State challenges judge's decision not to recuse herself

A HIGH COURT judge’s refusal to step down from hearing a constitutional claim by three prisoners over the conditions in which they are being kept on remand has been challenged by the State.

In an appeal against a decision of Justice Carol Gobin, attorneys for the State have argued she exhibited apparent bias in comments she made at case management hearings.

Gobin has been accused of predetermining the matter or offering pre-judgment by her comments.

“When put against what she said before (in two previous rulings) and what is written now (in her decision on the recusal application), the State feels high level of discomfort,” Senior Counsel Fyard Hosein submitted on behalf of the Attorney General.

Presiding over the appeal are Justices of Appeal Nolan Bereaux and Charmaine Pemberton. On Monday, they reserved their decision after a virtual hearing of the appeal.

In January, Gobin refused the application to recuse herself, saying it came “late in the day” – some four years after the claim had been filed.

She pointed to judicial comment from other judges, including the Chief Justice, on prison conditions, as well as the Director of Public Prosecutions, among others.

Gobin also criticised a claim by the State suggesting the prisoners’ attorneys were “forum shopping” or had taken steps to have other matters transferred to her.

“The statement is inadmissible as to the truth of it but in any case it is ill informed and in my view mischievous."

She explained the system for reassigning cases, which falls under the purview of a civil case management committee, comprising judges.

Hosein argued that the judge expressed strong, colourful and decisive language, making it impossible for her to rule impartially.

In resisting the appeal, the prisoners’ lead attorney, Anand Ramlogan, SC, accused the State of trying to get through the back door by using the judge’s most recent ruling on the recusal application to bolster its arguments, when its first complaint against her was that she had given decisions on prison conditions in at least two previous cases.

But Ramlogan argued that prison conditions feature prominently in several types of cases, including death-penalty cases and a challenge to the Bail (Amendment) Act, but that did not disable a judge from giving an impartial ruling.

He pointed to rulings of the judge against his clients, including when they tried to get video evidence of an alleged rat infestation at the prisons, showing “rats that were bigger than a manicou.”

“The judge ruled against us. She established her objectivity,” Ramlogan said. He also pointed to two more rulings she had made against his clients.

“This is just an attempt to derail a case of national importance that has been stunted for four years. I urge the court not to make an indictment on the judge to say that her mind was prematurely closed,” he submitted.

Also representing the State was attorney Rishi Dass. Ganesh Saroop appeared for the prisoners, brothers Antares and Kendelle Khan and Lyndon James.