Commonwealth constitutional protection of Human Rights — The perspective of British Overseas Territories (BOT or BOTs)

By Joseph Archibald QC

1. There are at least 14 current British Overseas Territories (“BOTS”) namely:

  1. Anguilla
  2. Bermuda
  3. British Antarctic Territory
  4. British India Ocean Territory
  5. British Virgin Islands (“the BVI”)
  6. Cayman Islands
  7. Falkland Islands
  8. Gibraltar
  9. Montserrat
  10. Pitcairn Islands
  11. Saint Helena
  12. South Georgia and the South Sandwich Islands
  13. Sovereign Base Areas of Akrotiri and Dhekelia
  14. Turks and Caicos Islands

2. Economic prosperity in BOTS in new partnership relationship with the UK

2.1 Advances in Human Rights in the BOTS are consistent with the new partnership relationship between the UK and the BOTS since 1999 and the growing financial and economic relevance of the BOTS in the context of globalisation and in the universal quest for public and corporate good governance and the highest quality of legal and judicial practices.

2.2 As for the UK/BOTS new partnership a recorded starting point may well be the UK White Paper published 17 March 1999 entitled “Partnership for Progress and Prosperity: Britain and the Overseas Territories” in which the foreword by the Foreign Secretary the late The Right Honourable Robin Cook stated:

“Britain welcomes the economic prosperity and development built up by many of the Overseas Territories. Some are among the world leaders in the financial industry. We want those overseas territories with financial industries to operate and regulate them to internationally accepted standards. This will enable Britain to meet its own international obligations. It will ensure that we put up a common front against fraudsters, tax evaders, money launderers, regulatory abuse and the drugs trade. Any by doing so, we will be securing the future strength of the financial industries of Britain and the Overseas Territories and safeguarding the global financial system …..”

And the Appendix to this White Paper about the BVI stated:

“The financial services sector in the BVI has been growing rapidly in the recent years and now generates half of total government revenue. The BVI specialises in international business companies and is believed to have a dominant share of around 45 percent of the global market for this product…..”

2.3 The Economist weekly for 24 February – 2 March 2007 (www.economist.com) published at page 19 the concern in the USA about financial centres as part of globalisation and observed that:

“”On February 17h three American senators3 including Barack Obama, a Democratic presidential candidate, introduced the Stop Tax Haven Abuse Act. The senators claim that tax havens – small jurisdictions that draw offshore money through business-friendly rules and low (or no) taxes on non-resident business – drain the Treasury of $100 billion ayear3 over a third of America’s annual budget deficit. “This is a basic issue of fairness and integrity3” said Mr Obama. “

The same issue of The Economist published a 14-paged insert as a Special Report on Offshore Finance as of 24 February 2007, and specifically particularised Bermuda, the BVI and Cayman Islands at page 4 in “The Very Rich List” of 15 countries, reproduced here as follows:


2.4 World Bank during the Year 2008 published a book entitled “Small States, Smart Solutions – Improving Connectivity and Increasing the Effectiveness of Public Services”. with emphasis on Directions in Development – Public Sector Governance, by its Editor Edgardo M Favaro ISBN 978-0-8213-7460-3 (Internet http://www.worldbank.org). At page 102 the book comments in part on the Eastern Caribbean Supreme Court with jurisdiction in six sovereign states of Antigua & Barbuda, Dominica, Grenada, St Kitts &: Nevis, St Lucia, St Vincent & The Grenadines and three BOTS Anguilla, the BVI and Montserrat (“the ECSC”) as follows:

“A new commercial division is to be established as part of the ECSC to take into account the growing volume of complex commercial cases, particularly from the British Virgin Islands.  The BVI, with a population of 23,000, has about 750,000 offshore companies registered, which account for 48 percent of all offshore companies in the world. One-sixth of foreign investment in China is by companies registered in the BVI. One lawyer remarked that many foreign litigants “don’t want to litigate in their home countries, but they do have confidence in the ECSC.” There has been a more than 1,000 percent increase in civil cases in the BVI. This demand for specialization has led to a proposal for the High Court to function differently, with the senior commercial judge to reside in the British Virgin Islands. Such a commercial division is seen in the BVI as integral to its success as a world-class financial renter. An added benefit would be that judges would have the opportunity to specialize and then take that experience to other courts in the region; cross-fertilization of experience has been a positive outcome of the regional court.”

2.5 Updated Note: The commercial division of the ECSC became established at the site of a new Court House in Tortola, BVI on 30 October 2009 with facilities and equipment equal to those of the modem commercial courts of London and New York, and has been kept very busy with world-wide work) with regular practice by the very top Chancery commercial Counsel of London and the British Virgin Islands in particular. The Commercial Court Judge, Mr Justice Edward Bannister QC, a former top Chancery QC of London, has delivered every Judgment in writing within thirty days of the close of every hearing however complex, complicated or voluminous.

