REPUBLIC OF TRINIDAD AND TOBAGO

IN THE COURT OF APPEAL

MAG. APP. NO. 75 OF 2006

BETWEEN
             BASDEO PANDAY	   APPELLANT
 
AND
            SENIOR SUPERINTENDENT                      RESPONDENT
            WELLINGTON VIRGIL                   

PANEL:

M. Warner, J.A.
I. Archie, J.A.
P. Weekes, J.A.

APPEARANCES: 
Mr. R. Clayton, Q.C., Mr. R. L. Maharaj, S.C., Mr. R. Rajcoomar, Mr. J. Singh, Mr. A. Beharrylal instructed by Ms. M. Panday for the Appellant

Sir Timothy Cassel, Q.C. and Mr. W. Rajbansie for the Respondent

DATE DELIVERED:
4th April, 2007

Delivered by M. Warner, J.A.
Reasons

On the 20th March, 2007 this Court delivered a short oral judgment for its finding of apparent bias on the part of the Chief Magistrate and undertook to supply fuller reasons at a later date. These reasons now follow. 

1)	The appellant raised apparent bias. This Court was of the view that if that issue were decided in the appellant’s favour, that indeed would determine the entire appeal. Accordingly, it was appropriate that it be heard as a preliminary issue. Apparent bias infected the entire trial process and attracted harsh consequences.  As a result, this court quashed the convictions and sentences and set aside the order for forfeiture which the Chief Magistrate had imposed upon the appellant. This Court also ordered that the matter be retried by a different magistrate. That was just one of the measures authorised by law to ‘keep the streams of justice clear’. 
Background
2)	On the 24th April, 2006, the appellant was convicted of three offences which contravened section 27 (1) (b) of the Integrity in Public Life Act 1987 (the 1987 Act).  The appellant, as a member of the House of Representatives, was required by the 1987 Act to file with the Integrity Commission a declaration of his income, assets and liabilities, on or before 31st May in each year, relating to the year immediately preceding. The particulars of the charges were that he failed to include in his declaration of income, assets and liabilities for the years ending 1997, 1998 and 1999, respectively, money held in an account in England which he held jointly with his wife.
The Sentence
3)	The matters were heard by the Chief Magistrate in March, 2006 over a six day period.  At the close of the case, the Chief Magistrate adjourned the matter to the 24th April, 2006 for decision. On that day, he sentenced the appellant to serve a term of imprisonment of two years with hard labour (the maximum term) on each offence, the sentences to run concurrently.  In addition, he ordered the appellant to pay a fine of $20,000 for each offence – in default of payment, the appellant to serve a term of three years in respect of each offence.  Further, the appellant was ordered to pay to the State “as a matter of forfeiture” the equivalent of ₤111,814.72.  
The bias application	

4)	The controversy arose when the Chief Magistrate, who had been a party to a land transaction with a well-known company, received a cheque in the sum of $400,000 drawn in his favour by another company, with connections to the former, on the final day of the trial. The precise nature of the relationship between the two companies is not of importance to the decision. The Chief Magistrate was concerned about the timing and delivery to him of that cheque.
5)	The appellant’s source of grievance is that after he was convicted, and by a circuitous route, he became aware that the Chief Magistrate had spoken to the Attorney General about the cheque and to the Chief Justice about matters related to the case against him, before he [the Chief Magistrate] handed down his decision.  As events unfolded, it emerged that the Chief Magistrate had also concluded that the Chief Justice had attempted to influence his decision in this matter.  The Chief Magistrate had not disclosed any of these developments to counsel.
6)	In May 2006, both the Attorney-General and the Chief Justice gave separate statements to the press for publication.   By a statement dated 5th May, 2006 the Chief Magistrate gave details of his conversations with the Chief Justice which led him [the Chief Magistrate] to believe that the Chief Justice had tried to influence his decision in this matter. The Chief Magistrate’s and the Chief Justice’s statements were divergent in all material respects.
   	 The appellant appealed his conviction on the following grounds:		
(i)	That events which occurred both during and after the   appellant’s trial demonstrate actual or apparent bias on the part of the learned Chief Magistrate, and undermine the safety of the conviction. 
(ii)	That they cannot be supported and/or are unreasonable having regard to the evidence; and/or
(iii)	That they contain incorrect directions and/or applications of the relevant law.
7)	It is to be noted that during the arguments, counsel for the appellant did not pursue the allegation of actual bias. Lest the focus of this judgment be misunderstood, I think it is important to emphasise at the outset that I made no finding of actual bias against the Chief Magistrate. 
The Issues

8)	The issues were all interwoven:
(i)	There were issues related to the cheque and the Chief Magistrate’s concerns about it;

(ii)	There were issues related to the propriety of the Chief Magistrate’s conversations with the Attorney General and the Chief Justice; 
(iii)	There were issues related to the failure of the Chief Magistrate to inform counsel and the parties of all his concerns;
(iv)	There were issues ultimately about the manner in which the Chief Magistrate dealt with these matters and whether it gave rise to apparent bias. 

