AG Address at 2025 Grand Court Opening
Address by the Hon. Samuel Bulgin KC
Attorney General - Grand Court Opening
08 January 2025
My Lady Chief Justice, Honourable President of the Court of Appeal and other Justices of Appeal, other Honourable Judges of the Grand Court, Honourable Chief Magistrate, and other Honourable Magistrates, Madam Solicitor General, Acting Director of Public Prosecutions, President of the Cayman Islands Legal Practitioners Association, Commissioner of Police, President of the Justices of the Peace Association, Chairman of the Judicial and Legal Services Commission, Special Guests, distinguished colleagues at the Public and Private bars, Ladies and Gentlemen, both present and those following these proceedings online, pleasant day to you all and greetings for the New Year.
At your invitation, My Lady Chief Justice, I rise to move the motion for the opening of the Grand Court for the year 2025, and in doing so I implore your indulgence to make some observations on the upcoming year and what can only be described as a remarkable 2024.
Before doing so My Lady, please permit me to extend my heartfelt gratitude and appreciation to the various members of the government administration present here today. First a very special thank you to Her Excellency the Governor at this, her second opening of the Grand Court. She has remained diligent in her advocacy for the rule of law and all matters relating to law and order. Permit me to also recognize the Honourable Premier, the Honourable Deputy Premier, the Honourable Speaker, the Honourable Deputy Governor, other Honourable Members of Cabinet, the Honourable Leader of the Opposition and Honourable Members of Parliament, whose strong presence always emphasizes, among other things, their continuing commitment to the administration of Justice.
Permit me My Lady to welcome the incoming new Commissioners to the Judicial and Legal Services Commission, Mr. Sean Parchment and Mrs. Collette Wilkins KC who are most worthy of their recent appointments.
My Lady, it is also customary for us to pay tribute to members of the legal profession who sadly departed this life in the preceding year. These include Mr. Ramon Alberga OBE, KC, late Justices of Appeal Mr. Dennis Morrison OJ, CD, KC, Abdulai Conteh, one of the founding Judges of the Financial Services Division of the Grand Court - Justice Angus Foster and the late Attorney-at-Law Mr. Darryl Myers. We remember their respective contributions to the Judiciary and Bar, and offer our condolences to their families and loved ones.
My Lady, the year 2024 saw some of the usual activities that we have become accustomed to during each calendar year, not to mention the number of tropical storms and hurricane threats.
My Lady, in relation to the Financial Action Task Force (FATF) and following Cayman’s removal from increased monitoring, the Portfolio of Legal Affairs has turned its attention to preparation for the FATF 5th Round Mutual Evaluation, which will commence in 2026. This preparation includes two retreats focused on lessons learned during the 4th Round Mutual Evaluation, a comprehensive gap analysis against the 5th Round FATF Methodology, and the development of targeted action plans to ensure that our jurisdiction is ready for the next round of evaluation. I extend my gratitude to the Solicitor General and the Anti-Money Laundering Unit for coordinating these activities. Additionally, the Anti-Money Laundering Unit is coordinating a review and update of AML/CFT legislation and policies to align with the latest FATF standards. And we will soon be recruiting an AML National Coordinator to support those initiatives.
My Lady, in recognition of the Cayman Islands’ hard work and stellar leadership, the jurisdiction was invited to be a guest at the FATF, with a seat at the table, serving as a lighthouse for the region. In November 2024, the Cayman Islands was appointed as a guest member of the FATF for one year under its new Regional Bodies Guest Initiative.
This program allows selected countries from under-represented regions to participate in FATF meetings and working groups, thereby enhancing their engagement in global financial security discussions. This notable recognition underscores Cayman’s continuing commitment to maintaining high standards and supporting our regional partners in their compliance efforts.
