Archive for December 23rd, 2008

Cause of Brac fire still under investigation

Cause of Brac fire still under investigation

| 23/12/2008 | 0 Comments

(CNS): Fire and police officers investigating a blaze which damaged a tub grinder in Cayman Brac said today (Tuesday, 23 December) that at this time there is no evidence which suggests foul play. Despite some media reports alluding to vandalism and arson, specialists from the Fire Service and the RCIPS said they cannot yet confirm the cause of the fire.

“The scene has been thoroughly searched and processed by detectives from the Criminal Investigation Department, Scenes of Crime Department and by Fire Officers,” said Area Commander, Chief Inspector Patrick Beersingh. “Many statements have been taken and various samples of soil and vegetation are being analyzed for accelerants and other chemicals that may prove or disprove an offence.”

Further investigations are ongoing and statements continue to be taken. Other specialists, such as a mechanic, are also being considered to assist with the inquiry. “The investigation, and any conclusive determination on cause, may take some time,” said Acting Chief Fire Officer, Mr Steve Webster. “In the meantime, we cannot speculate about what started the fire.”

Anyone with information about crime taking place in the Cayman Islands should contact their local police station or Crime Stoppers on 800-8477 (TIPS). All persons calling crime stoppers remain anonymous, and are eligible for a reward of up to $1000, should their information lead to an arrest or recovery of property/drugs.

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Madoff scam reaches Cayman

Madoff scam reaches Cayman

| 23/12/2008 | 0 Comments

(CNS): Though the Cayman Islands Monetary Authority (CIMA) said it has found no evidence so far that Bernard Madoff, the Wall Street investment manager who has admitted to a fraud scam totalling some $50 billion, was providing direct services to any Cayman Islands-regulated fund, the Authority said one Cayman fund administrator has confirmed that one of its regulated funds had significant investment in the Madoff funds.

One bank has also confirmed that it had significant exposure to the Madoff funds, and CIMA says it anticipates that a number of Cayman-regulated funds could be impacted by the massive scam that is reverberating around the world.

Madoff, a former Nasdaq Stock Exchange Chairman who was arrested in New York on 11 December, ran a hedge fund that US prosecutors said racked up $50 billion of fraudulent losses. The allegations against Madoff describe a classic Ponzi scheme, in which money is taken in from new investors to pay out money to earlier investors, though this alleged scam could amount to one of the biggest ever.

On Monday, CIMA released a statement to say the regulatory body has been following the developments relating to charges against Madoff. “CIMA has done a check of its records and database and has found no evidence so far that Mr Bernard Madoff or any Madoff company is providing direct services to any Cayman Islands-regulated fund. An initial check of the Companies Registry shows no Madoff-related entity incorporated in the Cayman Islands. However, given that investors in Mr Madoff’s investment funds include banking and other institutions across Europe, the UK and the USA, CIMA anticipates that there could be a number of Cayman-regulated funds as well as other institutions that have made investments into the Madoff funds/schemes and which, therefore, could be impacted.”

So far CIMA has received confirmation from one Cayman fund administrator that one of its regulated funds had significant investment in the Madoff funds. One bank – a Class B affiliate bank that does not conduct any domestic business – has also confirmed that it had significant exposure to the Madoff funds. “CIMA is continuing to investigate whether there are any other CIMA-regulated institutions that have exposure to Madoff’s funds and will continue to monitor the situation and work with regulated entities that may be impacted,” it says.

The statement continues, “CIMA has always urged investors to do their due diligence before investing, and on an ongoing basis. This case provides another example of why it is necessary to do so, as it is apparent that many of Madoff’s investors missed relevant red flags.”

CIMA notes that this matter is now in the hands of the US Securities and Exchange Commission (SEC) for review and investigation. In line with its ongoing working relationship with the SEC, which was formalised through the Undertaking Between Cayman Authorities and the SEC in 2005, CIMA stands ready to provide any assistance it is able to on this and other matters, given that so many of the organisations which provide services to and on behalf of CIMA-regulated funds are also regulated by the SEC.

Worldwide, the funds industry continues to struggle to attract new capital, to maintain investor confidence and keep the high level of redemption requests from investors at bay. The Madoff scandal will undoubtedly shake the industry even further, CIMA says.

