Speeches

Attorney General's Chambers

Speech by the Hon. Attorney General Rhondalee Braithwaite Knowles OBE QC at the Special (Valedictory) Sitting of the Court of Appeal in honour of the retirement of the President of the Court of Appeal the Hon. Justice Sir Elliott Mottley KCMG, Q.C., LL.D

May it please you my Lord President of the Court of Appeal.

My Lord, with your leave, I recognize my Lady the Hon. Chief Justice of the Turks and Caicos Islands and wish to accept the protocol recognised by her in her speech.

My Lord, it is right and proper for a grateful nation to take the time to reflect on your the long and distinguished legal contribution to our Islands and to our Region. In this regard, I welcome and support the remarks made by our Honourable Premier this morning in her speech.

It is noteworthy My Lord that you have served no less than three of our sister Overseas Territories in Bermuda and Cayman along with our islands at the appellate level of the court and at critical times in the development of all of our jurisdictions; delivering landmark judgments across the Overseas Territories; and throughout the Region, having also served in the Courts of Appeal in Barbados and Belize as well. All of these appointments point to a strong and long legacy of enviable regional service which can be claimed by only a very few attorneys in our Region.

On the announcement of the 1999 White Paper Partnership for Progress and Prosperity: Britain and the Overseas Territories, it was said that –

“To ensure development is sustainable, we need to make sure that the basic pillars are in place.

These pillars were identified in the White Paper.

They are: good governance, including the rule of law; protection of the natural environment; and human rights.

Without this firm underpinning, sustainable development will not be achieved.”

My Lord, these words reveal the truth of the matter. We are products of a real struggle for economic growth and social development here in the Turks and Caicos Islands and also in the context of the wider Caribbean community. There is still the reality of continuing growth, of incompletion, of a continuing reach for an economic, social, cultural and fully developed conclusion by global standards even as Sister States and territories strive for greater integration and urgent cooperation, not only here in this region but around the world.

Each nation on its own is struggling to survive the debilitating forces of comity, of poverty and of social and economic divisiveness, in that struggle each country stands in urgent need of the input, the talent and the specifically disciplined capabilities of each of its citizens particularly its qualified youth who are trained to understand and to tackle and to conquer the challenges of this century.

This reality means that key stakeholders play central roles in achieving sustainable development in our beloved country. A key stakeholder is without doubt the Court of Appeal. As recognised by the former Chief Justice of these Islands My Lady Justice Ramsey Hale during the opening of the Legal Year in January and now repeated by our Governor His Excellency Nigel Dakin in his speech this morning - without a transparent, efficient and effective judiciary, willing to tackle some of the most challenging issues faced by our communities, the desired economic reality will not be achieved.

My Lord, your achievements over the past 17 years of judicial service in these islands are important steps toward making your contribution to the development of our country and are worthy of being honoured here today.

Over the 17 years of my Lord Justice Mottley’s tenure, the Turks and Caicos Islands Court of Appeal and the islands as a whole have benefited from your wit, insight, erudition and wisdom. The recitation of some of the landmark judgements cited by My Lady the Hon. Chief Justice Agyemang in her speech are but a few of the judgments that will ensure that the influence of my Lord Justice Mottley will long be felt in the continuing development of these Islands. It is noteworthy that in my Lord’s valedictory judgment after such a long and illustrious career spanning no less than 59 years, would be a guiding light into the modern era in that it establishes the precedent that the court should perform its functions and provides its services in a manner that ensures justice is done using the available technology or whatever tools are available to ensure the good and proper administration of justice and fairness are maintained in the public interest. 

Those of us who had the privilege to appear before you my Lord, over the years will fondly remember your good humour and patience and sometimes, impatience with our submissions. I can recall my first fumbly appearance before you in the Court of Appeal and your patient and wise guidance which have made a valuable contribution to the ongoing development of my own legal career. My Lord has certainly shaped the jurisprudential landscape of the Turks and Caicos Islands through your judgements but also for many of us at the Bar through your exemplary legal service. I feel a personal connection with him as my father is also from Barbados and upon learning of the retirement of Justice Mottley made a point of asking me to mention his good wishes.