Concerning the matter of preparations for the 5th Round, one issue of particular importance is the evolving requirement via FATF Recommendations 24 and 25 that countries should ensure that competent authorities have timely access to adequate, accurate and up to date beneficial ownership information of the real persons who own or control certain corporate entities and arrangements. Such information includes name, current address, date of birth, and current government-issued identification such as a passport or driver’s licence.
This, My Lady, has given rise to real tension between the requirement to prevent money laundering and the financing of terrorism on the one hand, and the constitutionally protected right to privacy, and data protection on the other hand.
In summary My Lady, the Fourth EU Money Laundering Directive published in 2015 required Member States of the EU to establish central registers containing details of those natural persons who are the ultimate beneficial owners or controllers of certain legal entities and arrangements.
The Fourth Directive was restrictive and only allowed members of the general public to access beneficial ownership information if they could demonstrate a “legitimate interest” in the information sought.
However, the Fifth EU Money Laundering Directive issued in January 2020, among other things, removed the “legitimate interest” requirement and effectively allowed any member of the public to access the information with no need to provide a reason.
But in November 2022, the Court of Justice of the European Union (CJEU) in the case of WM and Sovim v Luxembourg Business Registrars ruled that the removal of the “legitimate interest” test and the unrestricted access to beneficial ownership information, constituted a breach of certain rights under the EU Charter, that is, respect for private life and the protection of personal data.
Accordingly, as a result of the Court of Justice’s ruling some EU Member States reverted to allowing access to beneficial ownership information only to those members of the general public who can demonstrate a “legitimate interest” in seeking the information.
In light of these developments, in 2024 the EU re-introduced the “legitimate interest” requirement by way of its Sixth Money Laundering Directive. At least some Member States have done this.
And so, My Lady, the Cayman Islands – as well as some of the other OTs and Crown Dependencies - took the legal and constitutional position that the grant of unfettered access to beneficial ownership information would not comport with the privacy right under the Constitution and data protection obligations. Such access, if allowed, would also possibly be in breach of the right to privacy under the European Convention on Human Rights and therefore put the Cayman Islands Government at significant risk of legal exposure. The UK has taken a more nuanced position on the matter.
However, Cayman is also under an international obligation, as a responsible jurisdiction which adheres to the rule of law, to put in place measures to facilitate corporate transparency for the prevention of money laundering and the financing of terrorism, hence the framework which, in keeping with the ruling of the EU Court of Justice, guarantees access to beneficial ownership information where a legitimate interest in doing so (e.g. exposing money laundering) is shown.
Thus, in keeping with the jurisdiction’s ongoing international obligations, Parliament recently approved the Beneficial Ownership Transparency (Legitimate Interest Access) Regulations 2024.
It is worth noting as a matter of interest that the US Congress has also introduced their beneficial ownership regime by way of the US Corporate Transparency Act. That, however, is the subject of an ongoing roller coaster court battle, especially in the State of Texas.
But as the EU Court of Justice ruling and the ongoing legal battles in the USA remind us, access to beneficial ownership information is a very significant constitutional issue that requires us to strive to find the right balance between combatting money laundering and other nefarious acts on the one hand, and protecting legitimate privacy rights and personal data on the other, which is what our Government is seeking to do.
My Lady, I have heard the discussions and conversations about this issue and we welcome that, they ought to be encouraged. However, we must appreciate that given the Cayman Islands international obligations to prevent money laundering, and given our constitutional position as an Overseas Territory, the option of doing nothing is not available to us. Indeed, one Overseas Territory and Crown Dependency have gone the other way – Jersey, and I believe Montserrat have gone fully public registers.
While a considerable part of the resources of the Portfolio of Legal Affairs had been devoted to the ongoing legislative and other initiatives in relation to this matter, it was more of a classic collaborative effort along with the support of various other Government entities, as well as input from the private sector.
