during the rehabilitation period of a previous unspent conviction. The Bill also provides further provisions of the applicable rehabilitation period where a person has more than one sentence imposed on a conviction.

In the year ahead, work on a number of important initiatives continues, including new Gaming Control provisions to demonstrate the Government’s strong commitment to a well-regulated, transparent gaming industry that serves the best interests of the people of the Islands. The Government has been developing and revamping the regulatory environment of the gaming Industry for some time and the new provisions would seek to make the regulatory environment consistent with international standards for best practices, which are also tailored to meet the specific needs of Islands. The Government intends to propose a regulatory structure which will provide a strong basis for business investment, job creation and the promotion of tourism. It will ensure that gaming is conducted responsibly, that protections are in place for the vulnerable and the industry is a strong financial contributor to the continuing development and success of the Islands.

Other changes include improvements to the liquor licensing regime and our planning laws.

The Turks and Caicos Islands has completed a successful year as chair of the Caribbean Financial Action Task Force leaving that organization better off for its stewardship, particularly as it relates to its governance structures.  The Turks and Caicos Islands has commenced its mutual evaluation process by the Caribbean Financial Action Task Force.  The CFATF assessments are used by investment bodies to determine the viability of investments in a jurisdiction and to indicate the strength of the regulatory framework within the jurisdiction’s financial sector.  Beneficial interest transparency is key to the work being done in this area.  Public and Private sector cooperation will be vital to achieving compliance with current international standards.

The establishment of a central registry in accordance with the Government’s action plan which is now underway requires the participation of all stakeholders, especially the legal profession.

I always like to take the opportunity to highlight the importance of respect for the rule of law.  These ideals are alive and well here in the Turks and Caicos Islands and the presence of members of the executive and legislative branches showing strong support for the work of the judiciary is a testament to their commitment to working closely with and ensuring the viability of our courts systems throughout the islands.

My Lady, as law officers, we stand in full support of the work of the court and wish you, my Lady Justice Joyner, the Honourable Magistrates, the Hon. Registrar and the entire judiciary a prosperous and productive New Year.

May the Almighty God abundantly bless our collective pursuits in 2018 and always.

I now formally move the motion for the opening of the Turks and Caicos Islands Supreme Court for the year 2018.

May it so please you my Lady.

Rhondalee Braithwaite-Knowles, OBE

Hon. Attorney General

10^th January 2018

WELCOME REMARKS
BY
THE HONOURABLE RHONDALEE BRAITHWAITE-KNOWLES OBE,
ATTORNEY GENERAL OF THE TURKS AND CAICOS ISLANDS

MADE AT THE

TURKS AND CAICOS ISLANDS MONEY LAUNDERING AND TERROIST FINANCING
NATIONAL RISK ASSESSMENT FINAL WORKSHOP

BLUE HAVEN RESORT
PROVIDENCIALES
TURKS AND CAICOS ISLANDS
26^TH – 28^TH JUNE 2017

 

The Turks and Caicos Islands (TCI) is a small international financial centre which services both the resident population and the international market, which in the case of Turks and Caicos is largely from North America. The factors that make the TCI an attractive place for legitimate financial activity are – its status as a British Overseas Territory, political stability, proximity to North America, use of the US Dollar as the legal tender, high-end real estate market, absence of direct taxation and widely understood language and legal system.  However, if in the future, concerns were to develop with the effectiveness of the regulated financial sector, the result may be the country being seen as an attractive place through which to launder the proceeds of crime.

Money laundering and terrorist financing presents global threats. In the context of small international financial services centres like the Turks and Caicos Islands, we cannot exclude ourselves from the responsibility of preventing, as far as possible, the use of our jurisdiction by criminals. The continued integrity and stability of our financial system provides strong support for our growth as a nation. The infiltration by the criminal fraternity, could seriously damage the economy. 

This is the first National Risk Assessment on money laundering and terrorist financing (NRA) conducted in the Turks and Caicos Islands and reflects the commitment by the Government to uphold the highest international standards in protecting the economy against criminal abuse.  The seriousness with which the Government takes these matters is also evident from the large Ministerial presence here this morning as well as the notable presence of the Permanent Secretaries from across the Government. 

