Misick and Others v The Queen (Turks and Caicos)

JurisdictionUK Non-devolved
JudgeLord Reed,Lord Hughes
Judgment Date25 June 2015
Neutral Citation[2015] UKPC 31
Date25 June 2015
Docket NumberAppeal No 0042 of 2015
CourtPrivy Council
Misick and others
(Appellants)
and
The Queen
(Respondent) (Turks and Caicos)

[2015] UKPC 31

before

Lord Neuberger

Lady Hale

Lord Mance

Lord Kerr

Lord Reed

Lord Hughes

Lord Toulson

Appeal No 0042 of 2015

Privy Council

From the Court of Appeal of the Turks and Caicos Islands

Appellants

James Goudie QC Mark Fulford Rupert Paines

(Instructed by Sheridans)

Respondent

Andrew Mitchell QC Quinn Hawkins

(Instructed by Fulcrum Chambers Ltd)

Heard on 11 May 2015

Lord Hughes
1

The appellants face prosecution in the Turks and Caicos Islands for offences of conspiracy to accept bribes in public office, conspiracy to defraud and associated money laundering. The first defendant was the Chief Minister and subsequently Premier of the Islands at the time of the alleged offences. The other defendants were either other government ministers or their associates. Two separate challenges are made to their proposed trial:

i) the trial judge, Mr Justice Harrison, the retired former President of the Court of Appeal of Jamaica, is said to have insufficient security of tenure to maintain his independence; accordingly it is said that the appellants will not be tried, in accordance with the Constitution, by an "independent and impartial court";

ii) the trial judge has directed trial by himself alone, without a jury, under the terms of the Trial Without a Jury Ordinance 2010 ("TWAJO"), but it is said that in arriving at that decision he erred in not directing himself in accordance with the criminal standard of proof.

2

The background to the prosecution lies in a Constitutional crisis experienced in the Islands in 2008–2009. The Islands are a British Overseas Territory, then self-governing under a Constitution of 2006 introduced by Order in Council made under the (Westminster) West Indies Act 1962. This provided for government by a Governor, acting on the advice of the Premier and his cabinet, who were in turn appointed on demonstrating, following Island elections, that the Premier could command a majority of the elected members of the House of Assembly.

3

Despite fast growing land development and tourism, and associated rapid increases in government revenues, the finances of several departments of State were reported by the Chief Auditor to be in serious deficit and not to be properly monitored or controlled. These and other concerns about the administration of the Islands prompted the appointment by the Governor of a Commission of Inquiry "into possible corruption or other serious dishonesty in relation to past and present elected members of the Legislature in recent years". The Commissioner was the Rt Hon Sir Robin Auld, a retired judge of the Court of Appeal of England and Wales. His report recommended (inter alia) the partial suspension of the Constitution, the creation of a special prosecution team to investigate what appeared to him to be evidence of corruption and dishonesty, and the suspension of the absolute right to trial by jury.

4

Effect was given to Sir Robin's report by the UK government. The 2006 Constitution was suspended in part by the Turks and Caicos Islands Constitution (Interim Amendment) Order 2009 (SI 2009/701) ("the 2009 Order"), also made under the West Indies Act 1962. This provided, in effect, for temporary direct rule by the Governor. The legislature was dissolved, the cabinet ceased to exist, and the principal offices of government and legislature (Premier, Ministers, Leader of the Opposition, Speaker of the Assembly and Cabinet Secretary, amongst others) were declared vacant. In due course a Special Investigation and Prosecution Team was created and it is this which has made the decision to bring the charges which the appellants now face.

5

After a period of just over two years' direct rule, self-government was restored by a further Order in Council made in London, once again under the West Indies Act 1962, the Turks and Caicos Islands Constitution Order 2011 (SI 2011/1681). Under this Order, a new 2011 Constitution was inaugurated, which came into force on 15 October 2012. It largely mirrored its 2006 predecessor, but there were some differences.

6

Like the 2006 Constitution, that of 2011 tracks many of the principal provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("ECHR"), albeit with some local modifications. Amongst its provisions, mirroring in part those of article 6 ECHR, is section 6(1). This affords to everyone charged with a criminal offence the right to:

"a fair hearing within a reasonable time by an independent and impartial court established by law."

This is the provision upon which the present appellants' first challenge to their prosecution is based.

7

The 2006 Constitution had provided by section 6(2)(g) for the unqualified right to jury trial upon a criminal charge brought before the Supreme Court. In accordance with the recommendation of the Commissioner, the 2009 Order suspended this provision. The Governor subsequently enacted TWAJO, providing for a judge to order trial without a jury if satisfied that the interests of justice so require. The new 2011 Constitution does not contain an equivalent to the former section 6(2)(g). The position therefore remains that whilst trial by jury is the norm, trial by judge alone may be ordered under the provisions of TWAJO. The present appellants' second challenge to their prosecution raises a question concerning the proper application of TWAJO.

The first challenge: the judge's tenure
8

Trials for offences of the kind here charged are held before the Supreme Court. The 2006, and in due course the 2011, Constitutions provided for the appointment of judges of this court. The terms of the two Constitutions are very largely the same. The trial judge in the present case was initially appointed under the 2006 Constitution and subsequently under the 2011 Constitution.

9

Section 77 of the 2011 Constitution provides:

"77(1) There shall be a Supreme Court for the Turks and Caicos Islands which shall have such jurisdiction and powers as may be conferred on it by this Constitution and any other law.

(2) The judges of the Supreme Court shall be a Chief Justice and such number of other judges as may be determined by the Governor, acting after consultation with the Chief Justice; but the office of a judge shall not, without the consent of that judge, be abolished during his or her continuance in office.

