Wheatley heads to court

EMBATTLED Government Minister Dr Andrew Wheatley has gone to the Supreme Court seeking permission to apply for a judicial review of the decision by the Integrity Commission (IC) that he be slapped with multiple charges, including illicit enrichment.

Wheatley is also seeking a declaration from the court that no charges should be laid against him until a hearing for the judicial review is heard and a determination made.

He is the second Cabinet member to head to the court to challenge a ruling of the IC.

Prime Minister Dr Andrew Holness is now before the court for a judicial review of the IC’s report on his statutory declarations.

Holness is seeking a declaration that the commission acted unfairly and unlawfully in the conduct of its investigation into his statutory declarations.

On Friday, lawyers representing Wheatley — Jamaica’s minister without portfolio in the Office of the Prime Minister with responsibility for science, technology and special projects — applied for judicial review to claim administrative orders, including an order of certiorari, quashing the report of the IC’s Director of Investigation Kevon Stephenson, who is named as the first respondent, “including [his] comments, findings, observations, conclusions, and recommendations”.

The lawyers added that they will be seeking an order of certiorari to quash the recommendation of Stephenson that the investigation report be referred to the IC’s acting Director of Corruption Prosecution Kelly-Ann Murdock — who is the second respondent — and an order of certiorari quashing the decision or ruling of Murdock that Wheatley should answer to four charges.

In addition, Wheatley’s lawyers will also use the judicial review to apply for an order of certiorari to quash the recommendation of Stephenson that the investigation report be referred to the commissioner general of Tax Administration Jamaica.

The lawyers also want an order of prohibition restraining the IC and its servants or agents or otherwise from instituting or continuing any prosecution of Wheatley based on the investigation report or ruling.

In a report tabled in Parliament recently, the IC ruled that Wheatley should be charged with knowingly making a false statement in a statutory declaration contrary to section 15(1)(b) of the Parliament (Integrity of Members) Act, 1973; knowingly making a false statement in a statutory declaration contrary to section 43(2)(a) of the Integrity Commission Act, 2017; failing, without reasonable cause, to provide information contrary to section 43(1)(b) of the Integrity Commission Act, 2017; and illicit enrichment contrary to section 14(5) of the Corruption (Prevention) Act, 2001.

But, in the application filed on Friday, Wheatley’s lawyers indicated that they will also be seeking a declaration from the Judicial Review Court that the process by which Stephenson conducted the investigation and prepared the investigation report “was unfair and in breach of the principles of natural justice and procedural fairness, and that the investigation report is accordingly null and void insofar as it concerns the applicant”.

They also indicated that they will be seeking a declaration that Stephenson and the IC acted ultra vires the Integrity Commission Act by determining Wheatley’s culpability, rather than reporting upon reasonable grounds of suspicion, and “a declaration that the first [Stephenson] and third respondents [IC] acted ultra vires and without jurisdiction insofar as the investigation and the investigation report touched on statutory declarations and conduct predating the coming into operation of the Integrity Commission Act on February 22, 2018, and the period of the applicant’s tenure as a councillor”.

Wheatley’s lawyers further argued that the IC erred in law by including the retrospective application of section 101A of the Proceeds of Crime Act; the treatment of the mental element of the false statement offence; the test applied for illicit enrichment; and the conclusions on tax liability.

They further want the court to rule that the findings, conclusions, and recommendations of Stephenson and the IC concerning Wheatley are “unreasonable and irrational”.

In addition, the lawyers say they want a ruling that Murdock acted unlawfully and ultra vires the Integrity Commission Act by deciding that Wheatley be charged as “she failed to exercise or to demonstrate independent judgement, failed to demonstrate that the law and or material has been properly understood or applied by her, failed to give reasons, permitted the executive director of the [IC] to convey her decision, and failed to have regard to the prosecutorial code of the director of public prosecutions”.

The lawyers also want a declaration that the delay by Stephenson in carrying out his functions under the Integrity Commission Act relative to the start, conduct, and conclusion of the investigation report breached Wheatley’s right to natural justice, procedural fairness, and/or otherwise render the investigation report “irrational and unreasonable”.

In finding that Wheatley possessed approximately $164 million in assets disproportionate to his lawful earnings and failed to provide a satisfactory explanation for the discrepancy, the IC examined his statutory declarations between 2010 and 2022 and his financial affairs over a 10-year period.

But his lawyers argue that the investigation report was based on material/information which were dated, and this renders it “ultra vires, irrational, unreasonable, in breach of natural justice, unfair, procedural fairness”.

According to Wheatley’s lawyers, as the alternative to, or in addition to certiorari, the court should issue a mandatory injunction compelling Stephenson and Murdock to remove from the investigation report and ruling all adverse findings, conclusions, and recommendations concerning him.

They are also seeking a permanent injunction restraining Murdock and the IC from acting on the investigation report to lay criminal charges and commence or continue prosecution against Wheatley.