A framework designed to prevent money laundering and combat terrorist financing and is most effective when it targets resources to where they will be most effective. A country can make sure that resources are directed to prevent and mitigate its money laundering and terrorist financing (ML/TF) risks only by a good analysis and understanding of these risks. 

 This approach is in line with the recommendations of the Financial Action Task Force (FATF). FATF recommends that countries identify, assess, and understand the money laundering (ML/TF) risks within their jurisdiction and then take action and apply resources to mitigate such risks, based on a risk-based approach. Although such a risk-based approach involves considerable effort, it will ensure that anti-money laundering/counter- financing of terrorism (AML/CFT) regimes are set up that support measures that are commensurate with the actual levels and types of risk encountered.

The World Bank facilitates a systematic and multidisciplinary participatory process to help countries perform their own assessment. This way, they can build capacity for the longer term and establish a process for regularly updating their understanding of the country’s risks.

In completing this exercise, we will have gained a collective understanding of the money laundering and terrorist financing risks that we face and we will be in a strong position to enhance the existing framework and where necessary introduce new measures to provide further protection. 

Legal Report by the Hon. Attorney General on the Opening of the Supreme Court of the Turks and Caicos Islands for the Year 2017

May it please you my Lady Chief Justice,

My Lady Justice Joyner, my Lord Justice Shuster,

I am privileged to rise once again to move the motion for the traditional Opening of the Supreme Court of the Turks and Caicos Islands. 

My Lady please permit me also to recognize the presence of the invited guests –

HE the Governor Dr. John Freeman

HE the Deputy Governor Mrs. Anya Williams

The Hon. Premier Mrs. Sharlene Cartwright Robinson

His Honour the Speaker of the House of Assembly Mr. Dwayne Taylor

Hon. Elected and Appointed members of the House of Assembly present

Hon. Chief Magistrate Mrs. Tonya Loban-Jackson

Deputy Commissioner of Police Mr. Mark McCallahan and senior ranks present

Colleagues at the Bar

Distinguished ladies and gentlemen all

The United Kingdom’s Courts and Tribunals Judiciary website, records that the Opening of the Legal Year service in Westminster Abbey dates back to the middle ages when judges prayed for guidance at the start of the legal term. Judges, whose courts were held in Westminster Hall, left the city and walked to the abbey to take part in the service.   Today, the judges now travel by car.  In these Islands, years ago, this tradition was marked by a church service and included the judiciary and attorneys walking through the streets, alternating between Grand Turk and Providenciales. The Bar’s strong support for these traditions brings awareness to the important work of the courts and is a public demonstration of respect for the rule of law. This morning, for the third year since My Lady has restored the practice, many of us have travelled over by airplane to Providenciales for today’s proceedings.  I respectfully urge my Lady to consider holding next year’s ceremonies on Grand Turk.

My Lady has this year given notice pursuant to section 15 of the Supreme Court Ordinance and O.64r.1 of the Supreme Court Rules of the four sittings of the Supreme Court in 2017:

The Hilary sitting: 11th January, 2017 – 12th April, 2017;

The Easter sitting: 25th April, 2017 – 26th May, 2017;

The Trinity sitting: 6th June, 2017– 31st July, 2017; and

The Michaelmas sitting: 1st October, 2017 – 21st December, 2017.

I am sure that the observance of these sittings will assist in structuring the work of the court, to the benefit of counsel and litigants alike.  Other reforms coming from My Lady to include the establishment of a database of local judgments, improvements in the Registry and the rules of the court are all welcomed by the Bar and applauded as you seek to realise your vision for improvements in the judiciary in the interest of a more effective administration of justice.

With my Lady’s leave, I propose in moving this motion, to reflect on 2016 as well as to make a few observations on some of the work before us for 2017.

