The Honourable Chief Justice of Trinidad and Tobago Mr Justice Ivor Archie O.R.T.T. v The Law Association of Trinidad and Tobago

JurisdictionUK Non-devolved
CourtPrivy Council
JudgeLady Hale
Judgment Date16 Aug 2018
Neutral Citation[2018] UKPC 23
Docket NumberPrivy Council Appeal No 0063 of 2018

[2018] UKPC 23

The Court of Appeal

before

Lady Hale

Lord Reed

Lord Kerr

Lord Wilson

Lord Sumption

Privy Council Appeal No 0063 of 2018

The Honourable Chief Justice of Trinidad and Tobago Mr Justice Ivor Archie O.R.T.T.
(Appellant)
and
The Law Association of Trinidad and Tobago
(Respondent) (Trinidad and Tobago)

Appellant

Respondent

Philip Havers QC

Chris Hamel-Smith SC

John Jeremie SC

Jason Mootoo

Ian L Benjamin SC

Rishi P A Dass

Kerwyn Garcia1

Rowan Pennington-Benton

Hannah Noyce

(Instructed by Simons Muirhead & Burton LLP)

(Instructed by Alvin Pariagsingh)

Judicial Review - Conduct of inquiry into allegations against Chief Justice by respondent — Whether conduct of investigation was unconstitutional — Application of rules of natural justice — Appearance of bias.

Lady Hale
1

The appellant has been Chief Justice of Trinidad and Tobago since January 2008. Between November 2017 and January 2018 there appeared a series of press reports making allegations against him. The respondent is the Law Association of Trinidad and Tobago (LATT), set up under the Legal Profession Act 1986 with the principal purpose of regulating the legal profession in Trinidad and Tobago. The LATT resolved to set up a committee to inquire into the allegations against the Chief Justice with a view to deciding what course of action to take, including whether or not to make a complaint to the Prime Minister. Under section 137 of the Constitution of Trinidad and Tobago, the Prime Minister is the only person who can advise the President to initiate a formal inquiry into the conduct of a member of the higher judiciary which might in due course lead to his removal from office.

2

The Chief Justice brought judicial review proceedings against the LATT, claiming that it had no power to conduct the proposed inquiry, on two principal grounds: first, that the formal procedure under section 137 of the Constitution is the only type of inquiry into a judge's conduct which is permitted; and second, that the proposed inquiry was not within the statutory powers of the LATT. He also alleged apparent bias, bad faith and procedural unfairness. He succeeded on his two principal grounds at first instance (but not on the others). The LATT's appeal was allowed (and the Chief Justice's cross-appeal dismissed) by a unanimous Court of Appeal. The Chief Justice now appeals to this Board.

The essential facts
3

The series of articles (which appeared in print and on-line on the preceding day) began with an article in the Sunday Express of 12 November 2017, under the title “CJ and the Convict” and “A favour for friend”. This alleged that the Chief Justice had tried to influence Supreme Court Justices to change their state-provided personal security in favour of a private company with which his close friend, Mr Dillian Johnson, a convicted felon, was associated. This allegation was repeated several times in the Express newspaper, which also published an editorial on 16 November expressing concern at the Chief Justice's close friendship with Mr Johnson, “given [his] conviction for fraud, suspension from his job at the Water and Sewerage Authority (WASA) and the attention he has received from the police as a person of interest following the 2015 murder of … a senior manager at WASA”.

4

On 19 November, the Sunday Express published another article, this time alleging that “Dillian Johnson was among 12 people recommended for Housing Development Corporation (HDC) units” by the Chief Justice, who had “personally called and communicated via social media with a senior HDC official to fast track the applications”.

5

On 3 December, the Sunday Express commented thus on the Chief Justice's failure to respond to these allegations: “Instead he has shown a brazen imperviousness to public questioning and criticism which has laid bare the effective autocracy of the Chief Justice”. The following day an article in the Express referred to the Chief Justice, “57, who has been joined by Johnson, 36, while on official business abroad”. These allegations were repeated several times until January 2018. On 5 January 2018, lawyers acting for the Chief Justice sent a pre-action protocol letter to the editor in chief of the Express, as a prelude to bringing proceedings in defamation against the newspaper.

