John Henry Smith and another v Attorney General of Trinidad and Tobago and Others
| Jurisdiction | UK Non-devolved |
| Judge | Lord Malcolm,LORD MALCOLM |
| Judgment Date | 27 June 2022 |
| Neutral Citation | [2022] UKPC 28 |
| Docket Number | Privy Council Appeal No 0045 of 2018 |
| Court | Privy Council |
| Year | 2022 |
[2022] UKPC 28
Lord Hodge
Lord Sales
Lord Leggatt
Lord Burrows
Lord Malcolm
Privy Council Appeal No 0045 of 2018
Privy Council
Trinity Term
From the Court of Appeal of the Republic of Trinidad and Tobago
Appellants (John Henry Smith and Barbara Gomes)
Edward Fitzgerald QC
Fyard Hosein SC
Joseph Middleton
Annette Mamchan
(Instructed by Simons Muirhead & Burton LLP (London))
Respondents
Thomas Roe QC
(Instructed by Charles Russell Speechlys LLP (London))
Respondents:
(1) His Worship the late Chief Magistrate Sherman McNicolls
(2) Attorney General of Trinidad and Tobago
(3) Director of Public Prosecutions
These appeals from two related decisions of the Court of Appeal of the Republic of Trinidad and Tobago concern an application for the recusal of a judge presiding over criminal proceedings on the ground of apparent bias. They arise in the context of a long running and extraordinary set of circumstances. The test for such a recusal is whether a fair-minded and informed member of the public who considered the facts would conclude that there was a real possibility that the judge was biased. Sometimes it is asked whether there is a legitimate doubt as to the tribunal's impartiality, a quality seen as indispensable to the fair administration of justice. At the outset it is necessary to record the background circumstances in some detail.
The appellants were senior officers of insurance companies. Along with others they were charged with various fraud and corruption offences arising out of the development of the Piarco International Airport in Trinidad in the 1990s at a time when the United National Congress (“UNC”) was in government. In December 2001 the People's National Movement (“PNM”) came to power. In 2002 an Anti-Corruption Investigation Bureau (“ACIB”) was established within the Ministry of the Attorney General. Under its auspices various criminal proceedings were brought concerning the awarding of airport contracts and related matters. There were four so-called preliminary inquiries in the nature of committal proceedings known as Piarco 1–4.
The appellants were defendants in Piarco 1 presided over by His Worship Chief Magistrate Sherman McNicolls (now deceased). Their co-defendants included the former Minister of Finance, Mr Kuei Tung, and others considered to be financial supporters of the UNC. In January 2008, after some 200 days of prosecution evidence led over several years, the Chief Magistrate refused a motion that he should recuse himself and committed all the defendants to stand trial.
Piarco 2 concerns similar allegations against Mr Kuei Tung and another former UNC Minister along with a number of UNC supporters. The Magistrate in charge retired in 2018 and the inquiry is still to be concluded. The same Magistrate presided in Piarco 3, in which Mr Basdeo Panday, the former Prime Minister and then the leader of the opposition, was alleged to have received a corrupt payment. Piarco 3 was also incomplete when the Magistrate retired in 2018 and is still to be concluded.” Piarco 4 involves Mr Kuei Tung's partner and is unfinished. No trials relative to these proceedings have taken place.
In July 2005 the Chief Magistrate purchased a plot of land for $3.6m from Home Construction Ltd (“HCL”), one of the Colonial Life Insurance Co (Trinidad) Ltd (“CLICO”) group of companies. The purchase and its funding placed significant financial pressures on the Chief Magistrate. Soon afterwards he sought a buyer for the land, but without success.
Quite separately from the Piarco inquiries, on 20 March 2006 a summary trial began before the Chief Magistrate in respect of a charge that, when he was the Prime Minister, Mr Panday failed to declare funds received and held in a UK bank account. (The same payment, allegedly made by CLICO to secure airport contracts, formed the subject matter of Piarco 3.) Apart from Mr Panday himself and a spiritual adviser who said that in Hindu households women deal with family finances, the only defence witness was Mr Lawrence Duprey, CLICO's most senior executive.
