Titan International Services Inc. v The Attorney General and Financial Intelligence Unit
| Jurisdiction | Belize |
| Judge | Abel, J. |
| Judgment Date | 21 January 2016 |
| Court | Supreme Court (Belize) |
| Docket Number | 700 of 2014 |
| Date | 21 January 2016 |
Supreme Court
Abel, J.
700 of 2014
Mr. Godfrey Smith, SC, Mr. Eamon H Courtenay, SC, and Ms. Iliana Swift for the claimant
Ms. Anika Jackson, Solicitor General, Ms. Samantha Matute and Ms. Marcia Mohabir for the 1st defendant
Mr. Fred Lumor, SC, and Mrs. Lenny Ysaguirre McGan for the 2nd defendant.
Constitutional Law - Fundamental rights and freedoms — Right to protection from arbitrary search — Unlawful and/or interference with privacy — Warrant authorised — Striking a balance — Whether Section 18 of the Mutual Legal Assistance and International Co-operation Act authorised the magistrate an officer to take “other persons” other than the authorised authors to effect the search and seizure — Reasonable safeguards made any search and seizure carried out under a warrant issued — Balance between protecting the interests of the individual; the individual's right against arbitrary search and interest of public in law enforcement — Consideration of Thanh Long Vu v. Her Majesty The Queen and the AG of Ontario et al [2013] 3 R.C.S 657 — Reasonableness of the scope and terms of search warrant granted by a magistrate — Consideration of Aleksanyan v. Russia (app 46468/09) and Reg v. IRC Ex p Rossiminster — Question of evidence of the seizing of items unconnected with the indictment — Consideration of AG of Jamaica v. Williams [1997] 3 W.L.R. 399 — Limiting scope of search warrant under the Act — Consideration of R v. Energy Financing Team Ltd. and Others v. Director of Serious Fraud Office [1997] 1 All E.R. 942 — Guidelines set out to limit the scope of search warrant — Whether the search and seizure of the property was unlawful as being disproportionate and in excess of statutory authority where the Request had disclosed evidence implicating the Claimant in alleged offences — Whether the warrant was valid and lawful warrant where the officers of Financial Intelligence Unit were authorised by the warrant which rendered the warrant bad and in excess of the powers of the magistrate to grant but the bad part of the warrant could be severed — Whether the police had all constitutional and legal right and authority in accordance with Section 18 of the Mutual Legal Assistance and International Co-operation Act to carry out the search of the offices and seizure of property pursuant to the warrant — Role of Financial Intelligence Unit — Whether the officers of financial intelligence unit were agent of Government of Belize during the search and seizure and whether their actions were lawful where the members of the Financial intelligence unit were there pursuant to the request of the Attorney General to lend their expertise to the search and seizure — Whether the items constituted evidence of offences as required by the Act where the powers exercised went beyond the power to search conferred by the Act — Whether the search and seizure was executed contrary to the rights against arbitrary or unlawful interference with its privacy where the search and subsequent events abused the authorisation granted to search the premises and seize items in the premises in the manner — Whether indiscriminate removal of all files, records and computers of the Company and effective shut down of the offices was disproportionate and in excess of any statutory authority to search and seize evidence in aid of foreign court proceedings — Property seized — Whether the Company was entitled to an injunction information of the chain of custody of items seized — Entitlement to damages — Consideration of Maharaj v. Attorney General of Trinidad and Tobago (No. 2) [1978] 22 All E.R. 670 — Fair market value — Whether an ward of vindicatory damages should be awarded — Finding that the warrant of search and seizure where it authorised the members of the Financial Intelligence Unit to present was bad — Finding that the bad part of the warrant could be severed — Finding some of the records were incapable of constituting evidence of the offences alleged in the Request — Finding that the search was executed in an unreasonable and excessive manner — Finding that the indiscriminate removal of files and effective shut down of the files were disproportionate — Ordering that the location of all records must be delivered — Order for damages for breach of constitutional rights — Sections 9, 14 and 20 of the Belize Constitution — Sections 18 and 26 of the Mutual Legal Assistance and International Co-operation Act
This is an application for Administrative orders by the claimant, an international business company, which was licenced in Belize as a securities broker/dealer (“Titan”).
