Attorney General v Pierre Falcone

¶ ```html <table> <tr> <td>IN THE GRAND COURT OF THE CAYMAN ISLANDS</td> </tr> <tr> <td>CAUSE NO. 10 OF 2003</td> </tr> <tr> <td>IN THE MATTER OF AN APPLICATION BY THE ATTORNEY</td> </tr> <tr> <td>GENERAL PURSUANT TO THE PROCEEDS OF CRIMINAL CONDUCT</td> </tr> <tr> <td>LAW (2001 REVISION)</td> </tr> <tr> <td>AND IN THE MATTER OF PIERRE FALCONE (DEFENDANT)</td> </tr> <tr> <td>************</td> </tr> <tr> <td>Transcript of Ruling delivered by</td> </tr> <tr> <td>The Honourable JUSTICE WENDERSON on the 2nd day of</td> </tr> <tr> <td>December 2003, in George Town, Grand Cayman.</td> </tr> <tr> <td>************</td> </tr> <tr> <td>APPEARANCES:</td> </tr> <tr> <td>On behalf of the APPLICANT: MS. C. RICHARDS</td> </tr> <tr> <td>MS.</td> </tr> <tr> <td>S. LOOK</td> </tr> <tr> <td>On the RE</td> </tr> <tr> <td>AK:</td> </tr> </table> ```
```markdown # CHAMBERS COMMENCED ON TUESDAY, DECEMBER 2ND, 2003 AT 2:36 P.M. ## THE COURT: The Attorney General applies, at the instance of France, for a restraint order. The respondent has appeared to oppose the application, and requests that I decide a preliminary question. The respondent argues that the court has no jurisdiction, in the circumstances I will outline, to grant the requested relief. He says the French proceedings have not progressed to the stage that our law would permit the court to consider granting a restraint order. The respondent is under active investigation in France for several allegedly serious offences. He has not yet been charged formally with any of those. Some of the offences would, if committed in the Cayman Islands, amount to money laundering. The respondent also alleges to have been involved in money laundering in the Cayman Islands. He has not, however, been charged with any offence in this jurisdiction. (CAUSE NO. 10 OF 2003 02/12/03 kam) ```
The application is brought under section 10 (1) of the Proceeds of Criminal Conduct Law (2001 revision). The court's jurisdiction to grant restraint orders of this sort is wholly statutory. The power is limited in a temporal sense by certain provisions found in section 9. Section 9 (1) is the relevant section here. It reads as follows: "The powers conferred on the Grand court by sections 10 (1) and 11 (1) are exercisable where (A) proceedings have been instituted against the defendant for an offence to which this law applies; (B) the proceedings have not been concluded; and, (C) either a confiscation order has been made, or it appears to the court that there are reasonable grounds for thinking that confiscation may be made in them." The question before me is whether there is any evidence from which I could infer that
```html <table> <tr> <td>1</td> <td>"proceedings have been instituted" against this</td> </tr> <tr> <td>2</td> <td>respondent in France.</td> </tr> <tr> <td>3</td> <td>The enforcement of external orders, as</td> </tr> <tr> <td>4</td> <td>this is, is governed by Part 3 of the law.</td> </tr> <tr> <td>5</td> <td>Section 31 (1) provides:</td> </tr> <tr> <td>6</td> <td>"That the Governor-In-Council</td> </tr> <tr> <td>7</td> <td>may, by order, (A) designate</td> </tr> <tr> <td>8</td> <td>countries and territories</td> </tr> <tr> <td>9</td> <td>outside the Islands to whose</td> </tr> <tr> <td>10</td> <td>external confiscation orders and</td> </tr> <tr> <td>11</td> <td>proceedings this law shall,</td> </tr> <tr> <td>12</td> <td>subject to subsection 2, apply;</td> </tr> <tr> <td>13</td> <td>(B) specify appropriate</td> </tr> <tr> <td>14</td> <td>authorities within designated</td> </tr> <tr> <td>15</td> <td>countries that are to give</td> </tr> <tr> <td>16</td> <td>effect to the provisions of this</td> </tr> <tr> <td>17</td> <td>law in relation to external</td> </tr> <tr> <td>18</td> <td>confiscation orders and to</td> </tr> <tr> <td>19</td> <td>related proceedings; and,</td> </tr> <tr> <td>20</td> <td>(C) specify in respect of</td> </tr> <tr> <td>21</td> <td>ed count</td> <td>rt</td> <td>ation</td> </tr> <tr> <td>22</td> <td>designe steps</td> <td>1 appl tc</td> </tr> <tr> <td>23</td> <td>at</td> <td>from ic</td> </tr> <tr> <td>24</td> <td>court for an external</td> </tr> <tr> <td>25</td> <td>confiscation order) that need to</td> </tr> <tr> <td>be taken there to amount to an</td> </tr> </table> ``` *(Cause No. 10 of 2003 02/12/03 kam)*