With the intensification of the global financial crisis, CIMA has seen less fund authorisations between July and November this year (586 funds authorised) compared to the same period in 2007 (820 authorised). At the same time, there were more terminations between July and November this year (311 terminations) than for the same period last year (219 terminations). However, the level of terminations, which averaged 60 per month between July and November this year, is still very low when compared to the overall number of active Cayman Islands-authorised funds, which remains at over 10,000.

CIMA anticipates the numbers of terminations in December and January to increase substantially. However, it must be noted that these two months are the ones in which funds traditionally terminate. CIMA will have a fuller picture of the numbers of terminations during the first quarter of 2009.

Steps that regulated funds have been taking to manage their liquidity problems include suspending redemptions and/or the calculation of net asset values (NAV). To date, CIMA is aware of 67 funds that have suspended redemptions, 44 funds that have suspended their NAV calculation, and two funds that have been forced into court ordered liquidation.

A positive sign is that three funds that had formerly suspended redemptions have now lifted their suspensions.



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Draft bill to strengthen child welfare legislation

Draft bill to strengthen child welfare legislation

| 23/12/2008 | 1 Comment

(CNS): Under proposed amendments to the Children Law (2003 Revision), people working with and caring for children would be required to report suspected cases of child abuse and neglect or face fines and even prison time. The draft bill, now in a period of public consultation, also proposes granting parental rights to unmarried fathers and step-parents equal to those of married parents and legal guardians.

The bill modernises Cayman’s current legal provisions regarding children’s welfare, and once enacted would allow the provisions of the United Nations Convention on the Rights of the Child to be applied to the Cayman Islands.

The Children (Amendment) Bill 2008, tabled in the Legislative Assembly by Health and Human Services Minister Anthony Eden on 5 December, will be circulated as a draft consultation bill until 5 January 2009, according to a government release. “As part of the Ministry’s strategic plan, the welfare of children has been given top priority in the promotion of a human development agenda within the Cayman Islands,” Minister Eden explained.

While Cayman’s laws already provide that an unmarried father is entitled to parental rights and responsibility if he makes a successful application to the court, this bill now provides an additional avenue. Fathers who are not married to the mother of their child at the time of birth but who register the child’s birth along with the mother would be entitled to parental responsibility. This amendment seeks to facilitate responsible fatherhood, in cases where at the birth of a child, the parents are not legally married.

Under the bill step-parents would also be given this right. ‘Parental responsibility’ is defined as all the rights, duties, powers, responsibility and authority which a parent has by law over the child and over his or her property.

The bill also requires professionals – Including medical practitioners, pharmacists, dentists, psychologists, probation officers, social workers and ministers of religion – to notify the Department of Children and Family Services if child abuse or neglect is suspected. This parallels requirements in child protection acts passed in other Caribbean territories, including Trinidad and Tobago, Jamaica and Bermuda. It seeks to ensure that the practitioners most likely to be early points of contact with cases of child abuse or neglect, are in no doubt about how to meet their professional obligations for immediate response.

The amendment is structured so as to protect these persons from civil or criminal liability and to assure confidentiality once notification is received. Failure to notify the department, however, would attract a fine of $2,000, or imprisonment for a term of six months. In some cases both sanctions might apply.

Until the 5 January deadline, all residents are encouraged to familiarise themselves with, and offer feedback on, the proposed amendments. A link to the Bill is available on the Legislative Assembly’s website under House Business/Bills; or on the Cayman Islands Government website, under Features at the top-right of the homepage.


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Henderson arrest unlawful

Henderson arrest unlawful

| 23/12/2008 | 0 Comments

(CNS): From the opening moments in Justice Alex Henderson’s hearing Monday, 22 December, Sir Peter Cresswell condemned the actions of the Senior Investigating Officer, Martin Bridger, and his team over the arrest of the judge on 24 September for Misconduct in a Public Office, which Cresswell made clear was unlawful. He described Bridger’s decision as an elementary error in arresting someone for a non-arrestable offence and then taking too long acknowledging the fact.

