It is correct that the Foreign and Commonwealth Office (FCO) and the Cayman Islands Government continue to have a difference of opinion on parts of the agreement termed the ‘Exchange of Notes’, but it is disingenuous for the FCO to say that the Cayman Islands is not cooperating with the UK with regards to investigating serious crimes.
At the core of the current dispute with the FCO are fundamental issues of data security and human rights, specifically the right to privacy. Cayman has on several occasions offered case law examples to support our point of view. The FCO has never provided any counterpoints, choosing instead to dismiss Cayman’s concerns without explanation. This attitude is alarming as a recent decision by the European Court of Human Rights found that British surveillance violated privacy rights – an indication that the UK’s interpretation of human rights protection is not infallible. The FCO, since November 2016, had chosen to dismiss Cayman’s concerns relating to a fundamental principle of data security, specifically encryption, in relation to the exchange of information for an active investigation. Eventually, in July 2018, the FCO conceded that Cayman’s concerns, in this regard, were well founded. But other concerns remain.
Under the ‘Exchange of Notes’ (EoN), the Cayman Islands General Registry is the competent authority on the maintenance of Cayman’s beneficial ownership platform. This mirrors the mechanism in the UK in which Companies House maintains the UK’s beneficial ownership register. Under the EoN, the Cayman Islands specified the Financial Crime Unit of the RCIPS as the ‘designated point of contact’ for requests. This distinction in functions was determined by the UK in the crafting of the EoN. Between August 2017 and July 2018, the Cayman Islands took the additional step of delegating certain powers of the beneficial ownership competent authority to the Financial Crime Unit to facilitate a transition period while the platform became fully operational. At the end of the transition period on June 30 2018, the additional powers delegated to the Financial Crime Unit were no longer necessary and were consequently revoked.
The revocation of this delegation to the Financial Crime Unit in no way affects the ability of local law enforcement to cooperate with its international counterparts, a point that has explicitly been made to the FCO on multiple occasions.
The Financial Crime Unit does have in place a designation to make search requests on the beneficial ownership platform in accordance with the provisions of our Companies Law. Furthermore, while the Cayman Islands has taken the position that the UK is in breach of the agreement made with the signing of the EoN, we have repeatedly sought to ensure that an enhanced level of cooperation remains in place.
The Cayman Islands stands by its commitment to cooperation with all international law enforcement, including the NCA, but will not be bullied into the violation of fundamental principles of human rights or to cooperating in a way that runs counter to internationally accepted standards.