Wish you were here? A traveller’s tale from the Commission of Inquiry in the British Virgin Islands

Bilal Rawat KC recounts his sojourn in the Caribbean

The British Virgin Islands (BVI) are an archipelago of tropical islands in the Caribbean.  The average daily temperature is 24°c in summer but a mere 21°c in winter.  The internet speaks of ‘powdery white beaches’ and ‘sapphire-toned waters’, and a ‘verdant paradise’. None of this, of course, came to mind when, three lockdowns into the COVID-19 pandemic, I was approached to act as counsel to a Commission of Inquiry (COI) investigating political corruption in the BVI to be led by The Rt. Hon. Sir Gary Hickinbottom, a senior member of the Court of Appeal. What I knew then of the BVI was that they had suffered terribly when hit by hurricanes Irma and Maria in 2017, were often criticised for their approach to financial transparency, and that one island was owned by Sir Richard Branson.

A British Overseas Territory, the BVI’s constitution provides for a legislature comprising the Governor, exercising executive authority on behalf of the King, and an elected House of Assembly. The ruling administration in the latter forms a cabinet led by a Premier. It has responsibility for areas such as education, finance, welfare, and public works, while the Governor chairs cabinet and retains responsibility for national security, the courts, and the civil service. On 19 January 2021, Gus Jaspert, the then Governor, announced the COI. His decision was prompted by concerns over the mismanagement of public funds, political interference in the awarding of government contracts, intimidation of public officers, and the encroachment of organised crime (just two months before, cocaine with a street value of $250M had been found at a police officer’s home).

The COI’s terms of reference were broad: to establish whether there was information that corruption, abuse of office or other serious dishonesty in relation to public officials, elected or not, may have taken place in recent years and to make recommendations to improve the standard of governance and of the law enforcement and justice system. As with any inquiry, the COI could not determine matters of civil or criminal liability.  It was fortunate that the secretary to the COI was a highly experienced diplomat seconded from the Foreign Office who moved quickly to set up the processes expected of a UK inquiry but new for the Eastern Caribbean.

So it was that, having left a near-empty Gatwick at the end of April 2021, I found myself beginning our first hearings remotely from quarantine.  Key parties involved included the BVI’s Attorney General, the Premier, the BVI Government, all represented by a team led by Sir Geoffrey Cox KC, MP.

From the beginning there were challenges. Potential witnesses repeatedly expressed fears that, if discovered to have been in contact with the inquiry, they would be targeted and victimised. Some just would not come forward. Others would do so only on condition of complete anonymity, a difficult guarantee in a small community. Despite early requests for disclosure, the slow pace at which it was provided by the BVI government and its incomplete nature, was a persistent issue.

At first, the BVI public was deeply divided over the COI.  The territory has an active online press with widespread use of social media. Sections of the press and some commentators pointed to an earlier inquiry in the Turks and Caicos Islands which had led to the suspension of that territory’s constitution and, in effect, the imposition of direct rule from London. They painted the COI as a British imposed process with a pre-determined outcome. Allegations of a political agenda and cultural insensitivity circulated alongside personal, and sometimes peculiar, criticisms of the Commissioner and his team.  That team was a small one with just six of us in the BVI including the Commissioner.  In a small jurisdiction, we became well-known and so were more directly exposed to criticisms than might have been the case in the UK.

Public debate over an inquiry which could have profound constitutional implications is important. The COI’s commitment to transparency was key to changing public opinion.  While there was no local precedent for rules or protocols of the sort seen in UK inquiries, the COI published rules and protocols to show how it would operate.  Ensuring procedural fairness was fundamental. Witnesses were notified of potential criticisms in advance and were able to respond in writing and at an oral hearing. The decision to deal with potential criticisms during the evidence gathering, rather than report writing stage, was not subject to challenge and reduced delay.

Livestreaming the public hearings proved effective in engaging with the BVI public. They generated considerable interest with average views of over 7,000 per day.  Some of this was no doubt down to the novelty of seeing senior political figures and public officers questioned.  It meant, however, that those most affected by the inquiry could judge the thoroughness with which issues were investigated. That the public could see that all witnesses were treated with courtesy, had legal representation if necessary, and that the COI was prepared to ask difficult questions of, for example, Mr Jaspert and his successor, contributed significantly to changing attitudes as to the independence of the inquiry.

The COI adopted a topic-based approach. There followed many hours and days of consuming and painstaking work. The topic-based approach meant witnesses were called more than once, including the Premier, Andrew Fahie, a flamboyant character who insisted on beginning his evidence sessions with a prayer. Matters brought to public attention included the inability to hold elected representatives accountable for their persistent failure to declare financial interests; their near unfettered discretion to distribute financial grants to constituents; large contracts being awarded without cabinet approval and with little regard to procurement requirements;  the $1M spent on a never-finished school wall; $7M committed to a national airline whose planes never flew; the allocation of Covid grants contrary to policy; overt political interference in supposedly independent statutory bodies; the sale of Crown Land valued at $600K for $1; the obstruction of government auditors; and the attempt in cabinet to grant BVI citizenship to a convicted rapist serving his sentence overseas despite a residency requirement.

The COI report was submitted to the Governor on 4 April 2022.  It runs to 946 pages. To produce a report, which had to address a wide range of matters to have credibility, within 15 months showed that a thorough and timely inquiry can be delivered, however difficult the circumstances. For me, that was a tribute to the commitment of the colleagues with whom I worked in the BVI.  The twist in the tale was the arrest of Andrew Fahie on drug trafficking charges in Miami (He is now serving 11 years in a US Federal prison).  That briefly drew attention away from the COI’s recommendations.  That it recommended suspending the constitution generated headlines, but there were another 48 recommendations intended to improve systems of governance, law enforcement, and justice. Ultimately, the COI proved to be a rare example of an inquiry whose recommendations were accepted in full.  The UK Government agreed not to enforce the Order in Council which would suspend the BVI’s constitution if the BVI government satisfactorily implemented all other recommendations.  The Order was revoked on 10 March 2026.

Looking back, the COI was not just an interesting case in what is indeed a verdant paradise; it was also an opportunity to contribute to the prevention of systemic abuses which could, if not addressed, jeopardise the BVI’s progress towards self-determination.