My Lady, 2016 was another very challenging year marked by progress and change in a number of key areas including the departure and arrival of key personalities.  On behalf of the Bar, sincere gratitude is extended to former Governor Peter Beckingham for his tremendous support of the rule of law in this jurisdiction and a warm welcome is extended to Dr. John Freeman who became our 14^th Governor last October.  Following only the second set of general elections in December 2016, under the current Constitution, congratulations are extended to the new Ministerial administration led by a member of our Bar and our first female Premier, Hon. Sharlene Cartwright Robinson who has already taken time to meet with me on litigation matters and to begin discussions on the legislative initiatives of her administration.

My Lady, on behalf of the Bar, we welcome the new Chief Magistrate, Hon. Tonya Loban-Jackson, and we bid farewell to Ms. Nyasha Hatmin, former Senior Deputy Registrar who left that role at the end of 2016 having given yeoman’s service and congratulate Mr. Carlo Mason on his appointment to that post.  The arrival of Ms. Renée McLean the recently appointed Registrar of the Supreme Court is welcomed. A warm welcome is also extended to the newly appointed Director of Public Prosecutions, Ms. Jillian Williams who comes to her office with a wealth of relevant experience from Trinidad and Tobago and the Bahamas.  My recently appointed Deputy Attorney General, Dr. Michael Dillon arrived in the summer during a very hectic time in my Chambers and I am grateful that he jumped right into the fray.  On behalf of the bar, I wish you all good success in your respective roles in the strengthening of the legal structures in the Turks and Caicos Islands.

My Lady, my Chambers consists of 9 attorneys and 7 administrative staff in five divisions under the day to day supervision of the Deputy Attorney General (Dr. Michael Dillon): Legislative Drafting (headed by Desiree Downes MBE), Civil Litigation (headed by Clemar Hippolyte), Commercial (headed by Yaa McCartney), International (headed by Khalila Astwood) and Lands (headed by Tatum Clerveaux).  These officers have worked with due diligence and admirable determination in the performance of their duties and I am very grateful for their professionalism and comradery.   

Legislative Drafting – My Lady, I am pleased to report that 2016 was yet another very active legislative year and with the cooperation and involvement of members of the legal profession, associations and the general public, 37 Ordinances and 83 pieces of subsidiary legislation were produced in accordance with the Government’s legislative agenda.

Of note:

1. Amendments to the Elections Ordinance
2. Amendments to the Political Activities Ordinance
3. A new Domestic Insurance Ordinance
4. A new Trust Ordinance
5. A new Trust Companies (Licensing and Supervision) Ordinance
6. A new Prevention of Trafficking in Persons Ordinance
7. A new Food and Drugs Ordinance
8. A new Mental Health Ordinance which replaced a 1902 Ordinance
9. A new Credit Union Ordinance
10. A new Consumer Protection Ordinance
11. New health related legislation to strengthen and improve the health services system in the islands once implemented.

In the year ahead, work on a number of important initiatives continues, including drafts seeking to introduce:

1. New Limitation of Actions provisions
2. New Anti-Bribery provisions
3. modern Companies provisions
4. modern Insolvency provisions
5. criminal law and procedures reforms and in particular provisions dealing with fingerprinting
6. New Legal Profession provisions
7. More detailed provision for the Maintenance of Children
8. New provisions relating to Child and Juvenile Justice
9. Provisions to strengthen the organization and funding of Sport
10. New provisions to strengthen the regulation of gaming
11. Provisions to reform areas of liquor licensing
12. Reforms to areas of Crown Land management

Access to Law – My Lady, I am pleased to report that the laws of the Turks and Caicos Islands are now regularly updated on the webpage of the Attorney General’s Chambers as laws are passed in the House of Assembly (www.gov.tc/agc). Additionally, in conjunction with the Regional Law Revision Centre, work is well underway on the current law revision which has a revision date of 31st December 2016 to be issued by the end of the first quarter of 2017.  The Law Revision Centre is a joint venture inter-governmental company between Anguilla, Montserrat, the Turks and Caicos Islands, and the Virgin Islands, providing cost effective law revision services as well as training and other legislative services to the Caribbean Region.

