Court hears appeal over FIU’s request for Griffiths’ bank info

The Court of Appeal has begun hearing appeals filed by Financial Investigations Unit (FIU) director Nigel Stoddard and the Attorney General against a High Court ruling that found the FIU acted unconstitutionally in an attempt to access private banking information of former police commissioner Gary Griffith and his wife Nicole Dyer-Griffith.

The appeal also challenges a similar ruling in favour of Dwight Andrews, managing director of The Security Zone and a former adviser with the National Security Ministry, with the two matters now consolidated.

Justices of Appeal Mark Mohammed, Maria Wilson and Geoffrey Henderson reserved their ruling on February 3.

In September 2023, Justice Devindra Rampersad ruled that the FIU’s request to financial institutions for extensive banking details – covering six years, from 2016-2022 – was unlawful and constituted an abuse of power.

He quashed the request and imposed an injunction preventing the FIU from accessing the information from several financial institutions in the form of account details, account balances, account information, customer due-diligence information and wire-transfer details.

Justice Rampersad found the FIU had no legal justification for its actions, as its request was not based on a Suspicious Transaction Report (STR) or Suspicious Activity Report (SAR), which are required triggers under the FIU Act.

“The FIU was not fashioned under the investigative model and therefore it was not intended to have the power to commence any investigation without a trigger,” the judge said.

He held that once an investigation is initiated by an STR or SAR, the FIU may request financial information. However, in this case, the FIU acted independently, launching what the judge described as a “self-initiated investigation.”

The judge noted the broad scope of the FIU’s request and without a legal trigger, found this was arbitrary and an overreach of the agency’s authority.

He also ruled that without a “trigger,” an exercise of power under section 8(3)(a) would be arbitrary and a potential abuse, which could not be reasonably justified by a court.

However, Peter Knox, KC, who leads the FIU’s legal team, said Rampersad’s finding on section 8(3)(a) was “just wrong.”

He said the section confirmed the FIU director’s power to initiate a request on its account, with the only precondition being that it must be for the purpose for which the legislation was intended.

Knox also pointed to the oath of secrecy imposed on the FIU and its director, noting no court order had been made for the latter to provide information to the court.

“He should not have come to the finding he did.”

According to Knox, the judge’s public-interest considerations were wrong.

“He set out the correct test, but came to the wrong conclusion. He does not ask himself what public interest the Parliament was seeking to protect…He just says no one should be subject to an investigation without a SAR/STR. But this is wrong.

“It is not even an investigation but a gathering of information,” he said, giving the background to the setting-up of the FIU, its legislative backing and TT’s obligations to the Financial Action Task Force.

In opposing the appeal, Larry Lalla, SC, who represents the Griffiths, urged the judges to look at the case as presented before the High Court.

He said the FIU not only sought refuge under the secrecy aspect of the act but insisted 8(3)(a) gave it the power to make requests for financial information without a SAR/STF.

“They maintained they had an independent power to get information on their own motion and a SAR/STF was not required.

“This is a disjunctive explanation. Before the judge, the position they maintained was the FIU, without anything, had an independent power of inquiry. The case presented was they had a standalone power, and the judge disagreed.

“You must be fair to the judge in reviewing his judgment.”

Lalla said Rampersad’s finding on section 8(3)(a) was reasonable.

He also said the judge was correct in his analysis of Parliament’s intent in passing the act, also noting that the FIU did not investigate but performed an administrative function.

This, he said, was inconsistent with the FIU’s position, since Parliament could not have intended that it could go into an individual’s banking information on its own.

Lalla said the judge was correct to find that the FIU was not fashioned under the investigative model and therefore was not intended to have the power to start any investigation without a trigger.

In his ruling, Rampersad raised concerns about the timing and focus of the FIU’s actions. He found it “more than just coincidental” that the FIU singled out Griffith and his family for scrutiny shortly after the former top cop faced public criticism over his tenure.

“The FIU could not randomly have selected the Griffiths out of the one million-plus inhabitants of TT,” the judge said.

“That seems to be an inescapable inference. How the link arose, however, has not been established,” he noted, adding that there was no evidence that the FIU’s actions stemmed from a legitimate police investigation.

He also agreed with the Griffiths’ argument that banking details were deeply personal and should not be accessed without just cause.

In addition to quashing the FIU’s request, the court awarded damages to the Griffiths. A total of $410,000 was awarded, with each receiving $150,000 in compensatory damages and $60,000 in vindicatory damages.

In his lawsuit, Griffith said he became aware that the FIU was trying to access his financial information and his wife’s – along with that of 33 other people and 17 business entities – after a whistle-blower shared with him correspondence purporting to be the FIU’s request to the banks.

The whistle-blower also disclosed that the FIU had made this request without first obtaining any suspicious transaction or suspicious activity report from any financial institution, as required by law.

The judge accepted the whistle-blower’s evidence.

At the appeal, a portion of the hearing was held in camera, as aspects of the sealed evidence were discussed.

Stoddard and the Griffiths were in court for the appeal. Also representing the FIU was Vanessa Gopaul.

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