Sharma v Brown-Antoine and Others
 UKPC 57
Present at the hearing:-
Lord Bingham of Cornhill
Lord Walker of Gestingthorpe
Baroness Hale of Richmond
Deputy Director of Public Prosecutions
Assistant Commissioner of Police
Commissioner of Police
THE COURT OF APPEAL OF THE REPUBLIC OF TRINIDAD AND TOBAGO
[Judgment by Lord Bingham of Cornhill and Lord Walker of Gestingthorpe]
The appellant is Chief Justice of Trinidad and Tobago. In July 2006 he faced the imminent prospect of prosecution on a charge of attempting to pervert the course of public justice. To avert such prosecution he obtained leave on 10 July from Jones J to seek judicial review of an alleged decision to prosecute by the first respondent, the Deputy Director of Public Prosecutions, and an order staying all action consequential on that decision. Later, on 13 July, Jones J made similar orders against the second respondent, the Assistant Commissioner of Police. On 14 July the judge added the third respondent, the Commissioner of Police, to the proceedings and granted injunctions (varied on 16 July and in part discharged against the Assistant Commissioner on 24 July) restraining the Assistant Commissioner and the Commissioner from taking steps to prosecute the Chief Justice. On 24 July she granted the Chief Justice leave to seek judicial review against the Commissioner. An application by the Deputy Director to set aside the grant of leave was dismissed by the judge on 17 July, and on 25 July all three of the present respondents appealed against the orders made against them. The Court of Appeal, on 31 July, allowed the appeals, set aside the grant of leave to seek judicial review of the Deputy Director's decision, vacated other orders against the Deputy Director, discharged the injunctions against the Assistant Commissioner and the Commissioner and granted the Chief Justice leave to appeal to the Board. The Court of Appeal was not asked to, and did not, set aside the grants of leave to seek judicial review of the decisions made by the Assistant Commissioner and the Commissioner, but it is accepted that if the Court of Appeal's decision is upheld those grants would, on application, be set aside.
The central issue before the Board is, in legal terms, whether the Court of Appeal should have disturbed the orders made by the judge. In practical terms the question is whether the decision to prosecute the Chief Justice, by whosoever made, should be examined by way of judicial review, or whether the criminal process (subject to any application the Chief Justice may hereafter make) should at this stage be allowed to take its course. It is not suggested that both processes can be pursued at the same time. For convenience, we will refer to the various parties by their professional titles, irrespective of their standing in the proceedings at any stage.
The case is one of acute sensitivity and moment. On the one hand, very serious accusations have been made against the Chief Justice, who holds an office of high constitutional importance in the state and whose complete integrity should not be lightly questioned. His answer, on the other hand, involves an accusation of improper, politically-motivated, interference in the prosecution process by the Prime Minister and the Attorney General; of politically-inspired dishonesty by the Chief Magistrate, a subordinate but important figure in the judicial hierarchy; and of improper, politically-inspired, decision-making and conduct by the Deputy Director, the Assistant Commissioner and the Commissioner, respectively an attorney discharging the important functions of the Director of Public Prosecutions and two of the most senior police officers in the state. In this fraught and unwelcome situation, the interests of the state and of all those involved require the Board to avoid forming or expressing any premature opinion where the truth may lie but scrupulously to apply what it conceives to be the legal principles applicable to the situation. Such indeed is its plain duty.
Pursuant to its duty as just defined, we will give a brief and colourless summary of the facts, sufficient only to explain how the present unhappy situation has arisen. A number of matters are in dispute, and on these no finding of fact can be made.