9)	  As a result of the complaint made by the Chief Magistrate that the Chief Justice had tried to influence his decision in the instant case, criminal proceedings alleging that the Chief Justice attempted to pervert the course of public justice were set in motion. Those proceedings were intituled Romany v Sharma Magisterial (Case No 10907/06).
10)	On the 25th January, 2006, after we heard arguments in this appeal, we adjourned the matter for decision.  No further hearings were scheduled.  However before we were able to deliver judgment, certain events intervened which led us to recall counsel, out of an abundance of caution, to hear their submissions on the impact, if any, of those events on this case.  
11)	The intervening events were these: On the 5th March, 2006, the date on which the Chief Magistrate was scheduled for cross-examination in the Romany v Sharma, matter counsel for the State informed the Magistrate who was hearing the matter that the State was not proceeding any further with the prosecution “having regard to the position indicated by the Chief Magistrate”. As it turned out, the Chief Magistrate was unwilling to testify.  He indicated his position in a media release dated 6th March, 2007.  It was in those circumstances that we recalled the matter and heard further submissions from counsel.
Recent decisions on bias
12)	The fundamental legal principles upon which the law now rests are not in dispute. The relevant test for determining apparent bias was clarified by the House of Lords in the case of Porter and Another v Magill [2002] AC 357. The question to be determined is whether the fair-minded observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.  Prior to Porter v Magill, the formulation of the test had been considered by the Court of Appeal in Re Medicaments and Related Classes of Goods (No 2) (2001) 1 WLR 700, where the court indicated that ‘the real danger test’ expressed in R v Gough [1993] AC 646 had to be reconsidered to bring it in harmony with Strasbourg jurisprudence. 
13)	In R v Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Ugarte (No. 2) [2000] 1 AC 119, the House of Lords extended the category of automatic disqualification to include non-pecuniary interests. The circumstances were “very unusual”. Their Lordships made some useful pronouncements about the requirement to maintain public confidence in the administration of justice, which I considered to be of relevance to the instant case. These issues will be discussed later in this judgment. 
14)	This principles of law propounded in those cases mentioned above were all discussed by the Privy Council in Meerabux v A.G. Belize [2005] 2 AC 513. This was a case which concerned a former justice of the Supreme Court of Belize and his removal from office on the advice of the Belize Advisory Council after complaints from the Bar Association and Attorneys-at-law. He was unsuccessful in proving bias on the part of the Chairman of the Council who was also a member of the Bar Association.
The Appellant’s case
15)	The appellant contended that the Chief Magistrate had placed himself in a position which would lead a fair-minded and informed observer, having considered the relevant facts, to conclude that there was a real possibility that he was biased against him.
16)	The appellant in his written arguments stated that the following matters showed a reasonable apprehension of bias:
“a)	Prior to giving the judgment the Chief Magistrate privately and secretly had discussions with the Attorney-General (the A-G, who is a party politician with no formal role in relation to criminal prosecutions) and the Chief Justice; and canvassed the views he formed on the evidence in the case against Mr Panday;
b)	The Chief Magistrate formed a view about a witness in the proceedings, Mr Duprey, which appeared to have been affected by his personal dealings with Mr Duprey in relation to a private property transaction. Those anxieties were sufficiently substantial to cause the Chief Magistrate to express views about Mr Duprey to the A-G; but he nevertheless failed to advise Mr Panday’s lawyers of them or inquire whether he should recuse himself from rendering a verdict — as he should have done;
c)	The account of the Chief Magistrate’s involvement in that property transaction given by the Chief Justice and John JA suggest that the Chief Magistrate secured a financial benefit as a result of aligning himself with Government supporters (who would make up the shortfall resulting from purchasing that property). Similarly, his assertion that the Chief Magistrate made false allegations against him in relation to attempting to pervert the course of justice during Mr Panday’s case suggest that the Chief Magistrate has chosen to lend his support to the Government in pursuing its long running dispute with the Chief Justice. These issues go to the root of the principle of the rule of law: and give the appearance that he Chief Magistrate has breached the fundamental principles concerning the separation of powers between the courts and the executive.”
17)	In Webb and Hay v The Queen (1994) 181 CLR 41, a case decided by the Australian High Court, Deane J. observed that the advantage of the reasonable apprehension on the part of the fair-minded and informed observer makes it plain that an appellate court is not making an adverse finding against the particular judge. This observation was particularly appropriate since usually, the person concerned is not a party to the proceeding before the appellate court and his thought processes are not in any event relevant. Deane J. identified four distinct though, “sometimes overlapping main categories” of apparent bias — disqualification by interest, conduct, association and extraneous information. This case fell within the second and fourth categories — disqualification by conduct and by the reception of extraneous information.
18)	I say immediately that insofar as the allegations at (c) suggest that the Chief Magistrate had chosen to lend his support to the Government or that there was a breach of separation of powers, I dismissed them as unsupported. Nothing in the conduct of the principal actors convinced me that it amounted to an expression of the will of the executive. I also found no material to suggest that the Chief Magistrate had had any personal dealings with Mr Duprey.
19)	The appellant’s case was also grounded on the provisions of section 4 (a) of the Constitution — the due process clause; Section 5(2)(f)(i) — the right to a fair and public hearing by an independent and impartial tribunal and section 5(2) f (ii) — the right to a fair hearing in accordance with the principles of fundamental justice.  The rights enshrined in section 5(2)(f)(i) are similar to those in Article 6 of the European Convention for the protection of Human Rights and Fundamental Freedoms which deals in part with the right to a fair hearing by an independent and impartial tribunal. 
Appellant’s submissions on the events of the 5th of March, 2007

20)	Counsel for the appellant focused on the effect of the Chief Magistrate’s unwillingness to be cross-examined.  The submission was that in the mind of the reasonable observer, the Chief Magistrate would have lost credibility. He also contended that there was the appearance of political bias, which he said arose from the Chief Magistrate’s prior knowledge that impeachment proceedings were to be resumed against the Chief Justice. 
The Respondent’s case
21)	The respondent’s case rested on the presumption of the personal impartiality of the Chief Magistrate, focusing as well on the need for the public to remain confident in the administration of justice and the officials who are responsible for its administration. It was contended, moreover, that the Attorney General was the appropriate and the only party to whom the Chief Magistrate could have expressed his concerns. As to the propriety of the land transaction, the submission was that the witness Mr Duprey had no direct involvement in it. Counsel dismissed the allegations of political bias and relied again on the presumption that a holder of a high office of state would not pervert justice because a defendant supported a rival party. Further, there was nothing to be gained if the Chief Magistrate had disclosed his concerns to counsel.  
Respondent’s submissions on the events of 5th March, 2007
22)	As regards the Chief Magistrate’s unwillingness to testify, although Counsel for the respondent described the Chief Magistrate’s decision as misguided, he submitted that it had no impact on the decision in the present case. 
Impartiality and Bias 
23)	The meaning of “impartiality” has been expressed in a number of cases.  Lord Clyde in Dr. John Roylance -v- the General Medical Council (1999 UKPC 16)  24th  March, 1999 said:

“Impartiality calls for a state of mind which is free from any influences extraneous to the merits of the particular case; which is capable of dispassionate inquiry and an objective judgment; and which is not turned aside by any motivation to favour one side against the other.”

24)	As to bias, in Medicaments at paragraph 37, Lord Phillips said:
“Bias is an attitude of the mind which prevents the judge from making an objective determination of the issues he has to resolve. A judge may be biased because he has reason to prefer one outcome of the case to another. He may be biased because he has reason to favour one party rather than another. He may be biased not in favour of one outcome of the dispute but because of a prejudice in favour of or against a particular witness which prevents an impartial assessment of the evidence of that witness.  Bias can come in many forms. It may consist of irrational prejudice or it may arise from particular circumstances which, for logical reasons, predispose a judge towards a particular view of the evidence or the issues before him”

25)	Earlier in Franklin v Ministry of Town Planning (1947) 2 All ER 289 at 296 Lord Thankerton as regards the use of the word “bias” said: 
	“Its proper significance of the word “bias” in my opinion is to denote a departure from the standard of even-handed justice which the law requires from those who occupy judicial office.”

26)	An allegation of apparent bias does not involve a finding of judicial impropriety or misconduct, or breach of the judicial oath.  It involves a finding that circumstances exist from which a reasonable and informed observer may conclude that there was bias in the conduct of the proceedings.   Except where actual bias is alleged, it is not useful to investigate the individual’s state of mind. The courts have recognised that bias operates in such an insidious manner that the person alleged to be biased may be unconscious of the effect.   It is trite law that if a reasonable apprehension of bias arises, the whole proceeding becomes infected.  Credibility issues no longer arise; the reasonable apprehension of bias remains and the proceedings cannot be saved.  
27)	It is therefore well-settled that a judge must carry out his duties in a manner that is wholly transparent to ensure public trust in the judicial process. 

The Pinochet Case and its relevance to the instant case

28)	This was a landmark decision which will continue to have a compelling influence on any case in which bias is raised. On the 25th November 1998 the House of Lords ruled that General Augusto Pinochet, the former Head of State of Chile, did not enjoy immunity from arrest and extradition for crimes against humanity.  Amnesty International had been permitted to intervene in the proceeding.
29)	After judgment was handed down, it became known that Lord Hoffman, one of the judges was an unpaid director and chairperson of a charity an organisation which was set up and controlled by Amnesty International and Lord Hoffman’s wife was employed by Amnesty International. In an unusual move, General Pinochet applied to the House of Lords to set aside the decision on the ground that Lord Hoffman had not declared his interest.  This failure, accordingly, gave rise to an appearance of bias.  A new panel was constituted. The court held that Hoffman’s non-pecuniary interest gave rise to automatic disqualification. The jurisprudence was expanded to include other interests in the same manner as pecuniary interests.
30)	Pinochet was helpful for several reasons. Firstly, the decision which the House took to entertain the application to set aside its own decision was extraordinary. Their Lordships unanimously agreed that the House had jurisdiction in appropriate cases to rescind or vary its earlier order which caused injustice. Secondly, their Lordships based their decision on the need to maintain public confidence. Lord Hope cited a paragraph from Sellar v Highland Railway Co 1919 S.C. HL 19 at pp 20-21 to the following effect: 
“The law remains unaltered and unvarying today, and, although it is obvious that the extended growth of personal property and the wide distribution of interests in vast commercial concerns may render the application of the rule increasingly irksome, it is none the less a rule which I for my part should greatly regret to see even in the slightest degree relaxed.  The importance of preserving the administration of justice from anything which can even by remote imagination infer a bias of interest in the judge upon whom falls the solemn duty of interpreting the law is so grave that any small inconvenience experienced in its preservation may be cheerfully endured.  In practice also the difficulty is one easily overcome, because, directly the fact is stated, it is common practice that counsel on each side agree that the existence of the disqualification shall afford no objection to the prosecution of the suit, and the matter proceeds in the ordinary way, but, if the disclosure is not made, either through neglect or inadvertence, the judgment becomes voidable and may be set aside.”