(3) The judges of the Supreme Court shall be persons qualified for appointment under subsection (4) and shall be appointed by the Governor, acting in accordance with section 87, by instrument under the public seal.

[(4) provides for qualification by not less than ten years' standing in suitably defined legal professions]

(5) It shall be lawful for a person qualified for appointment as a judge of the Supreme Court to be appointed (regardless of his or her age) for such term as may be specified in the instrument of appointment, and section 85 shall have effect in relation to any person so appointed as if he or she would attain the retiring age applicable to that office on the day on which the specified term expires."

The only difference between this section and its predecessor, section 73 of the 2006 Constitution, is that the former contained a limitation on the number of Supreme Court judges to two, plus the Chief Justice.

10

The Governor is thus required, by section 77(3), to make appointments in accordance with section 87. That section, together with section 86, once again reproducing the 2006 Constitution, provides for a Judicial Service Commission ("JSC") as an independent body responsible for judicial appointments. Section 86 creates the JSC and requires that it have three members. By section 86(2) the chairman is to be appointed by the Governor, acting in his discretion, whilst the other two members are to be appointed by the Governor, acting after consultation with the Premier and the Leader of the Opposition, from among persons who hold or have held high judicial office. There is thus a guaranteed majority of judges or former judges on the Commission. By section 87(8) the JSC and its members "shall not be subject to the direction or control of any other person or authority". Then, by section 87:

"(1) Power –

to make appointments to the offices of judge of the Supreme Court, judge of the Court of Appeal, magistrate, registrar and deputy registrar;

is vested in the Governor, acting in accordance with the advice of the Judicial Service Commission, unless the Governor is instructed by Her Majesty through a Secretary of State to do otherwise."

11

It follows that appointments to the Supreme Court are made in effect by the independent JSC, save in the exceptional case of instructions from London (not the Islands government) at the level of Secretary of State. That exception has no application to the present case. The Constitution gives the JSC similar responsibility, subject only to the same exception, for the terms and conditions of judicial service (section 84(3)), which moreover may not under any circumstances be altered to a judge's disadvantage whilst he or she remains in office (section 84(2)). Section 87(3) further allocates to the JSC responsibility for the disciplinary code applicable to judges and for the procedure for dealing with complaints relating to the judiciary.

12

The 2006 Constitution had contained identical provisions for the JSC. When that Constitution was suspended in 2009, the offices of the two judicial members of the JSC were amongst those vacated by the 2009 Order. But the Governor subsequently re-appointed the same two judges who had held those offices. One was still in post, together with a second judge more recently made a commissioner, when the present trial judge, Harrison J, was appointed.

13

Section 85 of the 2011 Constitution contains provisions as to the tenure of...

To continue reading

Request your trial
6 cases
  • Summary of The Bar Association of Belize Appellant v The Attorney General of Belize Respondent
    • Caribbean Community
    • Caribbean Court of Justice (Appellate Jurisdiction)
    • 15 Febrero 2017
    ...Appeal p 1464 5 [1985] 2 SCR 673 at para 22 6 (1999) SCCR 1052 7 Civil Appeal Nos. 18, 19 and 21 of 2012 8 Misick and others v The Queen [2015] UKPC 31 at para 9 Supra fn 5 10 See UN Basic Principles on the Independence of the Judiciary, Article 11 endorsed by General Assembly resolutions 4......
  • The Queen v Floyd Basil Hall, Jeffrey Christoval Hall, Melbourne Arthur Wilson, Clayton Stanfield Greene
    • Turks and Caicos Islands
    • Supreme Court (Turks and Caicos)
    • 18 Junio 2021
    ...of Inquiry 2008–2009) which called for a judge-alone trial, and by the Privy Council in its judgment in Misick & Ors. v AG TCI [2015] UKPC 31. Length of Trial 24 Another matter canvassed for the court's consideration is the probable length of the retrials (which before severance was estima......
  • The Prime Minister et Al v The Queen et Al
    • Bahamas
    • Court of Appeal (Bahamas)
    • 20 Julio 2017
    ...Brunei [2008] 2 LRC 196 (PC) applied Locabail (LJ) Ltd v Bayfield Properties Ltd [2000] QB 451 mentioned Misick and others v The Queen [2015] UKPC 31 mentioned Porter v Magill [ 2001 UKHL 67] applied Smith v. Cosworth Casting Processes Ltd. [1997] 4 All ER 840 mentioned Legislation: R......
  • R v Fuller Nathaniel (Phillip) Smith
    • Turks and Caicos Islands
    • Supreme Court (Turks and Caicos)
    • 22 Febrero 2021
    ...22nd day of February 2021 /s/ T. Lobban Jackson The Hon. Ms. Justice Lobban Jackson Judge of the Supreme Court 1 (1994) 98 Cr. App. R 2 [2015] UKPC 31 3 CR 54/2019 Delivered June 4 The Constitution of the Turks and Caicos Islands Cap 1.01 ...
  • Request a trial to view additional results
1 books & journal articles
  • Human Trafficking, Victims’ Rights and Fair Trials
    • United Kingdom
    • Journal of Criminal Law, The No. 82-2, April 2018
    • 1 Abril 2018
    ...(2009) 13 E&P 150. What is ‘necessary’ may be a question to which neither thecriminal nor the civil standard applies: see Misick vR[2015] UKPC 31, [2015] 1 WLR 3215.114. RvPowar [2009] EWCA Crim 254; [2009] 2 Cr App R 8.115. Al-Khawaja vUK (2012) 54 EHRR 23.116. [2012] EWCA Crim 2564, [64].......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT