Attorney tells Privy Council: CJ could be hounded out of office

THERE are fears that any continued investigation and finding by the Law Association (LATT) of allegations of misconduct by Chief Justice Ivor Archie could lead to his being hounded out of office.

“This should not be how judges are removed from office,” was the submission of one of Archie’s lead counsel, Philip Havers,QC, at the hearing of the CJ’s challenge of the local appellate court’s ruling on the legality of the LATT’s investigations.

Havers said such an inquiry by the LATT was different from that which can be carried out by the press or a member of the public, and will attract a certain level of respect and authority from the public.

He was adamant that the only prescribed process for the removal of a judge was the procedure set out by section 137 of the Constitution.

A final decision is yet to be delivered in Archie’s challenge of the LATT investigation of his alleged misconduct.

However, after yesterday’s hearing at Courtroom 3 of the Judicial Committee of the Privy Council (JCPC), at Parliament Square, London, there was much speculation on what was the position of the five Privy Council law lords, given that they did not entertain submissions from the LATT’s legal team, led by Senior Counsel Christopher Hamel-Smith. Some have suggested that it could mean that the CJ has lost his appeal, while others have opined that the law lords came to a decision that there was nothing for them to consider, based on the position of both sides advanced in their written submissions and the arguments of Archie’s attorneys.

Before hearing a word from Hamel-Smith, Lady Hale told him the Privy Council did not wish to hear him and would now take time to consider its reasons for coming to that decision.

No date was given for a final ruling, but Lady Hale told the attorneys the Privy Council will let them know “as soon as we possibly can.”

Also presiding over the appeal were Lords Reed, Kerr, Wilson and Sumption.

In his submissions, Havers took the law lords through the evidence, which included the representations made to the CJ by the association, its press releases and media reports on the setting-up of the investigating committee.

He said the evidence showed that the purpose of the LATT’s investigation was to determine whether the allegations against Archie made out in a series of newspaper articles dating back to November 2017, were true or not and, if they were true, to hold the CJ accountable for his alleged actions.

However, Havers said it appeared the LATT’s position had changed.

“The respondent now appears to be saying it has done no more than enquire into the facts sufficiently to decide whether there is a proper basis to refer the allegations to the prime minister, but it does not intend to determine whether the facts and allegations are true and that it didn’t intend to do so even on the outset.” He said despite this, “The difficulty the respondent has is that is not what the evidence shows.”

“That is not what the president (of the LATT) told the Chief Justice when he went to see him last year. That is not what the respondent told its membership in an e-mail…There is no evidence of that. The president swore to an affidavit saying that the contents are correct and true. Even the respondent’s case begs a number of questions.”

He was adamant that the fact-finding role of any allegation against a judge was for a tribunal established by the president, in accordance with section 137.

He also submitted that the CJ, in his challenge, was not suggesting that the media or anybody should be prevented from enquiring into allegations against a judge to the extent of referring a complaint to the prime minister.

“There are no restrictions to free speech or freedom of the press, nor are judges above public scrutiny,” Havers said, adding that what the LATT had embarked on made “all the difference in the world.”