A couple of
statutory interpretation questions were answered in Beezadhur v The Independent Commission against Corruption & Anor
(Mauritius) [2014]
UKPC 27 (7 August 2014), one unanimously, the other not.
The relevant
provisions were s 5 of the Financial and Anti-Money Laundering Act 2002
[Mauritius], which prohibited transactions in cash above a fixed amount but
subject to exemptions, and s 2 which defined exempt transactions in terms
which, relevantly here, included the phrase “lawful business activities”. This
legislation has, since the result of this case in the Mauritius Supreme Court,
been amended by omitting the reference to “business” [4].
The Board
agreed that the defendant had the burden of proof at trial on the issue of
whether a financial transaction came within a statutory exception to liability,
applying the long-recognised [26] policy that this should be no particular
hardship because the information would be readily available to the defendant
[32], applying R v Johnstone [2003] 1 WLR 1736
para 50 per Lord Nicholls.
The other
issue, the meaning of “business” in the relevant statutory exemption, in
particular the phrase “the transaction does not exceed an amount that is
commensurate with the lawful business activities of the customer”, drew a
dissent from Lord Kerr. He favoured a liberal construction, to give a wider
exemption, consistently with the shift of the burden of proof to the defendant
[39], [40]. The majority held that the policy of the legislation required
exemptions from liability to be construed narrowly [22], [23].
This raises,
we might think, a more general question: should legislative action, taken
before a case has completed its appeal process, to remedy what has been
revealed in the lower court to be an unintended consequence of the original
enactment, be taken into account in interpreting the original provision for the
purposes of the final appeal?
It was
accepted [37] that the defendant’s (appellant’s) four deposits, which were retirement
savings, were from legitimate sources and his one withdrawal was also for
legitimate purposes, and the Board noted that there was no reason to believe
that he thought he had broken the law. The legislation was new and it was not
clear to what extent it had received publicity. The Bank, it seemed, should
have alerted him to the requirements of the Act, and for unknown reasons the
Bank had not also been prosecuted. Although there was no appeal against
sentence (which had been fines on each of the five counts), the Board indicated
that a non-penal disposal could properly have occurred.
