As the Privy Council sat to deliberate on the MedPoint case this week, Weekly speaks to Elizabeth Howe, former Chief Crown Prosecutor England and Wales, former General Counsel of the International Association of Prosecutors and currently President of the International Legal Assistance  Consortium, who has kindly accepted to attend the proceedings at the Privy Council in person in view of shedding light on it in this interviw. We ask her about her first-hand impressions of what happened in at the Privy Council, what the mood was like within the chamber and where the case is likely to go from here.  

This is the first time a sitting prime minister has a case before the Privy Council. What are the implications of that?
The allegations refer to a time when the respondent was vice prime minister and minister of finance and economic development in Mauritius. The fact that he is currently prime minister will be irrelevant to the determination of the court. However the appellant (the director of public prosecutions for Mauritius) has called for the  Judicial Committee of the Privy Council to reinstate the conviction of the Intermediate Court and reflect on the sentence imposed (which was 12 months imprisonment, with an alternative of community service). A review of the sentence could mean that an alternative sentence might  be imposed which may in turn have an impact upon the respndent in his capacity as prime minister. All this is highly speculative.

What was the atmosphere at the Privy Council like during the proceedings? 
The atmosphere was very professional and convivial. The proceedings are quite informal, as always in the Privy Council. Advocates and judges do not wear robes nor wigs (some did not realise and had to hastily disrobe). The respondent was not present and the only oral representations were from David Perry QC for the appellant and Claire Montgomery QC for the respondent, both very experienced and well regarded senior counsel from London. The court chamber was full, as there were a number of lawyers from Mauritius supporting each party as well as representation from the Independent Commission Against Corruption (ICAC) who are co-respondents. Lord Kerr (who was effectively presiding) commented when he entered the courtroom that it was unusually crowded. All the seats in the public gallery were taken. I sat next to a Mauritian medical doctor who resides in the UK and had taken a day off work ‘to see Justice Done’. 

In a nutshell, what were the arguments used? 
The appellant focused upon the mischief that the Prevention of Corruption Act was designed to address and made reference to the report of the Select Committee on Corruption which was laid before parliament in 2001 which highlighted that the country required a clear, coherent and complete strategy in order to overcome the problem of corruption. The provision under which the respondent had been convicted is set out as follows:

2) Where a public official or a relative or associate of his has a personal interest in a decision which a public body is to take, that public official shall not vote or take part in any proceedings of that public body relating to such decision.

It was the contention of the appellant that this provision (subject to establishing a guilty mind on behalf of the person involved in making the decision) created an absolute offence with no exceptions and that the requirement of a benefit or a ‘quid pro quo’ was not necessary to complete the offence. The offence was designed to restore public confidence in circumstances where the populace in Mauritius were of the view that corruption and bias infected all aspects of government and that the perception of bias was as pernicious as the actuality.

When do you think we should expect a ruling? 
The committee has reserved judgement.The  appellant is to make  further written submissions to reflect his response to the respondent’s case which  included some new arguments. The respondent  in turn has a right to respond in writing. That exchange is expected to be completed within a week after which the committee will consider its judgement. This could take one or two months. There may be some dissension which may mean it may take longer than ususal. Further, the Privy Council has been asked to provide guidance upon the interpretation of the Prevention of Corruption Act 2002, particularly those provisions which have been engaged in this case, principally section 13. The The Judicial Committee expressly recognised the importance of the case and the interest it had generated in Mauritius and so will give the matter very careful and considered attention.

The Independent Commission against Corruption made written presentations to the Judicial Committee of the Privy Council pleading in favour of the prime minister who is accused of conflict of interest by the commission itself. What effect did that have or is likely to have?
The ICAC  as a co respondent adopted a somewhat equivocal stance in respect of the merits of the appeal. Their written case drawn by their counsel cast doubt upon the sustainability of two grounds of appeal, i.e. whether the respondent’s sister or the company she had shares in did in actuality have  a personal interest in the decision that was made by the Respondent.

Is it normal for an institution that investigated the case in the first place and submitted it to the DPP to turn around and be ‘neutral’?
I understand that they altered their position since the hearing at the Supreme Court, which may have come as a surpise to the appellant, given that they were the original investigating authority.

Some people are saying that after the proceedings, we should know which way the law lords will lean. I’m not asking for a statement that would be considered a contempt of court but did you give any idea what the verdict is likely to be?
It is always difficult to assess these matters. Certainly, before the lunchtime adjournment, the members of the committee were asking some taxing questions of David Perry for the appellant, particularly in relation to the critical issues in the case, namely did the respondent’s sister have a personal interest in the decision of the respondent regarding reallocation of payment and  if she did have a personal interest (as a shareholder as distinct from the company), what was his state of knowledge in respect of that and what test of fault/mens rea should be applied. However, after the lunchtime adjournment, a slight shift may have been apparent. However, no reliance should be placed upon this perception.

The prime minister may well win his case and we would go back to business as usual. What do you think would happen if he is found guilty, having exhausted all the recourses and having rejected the possibility of community service?
What does the constitution say? Is there immunity for prime ministers for acts committed in public office? If so, does it have retrospective effect to acts committed before he was PM? What are provisions if any re impeachment?

What would be the implications of the verdict upon our legislation in general?
The judgement will undoubtedly come with guidance upon the interpretation of the legislation. One of the respondent’s arguments was that the interpretation of what constitutes a ‘personal interest’ as distinct from corporate identity should be determined on a ‘case by case’ basis. This was vehemently resisted by counsel for the appellant as such a pronouncement could result in a plethora of cases. Counsel for the appellant asked the committee to consider the following proposition in considering its judgement: ‘Would the construction they were being invited to adopt provide a means of evading the statute?’

What does that mean in layman’s terms?
in other words, if the arguments submitted by the respondent were adopted by the Judicial Committee of the Privy Coincil, would this dilute the purpose of the Prevention of Corruption Act in addressing corruption or the perception of corruption within Mauritius?

Which scenarios are likely to happen? 
Can’t say-but the Judicial Committee of the Privy Council will, I suspect, be loathe to overturn a verdict unless there are compelling reasons. Their main purpose will be to clarify the law and offer interpretive guidance.

*The views expressed in this interview are the author’s personal views and do not engage the institutions she is associated with.