27th Jun 2022
Thomas Roe QC (Instructed by Charles Russell Speechlys LLP (London)) for the Respondents
These appeals from two related decisions of the Court of Appeal of the Republic of Trinidad and Tobago concern an application for the recusal of a judge presiding over criminal proceedings on the ground of apparent bias. They arise in the context of a long running and extraordinary set of circumstances. The test for such a recusal is whether a fair-minded and informed member of the public who considered the facts would conclude that there was a real possibility that the judge was biased. Sometimes it is asked whether there is a legitimate doubt as to the tribunal’s impartiality, a quality seen as indispensable to the fair administration of justice. At the outset it is necessary to record the background circumstances in some detail.
The Piarco preliminary inquiries
The appellants were senior officers of insurance companies. Along with others they were charged with various fraud and corruption offences arising out of the development of the Piarco International Airport in Trinidad in the 1990s at a time when the United National Congress (“UNC”) was in government. In December 2001 the People’s National Movement (“PNM”) came to power. In 2002 an Anti-Corruption Investigation Bureau (“ACIB”) was established within the Ministry of the Attorney General. Under its auspices various criminal proceedings were brought concerning the awarding of airport contracts and related matters. There were four so-called preliminary inquiries in the nature of committal proceedings known as Piarco 1-4.
The appellants were defendants in Piarco 1 presided over by His Worship Chief Magistrate Sherman McNicolls (now deceased). Their co-defendants included the former Minister of Finance, Mr Kuei Tung, and others considered to be financial supporters of the UNC. In January 2008, after some 200 days of prosecution evidence led over several years, the Chief Magistrate refused a motion that he should recuse himself and committed all the defendants to stand trial.
Piarco 2 concerns similar allegations against Mr Kuei Tung and another former UNC Minister along with a number of UNC supporters. The Magistrate in charge retired in 2018 and the inquiry is still to be concluded. The same Magistrate presided in Piarco 3, in which Mr Basdeo Panday, the former Prime Minister and then the leader of the opposition, was alleged to have received a corrupt payment. Piarco 3 was also incomplete when the Magistrate retired in 2018 and is still to be concluded.” Piarco 4 involves Mr Kuei Tung’s partner and is unfinished. No trials relative to these proceedings have taken place.
The Chief Magistrate’s land transaction and the Panday trial
In July 2005 the Chief Magistrate purchased a plot of land for $3.6m from Home Construction Ltd (“HCL”), one of the Colonial Life Insurance Co (Trinidad) Ltd (“CLICO”) group of companies. The purchase and its funding placed significant financial pressures on the Chief Magistrate. Soon afterwards he sought a buyer for the land, but without success.
Quite separately from the Piarco inquiries, on 20 March 2006 a summary trial began before the Chief Magistrate in respect of a charge that, when he was the Prime Minister, Mr Panday failed to declare funds received and held in a UK bank account. (The same payment, allegedly made by CLICO to secure airport contracts, formed the subject matter of Piarco 3.) Apart from Mr Panday himself and a spiritual adviser who said that in Hindu households women deal with family finances, the only defence witness was Mr Lawrence Duprey, CLICO’s most senior executive.
On the morning of 27 March 2006, which was the last day of evidence, Mr Duprey testified that the money was a scholarship to assist Mr Panday’s daughter’s studies in London. According to the account given the following year by the Chief Magistrate to the Mustill inquiry (discussed below), later that day he phoned Tony Maharaj of CLICO and asked him to send $400,000 as soon as possible. (A few days later the Chief Magistrate told the Attorney General that this was a down payment on the purchase of his land.) The money arrived the following morning in the form of a banker’s draft drawn on the account of Caribbean Money Market Brokers Ltd, another CLICO company. The Chief Magistrate deposited it in his bank where it was credited to his account. (In subsequent conversations the draft was sometimes referred to as a cheque.)
It soon emerged that there was an apparent difficulty with the draft which had not cleared. However the Chief Magistrate had already used the money to pay off interest on his bank loan and to reduce his overdraft. This required him to take out another loan since in the meantime he had decided to return the money. On 3 April 2006 he told Mr Maharaj that the sale of the land was off.