Emphasis added 

Lord Nolan, at page 139, stated that in any case in which the impartiality of a judge is in question the appearance of the matter is just as important as the reality.
31)	Thirdly, Lord Browne-Wilkinson in analysing the relationship between Amnesty International and Amnesty International Charity Limited observed at page 135, E to F:
“this is an area in which legal technicality is particularly to be avoided.” 

32)	Fourthly, Lord Hope was of the opinion that if appropriate disclosure had been made by the judge and a party raised no objection to the judge’s continuing to hear its case, a litigant could not complain of bias.  However, his Lordship continued, that if the disclosure was not made, either through neglect or inadvertence, the judgment became voidable and might be set aside.
33)	I now return to the requirement of public confidence.The preoccupation with public confidence is not new. However, the test as reformulated is intended to place emphasis on the public perception of the irregular incident rather than on the court’s view (See Porter v Magill at para 100)
34)	In Lawal v Northern Spirit Ltd 2004 1 All ER. 187, Lord Steyn stated at paragraph 14 that the small but important shift approved in Porter v Magill has, at its core, the need for “the confidence which must be inspired by the courts in a democratic society”. At paragraph 22 his Lordship continued:

“What the public was content to accept many years ago is not necessarily acceptable in the world today. The indispensable requirement of public confidence in the administration of justice requires higher standards today than was the case even a decade or two ago. The informed observer of today can perhaps ‘be expected to be aware of the legal traditions and culture of this [his] jurisdiction’.”

As to the costs resulting from relitigation in Morrison and Anor v AWG Group [2006] EWCA Civ 6 at para 29 Mummery L. J said: 

“In terms of time, cost and listing it might well be more efficient and convenient to proceed with the trial, but efficiency and convenience are not the determinative legal values: the paramount concern of the legal system is to administer justice, which must be, and must be seen by the litigants and fair minded members of the public, to be fair and impartial.  Anything less is not worth having.”
 
Judicial codes
35)	If the public is to have confidence in and respect for the judicial system, trials must appear to be fair to the fair-minded and informed observer. Judicial codes such as the Bangalore Principles cited by Counsel for the appellant are useful, but they will not become a substitute for the ethics of individual judges (see Paper on Judicial Ethics (1998) by Wayne Mc Kay, Professor of Law, Dalhousie University) Mc Kay refers to Peter Moser’s article on Judicial Ethics — 
“Justice in the courtroom cannot be attained solely by providing standards in a judicial code of conduct. Achieving justice depends significantly not only on discretion and abilities of each judge, but upon what the judge does to assure that every proceeding is heard and decided and to assure that the litigants and the public have confidence in the impartiality and independence of the judiciary.”

36)	In Meerabux, Lord Hope of Craighead at paragraph 22 cited from Lord Steyn’s speech in Lawal:
  “Public perception of the possibility of unconscious bias is the key.”

37)	The possibility of unconscious bias was stressed by Devlin L.J. in R v Barnsley Licensing Justices Ex parte Barnsley and District Licensed Victuallers’ Association (1960) 2 QB 167 at 187 and by Lord Goff in R v Gough at page 659
38)	The principle that has evolved, therefore, reflects a concern with the need to maintain public confidence in the administration of justice.  The core issue is the manner in which the decision-maker’s conduct will be viewed by fair-minded and informed members of the public.
Fairness
39)	It is appropriate to point out that the concept of impartiality is governed by separate considerations from fairness.  The distinction was repeated quite recently by their Lordships in the Privy Council in the case of Diedrichs-Shurland and Anor. -v- Talanga – Stiftung and Anor  (The Bahamas) 2006 UK PC 58.  In that case, Lord Hoffman cited Lord Denning’s in Kanda -v- Government of Malaya [1962] AC 322 at 336-338 
“In the opinion of their Lordships, however, the proper approach is somewhat different.  The rule against bias is one thing.  The right to be heard is another.  Those two rules are essential characteristics of what is often called natural justice.  They are the twin pillars supporting it.  The Romans put them in the two maxims: Nemo judex in causa sua: and Audi alteram partem.  They have recently been put in the two words, impartiality and Fairness.  But they are separate concepts and are governed by separate considerations. In the present case inspector Kanda complained of a breach of the second.  He said that his constitutional right had been infringed. He had been dismissed without being given a reasonable opportunity of being heard. 

If the right to be heard is to be a real right, which is worth anything, it must carry with it a right in the accused man to know the case which is made against him.  He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them… It follows, of course, that the judge or whoever has to adjudicate must not hear evidence or receive representations from one side behind the back of the other.  The court will not inquire whether the evidence or representations did work to his prejudice, sufficient that they might do so.  The court will not go into the likelihood of prejudice.  The risk of it is enough.  No one who has lost a case will believe he has been fairly treated if the other side has had access to the judge without his knowing.”

40)	In Diedrich-Shurland, the issues were complicated, but for present purposes I focus on the fact that a litigant, after his matter had been concluded, but before judgment wrote a letter to the judge setting out certain facts which had not been presented at the trial. He also gave extensive clinical details about his state of health.   The letter was held to be grossly improper.  No copy was sent to the other party and it was not known whether the trial judge had read it. Their Lordships considered that if the judge had read it, and it had not come to knowledge of the appellant, she was entitled to a new trial.  The matter was remitted to the Court of Appeal in the Bahamas for the appropriate inquiry to be conducted.
41)	The parallel I drew with the present case was that private communications were made to the trial judge of which the appellant was unaware.  Therein lay the source of this appellant’s grievance.   The case of De Verteuil v Knaggs [1918] A.C. 557 at 560 also supports the principle that a litigant ought to be given a fair opportunity to correct or controvert any relevant statement brought forward to his prejudice. It follows from what has been expressed above that the duty of fairness will require a decision-maker to identify what areas were of concern to him in reaching his decision. 
The Constitutional approach
42)	The observations of the Appellate Committee in H v R [2004] UKHL 3 have a bearing on the present case. The court said:
“While the focus of Article 6 of the Convention is on the right of the criminal defendant to a fair trial, it is a right to be exercised within the framework of the administration of the criminal law: as Lord Steyn pointed out in Attorney-General’s Reference (no 3 of 1999) [2001] 2 AC 91,118
“The purpose of the criminal law is to permit everyone to go about their daily lives without fear of harm to person or property. And it is in the interest of everyone that serious crime should be effectively investigated and prosecuted. There must be fairness on all sides. In a criminal case this requires the court to consider the triangulation of interests. It involves taking into account the position of the accused, the victim and his or her family, and the public.” 

