Former Turks and Caicos premier loses Privy Council appeal against judge in corruption trial

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Former Turks and Caicos premier Michael Misick

LONDON, England, Wednesday July 1, 2015 – Former Turks and Caicos premier Michael Misick has failed in his attempt to have his corruption case heard before a judge and jury, with the Privy Council dismissing his challenge to a Jamaican judge presiding over the matter alone.

In a judgment handed down last week, the London-based dismissed the grounds on which Misick and his co-defendants challenged Justice Paul Harrison, a former president of the Court of Appeal in Jamaica who decided they would not have a jury trial.

The judge was appointed for the specific purpose of presiding over the corruption cases.

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Justice Paul Harrison (centre) in 2012, after he was sworn in by Acting Governor Patrick Boyle (right) in the presence of Justice Margaret Ramsay-Hale, to preside over criminal cases arising out of the Commission of Inquiry that began in the Turks and Caicos Islands in 2008.

Misick and the other appellants had questioned Justice Harrison’s impartiality and independence, but their claim was rejected by the judge himself and, subsequently, by the Court of Appeal, before it was taken to the Privy Council.

Challenging the lawfulness of their proposed trial, the appellants argued that Justice Harrison did not have sufficient security of tenure and was therefore not independent; and that he failed to ask whether there was no reasonable doubt that the interests of justice required a trial without jury before deciding so.

However, in delivering the decision of the seven-member panel, Lord Hughes said the judge was appointed on the recommendation of the independent Judicial Service Commission and he was guaranteed security of tenure during his appointment.

“As for the limited term of his appointment, no objective observer would fear that Harrison J would entertain any sense of lack of independence in trials which he has been specifically asked to take on, outside his home territory and in his retirement. Far from a danger of lack of independence, his appointment has been made precisely to bring to locally highly controversial cases an independent outsider,” Lord Hughes said.

On the second ground, the Privy Council said 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.

“Here, there is no doubt that the decision required by TWAJO [Trials Without a Jury Ordinance] – where, in relation to predictive conditions, a judge is required to weigh different factors and make a judgment as to necessity – is not susceptible of analysis in terms of proof or the standard of it,” Lord Hughes said.

“This applies to both the finding of facts and the evaluation of the interests of justice in light of those findings. Indeed, in this case there were no significant disputed primary facts according to Harrison J.”

The Privy Council said the judge recalled the fundamental importance of jury trials before working through the factors relevant to the interests of justice test, and he was entitled to come to the conclusion he did.

“This was particularly the case 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 (of approximately 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 Auld that trial by jury could not be fair to them.”

“In any event, even if Harrison J ought to have applied the criminal standard of proof, he could not realistically have reached any conclusion other than the one he did.”

Read the Privy Council’s full judgment here

Misick and other former government ministers and their associates are facing charges of conspiracy to accept bribes in public office, conspiracy to defraud and associated money laundering, brought by a special investigative team set up in the Turks and Caicos Islands in 2011.

The team’s probe followed two years of the UK taking over administration of the British Overseas Territory.

From 2008 to 2009 there was a constitutional crisis in the Turks and Caicos Islands, then self-governing under a Constitution of 2006.

Following concerns about the administration of the Turks and Caicos Islands, a Commission of Inquiry was appointed “into possible corruption or other serious dishonesty in relation to past and present elected members of the Legislature in recent years”. The Commissioner, Sir Robin Auld, published a report recommending, amongst other things, the partial suspension of the 2006 Constitution, the creation of a special prosecution team to investigate evidence of corruption and dishonesty and the suspension of the absolute right to trial by jury.

The 2006 Constitution had provided for government by a Governor, acting on the advice of the Premier and his Cabinet. However, following the report and the effect given to the report by the UK government, temporary direct rule by the Governor was instituted. The legislature was dissolved, the Cabinet ceased to exist and the principal offices of government and legislature were declared vacant.

After two years, self-government was restored and a new 2011 Constitution inaugurated. Similar to the 2006 Constitution, it afforded those charged with a criminal offence the right to “a fair hearing within a reasonable time by an independent and impartial court established by law”. But unlike the 2006 Constitution, the 2011 Constitution does not contain an unqualified right to jury trial upon a criminal charge.

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