What's Happening

At the October 2024 Plenary, the FATF announced its first Regional Bodies’ Guest Initiative. The objective is to increase the voice of countries from FATF-Style Regional Bodies (FSRBs) that have none or few FATF countries as members. The Cayman Islands was one of the first two jurisdictions, along with Senegal, that were invited to participate in the Initiative. FATF President, Ms. Elisa de Anda Madrazo, made the announcement on October 23^rd, 2024, during her inaugural Plenary and Working Group Meetings in Paris.

Under this Initiative, the Cayman Islands and Senegal will participate directly in meetings and Working Groups for one year. It is part of a broader objective to strengthen cohesion in the global network and represents significant progress on FATF’s priority to increase its inclusivity and broaden the diversity of perspectives at the FATF.

At the meeting, the Cayman Islands was represented by the Deputy Premier and Honourable Minister for Financial Services and Commerce, Mr. André Ebanks, the Honourable Attorney General Mr. Samuel Bulgin and four others in the delegation. Minister Ebanks stated that “this is a profound moment for the Cayman Islands as we have been invited to participate in FATF proceedings at the behest of the new FATF President.” He further added, “for the Cayman Islands to have its own seat at the FATF table and be recognised as a country capable of having a presence alongside the likes of G20 countries, speaks volumes of our current international standing. It also speaks volumes of the considerable steps taken by the FATF towards inclusivity and diversity. We express sincere gratitude to FATF President de Anda [Madrazo].”

At a pre-plenary meeting between the Cayman Islands delegation and the FATF President and her team, the Honourable Attorney General expressed his thanks to the President on behalf of the jurisdiction. He observed that whilst it was a gesture in recognition of the Cayman Islands, it also reflected very well on the CFATF and its members. He pledged the Cayman Islands’ continued leadership in enhancing the work of the global network within the region.

In addition to Minister Ebanks and Attorney General Bulgin, the Cayman Islands was represented by the Head of the Anti-Money Laundering Unit within the Attorney General’s Chambers, Mr. Francis Arana; Cayman Islands Monetary Authority’s (CIMA’s) Managing Director, Ms. Cindy Scotland; Head of CIMA’s Anti-Money Laundering Division, Ms. Judiann Myles; and Director of the Regulatory Affairs Unit within the Ministry of Financial Services and Commerce, Ms. Andrea Proctor.

Photo: Members of the Cayman Island and Senegal delegations with FATF President, Ms. Elisa de Anda Madrazo

The 16th Council of Ministers and Steering Group Meetings were held from October 2nd to 4th, 2024 in Miami, Florida. These Meetings focused on several key matters and decisions, such as securing the CFATF's financial stability and sustainability and preparations 5^th Round of Mutual Evaluations. The CFATF Chair and Director of the Financial Intelligence Unit of Aruba, Mr. Angelo Brete, the CFATF  Executive Director, Ms. Dawne Spicer, Deputy Executive Directors, Mr. Wendell Lucas (in-person) and Mr. Héctor Sevilla (virtually) and Chief Operating Officer, Ms. Magdalene Walcott were in attendance.

The Ministers present (picture below) were the Honourable Minister of Finance of Aruba, the Honourable Minister of Finance of Curaçao, a representative of Honourable Minister of Finance of Jamaica, the Honourable Minister of Justice from Suriname and the Honourable Attorneys General of Grenada, the Virgin Islands, Belize, the Grand Cayman, Barbados, St. Vincent and the Grenadines, The Bahamas, Dominica, Turks and Caicos Islands, St. Lucia and Trinidad and Tobago. Venezuela participated virtually in the Meetings.

Having now fully satisfied the action plan given by the Financial Action Task Force (FATF), the Cayman Islands is eligible to be removed from the list of countries the FATF is monitoring for deficiencies in their anti-money laundering and countering the financing of terrorism (AML/CFT) regimes, subject to successful completion of an onsite visit by the FATF.

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Introduction

It was submitted by the parties to the claim, the Jamaican Bar Association (JBA) and the General Legal Council (GLC), that certain aspects of AML/CFT regime¹ of Jamaica, as it related to Attorneys-at-Law, erodes the essential confidentiality of the lawyer-client relationship and is incompatible with the Constitution of Jamaica, thus putting the continued integrity of legal professional privilege (LPP) at risk. The ability of Jamaican citizens to obtain reliable legal advice and representation rests on LPP.

The JBA is a company incorporated in Jamaica whose members are Attorneys–at–Law and whose objectives are (among other things) to promote the interests of attorneys in Jamaica. The GLC is the statutory body in Jamaica responsible for regulating the legal profession.

Litigation History

The JBA brought a claim seeking declaratory relief, injunctive relief, and other constitutional redress against the Attorney General and the GLC. On 4 May 2017, the Full (Constitutional) Court of Jamaica dismissed the JBA's claim and declared that the AML/CFT regime was constitutional. The JBA appealed. On 30 July 2020, the Court of Appeal of Jamaica allowed the JBA’s appeal in part. The Court of Appeal considered that certain of the provisions which form the AML/CFT regime contravened the Charter of Fundamental Rights and Freedoms whereas other provisions were valid and lawful. With leave of the Court of Appeal, the GLC and the Attorney General appealed to the JCPC.

Facts

Paragraphs 2 and 3 of the Proceeds of Crime (Designated Non- Financial Institution[DNFI]) ² (Attorneys -at-law) Order 2013, defined Attorneys-at-law as NFIs because of certain activities they engaged in on behalf of any client which fell within any the following six categories of professional services: (a) purchasing or selling real estate; (b) managing money, securities or other assets; (c) managing bank accounts or savings accounts of any kind, or securities accounts; (d) organizing contributions for the creation, operation or management of companies; (e) creating, operating or managing a legal person or legal arrangement (such as a trust or settlement); or (f) purchasing or selling a business entity as reflected by FATF Recommendation 22.

Being designated as an NFI meant that Attorneys-at-Law were subject to the relevant provisions of the Jamaican Proceeds of Crime Act (POCA). The GLC has previously argued that the inclusion of Attorneys-at-Law in the regulated sector gave rise to additional obligations (over and above any which currently apply) which impact on the general duties of confidentiality owed by attorneys to their clients and their duty to preserve the privilege of their clients not to disclose certain communications.

The JBA considered that the duties imposed by the AML/CFT regime upon Attorneys-at-Law are unconstitutional because, inter alia, they undermined legal constitutional rights to liberty [s.13(3)(a) and s.14 of The Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act, 2011, privacy (including LPP) [s. 94 POCA-Suspicious Transaction reporting obligation] and protection from search of property [s. 91A POCA - inspection].

The JBA focussed its challenge on those provisions of the AML/CFT regime which, it says, violated for them or for their clients the guaranteed rights of privacy, liberty and freedom from search.

JCPC Judgment

The JCPC heard the appeals on November 29 and 30, 2022 and declared on February 9, 2023 that the AML/CFT regime of Jamaica does not contravene constitutional rights of attorneys and clients.3 Therefore, the decision of the Full (Constitutional) Court of Jamaica upholding the relevant AML/CFT legislation as it applies to Attorneys-at-Law should be restored.

Footnotes

1 The Jamaican statutory regime to combat money laundering is comprised of primary legislation, secondary legislation, and non–statutory guidance.

2 Equivalent to the FATF definition of Designated Non-Financial Businesses and Professions (DNFBPs).

3 The Attorney General (Appellant) v The Jamaican Bar Association (Respondent) (Jamaica); The General Legal Council (Appellant) v The Jamaican Bar Association (Respondent) (Jamaica) [2023] UKPC 6
On appeal from The Court of Appeal of Jamaica