Cresswell was originally scheduled to return to hear a judicial review seeking to overturn the arrest of Henderson. However, a recent admission by the Attorney General’s office that they agreed the arrest was unlawful allowed Sir Peter to move to the issue of managing the timetable for the damages and the torts on which they would be claimed instead.

Henderson was represented by Ramon Alberga QC and Shaun McCann, while the Acting Police Commissioner, Bridger and Richard Coy, who made the arrest, were this time represented by the SolicitorGeneral Cheryll Richards and Douglas Schofield, representing the Attorney General’s office. Alberga explained the acknowledgement that the arrest was unlawful had been received by Henderson’s legal team and that negotiations had started regarding the damages and settlements.

From the very start Cresswell made it known he wanted to move the proceedings along as quickly as possible as he said it was unacceptable for a serving judge to have outstanding litigation issues. “This has serious implications for the judge and the judiciary of this country and we need to resolve this as quickly possible,” he said.

He also said that he considered the actions of Bridger and the police questionable and was very concerned there was still not proper acknowledgement of the error and unlawfulness of the arrest, and what acknowledgement there had been was very slow to come.

“It’s one thing to get it wrong and another not to accept it before the court,” said Cresswell. “It is elementary that no one should be arrested for an offence that’s not an arrestable offence.” He said he was concerned that the police had not openly and frankly acknowledged that the arrest was unlawful following the first judicial review regarding the warrants. “We went throughthe last long and difficult hearing, and then there was no acknowledgment that they had made a fundamental mistake.”

He added that if the police were to operate properly in a jurisdiction it was essential that they knew the law and it was very serious that any citizen, never mind a serving judge, could be arrested by officers for an offence that was simply not an arrestable offence.

During the discussions Cresswell instructed Henderson’s legal team to come up with the list of torts on which they would base Henderson’s claim for damages. Cresswell also agreed to the request to consolidate the damages claims from the overturning of the arrest and the quashing of the warrants into one hearing. He described the actions of Bridger as “gross incompetence” and queried why the Cayman Islands tax payer should pay for his mistakes.

He also wanted to know if Henderson’s legal team would be seeking damages from each of the people involved (such as Bridger, Coy, the Acting Police Commissioner) or whether they would accept one payment and indicated that the individuals were liable. Alberga explained that the two parties were in discussions and there was some hope that a settlement could be reached without the need for a court hearing.

If agreement is not reached, the parties will be forced into an enquiry where the claim for damages would be based on six main torts, as listed by Alberga in a letter put before the court. 1 False arrest; 2 false imprisonment ; 3 trespass to person/assault; 4 trespass to goods; 5 trespass to real property; and 6 misfeasance in  public office.

During his explanation, Alberga related the chain of events since the last judicial review. He also referred to the governor’s recent statement that acknowledged some mistakes had been made regarding the Henderson arrest, but had failed to offer an apology, and that the blame was being pushed on to the legal advice Bridger had received from UK lawyer Martin Polaine.

Alberga told the court that the governor had patted Bridger on the back and called him “my blue eyed boy” when he described Bridger’s actions as exemplary.

Cresswell then said that it washardly exemplary behaviour to arrest someone for a non-arrestable offence. “Fair dealing would have required an acknowledgement of an unlawful arrest promptly,” Cresswell added.

In his statement David Schofield acknowledged that the Solicitor General’s office at least accepted that the first five torts were arguable and he would accept them as the basis for an enquiry into damages, but he contested the last one as he said that his client, Bridger, at the time of the arrest genuinely believed it to be an arrestable offence based on advice given to him by legal experts and had not acted in bad faith.

Cresswell, however, seemed to think that as Bridger had not sought local legal advice about Cayman Islands Law and had chosen to take advice from a UK legal expert his intentions were debatable. “It is elementary that a police officer before arresting any citizen should satisfy himself that the suspected offence is an arrestable offence,” Cresswell noted. “A police officer unfamiliar with the law of the Cayman Islands should, before arresting a citizen of the Cayman Islands, take advice from a lawyer qualified in the law of the Cayman Islands as to whether it is an arrestable offence under the law of the Cayman Islands.”