Emphasis added

The European Court has repeatedly recognised that individual rights should not be treated as if enjoyed in a vacuum: Sporrong and Lonnroth v Sweden (1982) 5 EHRR 35,52, para 69;  Sheffield and Horsham v United Kingdom (1998) 27 EHRR 163, 191 para 52. As Lord Hope of Craighead pointed out in Montgomery v HM Advocate [2003] 1 AC 641, 673:

Emphasis added                                         

43)	I pause here to make the observation that the Privy Council, in deciding cases from Commonwealth Caribbean Countries, has adopted the jurisprudence of the Court at Strasbourg and grafted on it “common law perspectives of interpretation”. The result is ‘a confluence of systems”(see observations of Sir David Simmons the Chief Justice of Barbados, in Scantlebury v The Queen (unreported) (Barbados)  (Cr. App 42 0f 2002)).
44)	I understand the court in H v R to have been emphasising fairness and the need to ensure that procedures are not unbalanced. Hamel-Smith J.A. spoke in harmony with this approach when in AG v CCN (2001) 62 WIR 405 at 423 he said “a court must ensure that mere lip-service is not to be paid to the maxim “justice must not only be done but be seen to be done”.
The Judicial Oath
45)	In the context of allegations of apparent bias against members of courts or tribunals, weight must be placed on the judicial oath of office and the fact that professional judges are trained to judge and to judge objectively and dispassionately; (per Ward LJ in Jones v Das Legal Expenses Insurance Co. Ltd. [2003] EWCA Civ 1071, at para 28 (vi), where he cites a passage from a judgment of the Constitutional Court of South Africa in President of the Republic of South Africa and others v South African Rugby Football Union and others BLCR CC 725 at 753 and where he later said that courts must be assiduous in upholding the impartiality of judges.
46)	There is a presumption that judicial officers, mindful of the oath they have taken, carry out their duties impartially. Despite the strong presumption, they will nevertheless be held to stringent standards regarding bias. (See Blanchette CIS Ltd. [1973] SCR 833 at 842-843)
47)	Pursuant to the Judicial and Legal Service Act, the Chief Magistrate was required to make oath or affirmation to discharge his functions conscientiously and impartially. In similar fashion, the Attorney General, a holder of high office is assumed to act with constitutional propriety (See observations of Sharma CJ in The Police Service Commission and the Attorney General  v Wayne Hayde (unreported) Cv. App No. 12 of 1999)
Out of Court discussions

48)	I think that confidence in the judicial system is maintained when the highest standards are imposed on judicial officers. The fundamental principle is that no judge ought to entertain private communication from any person with the intention of influencing the outcome of a case he has to decide. 
49)	In JRL exparte C.J.L (1986) 161 CLR 342 at 350 – 351) a judgment of the High Court of Australia, Mason J had this to say:
“A central element in the system of justice administered by our courts is that it should be fair and this means that it must be open, impartial and even-handed.  It is for this reason that one of the cardinal principles of the law is that a judge tries the case before him on the evidence and arguments presented to him in open court by the parties of their legal representatives and by reference to those matters alone, unless parliament otherwise provides.  It would be inconsistent with basic notions of fairness that a judge should take into account, or even receive, secret or private representations on behalf of a party or from a stranger with reference to a case which he has to decide.  The principle immediately distinguishes the judicial branch from other branches of government, except in so far as they may be relevantly affected by the rules of natural justice.  In conformity with the principle, every private communication to a judge made for the purpose of influencing his decision in a case is treated as a contempt of court because it may affect the course of justice: In re Dyce Sombre (1849) 1 Mac and G 116 at p122 (41 ER 1207 at p 1209) per Lord Cottenham LC. Indeed, it is regarded as a serious contempt.” 
         
Emphasis added	

50)	At 351-352 Mason J added:

“This proscription does not, of course, debar a judge hearing a case from consulting with other judges of his court who have no interest in the matter or with court personnel whose function is to aid him in carrying out his judicial responsibilities.  The same standard is applied in the Code of Judicial Conduct for United States Judges, approved by the Judicial Conference of the United States; See Canon 3 and commentary … the receipt by a judge of a private communication seeking to influence the outcome of litigation before him places the integrity of the judicial process at risk.  A failure to disclose that communication will seriously compromise the integrity of that process.  On the other hand, although the terms of a subsequent disclosure by the judge of the communication and a statement of its effect in some, perhaps many, situations will be sufficient to dispel any reasonable apprehension that he might be influenced improperly in some way or other, subsequent disclosure will not always have this result.  The circumstances of each case are all important.  They will include the nature of the communication, the situation in which it took place, its relationship to the issues for determination and the nature of the disclosure made by the judge…” 

Emphasis added
51)	The grievance which arises from non-disclosure stems from the fact that the appellant cannot know to what extent the alleged intervention influenced the decision-maker.  The thrust of the attack in this case, therefore, was whether there is a reasonable cause for apprehension that the intervention served to blur the Chief Magistrate’s objectivity. 
52)	In R v Altrincham Justices [1975] 2 All ER 78 at 83 Bridge J approved of the following principle enunciated by Wills J. in R v Huggins 1895 1 QB 563 at 565.
“It is impossible to overrate the importance of keeping the administration of justice by Magistrates clear from all suspicion of unfairness. It is safer to enlarge this class of objections than to restrict it.”

53)	An allegation of bias is a serious one.  The authorities demonstrate that the threshold for finding bias is high.  However, counsel must be free to allege it, if substantial grounds exist. 
The Canadian Jurisdiction
54)	In the Canadian jurisdiction a similar test for a reasonable apprehension of bias was formulated by Grandpré J. in a dissenting judgment in Committee for Justice and Liberty v National Energy Board [1978] 15.CR 369 at 394 This test has been approved and consistently applied in that jurisdiction.  He said:
“… the apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information…[T]hat test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude.  Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.”?...

“The grounds for this apprehension must, however, be substantial and I…refuse to accept he suggestion that the test be related to the “very sensitive or scrupulous conscience.”

55)	In Finch-v- Association of Engineers and Geoscientists of British Columbia 8 B.C.L.R. (3d) 344 it was held that a reasonable informed bystander would not perceive bias where the proceedings were reported and commented on in a newsletter published by the professional body from which panel members were drawn. 
56)	In R -v- S (R.D.) 3 S.C.R. 484, Cory J. emphasised the necessity of bringing substantial grounds to support the claim of bias.  Bias was not found where a judge acquitted a black youth after she made comments about police racism to the effect that the police officer had overreacted when dealing with a non-white group. 
57)	In R v James 2000 BCCA  616 (Can L.ll) where the trial judge expressed discomfort about dealing with the evidence of a witness, bias was found. 
58)	In Canada (Minister of Citizenship and Immigration) v Tobias 1997 35CR 391, it was held inappropriate for the Assistant Deputy Minister of Justice, without notice to the parties, to meet with the Chief Justice of the Federal Court to express concerns about delays in proceedings for revocation of citizenship. (The test was adapted to apply to the determination of judicial independence.)
59)	I would summarise the general considerations discussed so far and by which I was guided as follows:
(i)	Ill-founded challenges to the bench are not to be entertained.
(ii)	Courts must be assiduous in upholding the impartiality of judges; the onus of establishing bias lies with the appellant.
(iii)	The impartiality of the decision maker [the Chief Magistrate] is to be presumed, but this presumption can be dislodged by cogent evidence.
(iv)	The material facts were not limited to those which were apparent to the applicant.  They were those facts as now known which were ascertained upon investigation by the court.
(v)	An important consideration in making an objective appraisal of the facts is the desirability that the public should remain confident in the administration of justice.  It is the appearance that these facts give rise to, not what is in the mind of the decision-maker.
(vi)	Fairness, although governed by separate considerations, should be considered in the context of all the relevant circumstances and not as an isolated principle.
(vii)	The question in this case was whether the conduct of the Chief Magistrate and the extraneous information might appear to the hypothetical observer to  have diverted the Chief Magistrate from deciding the case on its merits. 
(viii)	This Court had to decide whether, on an objective appraisal, the material facts gave rise to a legitimate fear that the Chief Magistrate might not have been impartial.  If they did, the decision of the Chief Magistrate had to be set aside.