Civil Litigation – My Lady, a number of important litigation came before the courts during 2016 which evidenced that respect for the rule of law continues to develop in the Turks and Caicos Islands.  Examples include the challenges brought against planning legislation seeking to permit 12-storey tourism development on areas of Grace Bay, Providenciales and the challenges which sought to clarify the extent of the constitutional powers and independence of the Director of Public Prosecutions.  The fact that these matters were brought before the courts in the first place and the respective court’s professional handling of these legal proceedings demonstrates the growth and development of our jurisprudence and that the rule of law remains alive and well in these islands.  One related issue that raises concern is the need to strengthen the role of an independent and professional media and the urgent need for better avenues for access by the public of information about what actually transpires within our courts.   Still to come will be the sole election petition arising from the December general elections.  That there is only one such petition evidences an imbedding of the strengthened legal framework surrounding elections.

Commercial Matters – My Lady, commercial matters of note which impacted our jurisprudence include the much debated development agreement for the Dessarollos 12-storey hotel development on Grace Bay, Providenciales which represents a shift to European plan hotels in the heart of our prime tourism area and raised issues surrounding the environmental protections enshrined in the Constitution and the requirements for adequate public consultation.  Development agreements were at the heart of other legal matters that resulted in important judicial pronouncements such as the pronouncements on the use of corporate structures in the Urban Development Ltd./North West Point action.

International – My Lady, the newly established International division seeks to more ably address the international obligations of the Turks and Caicos Islands and to provide more focused attention to those matters from a legal perspective.

The Turks and Caicos Islands assumed the role as 2016-2017 Chair of the Caribbean Financial Action Task Force in November 2016.  In that capacity, we took on a leading role in regional compliance efforts to combat money laundering and the financing of terrorism.  CFATF assessments are used by investment bodies to determine the viability of investments in a jurisdiction and to indicate the strength of the regulatory framework within the jurisdiction’s financial sector.  Beneficial interest transparency is key to the work being done in this area.  Public and Private sector cooperation will be vital to achieving compliance with current international standards.

Tax Information Transparency and Cooperation - The Turks and Caicos Islands is due to be assessed by the Global Forum on the exchange of tax information in 2017.  The establishment of a central registry in accordance with the Government’s action plan by the middle of 2017 will require the participation of all stakeholders, especially the legal profession.

Mutual Legal Assistance – The TCI is also working on a number of mutual legal assistance matters, including with the United States, Canada and Jamaica.  Negotiations are nearly completed to establish an asset sharing agreement with the United States (a TCI first). 

My Lady, it is fitting to take this opportunity to publicly recognize and applaud the continuing hard work and dedication of the various public offices which support the work of the court and in particular, the Social Development department, the Commissioner of Police and the members of the Royal Turks and Caicos Islands Police Force, the Director of Public Prosecutions and her team and the members of Her Majesty’s Prison Service.

Respect for the rule of law demands the fair and impartial enforcement of the law. Our constitution mandates at section 83 that “the judges and magistrates appointed to preside or sit in any court of the Turks and Caicos Islands shall exercise their judicial functions independently from the legislative and executive branches of government”.  The enforcement of the law without fear or favour is the cornerstone of the rule of law. Events like this one and the presence of key members of the executive and legislative branches of government bear witness of their awareness of and commitment to the constitutional mandate on “the Legislature and the Cabinet [to] uphold the rule of law and judicial independence, and [to] ensure that adequate funds are provided to support the judicial administration in the Islands”.

My Lady, as law officers, we stand in full support of the work of the court and wish you, my Lady Justice Joyner and my Lord Justice Schuster, the Honourable Magistrates, the Hon. Registrar and the entire judiciary a prosperous and productive New Year.

May the Almighty God abundantly bless our collective pursuits in 2017 and always.

I now formally move the motion for the opening of the Turks and Caicos Islands Supreme Court for the year 2017.

May it so please you my Lady.

Rhondalee Braithwaite-Knowles, OBE
Hon. Attorney General
11^th January 2017