WORLDWIDE FINANCIAL HOLDING v. CITEL 20-April-1995
[1994–95 CILR 391]
WORLDWIDE FINANCIAL HOLDING v. CITEL
COURT OF APPEAL (Zacca, P., Georges and Kerr, JJ.A.): April 20th, 1995
Evidence—assistance to foreign court—“court or tribunal”—under Evidence (Proceedings in Other Jurisdictions) (Cayman Islands) Order 1978, Schedule, s.1, commission mandated to make enquiry prior to administrative or judicial decision not a “tribunal” since conclusions merely recommendations not binding on judiciary
Evidence—assistance to foreign court—“proceedings which have been instituted”—preliminary investigation as to criminal liability not institution of proceedings as required by Evidence (Proceedings in Other Jurisdictions) (Cayman Islands) Order 1978, Schedule, s.5, when criminal action only instituted by public prosecutor
  The appellant sought the discharge of an ex parte order, granted upon an application by letters rogatory from the respondent, for the examination of documents and witnesses.
  Allegations were made against high-ranking Peruvian Government officials that they had corruptly received payments of money from a consortium which was subsequently awarded a substantial Government contract. The Peruvian Congress set up an Investigative Commission (the respondent) to investigate the charges and prepare a report. It was provided by the Constitution that its conclusions were not binding on the judiciary but were to be sent to the Attorney General. Congress could then pass a resolution obliging the public prosecutor to proceed with criminal charges.
  In the course of the hearing conducted by the respondent, evidence was given that certain payments had been made by the consortium, at the behest of one of the officials, into the appellant’s bank account in Grand Cayman. The respondent then applied for judicial assistance pursuant to the Evidence (Proceedings in Other Jurisdictions) (Cayman Islands) Order 1978. An ex parte order was granted providing for the examination of the bank manager and any shareholder, director or officer of the appellant company, and all documents relating to the specified transactions and any subsequent transactions on the bank account and the appellant’s corporate records. The appellant applied to set this order aside.
  The Grand Court (Schofield, J.) set aside the order in part. It held that (a) the appellant had a legal interest in the proceedings and consequently had locus standi; (b) the respondent was a “tribunal” within the meaning of the Evidence (Proceedings in Other Jurisdictions) (Cayman Islands)
1994–95 CILR 392
Order 1978, Schedule, s.1; (c) criminal proceedings had been instituted against the suspected officials; and (d) the terms of the order were, however, too wide. The proceedings in the Grand Court are reported at 1994–95 CILR 254.
  On appeal, the appellant submitted, inter alia, that (a) the respondent was not a tribunal since it could not produce a binding decision but merely prepared a report which made recommendations to Congress; and (b) no criminal proceedings had been instituted in Peru since it was the public prosecutor who instituted criminal proceedings, albeit at the behest of Congress, and the respondent’s conclusions were not of themselves binding upon him.
  The respondent in reply submitted that criminal proceedings had been instituted because the appointment of the respondent was an essential first step in those proceedings.
  Held, allowing the appeal:
  (1) Since the conclusions of the respondent did not bind the judiciary but were merely recommendations to Congress, the respondent was no more than a commission mandated to make enquiries preliminary to an administrative or judicial decision. Consequently, the respondent was not a tribunal and the court had no jurisdiction to entertain an application from it pursuant to the Evidence (Proceedings in Other Jurisdictions) (Cayman Islands) Order 1978 (page 400, lines 4–25).
  (2) In any case, although the appointment of the respondent might have been the first stage in investigating whether to institute criminal proceedings, all such proceedings in Peru were instituted by the public prosecutor. Since there was no evidence that he had done so in this case, it followed that criminal “proceedings” had not “been instituted” as required by the Evidence (Proceedings in Other Jurisdictions) (Cayman Islands) Order 1978, Schedule, s.5, and for this reason too the Grand Court had no jurisdiction to entertain the application (page 400, line 30 – page 401, line 7; page 401, lines 20–26).
Case cited:
(1)    Rio Tinto Zinc Corp. v. Westinghouse Elec. Corp., [1978] A.C. 547; [1978] 1 All E.R. 434, considered.
Legislation construed:
Constitution of Peru, art. 97: The relevant terms of this article are set out at page 393, line 40 – page 394, line 3.
art. 99: “It is the responsibility of the Standing Committee to impeach any of the following before Congress: the President of the Republic . . . for violations of the Constitution and for any offence that they may commit in the exercise of their functions and up to five years after they have relinquished them.”
art. 100: The relevant terms of this article are set out at page 394, lines 10–26.