The relevant circumstances which this Court considered
60)	The first stage was to ascertain all the circumstances which had a bearing on the allegation of bias by making an objective and impartial appraisal of the evidence.  It was important to identify with precision those facts on which the suggestion of bias can be based.
61)	In Medicaments at para 86 the court had this to say:
“The material circumstances will include any explanation given by the judge under review as to his knowledge or appreciation of those circumstances. Where that explanation is accepted by the applicant for review it can be treated as accurate. Where it is not accepted, it becomes one further matter to be considered from the viewpoint of the fair-minded observer.  The court does not have to rule whether the explanation should be accepted or rejected.   Rather it has to decide whether or not the fair-minded observer would consider that there was a real danger of bias notwithstanding the explanation advanced”.

62)	In Gillies v Secretary of State for Work and Persons 2006 1 WLR 781 at 789 Lord Hope said:
   “The fair-minded and informed observer can be assumed to have access to all the facts that are capable of being known by the public generally bearing in mind that it is the appearance that these facts give rise to that matters, not what is the mind of the particular judge or tribunal member who is under scrutiny.”

63)	I turn now to identify the relevant facts and circumstances of this case.  The Director of Public Prosecutions made voluntary disclosure of a wealth of documents. However, only a portion of the information was used. 
64)	Counsel for the appellant focused on three documents:
(i)	A press release from the Ministry of the Attorney General dated 10th   May, 2006 which was put into the public domain on or about that day;
(ii)	An edited version of a Press release issued by the Chief Justice;
(iii)	A witness statement of the Chief Magistrate dated 5th May, 2006.
65)	There is no controversy about the source of the two releases to the media. 
The first is dated 10th May 2006 and was released by a media unit of the Ministry of the Attorney General. The Chief Justice issued a release also dated the 10th May 2006, which dealt with matters contained in the Attorney General’s release. 
66)	The information is highly relevant to the matter at hand and there has been no challenge to its admissibility. 
67)	I was also guided by the observations of the Privy Council in Sharma v The DPP [2006] UKPC 57, the sequel to the present case, where their Lordships were careful not to come to any decision on where the truth may have lain, but scrupulously applied what they conceived to be the legal principles. The criminal proceedings against the Chief Justice were discontinued on the 5th March, 2006, because of the Chief Magistrate’s unwillingness to testify. I shall return to this aspect of the case in due course.
68)	There was much argument about whether or not the Attorney General was the appropriate person to whom the Chief Magistrate ought to have taken his concerns. Counsel for the appellant submitted that the Director of Public Prosecutions was the appropriate officer.  It was in response to this submission that evidence was placed before the court to show that a Corruption Bureau in the Ministry of the Attorney General was established by the Cabinet of the Government of Trinidad and Tobago in that Ministry, to deal “in a holistic manner” with the question of corruption in the public sector. It is not envisaged that investigations be carried out by the Attorney General. He however is to be informed of the findings of investigations. The Attorney General has both political and non-political functions. In performing his non-political functions he exercises an independent discretion, free from the influence of members of government. 
69)	In the extraordinary circumstances of this case, I think that the Chief Magistrate might properly have informed the Attorney General of his concerns, but no more than that. He could not seek the Attorney General’s advice, discuss the evidence or subject himself to the Attorney General’s influence. It was of importance that strict standards of propriety be observed. 

The Attorney General’s Press Release
70)	In the first paragraph, the information published was that the Chief Magistrate visited the Attorney General on or about the 31st March, 2006, after the case was closed. The former wished to make a report on, “among other things”, about what he described as a “suspicious sequence of events relating to a real estate transaction in which he had purchased a property in 2005”.   The release is strikingly vague about the “other things” which were discussed.  A legitimate question to be considered would have been what was the precise nature of those discussions? I digress here to state that so strong is the principle that justice must not be administered in secret that where, during the course of a matter, situations arise for counsel to meet with a judge in his chambers, a court clerk is usually required to be present and a faithful record is taken of the matters discussed.
71)	The second paragraph mentioned the name of a witness for the defence, Mr Lawrence Duprey. He was the Chairman of CL Financial, a company well- known in this jurisdiction. 
72)	The third paragraph related that the Chief Magistrate had returned a cheque recently sent to him as a deposit on account of the sale of his property which he had put on the market. The cheque was “that of a CLICO subsidiary”. The Chief Magistrate, it was stated, informed the Attorney General “out of an abundance of caution because of the judgment he was about to deliver”, so that the Attorney General could determine whether there should be any investigation into the matter.  
73)	 The first three paragraphs signalled the Chief Magistrate’s concern about the delivery of the cheque; the fact that it came from a CLICO subsidiary; and the fact that someone with a connection to the CLICO group was a witness in the case. 
74)	The fourth paragraph  stated what  action the Attorney General had taken:
i.	He had informed the Commissioner of Police and the Director of Public Prosecutions.
ii.	He took a decision that he should take no action until the Chief Magistrate delivered his judgment. 
75)	The fifth paragraph: 
The Attorney General made inquiries immediately following the delivery of the judgment. He contacted all the parties. The Attorney General advised the Commissioner of Police, and the Chairman of the Integrity Commission about his inquiries and he [the Attorney General] determined that there was no cause for any further action at that time. It was noted that these inquires were carried out after the Chief Magistrate handed down his decision.  
76)	The sixth paragraph 
The Attorney General noted attempts to tarnish the reputation of “persons involved in the matter”. Reference is also made to the fact that the Chief Magistrate and the Chief Justice were judicial officers. There was some argument in this court about what “the matter” meant.   It was apparent from the paragraph was that there were adversarial features about the relationship between Chief Magistrate and the Chief Justice, as it related to this case, and the Attorney General had, in some measure, been involved in discussions about it. 
77)	The seventh paragraph noted that the matters were first raised at a political meeting on 1st May 2006.  This statement had not been contradicted.

The Statement of the Chief Magistrate
78)	The Chief Magistrate gave a witness statement to the police on the 5th May 2006. According to his account, before the trial began certain remarks were made to him by the Chief Justice, which he considered to be strange, and he later concluded that the matters raised in that conversation formed part of the appellant’s defence.
79)	Further, the Chief Magistrate stated that during the course of the trial the Chief Justice told him to pay particular attention to the evidence of a certain witness. After he had completed the taking of evidence of that witness he went to see the Chief Justice. The latter told him that what the defendant said was true and that he should note in his judgment, for example, that the charges were politically motivated; that in Hindu families women ran the finances. The Chief Magistrate concluded that pressure was being brought to influence him but he paid no attention to what the Chief Justice had said. 
80)	On the 28th April, 2006, after the Chief Magistrate had handed down his judgment, the Chief Justice telephoned him and requested that the Chief Magistrate come and see him. The Chief Magistrate reluctantly agreed. At that meeting the Chief Justice told him that he [the Chief Magistrate] had been influenced in his decision in the matter, by a named political party — the Chief Magistrate replied that he had not been so influenced. The Chief Justice asked him whether he [the Chief Justice] had influenced him in any other matter. The Chief Magistrate replied that he had never done so.  The Chief Justice also asked him whether he owned land at Millenium Park and how he had purchased it — the Chief Magistrate replied that he had obtained a loan. The Chief Justice asked him for a statement to the effect that he [the Chief Justice] had not influenced him in any matter. The Chief Magistrate agreed to do so, in order to satisfy him. The Chief Magistrate further stated that after that meeting, his office had been besieged with calls from the Chief Justice but he had not responded to them.  
The Statement of the Chief Justice
81)	On the 10th May 2006, the Chief Justice issued a press release. For purposes of this application, the document was edited. The Chief Justice indicated that the Chief Magistrate visited him without prior notice on the 28th March, 2006 and that he made the following unsolicited statements.
i.	He was favourably impressed by the testimony of the defence witness Mr Lawrence Duprey;
ii.	He felt it was unfair of the State to have prosecuted Mr Panday when there were a number of other high officials who had disregarded the Act and no action had been taken against them.
iii.	That since his mother was an Indian he knew that that in Hindu families that wives controlled the financial affairs of the family.

