In a three-page letter addressed to Commissioner of the Inquiry, Sir Gary Hickinbottom, dated September 30, AG Smith said the matter created a misleading impression of the true situation and was damaging to the public’s interest and families of the convicts.
She contended that the matter being aired in the public’s domain the way it did, was avoidable and she said it also appeared to have been raised in a way “that not only violated your own protocols and the essential assurances on which confidential government documents are disclosed to you but also prevented the minister from being able to present the facts on a matter that was bound to be of acute public concern.”
AG Smith further said, in her opinion, the CoI breached the confidentiality and its own protocols by disclosing the contents of the Cabinet Minutes to the public before seeking Cabinet’s consent first.
“The minute is a Cabinet document, which attracts Cabinet confidentiality under the vital public interest and constitutional principle of collective ministerial responsibility. Those, I represent disclosed the minute voluntarily to the COI team alone on an expressly confidential basis and in the reliance of the assurances in given in the COI protocols of die "safeguard" provided by the two-stage disclosure process,” she continued.
Furthermore, AG Smith said Counsel to the Commission Mr. Bilal Rawat did not inform the Commissioner nor the Solicitor General Mrs. Jo-Ann Williams- Roberts, who was representing her, that Cabinet had not waived the confidentiality of the document, nor was she given an opportunity to make submissions on the issue, or given a copy of the said minutes.
AG Smith then asked for the Commissioner to confirm whether it was done by accident and requested the assurance that in the future, the CoI team would not use Cabinet papers at public hearings or make them public without having prior consent to so do.
Hon. Smith went on to say that Minister Wheatley had not been pre-warned of the issue.
She said: “No notice of criticism. The Minister had no advance warning that he would be questioned in relation to the minute: the minute was not included in the advance bundle, and he was not handed a copy of it prior to the hearing. Criticisms were put to the Minister in relation to the minute without having been included in his warning letter. No explanation has been given for why he was not so warned.”
She also pointed out that during the delay in calling the minister to testify, he could have been given the said document to peruse, but that was not done.
She added: “Alternatively, and given the seriousness of the criticisms, the Minister could have been recalled on another day, as have other witnesses in this Inquiry. But the Minister was questioned at length and in detail about the Application. We will write separately in relation to the criticisms made. Those lines of questioning deployed were not appropriate. For example, the Minister was asked: "how is it that you cannot remember if you granted a rapist Belonger status or not".
According to the AG, even allowing for a degree of forensic enthusiasm, this was unfair in the circumstances since the Minister had not been given the opportunity to remind himself of the facts and would obviously not want to provide evidence to the Inquiry that he had not verified, particularly on such a sensitive matter. Furthermore, the tone and manner of the questioning were prosecutorial and accusatory.”
AG Smith said while she accepts that, in general, it is in the public interest to have the hearings public, some misconceptions may arise among members of the public of matters that are under active discussion.
She also sought to set the record straight that neither criminals were granted belonger status nor were they under consideration.
She pointed out that the damage has already been done and referred to the many social media posts to prove it as if the government had, in fact granted the criminal pair with belonger status.
“The misleading impression caused by this approach is damaging to the public interest. The effect has been needlessly to undermine public confidence in the willingness of the Government and the administration to protect their security. It could hardly have done more damage to public perception of Government as a whole if it had been calculated to do so. Furthermore, these revelations have prejudiced the rights to privacy and administrative fairness of the individuals and victims concerned, which should have been the predictable conclusion of any responsible reflection on this matter,” the AG stated.
She said with these persons easily identified because of the smallness of the territory, could result in acute distress to the families and persons involved.
“I very much regret having to write to you in this vein. However, the importance of the subject compels me to do so. Finally, in the exceptional circumstances of this matter, and to clarify the misleading impressions to which these events have given rise, I have decided that this letter should be made public,” the AG pointed out.