Fritz Pinnock v His Honour Chester Crooks

• Jurisdiction: Jamaica
• Judge: Mrs. Justice Cresencia Brown Beckford,Mrs. Justice Lisa Palmer Hamilton,Mrs. Justice Tricia Hutchinson Shelly
• Judgment Date: 28 July 2023
• Docket Number: CLAIM NO. SU2021CV00504
• Court: Supreme Court (Jamaica)

Between

Fritz Pinnock

1 ^st Claimant

and

Ruel Reid

2 ^nd Claimant

and

His Honour Chester Crooks

Chief Judge of the Parish Courts

Defendant

and

The Financial Investigations Division

Interested Party

[2023] JMFC FULL 03

Coram:

THE HONOURABLE Mrs. Justice Cresencia Brown Beckford

THE HONOURABLE Mrs. Justice Lisa Palmer Hamilton

THE HONOURABLE Mrs. Justice Tricia Hutchinson Shelly

CLAIM NO. SU2021CV00504

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE FULL COURT

Judicial Review — Conflict of Interest — Apparent Bias — Unconscious Bias — Breach of Constitutional Right to a Fair Hearing by an Impartial Court

Mr. Hugh Wildman and Mr. Duke Foote instructed by Hugh Wildman and Company Attorneys-at-Law for the 1st and 2nd Claimant

Ms. Lisa White and Ms. Faith Hall instructed by the Director of State Proceedings for the Defendant

Mr. Richard Small, Ms. Shawn Steadman, Ms. Jahanne Williams and Ms. Pretania Edwards instructed by Ms. Cheryl Lee Bolton Attorney-at-Law for the Interested Party

IN OPEN COURT

BY THE COURT

… it is not merely of some importance but is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done. 1

INTRODUCTION

Any judge (for convenience, we shall in this judgment use the term “judge” to embrace every judicial decision-maker, whether judge, lay justice or juror) who allows any judicial decision to be influenced by partiality or prejudice deprives the litigant of the important right to which we have referred and violates one of the most fundamental principles underlying the administration of justice. 2

1 This principle is enshrined in The Constitution of Jamaica in Chapter 3 of the Charter of Fundamental Rights and Freedoms and preserves for all persons charged before a court, the right to a fair trial. It provides that:

16.—(1) Whenever any person is charged with a criminal offence he shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.

This provision mirrors Article 14 of the International Covenant on Civil and Political Rights, to which Jamaica is a signatory and has ratified, which similarly provides:

1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.

Many jurisdictions have incorporated this provision in their domestic law. 3

2 It is manifest that to secure these constitutional rights, a judge must neither be biased or appear to be biased for or against any party to a litigation. It is also indisputable that trust in the administration of justice is necessary for a democratic state's survival. An

impartial judiciary is critical to preserving this trust. This case concerns the appearance of bias by the Judge in a pre-trial application based on statements made by him, and whether the Judge ought to have recused himself from hearing the application

BACKGROUND

3 This is the latest in a series of challenges brought by the Claimants, Dr. Fritz Pinnock and Mr. Ruel Reid, which have postponed their trial in the Kingston and St. Andrew Parish Court (“KAPC”). The two are charged, with others, for several offences under The Proceeds of Crime Act (“ POCA”), The Corruption (Prevention) Act (“CPA”) and other corruption related offences. Dr. Pinnock and Mr. Reid contend that the Financial Investigation Division (“FID”) did not have the power to arrest and charge them under The Financial Investigations Division Act (“FIDA”). They made several unsuccessful applications for a Declaration to that effect, and for an Order of Certiorari to quash the charges, through all levels of the courts, up to an application for Special Leave to apply to the Privy Council. Being so rebuffed, they exercised the alternative remedy available to them, pointed out by the several courts, and made the application in the KAPC, to dismiss the charges.

4 The application was heard by His Honour Mr. Chester Crooks, Chief Judge of Parish Courts, (“the Learned CJPC”). Before hearing the application, the Learned CJPC indicated that he had a potential conflict of interest. There was no objection taken then to him hearing the application. On 4 ^th February 2021, the Learned CJPC refused the application. At that time the Learned CJPC indicated his intention to recuse himself from presiding over the trial of the matter, his stated reasons being that he had a possible conflict of interest and that in hearing the application he would have been privy to certain information. The exact words used by the Learned CJPC are in issue and will be dealt with further on in this judgment.

