Stubbs v The Queen
| Jurisdiction | UK Non-devolved |
| Judge | Lord Lloyd-Jones |
| Judgment Date | 18 October 2018 |
| Neutral Citation | [2018] UKPC 30 |
| Court | Privy Council |
| Docket Number | Privy Council Appeals No 0015 and 0016 of 2017 and 0098 of 2016 |
| Date | 18 October 2018 |
[2018] UKPC 30
Lady Hale
Lord Wilson
Lord Sumption
Lord Hughes
Lord Lloyd-Jones
Privy Council Appeals No 0015 and 0016 of 2017 and 0098 of 2016
Michaelmas Term
From the Court of Appeal of the Commonwealth of the Bahamas
Civil practice and procedure - Whether judge's involvement in an earlier stage of proceedings should require he to recuse himself — Apparent bias.
Appellant (Stubbs)
Edward Fitzgerald QC
(Instructed by Simons Muirhead & Burton LLP)
Appellant (Davis)
Richard Thomas
(Instructed by Simons Muirhead & Burton LLP)
Appellant (Evans)
Ben Cooper
Amanda Clift-Matthews
(Instructed by Simons Muirhead & Burton LLP)
Respondent
Peter Knox QC
Tom Poole
(Instructed by Charles Russell Speechlys LLP)
Heard on 2 July 2018
These appeals raise the question whether a judge who has presided at an aborted trial by jury ought to have recused himself from sitting on an appeal against conviction by the defendants following their conviction on the same charges at a further trial by jury in which he played no part.
On 25 July 2013, following a trial before Jones J and a jury, the three appellants, Stephen Stubbs, Andrew Davis and Clinton Evans, were each convicted on one count of the murder of Jimmy Ambrose, a police officer, and on another count of the attempted murder of Marcian Scott. Evans was also convicted on two further counts alleging firearms offences. They were each sentenced to life imprisonment for murder and ten years' imprisonment for attempted murder. Evans was also sentenced to three years' imprisonment on each firearms count. All sentences were to run concurrently.
This was the third trial of this matter. The first trial took place before Allen J and a jury in 2002. The appellants were convicted but their appeals against conviction were allowed and a retrial ordered. The second trial took place before Isaacs J and a jury in 2007. It was aborted on the first day of the judge's summing up.
The charges arose out of a shooting incident which is alleged to have occurred on 29 March 1999 outside the Club Rock nightclub in Bay Street, Nassau. In interview all three appellants admitted their presence in the vicinity of the incident. A central issue was identification. The evidence implicating Stubbs came mainly from Marcian Scott, John Campbell, both eye-witnesses, and from Officers Ryan and Duncombe. The evidence implicating Davis came mainly from Scott and Campbell. The evidence implicating Evans came mainly from Campbell and Officers Burrows and Robinson. Scott made a deposition at the preliminary inquiry and gave oral evidence at the first trial. However, he died on 29 June 2006, between the first and second trials.
At the second trial Isaacs J made the following rulings:
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(1) He permitted Campbell to make dock identifications of all three appellants.
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(2) He ruled that section 168 of the Criminal Procedural Code was constitutional and admitted in evidence Scott's deposition at the preliminary inquiry.
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(3) He declined to exercise his discretion under section 178(1) of the Evidence Act to exclude Scott's deposition on grounds of unfairness.
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(4) He excluded the transcript of Scott's evidence in the first trial.
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(5) He ruled that Stubbs' interview was admissible and declined to edit it to exclude reference to Evans.
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(6) He rejected submissions of no case to answer made by all three appellants.
At the third trial Jones J made the following rulings:
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(1) He permitted Campbell to make dock identifications of Stubbs and Evans notwithstanding objection by their counsel that there had been no pre-trial identification of them.
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(2) He ruled that the presumption of constitutionality was not displaced in respect of section 168 of the Criminal Procedure Code.
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(3) Following a voir dire in respect of the admissibility of Scott's deposition and the transcript of his evidence at the first trial, he ruled that both were admissible and declined to exercise his discretion under section 178(1) of the Evidence Act to exclude them.
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(4) He rejected submissions of no case to answer made on behalf of all three appellants.
Following their conviction at the third trial, the appellants appealed against conviction and sentence. For present purposes it is sufficient to record that the grounds of appeal included the following.
