If justice must be seen to be done, stick with the Privy Council

By C. ben-David

The 1923 King v. Sussex Justices is a leading English case on the impartiality of judges. It is famous for setting a precedent, one that extends to our own Caribbean jurisdiction, in establishing the principle that the mere appearance of bias is sufficient to overturn a judicial decision. It is also famous for bringing into common usage the oft quoted aphorism, “Not only must justice be done; it must also be seen to be done.”

In 1923, a man named McCarthy was involved in a motorcycle accident which resulted in his prosecution before a magistrates court for dangerous driving. Unknown to Mr. McCarthy and his lawyer was the fact that the clerk to the justices hearing the case was a member of a firm of solicitors acting in a separate civil claim against him arising from the same accident. The clerk went into closed chambers with the justices, as was his duty, who soon returned with a guilty verdict.

When the clerk’s conflict of interest was later discovered, the defendant appealed. Even though the justices swore affidavits stating that they had reached their decision to convict the defendant without consulting their clerk, the original verdict was still overturned.

The reason for this is worth quoting in its entirety. According to Lord Chief Justice Hewart of the appeals court:

“It is said, and, no doubt, truly, that when that gentleman [the clerk] retired in the usual way with the justices, taking with him the notes of the evidence in case the justices might desire to consult him, the justices came to a conclusion without consulting him, and that he scrupulously abstained from referring to the case in any way. But while that is so, a long line of cases shows that it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done [bold added].

“The question therefore is not whether in this case the deputy clerk made any observation or offered any criticism which he might not properly have made or offered; the question is whether he was so related to the case in its civil aspect as to be unfit to act as clerk to the justices in the criminal matter. The answer to that question depends not upon what actually was done but upon what might appear to be done [bold added].

“Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice. Speaking for myself, I accept the statements contained in the justices’ affidavit, but they show very clearly that the deputy clerk was connected with the case in a capacity which made it right that he should scrupulously abstain from referring to the matter in any way, although he retired with the justices; in other words, his one position was such that he could not, if he had been required to do so, discharge the duties which his other position involved. His twofold position was a manifest contradiction.

“In those circumstances I am satisfied that this conviction must be quashed, unless it can be shown that the applicant or his solicitor was aware of the point that might be taken, refrained from taking it, and took his chance of an acquittal on the facts, and then, on a conviction being recorded, decided to take the point. On the facts I am satisfied that there has been no waiver of the irregularity, and, that being so, the rule must be made absolute and the conviction quashed.”

This ruling is derived from the principle of “natural justice” and applies as much to St. Vincent and the Grenadines (SVG) as it does to England. In English law, natural justice is a technical term for the rule against bias.

The grounds for the rule against bias is the need to maintain public confidence in the legal system. Bias can take the form of actual bias, imputed bias, or apparent bias. Actual bias is very difficult to prove in practice while imputed bias, once shown, would result in a decision being void without the need for any investigation into the likelihood or suspicion of bias.

An excellent example of the role of apparent bias is currently unfolding in Trinidad and Tobago (T&T), home to the Caribbean Court of Justice (CCJ), but a country that still retains the supremacy of the Judicial Committee of the Privy Council (JCPC) as its final court of appeal.

The JCPC in London is close to delivering a ruling on a bitter legal dispute between T&T Chief Justice Ivor Archie and The Law Association of T&T. Had the people of T&T decided to join the CCJ, adjudicating this dispute would now be in the hands of judges with whom the Chief Justice of the Supreme Court of T&T is presumably on familiar, if not intimate, terms, clearly grounds for imputing or inferring bias one way or the other. Who would ever have confidence in a judgment, as learned and actually impartial as it might be, made by the CCJ, headquartered in T&T, in a case like this involving the Chief Justice of the Supreme Court of T&T?

Membership of T&T in a truly arm’s length and impartial court system — the JCPC — assures that justice will be seen to be done in this case, regardless of the outcome.

Closer to home, there was the Ottley Hall Commission of Inquiry v. Sir James F. Mitchell case in which the JCPC ruled that bias had been shown to Sir James in the Commission’s preliminary report, thereby overturning rulings in two different Caribbean courts.

Even closer in time is the barefaced political interference just shown by the Chief Justice of the CCJ, the Honourable Adrian Saunders, a Vincentian by birth and nationality, who held a special, ceremonial sitting of that court in SVG on Friday, July 20, 2018 in which he disingenuously claimed that, “The CCJ has no desire to be involved in the political decision making of any country. But we do have a responsibility to expand access to justice …” as if the current JCPC appeals process in England does not represent access to the best justice in the world.

No law lord of the Privy Council would attempt to influence politics in Great Britain in such an unseemly and self-serving manner.

Chief Justice Saunders remark that, “The court has no backlog” is just as specious because this underworked court has only four countries — Barbados, Guyana, Belize, and Dominica — to deal with. If the 11 other CARICOM nations jumped aboard, the court would be just as overwhelmed as the lower courts, severely contracting access to justice in the process.

But the notion that “justice delayed is justice denied” does not seem to apply to the Caribbean.

Looking down the road, there is always the possibility that one or more members of the current ruling regime in SVG could be charged for unlawful behaviour, criminal or civil, that would end up at an ultimate appellate court. Should that court be the CCJ headed Adrian Saunders how could the appearance that justice is being served ever be guaranteed?

More important for the dispensation of natural justice is the widespread West-Indian grassroots distrust, bordering on fear, of all institutions involving the monopolisation of power and authority by the state — the police, the legal profession, the courts, and the political establishment. There is hardly a person who could not cite incompetent or biased treatment from one or more of these institutions. This is reason enough to reject efforts by certain special-interest groups, including the CCJ itself as represented by the Chief Justice, tirelessly lobbying the rest of us like some snake-oil salesman to join a court that is an inherent part of a system that is in so much disrepute.

Chief Justice Saunders also opined on July 20, 2018 that, “No one yearns for a return to crown colony government,” a statement based more on elitist wishful thinking than the life-experiences of ordinary people.

Most of us are extremely disappointed, to say the least, with the unexpected and unwanted consequences of political independence: greater dependency on loans and grants for economic survival; high unemployment and even higher underemployment; the exodus of thousands of our best and brightest people to foreign lands in search of work; political victimisation and patronage; arbitrary police search and seizure; and runaway crime. No wonder that many older people look back to the days of our very own Caribbean Raj with heartfelt nostalgia.

The political, legal, and intellectual elites fooled us into voting for independence from Great Britain by claiming that this would make us better off. But when we look around all we see are colonies that did not drink the poisoned independence Kool-Aid but are the wealthiest places in the Caribbean.

The current appeal process is our last significant tie to Great Britain. Discarding it would not make ordinary people better off in any way since they could never afford to fund a costly appeal to the CCJ. And if we should ever replace the JCPC, we would never get it back.

We were all fooled by the false promise of a better way of life after independence from Great Britain. We should resist being fooled again into surrendering the blind justice that the Privy Council law lords have always given us, at least if we truly want justice not only to be done, but to be manifestly and undoubtedly seen to be done.

The views expressed herein are those of the writer and do not necessarily represent the opinions or editorial position of iWitness News. Opinion pieces can be submitted to [email protected].

The opinions presented in this content belong to the author and may not necessarily reflect the perspectives or editorial stance of iWitness News. Opinion pieces can be submitted to [email protected].