The Financial Reporting Authority (FRA) had another very busy year, both in terms of processing suspicious activity reports and compliance reporting forms, and matters dealing with international sanctions. Of these, Russia Sanctions – perhaps unsurprisingly - continued to be the main focus, with the processing of licence applications, along with the ongoing work of Operations Hektor, the multi-agency taskforce chaired by the Director of the FRA. Of note, the Cayman Islands hosted the first Russian Sanctions Table Top Exercise, in conjunction with the Foreign, Commonwealth and Development Office and professional consultants, to work through real-life sanctions scenarios that the jurisdiction could face.
Special thanks to Her Excellency the Governor, our Honourable Premier, Deputy Premier, Deputy Governor and all members of Cabinet and our Parliament for their continued resolute support (including financial support) in preparation for the ongoing FATF initiatives. My thanks also, to past administrations for their support. United strength and dedication will enable the jurisdiction to be well prepared for the FATF 5th Round Mutual Evaluation.
It is with much delight that I offer congratulations to a few of our commendable Government employees on their recent appointments, starting with our new Assistant Commissioner of Police, Mr. Robert Atkin, MBE with over 31 years of policing. We wish Commissioner Walton and the RCIPS all the very best in their strides to protect our society. Congratulations also to Mr. Kevin Walton as the new Senior Deputy Director of Customs and Border Control. Mr. Walton brings a wealth of experience and a proven track record of excellence to this senior role. We are confident that he will provide exceptional assistance to the new Director of CBC, Mr. Bruce Smith.
My Lady, in the case of the Legal Services Council, as you are aware, under your chairmanship, we have just about completed the transition from the Cayman Attorneys Regulatory Authority (CARA) to the Legal Services Supervisory Authority (LSSA). We are now in the phase of recruiting for the post of Head of the LSSA. The hope is for a full roll-out of the LSC regime by the end of the first quarter of 2025. We say thanks to former head of CARA Ms. Claire Guile for her stellar service.
As always, our Grand Court and Insolvency Rules Committees continue to meet on regular intervals, keep under review the relevant Rules, and as apposite, persist with revisions for greater procedural efficiency. Again, our thanks to you My Lady, Justice Segal, and all members of both Committees. Let me also welcome Ms. Shelley White as a member of the Grand Court Rules Committee, Mr. Nick Herrod as member of the Insolvency Rules Committee, and extend thanks to Ms. Colette Wilkins KC for her service as a former member of the Grand Court Rules Committee. Thanks also to Mr. Colin McKie KC for his exceptional service to these Committees. It is hard to imagine a Rules Committee without him.
And, before moving on My Lady, allow me to quickly say congratulations to a member of our JLSC, the Right Honourable Dame Janice Pereira DBE, on her recent appointment as member of the UK Judicial Committee of the Privy Council, the final appellate court for the Cayman Islands. We wish her well.
My Lady, as it relates to the number of judgments dealt with by the Courts in 2024, again it was a very active year, with judgments, as usual, delivered in a timely manner. Our sincere thanks to you My Lady and all of our other hardworking members of the Judiciary for their continuing dedication.
As usual the Grand Court judgments delivered in 2024 covered diverse legal issues as we will hear later on. The Summary Courts continue to be extremely busy dealing with the myriad of matters ventilated before them on a daily basis.
As it relates to legislation My Lady, the Legislative Drafting Department of the Chambers was kept very busy churning out numerous pieces of primary and secondary legislation covering a range of subjects including the misuse of drugs, children, adoption, maintenance, traffic and public transport, older persons, and financial services. And as I mentioned earlier, the jurisdiction has made quite a bit of progress with its Beneficial Ownership legislative framework with the promulgation of enhanced Beneficial Ownership primary and secondary legislation.
My Lady, one significant highlight of the recent amendments to the Children Act is the introduction in section 16 of a power of the court to grant an order referred to as the “Shemiah Grant Order” under which a person convicted for causing the death of a parent of a child by drunken driving, may be ordered to make payments for the maintenance and upbringing of the child until he or she attains a certain age. It is hoped My Lady, that this initiative, along with others, will serve to deter indifferent driving and fatalities on our roads.