5 Dr. Pinnock and Mr. Reid contend that the statements by the Learned CJPC demonstrated apparent bias and sought leave to apply for Judicial Review. Having been granted Leave, they argue in this application that based on his conflict of interest, the Learned CJPC harboured an unconscious bias and ought to have recused himself from the matter. They further contend that his failure to do so was in excess of his jurisdiction and therefore rendered his decision a nullity, consequently, the ruling should be quashed and a new hearing ordered. Having heard and considered all the submissions of Counsel, the Court now refuses this application for the reasons set out below.

SUBMISSIONS ON BEHALF OF THE CLAIMANT

6 Counsel on behalf of the Claimants, Mr. Hugh Wildman, contended that the apparent bias of the Learned CJPC was evidenced through his utterances that he had a conflict of interest owing to his familiarity with one of the Claimants from his tenure at Munro College. On this premise, the conflict resulted in the Learned CJPC being unable to grant a fair hearing. Consequently, he submitted that the Learned CJPC ought not to have presided over the proceedings. He relied on Regina v Bow Street Magistrate, Ex p. Pinochet (No. 2) [2000] 1 A.C and Porter v Magill [2001] UKHL 67. In furtherance of the foregoing, Counsel submitted that the distinction between automatic disqualification and apparent bias is purely academic and as such is irrelevant to the discussion. To this end he relied on R (on the application of Kaur) v Institute of Legal Executives Appeal Tribunal and another [2012] 1 ALL ER 1435.

7 Counsel also submitted that the Learned CJPC, having had prior knowledge of a matter which could arguably give rise to a real danger of bias, ought to have recused himself at the earliest possible stage in the matter. Counsel drew support from Campbell v Guelph (1963) 5 WIR 366, Locabail Ltd v Bayfield Properties Limited and another [2000] QB 451, Carol Lawrence-Austin v Director of Prosecutions [2020] JMCA Civ 47.

8 Mr. Wildman also contends that there was no waiver by the Claimants of their right to object to the Learned CJPC presiding over the matter. In the first place the Learned CJPC failed to give full disclosure of his indicated conflict of interest. He argued that there could be no waiver in the absence of full disclosure. Additionally, he asserted that at the time of the Parish Court proceedings, he represented Dr. Pinnock and not Mr. Reid. Therefore, when he expressed his confidence in the Learned CJPC presiding over the matter, he was not speaking on behalf of Mr. Reid but only on behalf of Dr. Pinnock.

9 Mr. Wildman also submitted, in response to the Defendant's submission that there was no Order before the Court to be quashed, that pursuant to Sampson v Air Jamaica Ltd (unreported), Court of Appeal, Jamaica, Supreme Court Civil Appeal No. 99 of 1991, judgment delivered 15 June 1992, there need not be a formal record to give rise to an Order for Certiorari.

10 Counsel further maintained that the Claimants could not appeal the ruling of the Learned CJPC on the basis that a ruling of a criminal court could not be appealed save and except for the verdict of the court. In the present case there was no verdict.

11 It was also Counsel's submission that where there is a trial on the merits of the issue an alternative remedy does not arise for consideration. Moreover, there was no alternative remedy available in this case. Reliance was placed on Alfred Grayson v Hopewell High School [2021] JMSC Civ 201, Regina v Falmouth and Truro Port Health Authority Ex parte South West Water Ltd [2001] QB 445.

12 Lastly, Counsel Mr. Wildman also refuted the submission of the Defendant concerning delay. He asserts that the issue of delay only arises at the Leave stage and is to be considered on the principles emanated from the case of Sharma v Brown-Antoine and others [2007] 1 WLR 780. In furtherance of this position, he noted that Justice Daye, in granting Leave for Judicial Review, found that there was no delay or alternative remedy.

SUBMISSIONS ON BEHALF OF THE DEFENDANT

13 Counsel on behalf of the Defendant, Ms. Faith Hall, refuted Mr. Wildman's assertions that there was a possibility that the Learned CJPC was biased. She argued that the statement of the Learned CJPC that he had a potential conflict of interest was insufficient to meet the threshold for the apparent bias test. The fair-minded and informed observer, she reasoned, would not have concluded, having considered that the Learned CJPC attended Munro College with Mr. Reid, that there was a real possibility that the Learned CJPC was biased. To this end she relied on Locabail Ltd v Bayfield Properties Limited and another [2000] QB 451, Porter v Magill [2001] UKHL 67, Helow (AP) v Secretary of State for the Home Department and Another [2008] UKHL 62 and The Honourable Chief Justice of Trinidad and Tobago Mr. Justice Ivor Archie O.R.T.T v The Law Association of Trinidad and Tobago [2018] UKPC 23. Further, no evidence was proffered as...