Former Turks and Caicos premier loses Privy Council appeal
Misick and others (Appellants) v The Queen (Respondent) (Turks and Caicos)  UKPC 31
Justices: Lord Neuberger, Lady Hale, Lord Mance, Lord Kerr, Lord Reed, Lord Hughes and Lord Toulson.
On 25 June 2015 Lord Hughes delivered the Judgment in Misick and others dismissing the appeal that challenged both the security of tenure of the trial judge and the decision for a judge only trial in the Turks and Caicos Islands.
Before the Board of seven Justices the appellants sought to argue that:
1) the trial judge, Justice Harrison, a retired former President of the Court of Appeal of Jamaica, did not have security of tenure to maintain his independence. Accordingly the appellants argued that they could not be tried by an “independent and impartial court”, a breach of the Turks and Caicos Islands Constitution Order 2011 (SI 2011/1681);
2) Harrison J had erred in determining that the trial would be heard by judge alone (pursuant to the Trial Without Jury Ordinance 2010 (“TWAJO”)) by not directing himself in accordance with the criminal standard of proof.
The appellants claim had failed before Harrison J and the Court of Appeal sitting in the Turks and Caicos Islands.
Michael Misick, his former Cabinet and other associates face prosecution in the Turks and Caicos Islands for alleged offences of conspiracy to accept bribes, conspiracy to defraud and money laundering offences.
The trial is expected to begin at the end of this year, having been adjourned in 2014.
During 2008-2009 Sir Robin Auld led the Turks and Caicos Islands inquiry into ‘possible corruption or other serious dishonesty in relation to past and present elected members of the Legislature’.
In 2009 following the recommendation of Sir Robin, section 6(2) (g) of the Constitution Order 2006 was suspended.
That section had provided for the unqualified right to jury trial upon a criminal charge.
In 2010, with the enactment of the TWAJO the right to jury trial was no longer unqualified.
Section 6 (2) (g)) was duly removed by the revised 2011 Constitution.
The prosecution made the first application for a judge only trial in the Turks and Caicos Islands before Harrison J who, after hearing full argument from both sides and evaluating the factors in the case, determined that in accordance with the ‘interests of justice’ (section 4 TWAJO) the trial should be determined by a judge alone, not seven jurors.
(i) Security of tenure
Harrison J was appointed by the Governor on the advice of the Judicial Service Commission on 10 July 2012 until 30 June 2014.
The Chief Justice announced that the trial judge was assigned to the criminal trials arising out of Sir Robin’s Inquiry.
With the criminal trials not reaching their conclusion before 30th June 2014 the judge was re-appointed and the period of appointment was further extended on 26 February 2015 with effect from January 1 2015 for a period of 3 years.
In dismissing the first ground of appeal, Lord Hughes recalled at paragraph 27 of the Judgment, that in the present case:
1. Constitutional guarantee of judicial independence, remuneration, allowances and terms of service apply to Harrison J as they do to any other judge (sections 83 and 84 Constitution Order);
2. Harrison J has been appointed on the recommendation of the independent Judicial Service Commission (section 87 Constitution Order); and
3. Harrison J is guaranteed security of tenure during his appointment, except in the case of cause shown to the Board (section 85 Constitution- that did not apply in this case).
In considering that the Judge was outside of his home territory and in his retirement conducting a specific trial for the Turks and Caicos Islands, the Board had not the slightest doubt that any objective observer would see no danger of any lack of independence in Harrison J’s appointment as the trial judge (paragraph 27).
Furthermore, it was observed that an ad hoc position often strengthens the judge’s independence (paragraph 26).
At paragraph 28 of the judgment Lord Hughes recalled that,
“The case is in other words, the exact reverse of one raising a risk of failure of independence”.
(ii) Burden of Proof
It was held that ‘not every decision which has to be made by a judge during or in preparation for a criminal trial is susceptible to analysis in terms of burden and standard of proof’ (paragraph 38).
The Board held that there was no doubt in this case that the decision required by TWAJO- where factors were to be applied and the judge was to weigh up the different factors in making his overall decision- is not susceptible to analysis in terms of proof or the standard of it (paragraph 51). The relevant test was the ‘interests of justice’ as set out within TWAJO.
Harrison J was entitled to conclude that in light of: (a) the complexity of the trial issues; (b) the impracticability of finding jurors with no prior knowledge or opinions on the issues at stake given the very small pool (circa 6,000) to choose from; and (c) the inevitability that such jurors would be exposed to extra-evidential opinions and information which had led the appellants to submit forcefully to Sir Robin that trial by jury could not be fair to them.
Further, it was recognised that there has already been relentless publicity both in favour of and against the appellants and there seems no sign of it stopping whether or not the proceedings are pending.
The judgment provides some guidance as to the current approach taken for applications made in England and Wales under the hearsay and special measures provisions and admissibility arguments pursuant to section 78 Police and Criminal Evidence Act 1984.
It will be interesting to see whether this case will be applied for future applications made before criminal trial judges who are required to make an evaluation of all relevant factors in the determination of an application.
Cases referred to in the Judgment: Findlay v United Kingdom (1997) 24 EHRR 221; R v Lippé  2 SCR 114; Kearney v HM Advocate  UKPC D1; Starrs v Ruxton 2000 JC 208; Valente v The Queen  2 SCR 673; Prince Jefri Bolkiah v The State of Brunei Darussalam  UKPC 62; Director of Public Prosecutions v Ping Lin  AC 574); R v Ewing  QB 1039; Nyron Smith v The Queen  UKPC 34; R v Minors and Harper  1 WLR 441; v Brown and Grant  EWCA Crim 1620; Noor Mohamed v The King  AC 182; R v Taylor  EWCA Crim 260; R v D  EWCA Crim 990; R v Iti  NZCA 114; R v A  NZCA 380; R v Twomey  EWCA Crim 1035; R v JS and M  EWCA Crim 1755; R v S(K) (No 2)  EWCA Crim 1756; R v Mirza  1 AC 1118; R v B  EWCA Crim 2692;