Former prominent BVI Inspector and Prosecutor Jefferson Knight has written to His Excellency John Rankin CMG and the Foreign and Commonwealth Office regarding present investigations in the Virgin Islands. In the letter Knight maintains that former Education Minister Myron V Walwyn has been framed in connection with the ESHS parameter Wall for which he was recently arrested and charged.
The letter titled “A commission of inquiry, is [not] a commission of criminal investigation”, stated the following.
“Section 16 of the Constitution states-“(1) If any person is [charged] with a [criminal offence],then, unless the [charge] is withdrawn, the [case] shall be afforded a fair hearing within a [reasonable time] by an [independent and impartial [court] established by [law].(2)Every person who is [charged] with a [criminal offence] shall-(a) be presumed to be innocent, until proved guilty,[according to law].”
Let us now debate, the arrest, detention and charge, of the Honourable Mr. Myron Walwyn, former Member of Parliament in the House of Assembly, who is an attorney-at-law.
Your Excellency:
I need not go into the facts and circumstances, surrounding, the matter of [public debate] about the Elmore Stoutt High School Wall-Project.
But on a point-of-law, I note that, in January 2019, Commissioner of Police, (“the COP”), Mr. Michael Matthews, under the law of section 21 of the Police Act, commenced a [criminal investigation] into the Elmore Stoutt High School Wall-Project.
In January of 2020, the Commissioner of Police, Mr. Michael Matthews, informed the public, that the [criminal investigation] into the Elmore Stoutt High School Wall-Project, was complete, and that the [case file], with the [“evidence”] gathered by the Royal Virgin islands Police Force [during the criminal investigation] was sent to the Director of Public Prosecutions-[“the DPP”],for the DPP to [decide] the charge or charges,[“if any”]?
On 14th January, 2020, the Commissioner of Police, Mr. Michael Matthews said on ZBVI-radio, in relation to the criminal investigation into the Elmore Stoutt High School wall-project:-
“Obviously, I don’t make the charging decisions, that is an independent-authority of the DPP’s Office, but they will be presented with the evidence that we’ve accrued throughout our investigations.”
The Magistrate Code of Procedure Act Chapter 44 of the laws of the Virgin Islands.
Marginal notes-Jurisdiction of Magistrates.
Section 22 of the Magistrate’s Code of Procedure Act states-“The Magistrate [shall] have jurisdiction-(a) to receive complaints and information of all offences and to cause to be brought before him either by summons or warrant, all persons charged with such offence-(c) To investigate all charges which he is not empowered to try summarily and to [dismiss] the accused or to commit him for trial before the High Court.”
Marginal notes-Information and complaints.
Section 26(2)(a) of the Magistrate Code of Procedure Act states-“It [shall be lawful] for any police officer to [lay] any information or make any complaint, in the name of the [Commissioner of Police] and conduct any such proceedings on his behalf.”
Parliament, did not enact, any provision, under the Police Act, for the Commissioner of Police, to submit to the DPP, a case file, relating to a [criminal investigation]
Section 59 of the Constitution, for-(Director of Public Prosecutions), did not confer power, on the DPP, for the DPP, to [take-over] a [criminal investigation] from the Commissioner of Police.
Your Excellency:
On 18th January 2021, a [Commission of Inquiry], was announced by His Excellency, the Governor, Mr. Augustus J.U. Jaspert, according to law, section 2 of the COI-Act.
That said year, during the COI, the Elmore Stoutt High School Wall-Project, and the [Auditor General’s report] were [heard publicly] in the COI. The [Auditor General] and the Honourable Mr. Myron Walwyn, testified, under oath in the COI.
On 1st November 2022, the Honourable Mr. Myron Walwyn, was arrested, detained and charged, by virtue of section 21(c)(ii) of the Police Act, by the Royal Virgin Islands Police Force, for [Breach of Trust]-(a criminal offence), under section 81G(b) of the Amended Criminal Code, in connection with the Elmore Stoutt High School, Wall-Project.
The police charge:
The particulars of the offence, reads inter-alia:-“Honourable Myron Walwyn, between 1st December 2014 and 1st December 2015,in the British Virgin Islands, as Minister of Education and Culture-a public official, committed Breach of Trust, by-
1.Failing to properly adhere to government rules and protocols,
2.Failing to properly adhere to the Finance Management Act
3.Failing to properly adhere to the Regulations.
However, I note that, during the testimony of the Honourable Walwyn, in the COI, in 2021, counsel of the COI, attorney, Bilal Rawat, questioned the witness Honourable Myron Walwyn, about-
1. The Finance Management Act 2004
2. The Finance Management Regulations 2005.
Clearly, the particulars of the police criminal charge, under section 21 (c) (ii) of the Police Act, dated 1st November 2022, is in [breach] of section 16 of the Commissions of Inquiry Act!
Observations:
[“It would appear, from the particulars of the expressed-criminal charge, that the Commissioner of Police, Mr. Mark Collins, intends to rely on the sworn-testimony of, the Honourable Mr. Myron walwyn, in the COI, to present to the Magistrate, under section 22(c) of the Magistrate’s Code of Procedure Act, in the perceived-[Preliminary Inquiry]: Such a decision by the COP, to rely on the evidence from the COI, to arrest, detain, charge, and prosecute, the citizens, is unlawful, and is in contravention of section 16 of the COI Act!”]
Your Excellency:
[“The (criminal-procedures) which led to, the arrest, detention, and charge, of the Honourable Mr. Myron Walwyn, is-[fundamentally-wrong under section 15 and 16 of the BVI Constitution, which guarantee- fundamental (human) rights and freedoms of an individual, suspected of committing a criminal offence, under the (law) of the BVI, and under the Criminal Justice System, of the BVI, and under the criminal procedure rules, of the Eastern Caribbean Supreme Court”].
In January, 2020, COP-Matthews, under section 21(c)(ii) of the Police Act, did NOT have any [reasonable suspicion] that the Honourable Mr. Myron Walwyn, had committed the [criminal offence of Breach of Trust].
For those, and other [“reasons-of-fact, and of law”], the COP-Matthews, did NOT lay a criminal-complaint, in the Magistrate summary court, for the Magistrate, to hold a [preliminary inquiry] under section 22(c) of the Magistrate’s-Code of Procedure Act, [“the Act”], into the offence of Breach of Trust.
But after the [COI’s-Public Hearing] in 2021, and on the recommendation of the COI’s Commissioner, in 2022, to conduct, criminal investigations, [“again”] into the Elmore Stoutt High School Wall Project, the Honourable Mr. Myron Walwyn, is now charged for Breach of Trust, by COP-Collins?!
In my [legal opinion] the recommendations of the COI’s Commissioner, to conduct criminal investigations, into the Elmore Stoutt High School Wall-Project, which have now led to [criminal prosecution], is in [breach and in contravention] of section 16 of the COI-Act, and in [breach and in contravention] of section 15 and 16 of the BVI Constitution.
The Commissioner of the COI, has NO jurisdiction, under the COI-Act,[“the Act],and the Commissioner of the COI, does not have training, and the statutory authority, within the meaning of section 21 of the Police Act Chapter 165 of the laws of the Virgin Islands, as a criminal investigator in criminal investigations, under the Police Act, generally, to administer the [caution] under the [Judge’s-Rules]so as to identify criminal conduct, by public officials and public officers, in governance and in the public service of the Crown, and to recommend, criminal investigations and criminal prosecution, into such conduct.”