My Lord, may I personally thank you for your contribution to these Turks and Caicos Islands and for your stellar service over our entire Region as detailed by Hon. Mr Justice Barnett, Chair of the Judicial Service Commission and by His Excellency the Governor Nigel Dakin in their speeches this morning. I want to thank you my Lord for your personal encouragement and wisdom and kindness shown to me in this office and as a member of the Bar. My Lord, I wish to thank, through you, your lovely wife Amor and your family for their sacrifice in giving you the necessary support to enable you to make such an outstanding commitment to these islands over the years.

Although we are marking your retirement my Lord, as one of our justices of appeal and as President, I understand that you will continue to be actively in private practice in Barbados and we therefore look forward to the rest of the story and to continued collaboration. As they say in the movies, to be continued.

May God bless you my Lord.

May it so please the Court.

Rhondalee Braithwaite-Knowles, OBE QC

Hon. Attorney General

7th December 2020

Providenciales, Turks and Caicos Islands

Monday 20^th January 2020

PRESS RELEASE

Joint press release from, His Excellency the Governor, Mr. Nigel Dakin, the Honourable Premier and Minister of Finance, Investment and Trade, Mrs. Sharlene Cartwright-Robinson and the Anti-Money Laundering Committee

CFATF finds that the TCI has made significant progress in its technical compliance but more work is required on effectiveness

In a Press Conference on Monday 20^th January 2020, His Excellency the Governor, Mr. Nigel Dakin, and the Honourable Premier and Minister of Finance, Mrs. Sharlene Cartwright-Robinson along with the Members of the Anti-Money Laundering Committee (“AMLC”) established under the Proceeds of Crime Ordinance (“POCO”), announced the publication by the Caribbean Financial Action Task Force ("CFATF") of their Mutual Evaluation Report into Anti-Money Laundering ("AML") and Counter-Terrorist Financing ("CFT") measures in the Turks and Caicos Islands (the "Report"). 

The CFATF evaluated the measures in place in the Turks and Caicos Islands as at the date of their onsite visit (September 2018).  The Report analyses the level of compliance with the Financial Action Task Force (FATF) 40 Recommendations, the level of effectiveness of the Turks and Caicos Islands' AML/CFT system, and provides recommendations on how the regime could be strengthened.

In general, the Report found that there are structural elements in place for an effective AML/CFT system, including that–

1. The TCI is politically stable and has demonstrated a high-level commitment in addressing ML/TF issues; and

2. The rule of law is effective, and the Judiciary is capable and independent.

The above structural elements for an effective AML/CFT system provide confidence to the business sector operating within the TCI and those interested in investing in the TCI that the Turks and Caicos Islands, as a member of the international financial community, is committed to implementing and maintaining an appropriate, effective, and risk-based framework and strategy.

The Report noted that the TCI has a fair understanding of its money laundering risks based on its National Risk Assessment, prepared in collaboration with the private sector and that since the last Mutual Evaluation in 2008, the TCI has progressively advanced its legislative framework to address gaps in the country’s AML/CFT framework.

An Anti-Money Laundering Committee established under POCO, and chaired by the Hon. Attorney General Rhondalee Braithwaite Knowles OBE QC (AMLC), coordinates Money Laundering/Terrorist Financing (ML/TF) risk assessments and national AML/CFT policies. In the months preceding the on-site visit, the TCI made a significant number of amendments to its AML/CFT laws and other subsidiary legislation and issued guidance notes. More than fifteen pieces of legislation were implemented. 

Technical compliance

The Report recognises that the legislative measures implemented by the TCI have significantly enhanced its technical compliance framework and the TCI has been rated Compliant on 15 recommendations, Largely Complaint on a further 9 and Partially Compliant on 16 of the 40 recommendations.