3. New fundamental rights declared in a BOT Constitution

3.1 A vital question today is concerned with the sources of new fundamental rights and freedoms enforceable by the Courts. An answer given in the BVI is this: Where the electorate demands it, let the legislators take the necessary steps for constitutional change to include the new fundamental rights and freedoms of the individual in a Constitution. The Virgin Islands Constitution Order 2007 made in the UK Parliament provides such new rights and freedoms in its sections 9 (Fundamental rights and freedoms of the individual), 22 (Protection of the right to education) and 29 (Protection of the environment) in Chapter 2 under the rubric of “Fundamental Rights and Freedoms of the Individual”.

3.2 No case has yet been brought claiming the right to an education under the Constitution.

3.3 Updated Note: However) judicial review proceedings in unreported BVI Court of Appeal Case No. 21 of 2009 entitled Quorum Island (BVI) Limited v The Virgin Islands Environmental Council and the Minister of Planning ended with a Judgment of 12 August 2011, and Quorum’s successful Counsel Mr Gerard St C Farara QC of the BVI (who had been Chairman of the BVI Constitutional Commission whose work gave rise to the BVI Constitution 2007) considers that while the Constitutional Section 29 Protection of the Environment was not a direct issue in the litigation, the Court and litigating Counsel (including Mr Stephen Hockman QC of the UK who represented the Virgin Islands Environmental Council) considered that the Section 29 Protection contemplates that the Legislature will enact statutory provisions to specify the protective measures.

4. Human right to a BOT nationality?

4.1 The right to a native nationality appears to be an important human right; but judicial pronouncement from the Privy Council in the UK is to the effect that there is really no BOT citizenship but rather British citizenship in respect of a person belonging to a BOT. See Thompson v Bermuda Dental Board (2008) 73 WIR 122 – 135 PC.

5. Freedom of expression illustrated

5.1 The fundamental freedom of expression was vindicated in Anguilla under Section 11{1) of the Constitution of Anguilla in Beniamin and Others v Minister of Information and Broadcastin_ and Another (2001) 58 WIR 171 – 187. The Privy Council Judgment of 14 February 2001 delivered by Lord Slynn ofHadley outlined that the Government of Anguilla owned and controlled Radio Anguilla, the only secular radio station operating in the country. Following a commitment by the political parties to free broadcasting, a programme was introduced in 1994 in which members of the public could telephone their comments which were broadcast as part of the programme. In 1997, the programme dealt with a particularly sensitive political issue, and the Government suspended the programme without prior discussion with its host (the first appellant). The first appellant and two others (both regular listeners and contributors to the programme) applied to the court for a declaration (inter alia) that the first appellant’s right of freedom of expression had been contravened (s. 11(1) of the Constitution), as had all the appellants’ rights under ss. 11 (1). Saunders J held that the suspension of the. programme constituted a contravention of the appellants’ freedom of expression under s 11(1). On appeal to the Court of Appeal, the court reversed the judge’s decision at first instance and the appellants appealed to the Judicial Committee.

5.2 The following paragraphs of the Privy Council Judgment are telling:

“49. It seems to their lordships that the motive of the Government in closing the programme in the present case is a relevant factor in deciding whether there was a contravention of s 11. This is not a case where the Government, as owners of the radio station, felt that the programme had ceased to have sufficient audience participation OT appeal. Nor is it a case where there had been intended from the beginning a limited series or period. As long as people were not criticising the Government on sensitive issues, it appears that the Government was content for the programme to continue. The Government -controlled media must, however, like the Government, comply with s 11 just as must any other citizen, subject always to sub-s (2) thereof.

50. …. The Government did in fact stop the expression of views in a radio station which the Government owned and controlled and on a programme which, following an election promise, it initially wished to set up until it became inconvenient to the Government.

51.  As the judge found, there was here an arbitrary or capricious withdrawal of a platform which had been made available by the Government.

56.  Their lordships will accordingly humbly advise Her Majesty that the appeal of the appellants be allowed in respect of the contravention of s 11 (1) of the Constitution of Anguilla, the respondents to pay the appellants their costs before the judge_ the Court of Appeal and before their lordships’ Board.”

6. Fair trial in criminal cases an overriding imperative

6.1 Modern BOT Constitutions in pursuance of the rule of law contain specific provisions to secure protection of law if any person is charged with a criminal offence, and the emphasis is on a fair hearing within a reasonable time by an independent and impartial court established by law, with safeguards of the presumption of innocence, prompt information in detail of the nature of the offence charged in a language that the accused person understands, with adequate time and opportunity for preparation of defence, with the right of the accused to appear alone or with a lawyer and to challenge prosecution witnesses, and where necessary to be tried by a jury with the right in any event not to incriminate himself/herself. There are other safeguards but the real emphasis is on a fair trial.

6.2 The fair trial emphasis is an ancient one (St Paul asserted his rights as a Roman citizen under arrest in the first century A.D. – The Acts 22: 25); but in modern times it has been spelt out in a variety of ways, in much the same way as the mareva injunction has mushroomed in the modern world.

