Saturday, August 16, 2014
A defendant's liability for Parliament's mistake
A couple of statutory interpretation questions were answered in Beezadhur v The Independent Commission against Corruption & Anor (Mauritius)  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” .
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  policy that this should be no particular hardship because the information would be readily available to the defendant , applying R v Johnstone  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 , . The majority held that the policy of the legislation required exemptions from liability to be construed narrowly , .
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  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.