Effectiveness

Similar to the TCI, all countries around the world undergoing this 4^th round FATF Mutual Evaluations are confronting new standards on ‘Effectiveness Ratings’ and have experienced substantial challenges in ensuring that ‘sufficient progress’ is being made to comply with these newly introduced international standards. In terms of effectiveness, the TCI has achieved a moderate level of effectiveness for 6 Immediate Outcomes (IOs) and a low level of effectiveness for 5 others.    

Of the 9 countries assessed by the CFATF to date in the Caribbean region, the above ratings rank the TCI in 3^rd place, in terms of its technical compliance and in 3^rd place[1] in terms of its effectiveness, and demonstrates the efforts made by the TCI since its last assessment.

However, there is more work to be done as the Report noted that the AML/CFT supervisory regime is in need of further enhancement to ensure that Financial Institutions and Designated Non-Financial Businesses and Professions, such as the legal profession, dealers in precious metals, casinos and the real estate sector, implement robust risk based mitigating measures to effectively address ML/TF risks. A number of recommendations have been made to address the identified deficiencies.

The Hon. Premier and Minister of Finance, Mrs. Sharlene Cartwright-Robinson, in announcing the release noted that “The Turks and Caicos Islands has formally communicated a high level of political commitment and a willingness to address the deficiencies identified in the Report.  We note that there has been favourable recognition within international and regional organizations of the tremendous effort that the TCI has expended to meet the international standards. The TCI recognises that more work is required to enhance the effectiveness of our AML/CFT risk management framework and we intend to continue working collaboratively with the private sector to achieve our goal of a high level of compliance now that we have the benefit of the recommendations in the Report.”

HE the Governor Mr. Nigel Dakin, noted that “TCI’s AML/CFT risk management program is incorporated in the National Security Strategy recently approved by the Cabinet and assured that a programme of work is now being planned by the AMLC for Cabinet’s approval, to address the issues highlighted in the Report. With the strong and collaborative support of the private sector, it is intended that when the TCI provides its first follow up report to the CFATF in November 2020, significant progress can be shown to demonstrate the TCI’s high level of commitment.”

ENDS

Government Press Office

Waterloo Road, Grand Turk

Turks & Caicos Islands

Tel: (649) 338-3924/ 338-3925

Ext: 3924/3925

Email: This email address is being protected from spambots. You need JavaScript enabled to view it.

Web: gov.tc/pressoffice

We are on Facebook: www.facebook.com/pressofficetcig

Don’t forget to follow us on Twitter: https://twitter.com/TCIG_Press

Notes to Editor:

1. The members of the Anti-Money laundering Committee established under the Proceeds of Crime Ordinance are the Attorney General Hon. Rhondalee Braithwaite Knowles OBE QC (Chair); the Director of Public Prosecutions Eugene Otuonye QC., the Commissioner of Police Trevor Botting, the Collector of Customs Chawa Williams; the Managing Director of the Financial Services Commission Niguel Streete, and the Director of the Financial Intelligence Agency Dwayne Baker.

2. The Financial Action Task Force (FATF) is an inter-governmental body established in 1989. It currently comprises 37 member jurisdictions and 2 regional organisations, with participation by over 180 countries through a global network of FATF- style regional bodies, such as the CFATF. The objectives of the FATF are to set standards and promote effective implementation of legal, regulatory and operational measures for combating money laundering, terrorist financing and other related threats to the integrity of the international financial system.  The FATF is therefore a “policy-making body” which works to generate the necessary political will to bring about national legislative and regulatory reforms in these areas.

3. The FATF has developed a series of Recommendations that are recognised as the international standard for combating of money laundering and the financing of terrorism and proliferation of weapons of mass destruction. They form the basis for a co-ordinated response to these threats to the integrity of the financial system and help ensure a level playing field.  First issued in 1990, the FATF Recommendations were revised in 1996, 2001, 2003 and most recently in 2012 to ensure that they remain up to date and relevant, and they are intended to be of universal application.