1994–95 CILR 393
Evidence (Proceedings in Other Jurisdictions) (Cayman Islands) Order 1978 (S.I. 1978/1890), Schedule, s.1: The relevant terms of this section are set out at page 398, lines 7–19.
s.2: The relevant terms of this section are set out at page 398, lines 21–33.
s.5: The relevant terms of this section are set out at page 398, lines 35–43.
Regulations of the Democratic Constitutional Congress, art. 35: The relevant terms of this article are set out at page 394, line 44 – page 395, line 18.
C.G. Quin for the appellant;
R.D. Alberga, Q.C. and S.T. McCann for the respondent.

             ZACCA, P.: On December 12th, 1994, we allowed this appeal and 
  promised to put our reasons into writing. This we now do. 
15    On February 13th, 1989, a contract was entered into between an Italian 
  consortium and a Peruvian government organisation for the Lima Electric 
  Train Project. It is alleged that certain Peruvian officials, including a 
  former President of the Republic of Peru, Mr. Alan Garcia, corruptly 
  received payments of money in relation to the project. 
20    In Peru, an ordinary criminal action is instituted with an accusation filed 
  by the public prosecutor before a judge of the Criminal Court. When 
  charges are laid, the judge issues a resolution either opening the 
  investigative process or dismissing it. During the investigative stage, the 
  judge directs the gathering of evidence as well as ascertaining the liability 
25  of the accused person or persons. Once the preliminary investigation is 
  over, the judge and the public prosecutor prepare reports which are 
  considered by the Criminal Branch of the Superior Courts which decides 
  whether a public hearing shall commence. Three judges determine the 
  guilt or otherwise of the accused person or persons. 
30    Criminal proceedings have been instituted in the Peruvian courts against 
  certain individuals for allegedly corrupting high-ranking state officials in 
  connection with the Lima Electric Train Special Project. 
    The Constitution of Peru, in art. 99, provides that it falls to the Standing 
  Committee of the Congress to determine whether criminal charges against 
35  high state officials, including the President or the former President of the 
  Republic, shall proceed to trial before the Supreme Court. Provision is also 
  made for the Congress to commence investigation into matters of public 
  interest. 
    Article 97 states: 
40        “The Congress may initiate an inquiry into any matter of public 
      interest. It is mandatory to appear, upon their request, before the 
      committees charged with such inquiries, subject to the same 
      sanctions as in judicial proceedings. 
        For the implementation of their purposes, said committees may 
45      have access to any information, which may involve the lifting of 
1994–95 CILR 394

             banking secrecy and tax confidentiality, with the exception of 
      information that may bear on intimate personal matters. Their 
      conclusions do not obligate judicial organs.” 
    It appears therefore that art. 97 deals with the investigation of any 
5  matter of public interest, whereas art. 99 deals with the standing 
  committee determining whether criminal charges should commence 
  against high officials including the President of the Republic or a former 
  President. 
    Article 100 provides: 
10        “It is the responsibility of the Congress, without participation of its 
      Standing Committee, to suspend or not a functionary who is charged 
      or arrested for offences in public service for up to ten years or to 
      relieve him of his functions without prejudice to any other 
      responsibility. 
15        During these proceedings the accused is entitled to defend himself 
      or do so with the assistance of an attorney before the Standing 
      Committee and before the Congress in plenary session. 
        In the case of a criminal indictment, the Attorney General of the 
      Nation presents a bill of particulars before the Supreme Court within 
20      five days. The Supreme Attorney for Criminal Affairs opens an 
      appropriate hearing. 
        An acquittal by the Supreme Court restores political rights to the 
      accused official. 
        The terms of the Attorney General’s charges and of the judicial 
25      decree may neither exceed nor reduce the limits of the indictment of 
      the Congress.” 
    It seems therefore that the accused has the right of self-defence with 
  the assistance of a lawyer before the Standing Committee and before the 
  Congress in plenary session. 
30    The Standing Committee is therefore authorized to consider accusations 
  against high officials and make their recommendations to the Congress in 
  plenary session. In the event of a criminal indictment, the Attorney 
  General is obliged to prosecute the state official. The public prosecutor 
  and the Supreme Court do not have the power to reduce or extend the 
35  terms of the indictment by the Congress. 
    Article 25 of the Regulations of the Democratic Constitutional Congress 
  provides for the Commissions of the Congress. These are Permanent 
  Commissions and Temporary Commissions, which may either be 
  Investigative Commissions or Special Commissions. 