In early 2005 the Attorney General and the Director of Public Prosecutions reported to the Prime Minister that the Chief Justice had attempted to persuade them to withdraw a charge of murder against a named suspect. The Prime Minister, pursuant to section 137(3) of the Constitution (which provides the sole constitutional means of removing a chief justice), represented to the President that the question of removing the Chief Justice from office under section 137 ought to be investigated. The Chief Justice obtained leave to seek judicial review of the Prime Minister's decision. An attempt to mediate the matter has not been successful, and the application for judicial review has not yet been heard. His involvement in this matter led the Director of Public Prosecutions to disqualify himself from any involvement in the present case and delegate the matter to the Deputy Director, but this episode has no bearing on anything the Board has now to decide.
In early 2006 the Chief Magistrate heard a case in which Mr Basdeo Panday, then leader of the opposition and a former prime minister, was charged with failure to disclose certain assets, contrary to section 27(1) of the Integrity in Public Life Act 1987. Having taken time after the hearing to consider his decision, the Chief Magistrate on 24 April 2006 convicted Mr Panday and imposed a severe sentence of imprisonment (now suspended pending appeal).
On Friday 5 May 2006 the Chief Magistrate signed a statement to the effect that on three occasions, one before, one during and one after the Panday trial, the Chief Justice had endeavoured to influence the decision in favour of the defendant. It is unnecessary and undesirable to rehearse the terms of the statement. The Chief Justice roundly contradicts the thrust of the statement, and most of the detail. It was not, however, argued on his behalf that the statement, if substantially true, did not disclose prima facie evidence of the commission of an offence. The statement was given or sent to the Prime Minister within days of its being signed.
There is evidence that the Chief Magistrate voiced his complaint against the Chief Justice at least a month before the date of his written statement, and that this reached the ears of the Prime Minister who expressed the opinion at a private meeting on 5 April 2006 that the Chief Justice had endeavoured to influence the outcome of the Panday trial and that he should go. The Chief Justice also heard of the complaint, and raised it, and also the real property transaction mentioned below, at a meeting with the Chief Magistrate on 1 May. They give differing accounts of this meeting. There is also evidence that on 8 May, after the date of the statement, the Attorney General urged the Chief Justice to resign rather than face the prospect of prosecution, indicating that section 137 would not be invoked again. A similar conversation is said to have taken place between the Prime Minister and the Chief Justice on 9 May: according to the Chief Justice the Prime Minister said that he would not make the mistake of invoking section 137 again, that a decision on prosecution would not depend on the DPP and that he was giving the Chief Justice the option to resign; if he did not he would hand the file over to the police and the Chief Justice would face criminal prosecution. The Prime Minister implored the Chief Justice to spare himself and the country the disgrace and embarrassment of a criminal trial.
It is suggested in the evidence that at about the time of the Panday trial but before the decision was given the Chief Magistrate found himself embarrassed by a real property transaction from which he was extricated by the Attorney General, giving him (it is said) a motive to fall in with the wishes of the Attorney General. The Board has no evidence on this matter from either the Chief Magistrate or the Attorney General, and at present the facts are far from clear.
On 10 May 2006 the Prime Minister told the Chief Justice that he had sent the Chief Magistrate's report to the Attorney General with instructions to take such action as he might deem to be appropriate. Having received the statement the Attorney General, on 11 May, wrote two letters. The first was to the then acting Commissioner of Police (neither the second nor third respondent), enclosing the statement, and also drawing attention to a newspaper article criticising his own role in the real property transaction already referred to, which he invited the police to investigate as well as the statement. The second letter was to the Director of Public Prosecutions, to whom he also enclosed a copy of the statement, describing the matter as one of the greatest constitutional significance and inviting the Director to give it very urgent attention. The Director, for reasons already given, disqualified himself and delegated performance of his function to the Deputy Director. He instructed her to review the statement, to take any decisions she considered necessary under section 90(3) of the Constitution (which provides for the institution, taking over, continuance and discontinuance of criminal proceedings) and to give advice to the Commissioner of Police on any lines of investigation as she saw fit. For the removal of doubt, he told her to make her own independent decision in the matter. She has sworn that she has never met or spoken to the Prime Minister and has never communicated with the Attorney General on any matter...
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