Privy Council on Piarco corruption case: Ex-chief magistrate 'hopelessly compromised'

THE Privy Council on Monday quashed the Piarco I criminal case by saying then Chief Magistrate, the late Sherman McNicolls, had been "hopelessly compromised" by help from then attorney general John Jeremie to get a Clico company to re-purchase McNicolls' land for $400,000. It is now up to Director of Public Prosecutions (DPP) Roger Gaspard to decide if to restart the case – based on factors such as public interest, cost, likely outcome, and whether the fact of a fresh trial and a trial itself would be fair to the accused.

In its 25-page ruling, the Privy Council overruled the Appeal Court's ruling that cases can be challenged only if bias is proven, but said uncertainties arise even if bias is a mere possibility. The appeal case of John Henry Smith and another against the Attorney General of Trinidad and Tobago was heard by Lords Hodge, Sales, Leggatt, Burrows and Malcolm.

Others charged in the matter included ex-finance minister Brian Kuei Tung; businessmen Ishwar Galbaransingh and Steve Ferguson; and ex-national security minister Russell Huggins.

Alongside the Piarco I case and a broader Piarco II case, former prime minister Basdeo Panday was before McNicolls on charges of breaching the Integrity in Public Life Act by not disclosing a multi-million-dollar London bank account. Also, after McNicolls accused then chief justice Satnarine Sharma of trying to influence him in the Panday trial, Sharma faced a failed move to impeach him plus criminal charges, but the latter evaporated after a refusal to testify by McNicolls who then faced the Judicial and Legal Services Commission (JLSC) for allegedly bringing the administration of justice into disrepute.

The Privy Council's ruling cited both sides. The appellants' arguments said, "By January 2008 the Chief Magistrate was 'beleaguered' and 'hopelessly compromised', all adding to a concern that he would not want to do anything which might jeopardise the support he had been receiving from the Attorney General and the government. His conviction of the former Prime Minister had been quashed because of an appearance of bias on his part.

"The public was aware that the JLSC had preferred disciplinary charges and had decided to defer the question of his suspension until after completion of Piarco I."

The appellants said the Mustill report backed the JLSC’s allegation that McNicolls' refusal to testify in Sharma's trial had brought the administration of justice into disrepute, adding, "His professionalism, credibility and integrity had been impugned."

Conversely, the Privy Council said the respondents' argued the Privy Council should not overrule the Appeal Court's local insights into the case, and argued that to find a link between the Piarco 1 outcome and the AG's wishes required "an extraordinary degree of speculation."

The ruling favoured the appellants' arguments, rejecting the respondents' claim that any factors like "local customs, attitudes or conditions" were best left to the Appeal Court and not the Privy Council. The judgment said there were "numerous potential causes for concern" including McNicolls being beholden to Jeremie. The receipt of $400,000 had "no benign construction," it added.

The Privy Council alleged McNicolls' indebtedness to the AG.

"It is not difficult to imagine his gratitude. He had the AG to thank for resolving his serious financial problems and for shutting down an investigation into his reprehensible conduct."

It said while the Panday conviction was tainted by apparent bias arising from the desirability of the Chief Magistrate to keep the AG on his side, most of the AG's support and efforts on the Chief Magistrate’s behalf occurred subsequently.

"Come decision time in Piarco I, matters relating to the $400,000 and the repurchase of his land looked even worse for the Chief Magistrate than they did in April 2007 when the Panday conviction was quashed."

Citing the Appeal Court's concern that the Chief Magistrate could have a subconscious desire to please the political directorate, the Privy Council ruled that he had a real risk of having a subconscious bias in Piarco I.

While the Appeal Court said it cannot be assumed McNicolls acted in Piarco 1 to try to please the AG, no such assumption was required for a case based on "apparent bias."

The Privy Council suggested the Chief Magistrate's indebtedness to the AG was not confined to the Panday trial but was a concern for Piarco I.

"It is the beholdenness itself, not the precise circumstances in which it arose, plus the Attorney General’s direct interest in Piarco I, which create a legitimate doubt as to the Chief Magistrate’s ability to act as a wholly independent and impartial judge.

"In recognition that actual bias is usually difficult to prove, no such demonstration is necessary, merely that there is a real possibility that the judge lacks impartiality."

The ruling chided McNicolls for not explaining his refusal to recuse himself and his brushing off of any scrutiny of himself as "frivolous and vexatious."

The Privy Council said that by January 2008, the Chief Magistrate was "hopelessly compromised." The ruling allowed the appeals and quashed the decisions of the Court of Appeal.

"In each case it (Appeal Court) erred by failing to hold that the test for apparent bias was satisfied and that recusal should have followed.

"Both the application for judicial review and the claim for constitutional relief are granted with the consequence that the Piarco I committal decision of January 7, 2008 falls to be quashed."