On the morning of 27 March 2006, which was the last day of evidence, Mr Duprey testified that the money was a scholarship to assist Mr Panday's daughter's studies in London. According to the account given the following year by the Chief Magistrate to the Mustill inquiry (discussed below), later that day he phoned Tony Maharaj of CLICO and asked him to send $400,000 as soon as possible. (A few days later the Chief Magistrate told the Attorney General that this was a down payment on the purchase of his land.) The money arrived the following morning in the form of a banker's draft drawn on the account of Caribbean Money Market Brokers Ltd, another CLICO company. The Chief Magistrate deposited it in his bank where it was credited to his account. (In subsequent conversations the draft was sometimes referred to as a cheque.)
It soon emerged that there was an apparent difficulty with the draft which had not cleared. However the Chief Magistrate had already used the money to pay off interest on his bank loan and to reduce his overdraft. This required him to take out another loan since in the meantime he had decided to return the money. On 3 April 2006 he told Mr Maharaj that the sale of the land was off.
On the same day as the receipt of the banker's draft, namely 28 March 2006, the Chief Magistrate met with Chief Justice Satnarine Sharma. According to the Chief Magistrate this was their third conversation concerning the Panday trial. He has claimed that in early March 2006 the Chief Justice informed him that he had told the prosecuting counsel that in Hindu families it is wives who take care of the family finances. On the second day of the trial the Chief Justice told him to pay particular attention to the leading defence counsel who was “very good”. As to the meeting on 28 March, the Chief Magistrate's version of events was that the Chief Justice said that he considered it to be a politically motivated trial and that the defendant spoke the truth. The Chief Magistrate was told the points to be noted in his judgment which should be submitted to the Chief Justice before it was issued. His account of these interventions formed the basis of the Chief Magistrate's subsequent strongly contested claim that the Chief Justice put pressure on him to acquit Mr Panday.
In or around late March/early April 2006 the Chief Magistrate told the Attorney General, John Jeremie SC, that the Chief Justice had tried to influence his decision in the Panday trial. He also mentioned the $400,000 payment. According to the Attorney General, the Chief Magistrate told him that a land transaction had “inexplicably been activated” by a down payment and an offer to purchase the land made by a CLICO subsidiary. The Chief Magistrate said that he was troubled by this and so he returned the deposit. (This on the face of it exculpatory account was subsequently contradicted by the evidence given by the Chief Magistrate in 2007 to the Mustill inquiry.) In a statement given later the Attorney General said that he told the Chief Magistrate to forget about the matter until after he had freed himself of the Panday trial.
On 24 April 2006 the Chief Magistrate convicted Mr Panday and imposed the maximum prison sentence. While there is some dispute as to the exact chronology, according to the Attorney General it was after the conviction when he met with Mr Andre Monteil, an old friend and a senior CLICO executive. He told him that he had reason to believe that CLICO had attempted to bribe the Chief Magistrate and that they should “clean up their mess”. If, however, the transaction had been in good faith the Chief Magistrate should not suffer through being overly cautious in returning the cheque.
On 28 April 2006 Mr Monteil asked Mr Michael Fifi, HCL's chief executive officer, to buy the land back from the Chief Magistrate. He was reluctant to do so, an earlier inquiry from the Chief Magistrate having been refused as it was against company policy. The Attorney General joined the call and asked Mr Fifi whether he could finalise the repurchase reasonably quickly. Mr Fifi then gave instructions for the land to be bought by a subsidiary of HCL for $3.9m, this being the price paid by the Chief Magistrate plus the stamp duty.
A lot happened in May 2006. On the first of the month the Chief Justice and the Chief Magistrate met and discussed both the Panday trial and the land issue. Later they gave conflicting accounts as to what was said. On 5 May the Chief Magistrate signed an agreement for the repurchase of the land and received a deposit of $390,000. The transaction completed a week later, well short of the normal 90 day period for such matters. The Attorney General later indicated that it was this which caused him to breathe “a sigh of relief” and close an investigation into the circumstances of the payment to the Chief Magistrate. Also on 5 May the Chief Magistrate made a written statement to the Prime Minister alleging that the Chief Justice attempted to influence his decision in the Panday trial. On 8 May the Chief Justice provided a statement to the Judicial and Legal Services Commission (“JLSC”) about the Chief Magistrate's land transaction.
On 10 May the Chief Justice issued a press release questioning the propriety of the Chief Magistrate's land transaction and the Attorney General's involvement in it. The next day a press...
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