Bahamas: New Law To Restrict Court "Fishing Trips"

Mandy Robinson, Tax-news.com, London

01 September 2000

A prominent Bahamian attorney has argued that the recently implemented amendments to the Evidence (Proceedings in Other Jurisdictions) Act 2000 will restrict the Bahamian courts in their efforts to assist their foreign counterparts.

John Delaney, a partner at Nassau law firm Higgs & Johnson, explains that although the objective of the new law was to enable the Bahamas' financial sector to meet international best practice, it contained "anti-fishing" provisions that would limit the amount of information that the Bahamas could provide.

"Fishing" is a particular method of inquiry that is employed by court officials who would ask a broad spectrum of unspecific questions in the hope that the answers will disclose the information needed to bring prosecutions to a satisfactory conclusion. Mr. Delaney says many attorneys are confused over the Bahamas' position on "fishing": 'there has been much controversy as to whether foreign agencies would now be able to fish in the Bahamas for evidence in civil and criminal matters.'

Mr Delaney refers to Section Five of the new legislation, which he says may throw some light on this controversy. The law states: 'An order under this section shall not require any particular steps to be taken unless they are steps which can be required to be taken by way of obtaining evidence for the purposes of civil proceedings in the courts.' Therefore, Mr Delaney explains, the new law will result in the cessation of irrelevant questioning as well as restricting the amount of evidence that overseas courts can receive from the Bahamas.

In addition to this, the law also protects witnesses from "oppressive foreign requests" and dictates that foreign courts are to identify the papers they require and to provide evidence that they are in existence. 'In short,' Mr Delaney continues, 'it may be expected that the Bahamian court would follow the decisions of the English courts and not allow "fishing"'.

Recent legislative amendments have been implemented as a result of Prime Minister Hubert Ingraham's trip to North America where he and some key members of his cabinet embarked upon a series of discussions with representatives from the US and Canadian governments and leaders of major financial institutions. The purpose of the official visit was to discuss ways of redeeming the Bahamas' good reputation as an offshore financial centre after its recent inclusion on an OECD blacklist.

During the visit Mr Ingraham said it had become clear that if the Bahamas desired the support and endorsement of the United States, the Bahamian government would have to comply 'fully with the new internationally accepted practices now current in major financial centres in the developed world'. Hence the need for the government to reform certain pieces of legislation.

However, the reforms that have been implemented as well as those proposed, continue to be at the centre of much controversy in the Bahamas, as opposition senators accuse the government of pushing through the new laws too quickly. The opposition complains that it has had little opportunity to voice its concerns over the consequences that may be in store for the Bahamas as a result of the reforms, and felt it was not listened to in senate debates. Indeed, most opposition leaders refused to take part in the eventual vote to accept the amendment to the Evidence (Proceedings in Other Jurisdictions) Act 2000.

Mr Delaney says the government is to enact a Criminal Justice (International Co-operation) Act, that would empower the Bahamian courts to exchange information and extradite criminal suspects during investigations and before trial stage.

The government is planning a series of legislative amendments to remedy deficencies in the law, which will affect the Central Bank, the Money Laundering (Proceeds of Crime) Act, Mutual Legal Assistance procedures, Bank and Trust Companies, and the International Business Companies Act.

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