The claim has been brought against the defendants, two public bodies, the Attorney General, representing the Government of Belize (GOB), and, the Financial Intelligence Unit (“the FIU”). The latter was established under the Financial Intelligence Act [Cap. 138.02 Revised Edition Laws of Belize.] to carry out certain statutory responsibilities including to fight against international crime.
The claim relates to the search of Titan's business premises in Belize on the 9th September 2014 and the seizure of its property, resulting, so it is claimed by Titan, in the shutdown of its business.
The search and seizure was carried out under the Mutual Legal Assistance in Criminal Matters (MLAT) and Mutual Legal Assistance and International Cooperation Act [No. 18 of 2004 Laws of Belize.] (“the Act”).
The present claim for administrative orders has been brought for judicial review and for relief under the Constitution in relation to the way in which the whole search and seizure operation took place, but principally for damages for what Titan claims was the unlawful shutdown of its business which resulted from a police and FIU's (sting) operation.
The central issue for determination by this court is whether the entire operation, was tinged in any way with unlawfulness or illegality.
Whether the search and seizure of Titan's property [Under Section 18 of the Mutual Legal Assistance and International Cooperation Act, No. 18 of 2014 Laws of Belize] is unlawful (as being disproportionate and in excess of statutory authority) and/or was unconstitutional [As being in violation of Titan's fundamental rights under Sections 3, 6, 9 and 14 of the Constitution of Belize]?
The following questions arise under this heading:
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(a) Is the Act Constitutional?
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(b) Was the Warrant a valid and lawful warrant of a Magistrate of Belize?
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(c) Who carried out the search and seizure, was it the police alone or did it include officers of the FIU?
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(d) What was the role of the FIU (were they agents of the GOB) and was its actions in any way unlawful?
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(e) Whether items seized constitutes evidence of offences as required by the Act?
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(f) Was the search carried out in excess of legal authority?
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(g) Whose property was searched?
Whether Titan is entitled to the reliefs claimed including the injunction and any damages?
On the 8th September 2014 a twenty (22) page indictment was unsealed in the USA (“the Indictment”).
The Indictment charged Titan and Mr. Kelvin Leach (the President of Titan), with being involved in a conspiracy and implicated in a fraudulent scheme with one Robert Bandfield and his related Companies, and other persons in the USA, to evade taxes; and also of being involved in securities fraud, money laundering and other alleged fraudulent transactions. The allegations arose from an undercover operation in Belize.
By a twenty seven (27) page Request for Assistance under the Act, the US Department of Justice [Criminal Division, Office of International Affairs.] on the same day made an urgent request for the assistance of the AG in relation to the Indictment (“the Request”).
The Request was to have Titan's offices searched, “as quickly as possible to prevent the destruction of evidence”, and alleged that “a substantial amount of client information is held in hard copy files and on computers” in the office of Titan, and asked that the Request be kept confidential.
Facts were outlined and alleged in the Request as well as certain details including the need to search Titan's offices for “further evidence”.
The Request expressly stated that the documents needed included “any and all documents or other evidence (in copy or original) seized during the execution of search warrants”. The procedure to be followed was also specified.
Pursuant to the Request, the AG agreed to provide the assistance in short order, in its entirety, and to conduct the search of Titan's office; and to “seize any and all documents and information in hard copy or electronic form” relating to Titan.
The assistance involved arranging to make an application to a Magistrate for the obtaining of a Warrant (a draft of which was prepared in the terms of the Request), and if obtained, for the subsequent search of Titan's premises by way of a speedy and highly confidential operation.
The AG immediately informed the Belize Police Department in writing to apply to the Magistrate for the warrant to execute the planned search and seizure.
Sometime on the same day, presumably before the search commenced, the FIU also received from the AG a letter in which the AG requested the FIU's assistance in order to effectively carry out the Request.
On the same day, a Corporal of the Police Department appeared before a Magistrate, for a Search and Seizure Warrant; not only in relation to Titan but also in relation to some three (3) other entities.
All of the applications took under one hour and a Warrant was granted by the Magistrate in terms of the prepared draft.
The Magistrate issued the Search Warrant solely on the strength of the Request to a Superintendent “and...
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