40    In addition to the Standing Committee, the Congress in plenary session 
  may appoint Investigative Commissions for important matters which are 
  not handled by the said Committee. This is provided for in art. 35 of the 
  Regulations which states: 
        “Apart from the Standing Committee, the Congress in plenary 
45      session may appoint Investigative Commissions for important 
1994–95 CILR 395

             matters which are then not handled by the Standing Committee. 
      Special Investigative Commissions are constituted by three to five 
      members of Congress. The said Commissions are established within 
      three days of their appointment. They submit their reports to the 
5      Congress in plenary session within the thirty days following their 
      establishment, unless a longer period is granted. 
        During their operation, each Investigative Commission shall keep 
      the Standing Committee abreast of its progress. The conclusions 
      proved by the Congress neither bind the judiciary in the constitu- 
10      tional pre-trial conference, nor affect the ordinary course of the 
      judicial process, but the result of the investigation is communicated 
      to the office of the Attorney General for relevant action. 
        Investigative Commissions may request the appearance of any 
      citizen, under the same constraints as are in force for judicial 
15      proceedings. 
        Investigative Commissions may request the President of the 
      Congress or its Supervisory Board to hire the professional services of 
      competent consultants in the subject-matter of the investigation.” 
    It is to be noted that unlike proceedings before the Standing Committee 
20  or the Congress in plenary session, no mention is made of the accused’s 
  right to self-defence with the assistance of a lawyer. This may be so 
  because there is no accused party but the investigation of important 
  matters. Another difference is that in the case of the Investigative 
  Commission, their conclusions do not bind the judiciary and the result of 
25  the Commission is communicated to the office of the Attorney General for 
  the relevant purposes. 
    CITEL is a special Investigative Commission appointed by Congress in 
  accordance with art. 97 of the Constitution and arts. 25 and 35 of the 
  Regulations of the Democratic Constitutional Congress. This is stated in 
30  the affidavit of Mr. Andres Reggiardo Sayan on behalf of CITEL. He was 
  appointed President of the Special Investigative Commission. 
    As observed above, art. 97 empowers the Congress to commence 
  investigations on any matter of public interest. Article 25 of the 
  Regulations provides for Permanent Commissions and Temporary Com- 
35  missions which may be (a) Investigative Commissions and (b) Special 
  Commissions. Article 35 of the Regulations empowers Congress in 
  plenary session to appoint Investigative Commissions for important 
  matters. 
    On November 12th, 1993 the Democratic Constitutional Congress 
40  wrote to Congressman Andres Reggiardo Sayan as follows: 
    [The learned President then set out the relevant terms of the letter which 
  made it clear that an Investigative Commission had been appointed to 
  investigate the contracts for the Electric Train of Lima. He continued:] 
    During the CITEL hearings, one Sergio Serafusa testified that Mr. Alan 
45  Garcia corruptly solicited money from the Italian consortium involved in 
1994–95 CILR 396

         the Electric Train Project. He stated that three payments were made by the 
  consortium, totalling US$840,000 to a certain account with Barclays 
  Bank, Grand Cayman, at the request of Mr. Garcia. 
    On June 22nd, 1994, an ex parte application, on a request contained in 
5  letters rogatory from the President of the Investigative Commission, 
  investigating the contracts for the Electric Train of Lima, was made to the 
  Grand Court and the learned trial judge ordered as follows: 
        “1. The Deputy Clerk of the Grand Court be appointed examiner 
      herein to depose the following persons: 
10                (i)    Mr Alex Wood, Manager, Barclays Bank PLC, Cardinal 
                      Avenue (P.O. Box 68), George Town, Grand Cayman, 
                      Cayman Islands; 
                (ii)    Any director, shareholder or officer of the Cayman Islands 
                      company [‘the company’] being the holder of Account No. 
15                      280762361–2952733 at the George Town Branch of 
                      Barclays Bank PLC, Grand Cayman, Cayman Islands. 
        2. The said witnesses be compelled to attend before the examiner 
      at the Law Courts, George Town, Grand Cayman or such other place 
      as determined by the said examiner on June 27th, 1994 at 10 a.m. and 
20      that the said witnesses submit themselves to being examined upon 
      oath or affirmation concerning the testimony required by CITEL 
      pursuant to the letter of request dated June 17th, 1994 and to produce 
      the following documents: 
                (i)    All documents relating to the receipt of the following 
25                        sums: 
                            (a)    US$300,000 on or about October 11th, 1989; 
                            (b)    US$300,000 on or about January 4th, 1990; 
                            (c)    US$240,000 on or about August 14th, 1990; 
                        credited to Barclays Bank PLC, George Town, Grand 
30                        Cayman, Account No. 280762361–2952733, and 
                        subsequent disposition thereof. 