82)	The Chief Justice added that the only comment he made was to suggest that he [the Chief Magistrate] should write his judgment early, while the evidence and the submissions were still fresh in his mind.
83)	This Court was not required to make a finding about which version was true. It was the “appearance that those facts gave rise to, that mattered”.  It was evident, however, that (i) although the accounts were different, they related to the same subject matter (ii) if the Chief Magistrate had only intuitive reasons  for distrust after the first conversation, then on the second occasion he would certainly have been in a position to terminate the conversation or to retreat.
84)	The material which was the subject of disclosure after the events of 5th March, 2007 will be addressed in due course. 
Who is the fair-minded and informed observer
85)	In general terms, as the phrase implies, the individual is someone who is not a party, but who recognises and understands all the relevant circumstances and as a result is able to conclude whether or not the public would perceive the possibility of bias, including unconscious bias.
86)	The English authorities support the formulation of Kirby J. in Johnson v Johnson 74 AL JR 1380 which was decided in the High Court of Australia, that the observer is “neither complacent nor is he unduly sensitive or suspicious when he examines the facts”. It is useful to cite the entire passage of Kirby J. at para 53.
“The attributes of a fictitious bystander to whom the courts defer have therefore been variously stated. Such a person is not a lawyer. Yet neither is he or she a person wholly uninformed and uninstructed about the law in general or the issue to be decided.  Being reasonable and fair-minded the bystander before making a decision important to the parties and to the community, would ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances.  The bystander would be taken to know commonplace things, such as the fact that the adjudicators sometimes say, or do things that they might later wish they had not, without necessarily disqualifying themselves from continuing to exercise their powers.  The bystander must also be taken to have, at least in a very general way some knowledge of the fact that the adjudicator may properly adopt reasonable efforts to confine proceedings within appropriate limits and to ensure that time is not wasted.  The fictitious bystander will also be aware of the strong professional pressures on adjudicators (reinforced by the facilities of appeal and review) to uphold traditions of integrity and impartiality. Acting reasonably the fictitious bystander would not reach a hasty conclusion based on the appearance evoked by an isolated episode of temper or remarks to parties or their representatives, which has been taken out of context. Finally, a reasonable member of the public is neither complacent nor unduly sensitive or suspicious.”

87)	I say with confidence that the traits identified by Kirby J. would be present in the fair-minded and informed observer carrying out his balancing task in this legal system.
88)	 I think therefore that the fair-minded and informed observer would be a person who espouses human rights values so that fairness would be his or her primary concern. He would approach the task with caution and would begin by placing great weight on the judicial oath of office. 
89)	The fair-minded and informed “is not a lawyer,” but he would be taken to have been informed of basic principles such as the common law provisions of fairness and the Constitution regarding the right to a fair trial.  
90)	Before applying the principles to the facts, there is in my view an aspect of disclosure which I think would concern the fair-minded and informed observer.
Failure of the Chief Magistrate to make disclosure to counsel
91)	Counsel for the respondent in a carefully constructed argument accepted that the Chief Magistrate had kept the matters about which he had concerns away from the parties and counsel.  He recommended that this court ought to lay down guidelines for a decision-maker who found himself in the same situation.
92)	Counsel however submitted that there would be no purpose in telling the defence because the defence was bound to say “that has nothing to do with us”. I was of the view however that the appellant would reasonably have had much cause for concern. The defence might have said much more than that; not only could he have expressed his views about the event, counsel could have made submissions on the law. Certainly, whether or not there was a possibility of unconscious bias, would have been be uppermost in counsel’s mind. The appellant did not know the full extent of the matter the Chief Magistrate discussed. Those discussions could have conveyed material or impressions which had an influence on the Chief Magistrate’s objectivity.
93)	With respect, I was not at all disposed to accept the approach advanced by Counsel for the respondent. I think that the Chief Magistrate had a duty in the circumstances to inform the parties about all the matters which were troubling him — the cheque; his approach to the Attorney-General; and his fears about the conversations, which he said, he had with the Chief Justice.
94)	The fair-minded and informed observer would be presumed to know that Mr Duprey was a witness in the case and that the Chief Magistrate had made some connection between the cheque and that witness. He would also know that a communication had been made which raised concerns in the Chief Magistrate’s mind about the witness and that knowledge would lead to a feeling that the appellant had been unfairly treated, because he did not know the circumstances and the extent to which the communication had influenced the Chief Magistrate. In short the “out of court communications” would have reduced confidence in the impartiality of the decision. 
95)	In reaching that conclusion I cite first from Shetreet in his work “Judges on Trial” (1976) at page 305:
“When the circumstances of the case in the judge’s opinion do not justify his disqualification, he will always disclose the matter giving rise to the difficulties and require counsel to take instructions from the solicitors  and their client to see whether they have any objection to his trying the case. The judge will tell counsel that if there is an objection they should inform him without disclosing which side objected. However when the interest is more than minimal or when his association with a party, witness or counsel might give rise to the appearance of impropriety, of unfairness or bias, he will disqualify himself and not leave the matter dependent on whether or not the party will raise objections.”

Emphasis Added

96)	While it was true that neither side was told about the Chief Magistrate’s concerns, it was borne in mind that it was the appellant against whom an adverse decision was likely to have been handed down. It would follow that because the discussions could have worked against his interest, the fair-minded and informed observer would have concluded that the appellant would reasonably have felt a sense of grievance that the appellant had been unfairly treated by not being informed. 
97)	In Johnson v Johnson cited before, Kirby J observed that while in earlier times silence was favoured on the part of an adjudicator during a hearing to avoid allegation of prejudgement, that stance is now seen as carrying risks of greater injustice; unless the adjudicator exposes his trend of thinking a party may be effectively denied justice because that party does not have the opportunity to present arguments that could have settled the adjudicator’s concerns. 
98)	It seems to follow from the observations of the Court of Appeal in Locobail Ltd. V Banfield Properties [2000] 1 All ER at page 78 relating to disclosure, that if a judge is hearing a case which raises a problem to the extent that he knows that it could be raised by a party, then he ought to disclose it to the parties and invite Counsel’s submissions.  The court said this:
What disclosure is appropriate depends in large measure on the stage the matter has reached. If, before a hearing has begun,  the judge is alerted to some matter which might, depending on the full facts,  throw doubt on his fitness to sit, the judge should in our view inquire into the full facts, so far as they are ascertainable, in order to make disclosure in the light of them. But if a judge has embarked on a hearing in ignorance of a matter which emerges during the hearing, it is in our view enough if the judge discloses what he then knows. He has no obligation to disclose what he does not know. Nor is he bound to fill any gaps of knowledge which, if filled, might provide stronger grounds for objection to his hearing or continuing to hear the case. If, of course, he does make further inquiry and learn additional facts not known to him before, then he must make disclosure of those facts also. It is, however, generally undesirable that hearings should be aborted unless the reality or appearance of justice requires that they should.