The Governor-In-Council has responded to the authority bestowed upon him by section 31 (1) by promulgating an order which was gazetted April 30, 2001 -- Gazette number 8, Supplement number 12. That order contains a Schedule with three columns. The first contains a list of designated countries. The second contains a list of the relevant authority in each of those countries. The third is headed "point at which proceedings for an offence are instituted". In that third column, with respect to each country, the order sets out a description of what steps are minimally required for the court to conclude that proceedings for an offence have been instituted in the country in question. With respect to France, the description in column three reads "when an application has been made to a court for an external confiscation order". That is essentially superfluous in the Schedule. We already know, by reference to section 31(1)(c), that an application to a court for an external
```markdown confiscation order in France would amount, for our purposes, to evidence that proceedings for an offence have been instituted in that country. The real question addressed by the Schedule (or which should be addressed by the Schedule) is what step or steps preliminary to an application to a court for an external confiscation order will, in the circumstances pertaining in that country, allow us to conclude that proceedings have been instituted there for an offence. By way of illustration, I note that the entry with respect to Switzerland reads "when proceedings for an offence are brought before an examining magistrate." There are a number of other descriptions of steps, such as those applicable to Australia and the United Kingdom, which establish (I am paraphrasing here) that proceedings will be taken to have instituted in those countries where aid is sought. The Schedule is not entirely consistent. For example, the charging regime is essentially the same in Canada as in Australia and in the United Kingdom. ``` *(CAUSE NO. 10 OF 2003, 02/12/03, kam)*

¶ [1] United Kingdom, yet the column entry for Canada

¶ [2] makes no reference to the charging process but

¶ [3] simply repeats that proceedings will have been

¶ [4] instituted there when an application has been

¶ [5] made to the relevant court for an external

¶ [6] confiscation order.

¶ [7] Miss Richards, quite properly, concedes

¶ [8] that the express language of column 3, as it

¶ [9] pertains to France, cannot be said to apply

¶ [10] here. No application has been made in France

¶ [11] to the relevant court, which is the

¶ [12] Correctional Court, for an external

¶ [13] confiscation order.

¶ [14] What has happened in France is this: The

¶ [15] matter has been placed in the hands of an

¶ [16] investigating magistrate who is conducting what

¶ [17] I infer to be a relatively long and complex

¶ [18] investigation into a series of commercial

¶ [19] transactions. When that magistrate has

¶ [20] concluded his task, he will provide his final

¶ [21] report to the prosecutor, and the prosecutor

¶ [22] will decide whether to charge the respondent

¶ [23] on the basis of the evidence presented to him,

¶ [24] whether a charge should be laid against the

¶ [25] respondent or not. If one is laid, criminal proceedings (CAUSE NO. 10 OF 2003 02/12/03 kam)

¶ [1] will be instituted in the Correctional Court,

¶ [2] at which point there may be an application for

¶ [3] an external confiscation order. Miss Richards argues that the language in

¶ [4] the Schedule is not meant to be exhaustive.