Unimpressed by Bridger’s choice of legal adviser at the time, the presiding judge asked Schofield to state on behalf of the police if they now accepted it was wrong and that Bridger had made a mistake. Bridger and the Acting Commissioner would not completely admit that Bridger did make the wrong decisions at the time of the arrest as they insisted he was given what he believed was sound legal advice.

While they were willing to say that now they see it as an error, they did not think he was wrong at the time. Cresswell then queried whether in fact a full acknowledgment had been made that the arrest was unlawful and asked to see the written statement of apology that was supposed to be read to the court.

After reading it, Cresswell declared that it still did not fully acknowledge that the arrest was unlawful and the apology was not read aloud. After short consultation with Bridger and the Acting Commissioner, Schofield declared that there was a conflict of interest with the AG’s office and Bridger et al over the issue of acknowledging exactly what they had done wrong.

“There is a conflict between our client and the Attorney General’s office. Tthey have asked to seek other legal advice,” Schofield explained to Cresswell. “It seems that the Acting Commissioner and Mr Bridger may need to get their own council on this issue.”

Despite the various disagreements between the AG’s legal team and their client, Schofield acknowledged that the AG’s office saw the arrest was unlawful and that they wanted to settle the matter and there was good faith on their part.

Cresswell is expected to give an official judgment this morning regarding the issue of the arrest and set a timetable for the damages claim to be addressed.



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Bush attacks rush on tax law

Bush attacks rush on tax law

| 23/12/2008 | 5 Comments

(CNS): Leader of the Opposition McKeeva Bush has accused the government of rushing changes to the Tax Information Exchange Authority (TIEA) Law without properly briefing opposition members or engaging in a wider consultation with the financial services industry. Referring to the amendments which were passed in the Legislative Assembly last week, Bush said there had not been enough debate on what was a very important issue.

He said there was an apparent attempt to minimise the level of consultation with the wider industry or the opposition. The bill was first brought to the House on Monday, 15 December, leaving members with just two days before it was presented to the floor on Wednesday. It had its third reading by Friday, 19 December.

"The Tax Information Exchange Authority Law is one of the most important pieces of legislation in this country in this day and age where international cooperation and tax information exchange are paramount to the way that our financial industry operates,” Bush said. “Why has this been done in such a secretive manner? I was away for two days for medical reasons and when I returned I found out that the bill went through the house via committee with changes apparently passing without debate.”

The changes to the legislation will allow the Cayman government to enter into agreements with other countries to share information about financial dealings here that may relate to tax issues in other jurisdictions. There are issues of debate about how much Cayman should be telling other countries about business dealings here versus the need to have more TIEA to both reduce the criticism by OECD countries and maintain the regulatory credibility of the jurisdiction. By and large the need for more TIEA is generally agreed by most people but there has been little information given about the amendments to the bill and how far the law now goes.

Bush said his main concern was that the whole exercise was handled in such a way that some people in the financial services industry were not even aware of the proposed changes.

"Whatever happened to the days when the government consulted with the wider industry on major issues such as this?” Bush asked. “Are we to accept that whoever this small clique of special persons are that are involved in these discussions, know all that is best for this country? Why are we keeping the majority of the financial services sector in the dark on such a potentially major issue?"

Bush said that at the very least there should have been a special briefing with himself as Leader of the Opposition and some form of wider communication to the broader industry that something was being worked on. "We are all supposed to be on the same side when it comes to protecting the Cayman Islands economy. Why can’t we put political differences aside on a major issue such as this and bring everyone into the picture on what the plans are? I expected at the very least that the plan and strategy would have been explained to me," added Bush.

The opposition leader said that during the PPM’s term in government the approach to consultation on issues relating to the financial services has been handled through small groups of industry representatives being consulted on major changes, as opposed to the previous approach where a larger Private Sector Consultative Committee (PSCC) was frequently briefed on the industry’s issues.  

The irony of the change is not lost on critics because they were elected primarily on the basis of their promise of greater transparency and being a so styled "sunshine government", he noted.
"If the changes are to address the international challenges that we face, then fine,” Bush declared. “But we need a more open government on this. Whatever the approach and strategy, we certainly should not be hiding the changes from the major stakeholders within the financial services sector and the opposition. In the same way that they were trying to hide the draft constitution from the people, they are hiding changes to key pieces of legislation to suit their own agenda.”

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