6

In the judicial review proceedings Kangaloo J, at first instance also took judicial notice of two media reports of the government's reaction to the publicity surrounding the Chief Justice. On 27 November, the Guardian newspaper reported that the Attorney General had said that the executive was not getting involved: there is “nothing at this point in time which should occupy the executive's attention in this matter”. And on 6 December, in a televised interview, the Prime Minister said that the Office of Prime Minister was “constrained by law, by the Constitution, as to what its responsibility is … The Office of Prime Minister cannot ‘willy nilly’ decide that I am unhappy with the Chief Justice today or unhappy with the Judiciary today so I jump in and fix it”. The Judge interpreted this as a statement that the Prime Minister would not get involved (para 28).

7

The LATT, on the other hand, did decide to get involved. The day after the first article appeared, the newspaper reported that it had contacted Mr Rajiv Persad, VicePresident of the LATT, for a comment. He had replied that the matter would be discussed at the next meeting of the LATT, on 15 November, and until then any comment was reserved. On 15 November, the Council of the LATT issued a press notice, stating that the allegation that the Chief Justice had tried to influence the judges to change their security arrangements was “as yet unsubstantiated”; but noting its concern at the report that, after meeting the judges, the Chief Justice had communicated with a friend who was connected with a private security firm, indicating that he had spoken with the judges about their security; and considering that “the prudent course” for the Chief Justice would be to address that concern publicly.

8

On 29 November, the Council of the LATT decided “(i) that the allegations made were sufficiently grave to warrant further consideration by the Council as to what appropriate action it should take; and (ii) that a committee be established to ascertain/substantiate the facts upon which the allegations made against the Chief Justice were alleged to be based and to report back to Council for further consideration”. The membership was so informed by an email dated 2 December, which also denied a press report that the Council had voted on whether to call a special general meeting to debate whether to call upon the Prime Minister to invoke section 137 of the Constitution.

9

On 30 November, the President of the LATT, Mr Douglas Mendes SC and Mr Elton Prescott SC had a meeting with the Chief Justice. As reported in an email to the membership dated 18 December, they told the Chief Justice that the LATT considered that it had a dual role to play —to protect the judiciary from unfounded allegations and to hold the judiciary accountable for its actions; that the LATT considered the allegations to be serious, a view shared by others; that his failure to respond had “most likely led members of society to conclude that there is some truth to the allegations”; that the gravity of the allegations and his failure to respond had brought the office of Chief Justice and, by extension, the entire judiciary into disrepute; and finally, that “the Council of the Law Association had resolved to investigate the allegations to determine whether they are true or not”. The Chief Justice had said that he would think about their representations. On 15 December he issued a press release denying the allegations relating to Mr Dillian Johnson, though admitting that he had forwarded the names of some “needy and deserving persons” to the HDC for such consideration as might be appropriate.

10

On 18 December the Guardian newspaper reported an interview with Mr Mendes, under the headline “Law body adopts cautious approach”. He had said that the Council would “await the outcome of the work of a committee set up last week to look into and verify allegations made against the Chief Justice. before it decides on its next course of action”. The committee would be speaking to those who “may know something” and would also “as part of the due process of law” give the Chief Justice an opportunity to be heard.

11

A letter from Mr Mendes, as President of the LATT and chair of the investigating committee, to the Chief Justice, dated 20 January 2018, reminded him that the Council had established a committee “to attempt to ascertain/establish the basis of certain allegations made against you” and that the LATT “considers it its duty to protect you against these allegations, if they are not substantiated, or to hold you accountable, if they are”. The intention was to submit the committee's report to Dr Francis Alexis QC (President of the Bar Association of Grenada) and Mr Eamon Courtenay SC (former Attorney General of Belize) for their respective advices and then convene a meeting of the LATT. The purpose of the letter was to give the Chief Justice an opportunity to respond to a detailed list of questions. But:

“The Council. fully appreciates that it has no power to compel you to respond and that it has no disciplinary or other power in relation to you. We do consider however that, as with any other citizen, we have the power to refer a complaint to the Prime Minister for him to treat with as he deems fit and we are satisfied that the power to refer such a complaint falls within our statutory mandate.”

12

In a letter dated 30 January, lawyers for the Chief Justice contested the Council's view of its role, and by letter dated 31 January asked to be provided with the material...

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