                (ii)    All documents relating to the receipt of any other 
                        moneys credited to the account since February 13th, 
                        1989, and the subsequent disposition thereof. 
35                (iii)    All correspondence (including letters or notes of 
                        instructions), ledgers, day books, accounts books, and 
                        computer records used in the ordinary course of 
                        business relating to the transactions referred to in the 
                        preceding paragraphs. All corporate records including 
40                        (but not exclusive of) the Register of Shareholders, 
                        Directors and Officers, Memorandum and Articles of 
                        Association, share certificates, nominee agreement(s), 
                        and any other documents pertaining to the beneficial 
                        ownership of the company. 
45        3. The said witnesses do apply to the Grand Court pursuant to s.3A 
1994–95 CILR 397

             of the Confidential Relationships (Preservation) Law for directions as 
      to the manner of giving evidence in the production and inspection of 
      the said documents before Schofield, J. in Chambers on June 24th, 
      1994 at 9.30 a.m. 
5        4. The said examiner do record in writing the evidence of the said 
      witnesses in examination, cross-examination and re-examination and 
      to require the said witnesses to sign his deposition in the examiner’s 
      presence and when so completed file it with the Clerk of the Grand 
      Court to be forwarded to CITEL in Lima, Peru.” 
10    Worldwide Financial Holding [“Worldwide”] is the holder of the 
  account referred to in the order and on an inter partes application asked 
  that the ex parte order be set aside. The learned trial judge refused to set 
  aside the order but deleted para. 2(ii) of the order. 
    At the hearing of the appeal, Mr. Quin on behalf of the appellant argued 
15  four grounds of appeal: 
    1. The learned judge erred in law in holding that CITEL constitutes a 
  court or tribunal as defined in s.1 of the Schedule to the Evidence 
  (Proceedings in Other Jurisdictions) (Cayman Islands) Order 1978 and 
  further, the learned judge erred in law in holding that he had jurisdiction to 
20  grant the order he made on June 22nd, 1994. 
    2. The learned judge erred in law in holding that CITEL was conducting 
  an inquiry for evidence for the purpose of a trial and further, the learned 
  judge erred in law in not holding that CITEL was conducting an inquiry 
  for pre-trial discovery and not for testimony to be used at trial. 
25    3. The learned judge erred in law in holding that criminal proceedings 
  have been instituted pursuant to the requirement of s.5(1)(b) of the 
  Schedule to the Evidence (Proceedings in Other Jurisdictions) (Cayman 
  Islands) Order 1978. 
    4. The learned judge erred in law in holding that the request for the 
30  production of documents set out in para. 2 of the order of June 22nd, 1994 
  was described with sufficient particularity or specified with sufficient 
  particularity and satisfied the test set out in s.2(3)(b) of the Schedule to the 
  1978 Order. 
    In his submissions, Mr. Quin argued that CITEL was an Investigative 
35  Commission and therefore was neither a tribunal nor a court. It exercised 
  no judicial function. It could make no binding decision. It merely prepares 
  a report making recommendations. It was also submitted that no criminal 
  proceedings had been instituted in Peru, and that the order for the 
  production of documents was defective in that the documents were not 
40  described with sufficient particularity in order to satisfy the test set out in 
  s.2(3)(b) of the Schedule to the 1978 Order. 
    Mr. Alberga, Q.C. for the respondent submitted that the Investigative 
  Commission was a tribunal and that criminal proceedings had been 
  instituted. He argued that in Peru the appointment of the Commission was 
45  the first stage of criminal proceedings. 
1994–95 CILR 398

           The jurisdiction to grant the request is given by the Evidence 
  (Proceedings in Other Jurisdictions) (Cayman Islands) Order 1978 which 
  extends to the Cayman Islands ss. 1–3 and 5–10 of, and Schedule 2 to, the 
  Evidence (Proceedings in Other Jurisdictions) Act 1975. 