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(1) The judge erred in failing to exclude evidence of the dock identification of Stubbs and Evans.
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(2) The judge erred in admitting the deposition and transcript of Scott as this was contrary to article 20(2)(e) of the Constitution.
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(3) The judge erred in failing to exclude Scott's evidence on the ground that its prejudicial effect outweighed its probative value.
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(4) The judge erred in admitting Stubbs' interview and in failing to edit that interview to exclude reference to Evans.
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(5) The judge erred in rejecting the submissions of no case to answer.
When the Court of Appeal convened on 4 May 2015 to hear the appeal, the appellants objected to Isaacs JA's sitting on the appeal because of his rulings in the second trial and invited him to recuse himself on grounds of apparent bias.
Following a further hearing on 28 May 2015, the Court of Appeal (Conteh, Adderley and Isaacs JJA) ruled on the application in a reserved decision dated 4 June 2015. Conteh JA considered the objection unsustainable and lacking in any merit. He emphasised the importance of an independent and impartial court system to the administration of justice and the rule of law. He was, however, satisfied that the reasonable, fair-minded and informed man or woman on Bay Street, viewing the context and circumstances of the present appeal and Isaacs JA's participation in it, would not apprehend any possible bias in him to warrant his recusal. He gave five reasons for this conclusion. First, Isaacs J had participated in an abortive trial, some seven years earlier. Secondly, he might have made some rulings on the law but there was no record of what those rulings were as the trial had been aborted. The slate had been wiped clean. More importantly, those rulings were not in issue on the present appeal. Furthermore, Isaacs JA would not be sitting alone but in a panel with two other judges. Thirdly, the length of time since the aborted trial should be sufficient to assuage any apprehension of bias. Fourthly, it could not realistically be said that his involvement in the earlier trial precluded him from approaching the appeal with an open mind. Fifthly, a court should be astute to guard against “judge-shopping” which can be a blight on the proper and due administration of justice.
In a separate judgment, Isaacs JA considered that the general rule is that a judge should not recuse himself unless he either considers that he genuinely cannot give one or other party a fair hearing or that a fair minded and informed observer would conclude that there was a real possibility that he would not do so. However, he referred to the length of time which had passed since the second trial and he observed that the court should not acquiesce too readily in applications for recusal because of the unnecessary delays this would cause in the administration of justice. In his view, his participation in the appeal would not give rise to a reasonable apprehension of bias.
The Court of Appeal (Conteh, Isaacs and Crane-Scott JJA) heard the appeal over five days in September 2015 and on 8 July 2016 dismissed the appeals. Crane-Scott JA dissented in respect of Evans's appeal against conviction.
On 19 July 2017 the appellants were given leave to appeal against conviction and sentence to the Judicial Committee of the Privy Council on specific grounds. At the hearing on 2 July 2018 the Board heard the parties on the issue of apparent bias which was common to all three appeals against conviction.
Article 20 of the Bahamas Constitution provides:
“If any person is charged with a criminal offence … the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.”
The appellants found their case on apparent bias. They rely on a basic principle of the common law that a judge should not sit to hear a case in circumstances where “the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased”, a principle which is also in harmony with the jurisprudence of the European Court of Human Rights affirming the right to an independent and impartial tribunal under article 6 ECHR ( Porter v Magill [2002] 2 AC 357 per Lord Hope at para 103). It is obvious that that principle would be violated if a judge were to sit in an appellate capacity to determine the correctness of his own earlier decisions or on an appeal against a conviction in a trial by jury in which he had presided. In England and Wales this principle is given statutory form in the context of criminal appeals. Section 56(2) Senior Courts Act 1981 provides that “[n]o judge shall sit as a member of the criminal division of the Court of Appeal on the hearing of, or shall determine any application in proceedings incidental or preliminary to, an appeal against … a conviction before himself or a court of which he was a member, or … a sentence passed by himself or such a court”. Although there is no express statutory equivalent in the Bahamas, it is likely that effect would be given to this rule by section 9 of the Bahamas Court of Appeal Act under which, in the absence of specific local provision, the practice of the English court will be followed.
In the present appeals, however, the issue does not arise in this stark form. The question...
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