4. The FATF monitors the progress of its members in implementing necessary measures, reviews money laundering and terrorist financing techniques and counter-measures, and promotes the adoption and implementation of appropriate measures globally. In collaboration with other international stakeholders, the FATF works to identify national-level vulnerabilities with the aim of protecting the international financial system from misuse. .

5. The CFATF is a FATF style regional body responsible for ensuring compliance within the Caribbean region. The CFATF’s Report on the Turks and Caicos Islands can be found at https://www.cfatf-gafic.org/documents/4th-round-meval-reports

6. Please refer to The FATF Recommendations 2012 and the FATF Guidance: National Money Laundering and Terrorist Financing Risk Assessment here:

The FATF Recommendations 2012 (October 2016 update) can be found at

http://www.fatf-gafi.org/publications/fatfrecommendations/documents/fatf-recommendations.html

FATF Guidance National Money Laundering and Terrorist Financing Risk Assessment can be found at

http://www.fatf-gafi.org/publications/methodsandtrends/documents/ml-tf-risks.html

[1] Ranked 3^rd in effectiveness along with the Cayman Islands and Trinidad and Tobago.

May it please you my Lady Chief Justice,

My Lady Justice Joyner,

I am pleased to rise once again at your invitation to move the motion for the traditional Opening of the Legal term for the Supreme Court of the Turks and Caicos Islands. 

My Lady with your leave, I would wish to recognize the presence of the specially invited guests –

HE the Acting Governor Mrs. Anya Williams

Hon. Premier Mrs. Sharlene Cartwright Robinson

Hon. Deputy Premier Mr. Sean Astwood

Hon. Ministers of Health Mr. Edwin Astwood

His Honour the Speaker of the House of Assembly Mr. Dwayne Taylor

Hon. Elected and Appointed members of the House of Assembly

Hon. Chief Magistrate Mrs. Tonya Loban-Jackson and other Hon. Magistrates

Madam Director of Public Prosecutions

President of the Bar Council and  other colleagues at the Public

and Private Bars

Acting Commissioner of Police Mr. Trevor Botting and senior ranks present

Superintendent of Prisons Mr. Steve Barrett

Canon Mark Kendall

Distinguished ladies and gentlemen all

At the opening of the legal term on 11^th January 2017, I remarked that as the service in Westminster Abbey where judges prayed for guidance at the start of the legal term, in these Islands, years ago, this tradition was marked by a church service and included the judiciary and attorneys walking through the streets back to the courts, that practice alternated between Grand Turk and Providenciales.  I urged my Lady Chief Justice to consider holding this year’s ceremonies on Grand Turk.  It therefore gives me great pleasure to rise this morning here in the nation’s capital of Cockburn Town, Grand Turk on this fourth year since my Lady has restored this important and meaningful tradition.

With my Lady’s leave, I propose in moving this motion, to reflect on 2017 as well as to make a few observations on some of the work before us for 2018.

My Lady, 2017 was a year tremendous challenge, especially following the two storms that ravaged our islands in September and caused so many to lose their lives along with the tremendous damage done across our region.  But, we are a resilient people.

My Lady, my Chambers legal staff compliment has grown from 9 to 12 by the introduction of three new counsel into our fold and one promotion.  I take this opportunity to welcome the three top candidates for the post of senior crown counsel following an open competition in Ms. Shayone Handfield Gardiner, Ms. Vanica Sobers Joseph and Ms. Libby Charlston whose appointments were somewhat overshadowed by the arrival of hurricanes Irma and Maria.  Each new Senior Crown Counsel has added tremendous value to the work of my Chambers since taking up their appointments particularly in respect of the civil, commercial and international divisions.  I take this opportunity to especially congratulate Mrs. Shayone Handfield-Gardiner on the successful completion of her master’s degree in international law.  Her achievements are a testament to her own strong work ethic and determination.  I am very pleased to welcome Ms. Chassidy Swan into my Chambers as Crown Counsel following her period of in service training and admission to the TCI Bar. Ms. Swan was also appointed to the post of Crown Counsel as the top candidate in open competition.  These appointments and promotions form part of my efforts at institutional strengthening and succession planning.  These officers have worked with due diligence and admirable determination in the performance of their duties and I am very grateful for the professionalism and comradery of all of my team in Chambers.   