5    Section 1 of the 1975 Act, as extended to the Cayman Islands, reads as 
  follows: 
        “Where an application is made to the Grand Court for an order for 
      evidence to be obtained in the Cayman Islands, and the court is 
      satisfied— 
10          (a)    that the application is made in pursuance of a request issued 
                  by or on behalf of a court or tribunal (‘the requesting Court’) 
                  exercising jurisdiction in a country or territory outside the 
                  Cayman Islands; and 
          (b)    that the evidence to which the application relates is to be 
15                  obtained for the purposes of civil proceedings which either 
                  have been instituted before the requesting court or whose 
                  institution before that court is contemplated, 
      the Grand Court shall have the powers conferred on it by the 
      following provisions of this Act.” 
20  The relevant provisions of s.2 read as follows: 
        “(1) Subject to the provisions of this section, the Grand Court shall 
      have power, on any such application as is mentioned in section 1 
      above, by order to make such provision for obtaining evidence in 
      the Cayman Islands as may appear to the court to be appropriate 
25      for the purpose of giving effect to the request in pursuance of 
      which the application is made, and any such order may require a 
      person specified therein to take such steps as the court may consider 
      appropriate for that purpose. 
        (2) Without prejudice to the generality of subsection (1) above but 
30      subject to the provisions of this section, an order under this section 
      may, in particular, make provision— 
          (a)    for the examination of witnesses, either orally or in writing; 
          (b)    for the production of documents. . . .” 
  Finally, s.5, so far as is relevant, provides that: 
35        “(1) The provisions of sections 1 to 3 above shall have effect in 
      relation to the obtaining of evidence for the purposes of criminal 
      proceedings as they have effect in relation to the obtaining of 
      evidence for the purposes of civil proceedings except that— 
          (a)    paragraph (a) of section 1 above shall apply only to a court 
40                  or tribunal exercising jurisdiction in a country or territory 
                  outside the Cayman Islands; 
          (b)    paragraph (b) of that section shall apply only to proceedings 
                  which have been instituted. . . .” 
    The first observation to be made is that the Investigative Commission is 
45  not appointed under art. 99 of the Peruvian Constitution which provides 
1994–95 CILR 399

         for the Standing Committee to charge, before Congress, high officials 
  including the President of the Republic. 
    The Investigative Commission is appointed under art. 97, which states 
  in part that the resolutions of the said Commission do not bind the judicial 
5  organs. Such Investigative Commissions are appointed to investigate 
  important matters which are not handled by the Standing Committee. They 
  submit their reports to the Congress in plenary session. Their conclusions, 
  if approved by Congress, neither bind the judiciary nor affect the ordinary 
  course of the judicial process. The result of the investigation is 
10  communicated to the office of the Attorney General for the relevant 
  purposes. Presumably the public prosecutor could then institute criminal 
  charges. 
    In his reasons for judgment, the learned trial judge states (1994–95 
  CILR at 258): 
15  “The Special Committee is empowered by Congress to examine the 
  evidence against the former President and certain other named 
  individuals. . . . 
    Once the evidence is before it, the committee prepares a final 
  report on whether or not the alleged charges should go further. This 
20  report goes before a plenary meeting of Congress, acting as a jury. 
  The committee’s report is considered, but is not binding on Congress. 
  If Congress passes a resolution to that effect the Public Prosecutor is 
  obliged to prosecute the state officials concerned and neither the 
  Public Prosecutor nor the Supreme Court may reduce or extend the 
25  terms of the accusation.” 
    Wade, Administrative Law, 6th ed., at 900–901 (1988) distinguished 
  tribunals from ordinary inquiries. He said: 
        “In principle there is a clear contrast between the function of a 
      statutory tribunal and that of a statutory inquiry of the kind discussed 
30      in the next chapter. The typical tribunal finds facts and decides the 
      case by applying legal rules laid down by statute or regulation. The 
      typical inquiry hears evidence and finds facts, but the person 
      conducting it finally makes a recommendation to a minister as to how 
      the minister should act on some question of policy, e.g. whether he 
35      should grant planning permission for some development scheme. 
      The tribunal need look no further than the facts and the law, for the 
      issue before it is self-contained. The inquiry is concerned with the 
      local aspects of what will usually be a large issue involving public 
      policy which cannot, when it comes to the final decision, be resolved 
40      merely by applying law. Tribunals are normally employed where 
      cases can be decided according to rules and there is no reason for the 
      minister to be responsible for the decision. Inquiries are employed 
      where the decision will turn upon what the minister thinks is in the 
      public interest, but where the minister, before he decides, needs to be 
45      fully informed and to give fair consideration to objections. In other 
1994–95 CILR 400

             words, tribunals make judicial decisions, but inquiries are pre 
      liminary to administrative or political decisions, often described as 
      quasi-judicial decisions.” [Emphasis supplied.] 
