Judge: Leave Gary’s banking information alone

The content originally appeared on: Trinidad and Tobago Newsday

Gary Griffith –

FORMER police commissioner Gary Griffith and his wife Nicole Dyer-Griffith, a former parliamentary secretary, have emerged victorious in a claim which challenged the lawfulness of the request by the Financial Intelligence Unit (FIU)’s acting director, Nigel Stoddard, for information on their accounts from several financial institutions.

On September 11, Justice Devindra Rampersad quashed the FIU acting director’s requests and prohibited him from using any information he may already have received.

He said Stoddard acted in excess of his jurisdiction and the requests were an abuse of power.

“It seems more than just coincidental that the claimants may have been singled out for investigation by the FIU through the request for information (redacted portion) shortly after the published criticisms of the first claimant in his role as Commissioner of Police at the relevant time.”

He said there was no doubt that Griffith and his family were singled out after questions arose relating to the granting of gun licences.

“Whether it was done legitimately through police investigations, leading to a production order under the Proceeds of Crime Act, or by the FIU of its own volition, has not been established on the evidence and the court would be unwilling to speculate on this regard.

“It is this court’s respectful view that the FIU has to be careful as to how it gets involved. No doubt, there are processes open to investigating police officers to follow up their investigations and get the appropriate orders for inspection of bank accounts and other information where necessary. The FIU ought to be careful that it is not drawn into that investigative fervour inappropriately.”

In their claim, the couple contended that Stoddard did not have any suspicious transaction or suspicious activity report (STR and SAR) from any financial institution on them on the basis of which to make such requests.

They said they were concerned the request was part of a “continued pattern” of unjustified attempts to use the State’s apparatus to “undermind the character and national reputation of Mr Griffith.”

In his ruling, Rampersad declared that the requests – which asked for details of accounts, balances, customer due-diligence information and wire-transfer details – were not authorised by law, since they were not based on the Griffiths’ having a STR or SAR against them.

The Griffiths were also successful in their claim for constitutional relief.

The judge’s decision was only released over the weekend so that portions of it could be redacted. His decision prohibits the dissemination of his unredacted judgment and carries a penalty of contempt of court. He has also ordered the file to be sealed by the registrar of the Supreme Court.

The Griffiths’ claim was filed in January. Newsday reported on it in April.

The Griffiths’ claim says on October 28, 2022, the former top cop received information from an anonymous source that the FIU had asked financial institutions for information on him and his wife as well as other people and entities – 52 in all.

The claim said the Griffiths became concerned that state apparatus was being used in what appeared to be an “illegitimate manner” and in an apparent “witch hunt” with the hope of getting information to tarnish his name and reputation. It referred to newspaper articles concerning the withdrawal of the merit list by the then Police Service Commission chairman; the firearms audit of the police service; some relating to gun licences; the launch of Griffith’s National Transformation Alliance party; his top-cop application; and five containing statements made by the Prime Minister.

The Griffiths claimed the move was “politically linked.” However, the judge said he could not find evidence to support this. He also declined to order compensation, saying granting orders and declarations would be a sufficient remedy.

The FIU is a department of the Ministry of Finance, the judge pointed out in his analysis of the FIU Act. He also said it had to be careful how it initiated an investigation.

“The concern that the court has, however, is if there was no STR or SAR, then how would the FIU become interested in the claimants’ bank information?

“They could not randomly have selected the claimants out of the one-million-plus inhabitants of Trinidad and Tobago.”

Acknowledging that Stoddard, because of the FIU Act, was “hamstrung” by the oath of secrecy he took, and could not confirm or deny there was a STR or SAR, or the veracity of the document given to Griffith by a whistleblower, the judge said he was not moved to consider the merits of the FIU acting director’s decision not to disclose the information to the court.

It was for this reason that he restricted the information on the facts of the case and ordered the file sealed.

“What can be reported would be the court’s finding and determination with respect to the way in which section 8 (3)(a) is meant to operate and its constitutionality as discussed.”

That section gives the FIU director the power to obtain private banking information from a financial institution or listed business.

However, the judge ruled that the failure of a “trigger,” then the exercise of section 8(3)(a) would be arbitrary and potential abuse of power which could not be reasonably justified by a court.

“Therefore, this court is of the respectful view that any exercise of a request for information under section 8 (3) (a) without an STR or an SAR would be unconstitutional.”

The Griffiths were represented by attorney Larry Lalla, SC, and Shivanand Ramoutar. Stoddard was represented by Gilbert Peterson, SC, Vanessa Gopaul, Fazana Ali and Michelle Benjamin.