99)	In the recent case of Jones v Das Legal Expenses Insurance Co. Ltd cited before, the Court of Appeal in England set out guidelines, which the Court was careful to say, were not comprehensive or conclusive, where a judge has to assess how strong the appearance of bias is.  In that case the Chairman of an Employment Tribunal did disclose to the parties that her husband was a barrister in chambers that undertook work for Legal Co Ltd. This Company was a party in the matter before her, against which the appellant [Jones] had alleged discrimination against him. The claim was grounded on actual bias which the appellant was not able to prove. The Court of its own motion went on to consider apparent bias. The Court set the following guidelines which it said were not intended to be a mantra for complaint. Where there was a real as opposed to fanciful chance of objection being taken by the fair-minded spectator, a full explanation must be given to the parties detailing exactly what matters are within judge’s knowledge which might give rise to the possible conflict of interest.
100)	The court continued:
“The parties should be told that it is their right to object that the court will not take it amiss if the right is exercised and that the judge will decide having heard the submissions.”

101)	The Chief Magistrate’s preoccupation with the cheque and his account of the conversations  he had with the Chief Justice were so overwhelming that in handing down his decision he had this to say:
“One final matter I wish to put on record is this: the people of Trinidad and Tobago should know that my mind is free from all sorts of influences because of the immense coverage given by the media in this matter and that they had no bearing whatever in the decision I have arrived at. The maxim “justice is blind” and there is a rule of law for every one regardless of personality is still alive and well in our society today.”

102)	These factors led ineluctably to the conclusion that there was, in the present case, a real as opposed to a fanciful chance of objection being taken by a fair-minded and informed observer. A full explanation ought to have been given to the parties. The explanation should have detailed exactly what matters were within the Chief Magistrate’s knowledge which might have given rise to a request for his recusal.  
103)	I would however stop short of setting out strict procedural rules for deciding recusal issues.  The authorities which I have cited particularly the recent case of Jones provide ample guidance. Clearly, if recusal issues arise, each judge must decide them for himself. It would be erroneous, however, to assume that every possible association or conversation or communication, however remote, qualifies for disclosure. The observations of the Privy Council in Grant v the Teacher’s Appeal Tribunal Privy Council Appeal No. 45 of 2005 are also relevant. Their Lordships were mindful of the problems which faced the judges in communities in Jamaica and other common law jurisdictions where sometimes the parties and the witnesses are known to the particular judge. It needs to be emphasised therefore that disclosures do not automatically lead to disqualification. There must be a real as opposed to a fanciful chance of objection being taken by the fair-minded and informed observer.
	Issues relating to the cheque and the fair-minded informed observer
104)	The fair-minded and informed observer would immediately have focused on the Chief Magistrate’s reaction to the receipt of the cheque. It was the Chief Magistrate who sounded the alarm — that his suspicions were aroused; that all was not right; that someone had acted improperly.  What would the fair-minded and informed observer make of this unhappy situation? As regards the Chief Magistrate’s financial transactions with a subsidiary of “CLICO”, in the words of Lord Hutton in Pinochet No. 2, legal technicality is particularly to be avoided. The fair-minded and informed observer would not be concerned with whether or not CL Financial was a subsidiary of the CLICO Group of Companies. He would be aware however that:
(i)	A certain witness in the case was an influential person in the Group of Companies.
(ii)	The Chief Magistrate entertained grave doubts about the timing and delivery to him of the cheque.
(iii)	He had connected the witness and the cheque in a manner which may have led to adverse findings against the appellant. 
(iv)	His doubts were grave enough to impel him to report the matter to a third party, namely the Attorney-General who bore the responsibility for dealing with corruption, in the context of the case. 
(v)	The fair-minded and informed observer would be presumed to have had knowledge that the Attorney General and the appellant were on different sides of the political divide. The observer would have been aware that the functions of the Bureau were to deal with corruption in a holistic manner and that the Chief Magistrate would not have taken the serious step of reporting the cheque to the Attorney General unless he had given considerable thought to that course of action.  
(vi)	In the light of the sensitivity of the case, the fair-minded and informed observer would be concerned that the deliberations between the Chief Magistrate and the Attorney General were not at arms length. Applying reasonable standards of propriety, but not being unduly suspicious, he would appreciate that several matters were discussed which may have had a bearing on the case and that the Attorney General in his Press release chose to be vague about them.

105)	The matter went further. According to the Attorney-General, it was only after the decision was handed down that the Attorney-General concluded that there was no further cause for action at that time. The weight of existing authority speaks to unconscious bias. The fair-minded and informed observer would be aware that the Chief Magistrate gave his decision before the Attorney General came to a decision that there was no further cause for action.  It would be too simplistic to say that the observer’s fears would be allayed because of the presumption of impartiality. What then of the Chief Magistrate’s suspicions?
Issues relating to the out of court discussions
106)	It seems to me to accord with common sense that the fair-minded and informed observer would regard the Chief Magistrate’s alleged communications with the Attorney-General and the Chief Justice as a cause for concern; the fair-minded and informed observer’s apprehension would be heightened by the non-disclosure of those matters. The fair-minded and informed observer’s sense of grievance would have been sharpened by the manner in which the out of court communications were brought to the appellant’s attention. He would be aware that the Chief Magistrate failed to inform counsel not only about his suspicions, but of his conversations with the Attorney General and the Chief Justice and he would conclude that the failure to do so amounted to unfairness. The Chief Magistrate also remained convinced that the Chief Justice had attempted to influence his decision.
107)	It would have been stretching the presumption of impartiality too far to say that the fair-minded and informed observer would be reassured that the Chief Magistrate could do justice to the appellant’s case when he had all these concerns.  The fair-minded and informed observer would have concluded that the cumulative effect of these extraneous factors would have impaired the Chief Magistrate’s objectivity with the result that there was a real possibility of bias on his part.  
New Matter — the Chief Magistrate’s unwillingness to testify 