My Lady, I am pleased to report that 2017 was yet another very active legislative year and with the cooperation and involvement of members of the legal profession, associations and the general public, the House of Assembly saw through to passage some 21 Ordinances whilst the executive made some 82 pieces of subsidiary legislation in accordance with the Government’s legislative agenda.  Whilst the elected Government and the public officers who work in the various Ministries and departments are to be credited for this laudable achievement, it is appropriate for me to also publicly recognize the tremendous efforts of my Legislative Drafting division for their commitment to the highest standards of professionalism and their willingness to go beyond the call of duty on many occasions to ensure that the Government’s agenda was delivered.

It is worth making special mention of some of these legislative initiatives in this setting –

The Companies Ordinance 2017 which will repeal and replace a 1981 Ordinance and modernizes the company law in the Turks and Caicos Islands.  It also establishes a beneficial ownership registry in the Islands.  It further establishes a better business environment for the incorporation of companies in the islands.

The Insolvency Ordinance 2017 establishes a new regime providing for the insolvency of companies, individuals and partnerships. The Ordinance is the result of extensive consultation with the Financial Services Commission and the industry, the first draft having been released for comments in December 2016 and finally passed in the House in December 2017.

Before this Ordinance, there has never been a personal insolvency regime or a regime for insolvent partnerships in the Turks and Caicos Islands.  The Ordinance empowers the Financial Services Commission (the Commission) to appoint an Official Assignee. This is an important development for the credibility of the Insolvency regime in the Turks and Caicos Islands, and the reputation of the Islands, that somebody or person has responsibility for acting as the liquidator of companies, and the trustee in bankruptcy of individuals, in cases where no licensed insolvency practitioner is willing or able to act. This will usually be the case if the insolvent company or individual has insufficient assets to fund the costs of the liquidation or bankruptcy. Without a liquidator and trustee of last resort, companies and individuals that dissipate or hide their assets would be unlikely to enter into liquidation or bankruptcy and would never be investigated. It is also important that there is a person or body with responsibility for investigating insolvencies where the public interest requires, even where an insolvency practitioner has been appointed. The Official Assignee fulfils these roles, as an officer of the Court and with a right of audience before the Court for directions.

The Insolvency Ordinance also establishes a regime for the licensing, regulation and supervision of insolvency practitioners by the Commission. Insolvency is a specialised and technical area of work. If insolvencies are handled incompetently or fraudulently, it is likely that the interests of creditors will be adversely impacted and the reputation of the Islands will be damaged. In the circumstances, only individuals licensed by the Commission as insolvency practitioners will be able to act in most of the insolvency proceedings established under the Ordinance. Recognising that international companies operate outside the Islands, the Ordinance allows foreign insolvency practitioners to act, but only jointly with a licensed insolvency practitioner.

The Ordinance also establishes a new administration procedure for companies as an alternative to liquidation. The administrator, who must be a licensed insolvency practitioner, unlike a liquidator, has the power to trade the company with a view to rescuing it or obtaining a better outcome for creditors, for example by selling the business as a going concern. The principle difference between an administrator and a supervisor is that an administrator takes over the management of the company from the directors.

Additionally, Receivership in the Islands is currently governed principally by common law. The Ordinance codifies the common law provisions and makes specific provision for administrative receiverships in respect of the property of a company. Insolvency Rules that will contain the detailed procedures necessary to support the Ordinance are currently being finalised.

