Judge to FIU: Leave gun dealers’ bank details alone

FIREARMS dealers Brent Thomas and Hugh Leong Poi have been successful in their lawsuits against the Financial Intelligence Unit (FIU) over information it received from several financial institutions in 2022 on them and their dealerships.

The FIU’s director cannot use any of the financial information he received on the two and their companies, by court order. The FIU has regulatory responsibility for anti-money laundering and counter-financing of terrorism and falls under the Ministry of Finance.

The two questioned the constitutionality of the FIU's move around October 2022 to ask various institutions for financial information on some 35 individuals and 17 businesses associated with the legal firearms business.

They filed separate constitutional claims seeking several declarations and orders. Among those orders is the destruction of the information obtained by the FIU on them and their businesses, Specialist Shooters Training Centre and Sport Outlet Ltd. They argued that the request by the director of the FIU was ultra vires.

On July 26, Justice Marissa Robertson declared certain sections of the FIU Act and regulations to be unconstitutional in the absence of the director receiving a suspicious transaction report (STP) or suspicious activity report (SAR), and “not reasonably justifiable in a society that has proper respect for the rights and freedoms of the individual.”

Robertson also declared that sections of the FIU Act, the Proceeds of Crime Act and the Anti-Terrorism Act were unconstitutional.

Concerning Thomas and Leong Poi’s assertions, she declared that the FIU director's request for their financial information without an STP or SAR was also unconstitutional.

She further declared that the FIU director’s request was not authorised by law. She quashed the decision to make the request.

Robertson also granted an injunction restraining the FIU director from using any of the information he received on the two, since those requests were not based on an STR or SAR and were not in keeping with provisions of the FIU Act.

Thomas and Leong Poi had asked for the FIU to disclose a copy of each request, but the judge refused these.

In their claims, Thomas and Leong Poi contended that the FIU director must first receive a SAR or STR, analyse them, and assess that an offence has taken place or that proceeds of a crime may be located in the jurisdiction. They argued that failing to observe the conditions deprived them of the right to protection of the law. They also argued certain portions of the FIU Act and regulations gave rise to the risk of systemic unfairness, since the FIU Act was silent on the need for judicial oversight of the director’s powers.

In her ruling, Robertson said, “The notions of justice, fairness, the rule of law and the right to be protected from acts by the Government or public bodies which arbitrarily or unfairly deprive individuals of their basic constitutional rights require...a basis for their actions which tends to infringe those rights.

“In the absence of a basis the protections of the rights and freedoms are compromised and there is likely to be real and substantial prejudice to the aggrieved person.

“It is to be noted that in the absence of there being access to judicial or some other oversight, there is no prompt and effective legal remedy available to the aggrieved.

“In the circumstances of this case, the right to equal opportunity before the law, protection of the law and the right to procedural provisions as are necessary for the purpose of giving effect and protection to those rights are not sufficiently protected by the safeguards as outlined by the defendant in the FIU Act where requests are made in the absence of STRs and SARs.”

The FIU, she said, ought to have an STR or SAR before making such requests and the absence of either “would be unlawful.”

While she considered the public-interest aspect of the FIU’s role in preventing transnational crime and in the global financial system, including the repercussions of non-compliance with the Financial Action Task Force, the law did not allow the FIU director to make the requests he did.

“Provisions which permit the director of the FIU to issue requests in the absence of STRs and SARs infringe the adherence to the rule-of-law and the protection-of-law provisions which are expected in a society with respect for the rights and freedoms of others and are therefore unconstitutional.

“This is made clearer when it is noted that such requests would be made by the FIU without the knowledge of the person targeted and, therefore, no recourse is available to the person who is the subject of the request.”

In their defence, the State did not confirm there was a request or whether there was an STR or SAR.

In September 2023, another judge, Justice Devindra Rampersad, held that the FIU abused its power and acted unconstitutionally when it tried to access the private banking information of former police commissioner Gary Griffith and his wife Nicole Dyer-Griffith from several banks.

He also quashed the FIU’s requests and prohibited the director from using any information he might have already received.

Like Robertson, Rampersad said FIU director Nigel Stoddard acted in excess of his jurisdiction and the requests were an abuse of power.

In their claims, the men referred to the police’s audit into the issuance of firearm licences to members of the industry.

“The audit report painted the operations of the firearms department and the issuance of FULs (firearm user's licence) and FDLs (firearm dealer's licence) in a negative light and caused great agitation against members of the firearms dealers' industry in TT.”

They said after the leak of the audit report, Griffith became aware of a request the unit made to financial institutions concerning 52 individuals and companies associated with the legal firearms business in TT, including himself, his relatives, friends and professional associations.

They were represented by Fyard Hosein, SC, Aadam Hosein and Anil Maraj.

Gilbert Peterson, SC, Vanessa Gopaul, Brent James and Murvani Ojah-Maharaj appeared for the State.