Conflicts of Interest: An Interesting Retrospective

An older story. The case of the defrauded investors, and Sinel's battle to get them compensation. What is interesting is the same themes arising, with regard to (1) the bias of the internal press (2) conflicts of interest with regard to the Bailiff's position (3) the dismissive kind of remarks that the Bailiff made then to the defrauded protestors.

I would note in fairness that the site in question tends to take a very polemic view against the Channel Islands as "tax havens" which I personally do not subscribe to. However, Sinel's letter is specifically related to a specific case, and improving the judicial system.

It also highlights in detail (I only give snippets, check the link for Sinel's letter the conflicts of interest which occur without a separation of powers. We hear a lot about it being important. This letter is important because it details what can happen - and did happen - if there is no separation of powers.

The JEP

Sinel addressed the matter of "free speech" and the media. He complimented the professionalism of the "external" media, but accused Jersey's only daily paper, the Jersey Evening Post, of not being objective and "points out that it is controlled by Senator Frank Walker, Chairman of the bank regulatory committee (the FEC/FSC) which, not surprisingly in Jersey, is also responsible for the promotion of the island's finance industry. "

The Bailiff

Among the many judgments and remarks he has given against the interests of the defrauded investors in the Cantrade Fraud, The Bailiff once dismissively referred to them as "a small band of protestors".

http://visar.csustan.edu/aaba/sinel1.htm

Sinel's letter on the subject notes:

It has long been the hallmark of civilised societies that the legislature and executive are kept completely isolated from the judiciary. It is not necessary for me to explain to you or any of the recipients of this letter why we need and indeed should have had a long time ago a separation of powers. It is perhaps easy for people in our position to assume that the public neither know nor care why this should be so. I am not a politician, however, 1 have had the opportunity over the last few years to discuss with many ordinary members of the public the defect in the Island's constitution to which 1 have just referred. Vernon Tomes had a landslide victory at the penultimate Senatorial hustings; one of the main planks of his election campaign was the separation of the judiciary from the legislature. One of the most important functions of the English judicial system is to prevent the oppression of the people by the government, clearly it cannot do so or be seen to do so where the very same individuals sit astride both horses, this is a very real matter of concern to ordinary litigants.

Then he gave a clear example of how this conflict of interest played out:

When the Finance and Economics Committee decided not to investigate Cantrade, a decision (which it has since maintained notwithstanding the fact that Cantrade has been convicted of criminal offences in relation to its forex dealings), it sought and obtained advice from the Attorney General. The Attorney General not only apparently advised the FEC not to investigate citing in part the fact that it would be a major undertaking to investigate a subsidiary of the Union Bank of Switzerland" but he continued to give advice to the Finance and Economics Committee whilst at the same time overseeing the purported investigation and prosecution of Cantrade in respect of the Plaintiffs' allegations of criminal offences arising from precisely the same facts which gave rise to the Plaintiff s request to the Finance and Economics Committee to investigate the activities of Cantrade.

The Attorney General's conflict of interest was at that stage at least to the Plaintiff's minds manifest and apparent. The continued attempted exculpation of the Finance and Economics Committee by the Attorney General is believed by the Plaintiffs', many of their investors and certain other third parties to have formed at least part of the motivation behind his alleged failure to prosecute inter alia Cantrade and its officers adequately or at all.

When the Plaintiffs' pointed out what they perceived to be the Attorney General's conflict of interest they were informed that in future the representation of the Finance and Economics Committee would be undertaken by the Solicitor General. Whatever comfort the Plaintiffs' might have derived from this development was rapidly negated by the actions of the Solicitor General which proved beyond per adventure, that not only was there no attempt at a Chinese wall internally, but that the files maintained by the Attorney General in relation to the prosecution of inter alia Cantrade were available to the Solicitor General who made free use of the information there available for the general purpose of defending the Finance and Economics Committee's failure to investigate Cantrade and for the specific purpose of attempting to demonstrate that the Plaintiffs' allegations of criminal malfeasance by Cantrade and Young were questionable.


Mr Hamon, whose name also crops up in connection with informal advice given to Jack Hydes in the Jervis-Dykes case, also makes an appearance, he read the minutes of a confidential meeting between Sinel's clients and the police:

I turn now to the actions of the presiding Judge Mr Hamon on that same date. Not only did Mr Hamon allow the Solicitor General to read aloud the minute of the meeting of 12th September 1995, but having had the origins of that minute explained to him, he went on to publicise same by including that minute in his written judgment. The Plaintiffs' and their advisers still fail to comprehend how this publication facilitated in any way the administration of justice. At that same hearing, Mr Hamon told the Plaintiffs' counsel [i.e. me], that 1 could not make submission which involved criticisms of the Attorney General and the discharge by him of the functions of his office.


Finally, Sinel comments on the Bailiff making a speech which also showed how the conflict of interest played out:

The culmination of the Plaintiffs' disquiet was a series of recusal applications founded initially upon the absence of a separation of powers and subsequently upon the content of a more than unfortunate speech given by the Bailiff to the Society of Chartered and Certified Accountants, on the 16th day of November 1996.

In a country where there was a de facto separation of powers it would have been inconceivable that such a speech would have been given by a sitting judge. One can argue as to what exactly the speech meant but the facts are undeniable. Namely that a sitting judge opined publicly in relation to criticism made of the Island, by Plaintiffs' in proceedings before its Courts, which proceedings were founded upon the same substantive facts which gave rise to the criticisms made of the Island. One can see why the head of Jersey's legislature might make such a speech but no judge should have done so.