Of note also, our legislators have also reformed the Firearms Act to further streamline the powers of the Coast Guard and address issues such as ghost guns and the required customs declarations for firearms and other items from persons seeking to enter the Islands.
Sincere thanks to the First Legislative Counsel Ms. Cheryl Neblett and the diligent team of drafters. They have managed to deliver under great pressure.
The Law Reform Commission continued their work on some major initiatives which included publishing its Final Report on Part 2 of the Penal Code review. In 2025, the Commission will be publishing Final Reports on adverse possession and its review of the Settled Land Act. Thanks, as always, to the Chairman of the Commission, Mr. Hector Robinson KC, the Commissioners, Director Mr. Jose Griffith, and the staff of the Commission.
The Law Revision Department diligently continued its annual revision exercise while ensuring easy access to legislation in the Islands via the legislation website and regular training sessions. Thanks to Dr. Camille Stoll-Davey and Ms. Karen Wade, our 2025 revisions are forthcoming.
My Lady, we are happy to announce that we moved the admission of two very young Caymanian Attorneys namely Ms. Felicia Connor and Ms. Colleen Cummings, both of whom have since taken up positions within the Portfolio of Legal Affairs and Office of the Director of Public Prosecutions respectively where they undertook their Articles. We are looking forward to the admission of some new attorneys in 2025.
My thanks as always to the Director Mr. Mitchell Davies and the entire staff at the Truman Bodden Law School as well as to the Legal Advisory Council under your Lady’s chairmanship.
As you are aware My Lady, the Truman Bodden Law School once again had some excellent results for the 2024-2025 academic year. These were recognized during the August 2024 graduation ceremony for students (both full-time and part-time) on the LLB and LLM degree programs as well as the Professional Practice Course. Again, the Law School recorded a number of first class honours on the various degree programs as well as distinctions on the PPC. The School was also able to settle into its new premises at Artemis House last year.
Permit me My Lady, to express my appreciation to all the staff in the Portfolio of Legal Affairs ably supervised by our Solicitor General/Chief Officer, Ms. Reshma Sharma KC, and our three Deputy Solicitors General, Mrs. Claire Allen who is temporarily working remotely, Dr. Jevon Alcock and Mrs. Marilyn Brandt for their continued perseverance, professionalism, unwavering support and advice to me and on my behalf. The outputs by way of legal advice and representation to the entire government by the Chambers has been stellar. Special thanks also to the DPP Mr. Simon Davis, Deputy DPP Ms. Candia James-Malcolm and their dedicated team for their continued hardwork, dedication and professionalism.
Thanks again to Commissioner Walton and the members of the RCIPS for their extra vigilance over the holiday seasons. They worked tirelessly to try to stem, among other things, the atrocious behaviours plaguing our roadways.
And before closing My Lady, allow me to publicly say thanks and bid farewell to a foundation staff member of the Courts - Ms. Yasmin Ebanks, who has served close to 40 years in various capacities including Personal Assistant to various Chief Justices. She was an extremely reliable and experienced officer, and always courteous, charming and exceptionally helpful. She was the quintessential listing officer who would always find a way to accommodate a listing request, at times, much to the chagrin of some Judges! We wish for her a happy retirement with long life and good health.
My Lady, in closing, I wish for you, all the Judges, Magistrates, Court staff, fellow members of the legal profession, members of the RCIPS and all others in attendance here and online this morning, a blessed, productive and prosperous New Year. I would also like to take this opportunity to call upon all stakeholders to continue to be steadfast and unified in our support of the Judiciary and the rule of law. As Machiavelli said, “where the willingness is great, the difficulties cannot be great.”
If it may please you My Lady, I so move that the Grand Court be declared open for the Year 2025.
Samuel Bulgin KC
Attorney General
January 8, 2025