¶ [5] She argues that the Court may read past the

¶ [6] description (with respect to France) in the

¶ [7] third column and ask itself what other steps

¶ [8] might be taken in France which would satisfy

¶ [9] this court that proceedings have been

¶ [10] instituted. In my view, the answer to this question

¶ [11] requires only an application of the traditional

¶ [12] and well-known principles of statutory

¶ [13] interpretation. The draughtsman of the order has clearly

¶ [14] taken into account that there will be differing

¶ [15] regimes in different countries, and has clearly

¶ [16] set out that in some, but not all, countries

¶ [17] the process of laying a charge or,

¶ [18] alternatively, proceedings be

¶ [19] brought before an

¶ [20] (as is the case in Switzerland) will ground this court with

¶ [21] jurisdiction. In the case of other countries, such as

¶ [22] (CAUSE NO. 10 OF 2003 02/12/03 kam)
Austria, Belgium, Brazil, Canada, Denmark, Finland and France, the draughtsman has confined himself to saying that proceedings will only be taken to have been initiated when the statutory precondition found in section 31(1)(c) is satisfied. I do not think I am justified in reading anything of the sort suggested into the Schedule with respect to France. It may well be that the French criminal justice system bears marked similarities to that in Switzerland. There may be little reason to differentiate the processes in the two countries. Nevertheless, the Schedule is free of ambiguity. I must give it its natural and plain meaning. Clearly, the draughtsman intended that, if the situation presented to me had arisen in Switzerland, the court could proceed to make a restraint order. He has also, clearly, taken the view that if the proceedings bexaminin tr onducting or proceefore th e invest magise d in France, as they are here, I must wait until application has been made to the relevant court in France for an external confiscation order. (CAUSE NO. 10 OF 2003 02/12/03 kam)

¶ [1] I see no justification for reading the Schedule in any other way.

¶ [2] For these reasons, the application is dismissed for want of jurisdiction.

¶ [3] I wish to make two further comments.

¶ [4] First, the respondent has placed in evidence the opinions of certain members of the Attorney General's Chambers including, remarkably, the opinion of Miss Richards, counsel acting for the Attorney General on the present application. I do not consider that such material is appropriate for my consideration on an application of this sort. I have paid no heed to the content of those opinions.

¶ [5] Secondly, it is not easy to discern why such a clear distinction would be made between various western European nations whose criminal justice systems may be similar in the relevant aspect under consideration here. It may be thought appropriate for the Attorney General to review this Order.

¶ [6] The Court of Appeal has held that the Attorney General is not bound by the opinion of the Attorney General's Chambers.

¶ [7] The Attorney General is not bound by the opinion of the Attorney General's Chambers.

¶ [8] The Attorney General is not bound by the opinion of the Attorney General's Chambers.

¶ [9] The Attorney General is not bound by the opinion of the Attorney General's Chambers.

¶ [10] The Attorney General is not bound by the opinion of the Attorney General's Chambers.

¶ [11] The Attorney General is not bound by the opinion of the Attorney General's Chambers.

¶ [12] The Attorney General is not bound by the opinion of the Attorney General's Chambers.

¶ [13] The Attorney General is not bound by the opinion of the Attorney General's Chambers.

¶ [14] The Attorney General is not bound by the opinion of the Attorney General's Chambers.

¶ [15] The Attorney General is not bound by the opinion of the Attorney General's Chambers.

¶ [16] The Attorney General is not bound by the opinion of the Attorney General's Chambers.

¶ [17] The Attorney General is not bound by the opinion of the Attorney General's Chambers.

¶ [18] The Attorney General is not bound by the opinion of the Attorney General's Chambers.

¶ [19] The Attorney General is not bound by the opinion of the Attorney General's Chambers.

¶ [20] The Attorney General is not bound by the opinion of the Attorney General's Chambers.

¶ [21] The Attorney General is not bound by the opinion of the Attorney General's Chambers.

¶ [22] The Attorney General is not bound by the opinion of the Attorney General's Chambers.

¶ [23] The Attorney General is not bound by the opinion of the Attorney General's Chambers.

¶ [24] The Attorney General is not bound by the opinion of the Attorney General's Chambers.

¶ [25] The Attorney General is not bound by the opinion of the Attorney General's Chambers. ``` ```latex \documentclass{article} \usepackage{amsmath} \usepackage{geometry} \geometry{a4paper, margin=1in} \section{Introduction} I see no justification for reading the Schedule in any other way. For these reasons, the application is dismissed for want of jurisdiction. I wish to make two further comments. \subsection{First Comment} First, the respondent has placed in evidence the opinions of certain members of the Attorney General's Chambers including, remarkably, the opinion of Miss Richards, counsel acting for the Attorney General on the present application. I do not consider that such material is appropriate for my consideration on an application of this sort. I have paid no heed to the content of those opinions. \subsection{Second Comment} Secondly, it is not easy to discern why such a clear distinction would be made between various western European nations whose criminal justice systems may be similar in the relevant aspect under consideration here. It may be thought appropriate for the Attorney General to review this Order. \section{Conclusion} The Court of Appeal has held that the Attorney General is not bound by the opinion of the Attorney General's Chambers.