108)	In keeping with the prosecution’s duty to disclose, further facts and circumstances were brought to the Court’s attention which related to the stance which the Chief Magistrate took in not testifying in the Romany v Sharma matter.  They were:
(i)	A letter from the Attorney General dated 16th March, 2007 to the Director of Public Prosecution relating that the Chief Magistrate had contacted him about the 20th February, 2007, expressing his concern that his statements were last given in the “137 investigation of the Chief Justice”. The Attorney General also discussed with the Deputy Director of Prosecutions the “possible need to disengage one set of proceedings at one time”;
(ii)	A statement by the Chief Magistrate dated 16th March, 2007.  This statement was in response to a request from the Director of Public Prosecutions.  The statement reiterated the Chief Magistrate’s concern about testifying in criminal proceedings and he further stated that when he made the complaint about the Chief Justice to the Prime Minister, he did so with the clear intention of having the matter dealt with under section 137 of the Constitution. He further stated that the Deputy Director had requested that he swear to his statements on the following day.  Despite his reluctance to do so, he complied with the request.  On the 5th March, 2007, he had telephoned Mr. Peterson, Prosecuting Counsel and informed him of his decision not to testify.  He subsequently issued the press statement on the 6th March, 2007 indicating the reasons for his position. 
(iii)	A letter from the Deputy Director of Prosecutions dated 5th March, 2007 to the Chief Magistrate in which she told him that his position was untenable;
(iv)	A chronology of events given by the Deputy Director of Public Prosecutions.
(v)	The Computer Aided Transcript of the Magisterial court proceedings was produced in Romany v Sharma. It revealed that the Chief Magistrate did not testify.
109)	While the proper approach might have been to have him state his position on oath, I did not think that his failure to do so changed the fact that he was unwilling to testify.
110)	On an objective appraisal of these further facts and circumstances, the conduct of the Chief Magistrate would have clearly demonstrated to the fair-minded and informed observer that he was vacillating.  The critical issue seemed to be that the Chief Magistrate’s posture threw further light upon his earlier conversation with the Attorney General. 
111)	The fair-minded and informed observer would have considered the new facts to have been redolent of all the earlier conflicts revealed by the Chief Magistrate to the Attorney General and in his witness statement. 
112)	These were very serious allegations which the Chief Magistrate had made about the Chief Justice and the fair-minded and informed observer would have expected that the Chief Magistrate, who plays a crucial role in the criminal justice system, would have been anxious to establish that his accusations were not false. 
113)	The possibility of a lack of objectivity on the Chief Magistrate’s part would have been reinforced, in the mind of the fair-minded and informed observer, by the disclosure of these new facts and circumstances, which were extraneous to the merits of the case. I have not rehearsed the contents of all of the documents which were disclosed. I concluded, however, that the Chief Magistrate’s assertion that he was willing to testify if proceedings were commenced against the Chief Justice under section 137 of the Constitution would not have quieted the legitimate concerns of the fair-minded and informed observer. 
114)	The convictions and sentences were quashed and the order for forfeiture was set aside.
115)	Counsel were then invited to make submissions on whether or not a retrial should be ordered.  Counsel for the respondent submitted that there ought to be a retrial – the prosecution based its case on real and cogent evidence, and was not at fault.
116)	Counsel for the appellant applied to this Court for leave to permit him to argue that this Court should stay the prosecution as being an abuse of process.  Counsel for the appellant complained that there was political pressure, which, he submitted had become clear from a wealth of new evidence.  Based on that evidence, he wished to argue that the Government had sought to apply pressure and improper influence on the Chief Magistrate to convict the appellant. To that end he asked this Court to admit hearsay evidence arising not only in press statements, but other material which had been sent to Attorneys.  Counsel for the appellant also raised the question of delay arising from the date of the alleged commission of the offences. 
Ruling                                                                            
117)	This Court did not permit counsel for the appellant to raise those matters since it was of the view that it was open to counsel to pursue those arguments before the magistrate in the event that there was a retrial.  Further, it would have been improper for this Court to re-open issues and embark upon a fresh inquiry at that stage.
Re-trial
118)	The basis of this Court’s power to order a retrial is section 149(2) (b) of the Summary Courts Act.  Chapter 4:20.  In the case of Reid v R (1978) 27 WIR 254 the Privy Council set out in detail the factors to be considered in determining whether or not to order a new trial.  They are the seriousness and prevalence of the offence; the expense and length of time involved in a fresh hearing; the ordeal suffered by an accused person on trial; the length of time that would have elapsed between the offence and the new trial; the fact, if it is so, that evidence which tended to support the defence on the first trial would be available at the new trial; the strength of the case presented by the prosecution, but this list is not exhaustive.
119)	The Privy Council offered further guidance in Bowe v R (2001) 58 WIR 1.
It was held that whether a “second” retrial should be permitted depended on an informed and dispassionate assessment of how the interests of justice in the widest sense would best be served; full account would have to be taken of the accused’s interests or if his defence might be prejudiced by lapse of time.  Account would have to be taken of the public interest in convicting the guilty and maintaining confidence in the criminal justice system, but those were matters which a national court was better placed to consider than the Privy Council.
120)	A salient aspect of the Bowe decision is that the court ought not to focus exclusively on the accused’s rights and privileges, but these rights must be interpreted in the context of the public interest in the integrity of the criminal justice system. Counsel for the appellant submitted that in determining whether a retrial should be ordered the court ought to consider whether there has been an abuse of process.
121)	In Attorney General’s Reference No.1 of 1990 (1992) 95 Crim. App. Rep the Court said that the imposition of a permanent stay should be the exception rather than the rule.
122)	Abuse of process has been defined in Hui-Chi Ming v R 1992 1AC 34 at 57 as “something so unfair and wrong that the court should not allow a prosecution to proceed”.
123)	The discretion to stay proceeding on the basis of abuse of process should only be exercised in exceptional circumstances.  In A G’s Reference No. 2 of 2001.  (2001) 1 WLR 1869 at 1877.
Lord Woolf said:
	“if there has been prejudice caused to a defendant which interferes with his right to a fair trial in a way which cannot otherwise be remedied, then of course a stay is the appropriate remedy.   But in the absence of prejudice of that sort, there is normally no justification for granting a stay” 	

124)	In R v Horseferry Magistrate’s Court ex parte Bennet [1994] AC 42 the House of Lords held that a court had discretion to stay criminal proceeding on the ground of abuse of process in two categories of cases:
i.	Where it would be impossible to give the accused a fair trial and;

ii.	Where it would amount to a misuse of process because it     offends the court’s sense of justice and propriety.                            

125)	Their Lordships also observed that if a person could not be tried fairly he should not be tried at all.
126)	As former Chief Justice de la Bastide observed in Crim. App. 104 to 112 of 1996 Nankisoon Boodram and others v The State   the test is ‘impossibility’ of a fair trial and not ‘difficulty’.  He said further:
“If a court abandons prematurely its efforts to secure a fair trial, then it will be derelict in its duty to be fair to the prosecution and to pay due regard to the interests of the victim, his family and society at large in having those who have committed crimes convicted and dealt with according to the law.”

127)	This reasoning is applicable to the present case where one of the appellant’s main objections to a retrial is that he will not get a fair trial. The previous trial was completed in six days.  Apart from himself, the appellant had only called two witnesses, one of whom was a character witness.
128)	Consideration was therefore given to the public interest in obtaining a determination of guilt or innocence based on the merits of the case.
129)	On the question of delay, the record showed that the complaint was laid against the appellant on the 18th September 2002.  In 2003, on the application of the appellant, the Chief Magistrate referred certain questions to the High Court for determination pursuant to Section 14(4) of the Constitution.  The appellant’s constitutional motion was dismissed in the High Court and that decision was upheld by this Court by a judgment delivered on the 22nd April, 2005 (See Panday v The Attorney General, Civ Appeal, 30 of 2004 (unreported).  On the 19th September, 2005, this Court dismissed the appellant’s application for conditional leave to appeal to the Privy Council.  The appellant petitioned the Privy Council for special leave to appeal, but the petition was refused on the 16th February, 2006.  The matter continued before the Chief Magistrate on the 20th March, 2006 and as indicated above, the appellant was convicted on the 24th April, 2006.
130)	 Counsel for the appellant submitted that the delay commenced from the date the offence was alleged to have been committed, that is to say in or around the 31st May, 1998.  In Panday v the Attorney General, cited above, this Court held that the 1987 Act, under which the appellant was charged, attracted a limitation period of five years from the date when the person ceased to be in public life (see section 28(b) of the Act).  At all material times the appellant continued in public life.  While it is true that delay amounting to an abuse of process could, in some instances, be found although proceedings were commenced within the limitation period, the test for abuse is still whether it would be impossible to give the appellant a fair trial, or whether there has been a misuse of process that offends the court’s sense of justice and propriety.
131)	 In the light of the above however, I found firstly that there was no delay on the prosecution’s part, and secondly, even if there were, it was possible that the appellant would be given a fair trial.
132)	The existence of integrity legislation with its focus on promoting integrity in public life reflects the importance of changing attitudes and the need to reassure the public about the standards of conduct which are demanded from those in public life.  I concluded that a retrial would not result in unfairness to the appellant.             

Margot Warner 
Justice of Appeal     

I agree with the decision of the Warner J. A and I have nothing to add.

P. Weekes
	Justice of Appeal