6.3 The following cases illustrate how the BOTS have created the events which have assisted the globalisation of the fundamental human right to a fair hearing in all criminal trials from the lowliest magistrate’s court to the highest national and international courts.

  1. In Randall v R (2002) 60 WIR 103 – 122, an appeal from the Cayman Islands, the Privy Council considered the appeal from conviction after a trial lasting 41 days before a judge and a jury. The appellant was convicted on four counts of theft and one count of obtaining a valuable security by deception and was sentenced to four and a half years imprisonment. Orders for payment of compensation ofUS$500,OOO were made under each of counts 2 and 5 with a consecutive sentence of six months imprisonment in default of payment. He appealed on several grounds including prosecutorial misconduct during the trial. Lord Bingham of Cornhill delivered the Judgment of the Privy Council on 16 April 2002 and gave in paragraphs 10 and 11 perhaps the most profound outline of the uncompromising requirements for the fairness of a criminal trial including “…there can never be any justification for bullying, intimidation, personal vilification or insult or for the exchange of insults between counsel …” Lord Bingham stressed in paragraph 11 of the Judgment as follows:

“It cannot be too strongly emphasised that these are not the rules of a game. They are rules designed to safeguard the fairness of proceedings brought to determine whether a defendant is guilty of committing a crime or crimes conviction of which may expose him to serious penal consequences. In a criminal trial (as in other activities) the observance of certain basic rules has been shown to be the most effective safeguard against unfairness, error and abuse…”

  1. In Benedetto v R: Labrador v R (2003) 62 WIR 63 – 97. an appeal by USA citizens from murder conviction and sentence of life imprisonment in the BVI, the Privy Council Judgment of 7 April 2003 was delivered by Lord Hope of Craighead. The appellant Labrador advanced a ground that there was prosecutorial misconduct by way of xenophobic and inflammatory remarks by prosecuting counsel and use of inadmissible material. The Privy Council disagreed with the Court of Appeal’s view that Labrador’s appeal against the jury’s verdict of guilty should be sustained for the reason that the prosecutor’s language was robust but respectful speech.

Lord Hope of Craighead stated at paragraph 54 of the Judgment as follows:

“…But the defendant has an absolute right to a fair mat as the Board explained in Randall v R (2002) 60 W1R 103 at 120. If the departure from good practice is so gross, or so persistent or so prejudicial as to be irremediable, an appellate court will have no choice but to hold that the trial was unfair and quash the conviction.”

6.4 The BVI case of Arthurton CEnol) v R (2004) 64 WIR 129 – 140 PC as finally determined by the Privy Council Judgment of 22 May 2004 once more emphasised the essentials of a fair trial by way of giving effect during the trial to the legal good character of an accused person. In this trial for the offence of sexual abuse of a child where the central issue was whether the child complainant should be believed and the defence relied on the good character of the accused as showing that he was unlikely to have committed the offence, the Privy Council held that it was asking too much to expect that a jury would give fair consideration to an affirmative good character propensity direction by the trial judge when they have been told (albeit inadvertently) of a suspicion of similar offending; even if they were able to put the prejudicial disclosure out of their minds when considering the question of guilt as established by the other evidence, the accused’s character is likely to be treated as irrelevant and the accused would effectively be deprived of the good character direction. Dame Sian Elias delivered the Privy Council Judgment stating in paragraphs 29 and 33 as follows

“29.  The central issue for the trial was whether the complainant was to be believed. The appellant’s good character was critical to that inquiry. It entitled him to a credibility direction in respect of his statement denying intercourse with the child complainant and to a direction that his good character was relevant in assessing the likelihood that he would have offended in the way alleged. Although the judge gave these ‘directions, as she was required by law to do, the evidence that the appellant had been arrested on suspicion of similar offending on another occasion bore directly on the issue of propensity. As such, it directly undermined the propensity limb of the good character direction and with it a major plank in the defence case. The disclosure here was far more serious than the unspecific references in Weaver and Palin.

33.  It is impossible to conclude that there has been no miscarriage of justice as a result. The Crown case depended entirely on the evidence of the complainant. Credibility was critical. The good character of the appellant and the direction it required as to credibility and propensity was the fundamental plank in the defence. It was undermined by disclosure of information which was of no probative value. None of the steps taken at trial to address the prejudice caused were effective. The Board is left with the view that the trial was unfair and the convictions cannot stand. The Crown does not seek a new trial The Board will humbly advise Her Majesty that the appeal should be allowed and the convictions quashed.”

6.5 I trust that this relatively concise perspective of BOTS should persuade its readers that the Constitutional Protection of Human Rights in the BOTS is a credit to the vigilance of the dedicated jurists who in their several ways incrementally but profoundly continue to maintain and advance the cause of Human Rights throughout the Commonwealth and the World.

Abridgment of An Address by Dr. Joseph S. Archibald Q.C. of the British Virgin Islands Bar at the Ritz Carlton Hotel in Montego Bay, Jamaica on the occasion of the Commonwealth Lawyers Association 25th Anniversary Conference on Sunday, 19 October 2008.

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