The Rehabilitation of Offenders Ordinance was enacted in 2014 and has been in force since 1 August 2014. Since its enactment, there has been uncertainty amongst stakeholders and the users of the legislation on the interpretation of certain provisions. In particular, clarity of section 3(c) of the Ordinance was required, as issues arose, amongst others, whether a person who was convicted and sentenced during the rehabilitation period of his first conviction is excluded from rehabilitation.

The uncertainty of the above provision in addition to the absence of forms and regulations to be used by the Police for police clearance certificates and guidelines to explain the Ordinance has hampered the effective implementation of the Ordinance.

In an attempt to address the issue of the requisite guidelines, my Chambers produced draft of the Rehabilitation of Offenders Guidelines in June 2016 and those guidelines have been the subject of lengthy consultation amongst the relevant stakeholders for comments and feedback. A review of the Ordinance was made and this necessitated the passage of the Rehabilitation of Offenders (Amendment) Ordinance 2017, the making of the Rehabilitation of Offenders Order and an update of the draft guidelines. Valuable feedback was received from the relevant stakeholders including the Police, the Judiciary, the Office of the Director of Public Prosecutions and the Bar Council and Association.

In December 2017, the Rehabilitation of Offenders (Amendment) Ordinance made further provisions for rehabilitation by clarifying the entitlement to rehabilitation and providing for the applicable rehabilitation periods. The amendment also introduced the provisions for the process of application of criminal records certificate and explicitly set out the types of certificate to be issued, dependent on what the criminals records are required for.

The Amendment Ordinance clarified section 3 of the principal Ordinance so that a person is excluded from rehabilitation if he or she commits another offence and is convicted and sentenced during the rehabilitation period of a previous unspent conviction. The Bill also provides further provisions of the applicable rehabilitation period where a person has more than one sentence imposed on a conviction.

In the year ahead, work on a number of important initiatives continues, including new Gaming Control provisions to demonstrate the Government’s strong commitment to a well-regulated, transparent gaming industry that serves the best interests of the people of the Islands. The Government has been developing and revamping the regulatory environment of the gaming Industry for some time and the new provisions would seek to make the regulatory environment consistent with international standards for best practices, which are also tailored to meet the specific needs of Islands. The Government intends to propose a regulatory structure which will provide a strong basis for business investment, job creation and the promotion of tourism. It will ensure that gaming is conducted responsibly, that protections are in place for the vulnerable and the industry is a strong financial contributor to the continuing development and success of the Islands.

Other changes include improvements to the liquor licensing regime and our planning laws.

The Turks and Caicos Islands has completed a successful year as chair of the Caribbean Financial Action Task Force leaving that organization better off for its stewardship, particularly as it relates to its governance structures.  The Turks and Caicos Islands has commenced its mutual evaluation process by the Caribbean Financial Action Task Force.  The CFATF assessments are used by investment bodies to determine the viability of investments in a jurisdiction and to indicate the strength of the regulatory framework within the jurisdiction’s financial sector.  Beneficial interest transparency is key to the work being done in this area.  Public and Private sector cooperation will be vital to achieving compliance with current international standards.

The establishment of a central registry in accordance with the Government’s action plan which is now underway requires the participation of all stakeholders, especially the legal profession.

I always like to take the opportunity to highlight the importance of respect for the rule of law.  These ideals are alive and well here in the Turks and Caicos Islands and the presence of members of the executive and legislative branches showing strong support for the work of the judiciary is a testament to their commitment to working closely with and ensuring the viability of our courts systems throughout the islands.

My Lady, as law officers, we stand in full support of the work of the court and wish you, my Lady Justice Joyner, the Honourable Magistrates, the Hon. Registrar and the entire judiciary a prosperous and productive New Year.

May the Almighty God abundantly bless our collective pursuits in 2018 and always.

I now formally move the motion for the opening of the Turks and Caicos Islands Supreme Court for the year 2018.

May it so please you my Lady.

Rhondalee Braithwaite-Knowles, OBE

Hon. Attorney General

10^th January 2018