“Does ICAC have reliable information that there may have been an offence under POCA?”
Reward Money: ADSU vs ICAC
Qs & As
* ‘Who would dare become an informer if the details regarding the identity of the informer and the latter’s deal with the police may be leaked out?’
The very principle and nature of “reward money” for essential confidentially provided information leading to a complex case resolution or arrest is being tested with the ICAC application to the Supreme Court that all data, files and information relating to a specific case be disclosed to it by the Commissioner of Police. Both the application and the Supreme Court’s order may be surprising as they may have wider implications. Lex is asked to weigh in on those matters.
By LEX
* It has come out that the Independent Commission Against Corruption (ICAC) had opened an investigation into one particular case involving the payment of Rs 700,000 as reward money by the Anti-Drug and Smuggling Unit (ADSU) to one or more informer/s, which led to the record drug haul of 135 kilos of heroin dissimulated in cylinders imported from South Africa in March 2017. Our understanding is that it’s not the principle of awarding reward money that is being questioned; what’s being investigated is whether there could have been any ‘maldonne’ in the award of that money, the identity of the beneficiaries and the sums paid. That seems quite fair, since that’s what ICAC is here for, isn’t it?
What is the purpose of awarding reward money? Its very purpose is to obtain information, which otherwise would not have become available, and would lead to the detection of serious offences and ultimately to the arrest of the culprit/s. What purpose would it serve to make the information relating to how much has been paid and who is/are the recipient/s serve?
* Reward money at the disposal of law enforcement agencies, like the Police’s CID, ADSU or the NIU, is said to be drawn from undisclosed funds in the budget of the Mauritius Police Force voted by Parliament. It’s the Commissioner of Police who is vested with the authority to give the final approval for the payment of reward money to informers. Isn’t that modus operandi not good enough?
In some countries there is a special committee that deals with the issue of reward money. In Mauritius, it’s the Commissioner of Police who gives the green light for such payments. There has to be an element of trust in the system and in the people responsible for its effective operation.
* One would however expect – for the sake of transparency – that the modus operandi relating to reward money would include written verification that a tip from an informer helped lead to the arrest and conviction of the perpetrator/s of a crime. What should prevail: transparency or combating crime?
You do that, you kill the informer system in the bud. Who would dare become an informer if the details regarding the identity of the informer and the latter’s deal with the police may be leaked out?
* Is a reward offer a contract, which binds the offeror (the police) and the offeree (the informer), just like what would obtain in civil cases, where an offeree can sue the offeror for breach of contract if the latter does not provide the reward after the offeree has fulfilled the contract’s requirements?
On the face of it, it would be a contract, and it would be expected that the informer would respect his side of the bargain by providing solid information that could lead to the arrest of culprits. But if the information proves to be unreliable, the police would not be bound to pay the reward money.
* Following an application by ICAC, the Supreme Court ordered the Commissioner of Police to submit to the ICAC “all data, information and documents and files in relation to the award of reward money in connection to the case bearing OB901/17 ADSU”. Is the Commissioner duty-bound to execute the Court’s Order, or can he invoke professional secrecy to refuse to provide the information as ordered by the Court?
With due respect to the Supreme Court, I would take a different view.
By ordering that all details relating to the reward money in this particular case be released to ICAC, the latter institution is being given a free hand to investigate the donors of reward money and the recipients of that money.
Does that mean that each time reward money has to be paid, the Commissioner of Police (CP) may be called upon to disclose information to ICAC? Since the payment is ultimately the decision of the CP, would that mean that any ICAC investigation would in fact be an investigation of the decision of the CP?
* It is suspected that the National Intelligence Unit, and its earlier incarnations — the Special Branch, the State Security Services… – might have all been giving away reward money to informers (and even to some politicians for sensitive information on matters relating to internal party politics as well as on their party leadership’s contacts with foreign embassies) or with regard to state security. Can the Director-General of the NIU invoke state security in the latter case, and refuse to furnish any information to any authority?
Section 45 of the Bank of Mauritius Act 2004 reads as follows:
“(1) In any proceedings in which the genuineness of a currency note or coin purporting to have been issued by the bank is in question, a certificate under the hand of a Deputy Governor to the effect that such currency note or coin is spurious or genuine shall be received in all courts as conclusive evidence of the spuriousness or genuineness, as the case may be, of such purported currency note or coin.
“(2) The deputy governor shall not be examined or cross-examined with respect to any such certificate.”
Some evidence is prohibited to be ventilated in court.
Moreover, in a case decided in 2013, the court made it clear that the legislator creates such statutory exceptions where there are compelling reasons for doing so in the same way that common law exceptions are based on compelling reasons.
If an officer from the Bank of Mauritius were to come and depone in court on the certificate declaring a particular note or coin to be spurious, in cross-examination, evidence could be elicited from him as to the manner in which genuine notes or coins are made by the Bank of Mauritius and, by comparison, why the note or coin subject matter of the prosecution has been declared to be spurious.
The effect of such evidence coming out in cross-examination would be that everybody having access to that information, which has becomepart of a public record, would come to know how genuine notes and coins are made. The interest of affording an accused party the facility to cross-examine the witness is greatly outweighed by the public interest that lies in keeping information about the production of genuine bank notes and coins secret.
In my view, the wider public interest should have prevailed over other considerations.
* Should reward money be disclosed to the Revenue Authority?
In an answer in the House of Commons in 1949, the then Chancellor of the Exchequer Sir Stafford Cripps stated:
“Rewards are given only where the services of the informer result in some substantial recovery of duty and he has incurred expense or expended time and trouble in support of his allegations and the information supplied would not otherwise have become available to the Revenue. These rewards are not income for Income Tax purposes.”
If this so and that money need not be disclosed to the Revenue Authority, as it serves a wider public interest in combating serious crimes, why is ICAC concerned with it? Does ICAC have reliable information that there may have been an offence under POCA for it to investigate?
* Published in print edition on 19 October 2021
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