    CITEL merely investigates and makes a recommendation to Congress. 
5  The duties of this Investigative Commission were to investigate the 
  contract for the Electric Train of Lima. The findings of the Investigative 
  Commission do not and cannot themselves result in the prosecution of any 
  person. They are not binding on the public prosecutor. He is not obliged to 
  prosecute. 
10    Article 35 of the Regulations provides that the conclusions approved by 
  the Congress in plenary session do not bind the judiciary or affect the 
  ordinary course of the judicial process. The finding of the learned judge 
  cannot therefore be supported because, in the passage quoted above, he 
  erred in attributing to CITEL the powers and procedures of the Standing 
15  Committee under art. 99. 
    CITEL cannot make any binding decisions. It is in reality a commission 
  mandated to make enquiries which are preliminary to administrative or 
  judicial decision. In our view, the Investigative Commission cannot be 
  regarded as a tribunal to bring it within s.1(a) of the 1975 Act. The Grand 
20  Court of the Cayman Islands cannot, in these circumstances, entertain an 
  application from such an Investigative Commission. 
    This finding that CITEL is not a court or tribunal would be sufficient to 
  dispose of the appeal. However, in deference to the arguments of counsel 
  and its general public importance, we also consider the question of 
25  whether or not criminal proceedings have been instituted. 
    The learned trial judge found that the appointment of CITEL was an 
  essential first step in the institution of criminal proceedings against Mr. 
  Alan Garcia. He also held that the proceedings of CITEL were the first 
  stage in the criminal process. 
30    In a memorandum from the public prosecutor’s Office in Peru to the 
  Commissioner of Police in the Cayman Islands, the public prosecutor 
  states that the public prosecutor is responsible for the institution of 
  criminal proceedings. 
    It may be that CITEL is the first stage in the investigation as to whether 
35  criminal proceedings will be instituted. However, it is the public 
  prosecutor who institutes criminal proceedings. It cannot therefore be said 
  that criminal proceedings have been instituted on the appointment of 
  CITEL. 
    The evidence discloses that on the Standing Committee’s recommenda- 
40  tion, Congress can, by resolution, determine that criminal proceedings be 
  instituted. However, it remains with the public prosecutor to institute the 
  criminal proceedings. It is true that he has no discretion as to whether 
  these proceedings should be instituted. 
    Secondly, CITEL, as an Investigative Commission, must report to 
45  Congress and the conclusions approved by the Congress in plenary session 
1994–95 CILR 401

         as communicated to the Office of the Attorney General. It is then left to the 
  public prosecutor to institute criminal proceedings. Under art. 35 there is 
  no binding resolution on which the public prosecutor must act. 
    Thirdly, ordinary criminal actions are instituted by the public prosecutor. 
5    It therefore appears that all criminal actions are instituted by the public 
  prosecutor whether it be in relation to a high official or the ordinary 
  citizen. 
    In Rio Tinto Zinc Corp. v. Westinghouse Elec. Corp. (1) it was held that 
  evidence sought for an American grand jury’s investigation could not form 
10  the subject of an order because proceedings had not been instituted. The 
  learned trial judge endeavoured to distinguish that case from the instant 
  one on the ground that the grand jury proceedings are closed proceedings, 
  the defence having no right to be heard and they are optional at the behest 
  of the prosecutor. 
15    The grand jury is an investigative body and can in fact lay an indictment 
  against an accused person. In the case of CITEL, it can investigate and 
  make recommendations to Congress. The distinguishing factor found by 
  the learned trial judge cannot, in our view, transform the proceedings by 
  CITEL into criminal proceedings. 
20    There is absolutely no evidence that the public prosecutor has instituted 
  criminal proceedings against Mr. Alan Garcia and until this has been 
  achieved, the Grand Court of the Cayman Islands has no jurisdiction to 
  entertain the request from CITEL. It is clear that in the Cayman Islands, in 
  such circumstances, it could not be said that criminal proceedings had 
25  been instituted. The learned trial judge was in error in holding that 
  criminal proceedings had been instituted. 
    For these reasons, the appeal was allowed and the order of the trial 
  judge vacated. It was ordered that the costs of the appeal and the costs 
  before the trial judge should be the appellant’s to be agreed or taxed. 
Appeal allowed.
Attorneys: Paget-Brown, Quin & Hampson for the appellant; Bruce
Campbell & Co. for the respondent.