Mark James Morgan
Civil Appeals 91-93 of 2006
Deputy DPP, Assistant Commissioner of Police and Commissioner
of Police v The Chief Justice
Before the Honourable Justices of Appeal; M Warner, I Archie
and P Weekes JJA
Judgment delivered July 31, 2006
In March 2006, the Chief Magistrate complained that the
CJ had attempted to influence him in his decision in the
prosecution of former Prime Minister, Basdeo Panday under
the Integrity In Public Life Act, 1987.
In May 2006, the AG sent a copy of the Chief Magistrates
statement to the DPP and the Acting Commissioner of Police.
The DPP passed the statement to the Deputy DPP with instructions
to make her own independent decision in the matter while
the CoP assigned the investigation to the ACP.
The Deputy DPP and ACP interacted with each other in their
investigations. The Deputy DPP also interacted with the
CJs attorneys, allowed him to make written representations
and considered submissions made by his attorneys with respect
to the obligation to disclose information.
On July 10, without notice to the Assistant DPP, the CJ
applied for leave to begin Judicial Review against her decision
to institute or to advise the police to institute criminal
proceedings against him.
His main complaint was that the Prime Minister and/or the
AG had unduly interfered in the prosecutorial process. Jones
J granted the leave and ordered a stay of the decisionin
effect preventing the Deputy DPP from acting on any decision
to prosecute the CJ.
On July 13, without notice to him, the CJ applied to have
the ACP joined in the judicial review proceedings.
On July 14 a warrant was issued for the CJs arrest
which police attempted to serve at his home.
In response, on the CJs application without notice,
Jones J joined the CoP and granted an injunction against
the police force in essence preventing them from taking
any steps to arrest the CJ on July 16 on a further application
by the CJ without notice, Jones J made further orders against
the CoP, the ACP and the police force.
On July 17, Jones J dismissed the Deputy DPP application
to have the judicial review set aside on the ground that
she had not instituted criminal proceedings against the
CJ nor had she advised the police to do so.
On July 24, Jones J dismissed the applications of the CoP
and ACP to have the injunctions against them discharged.
The deputy DPP, CoP and ACP appealed.
In a joint judgment, the Court of Appeal held as follows;
In the case of the Deputy DPP
1. It being common ground that there was no direct evidence
in the form of any conversation or written directive passing
between the PM or the AG and the Deputy DPP, the Courts
duty was to determine whether there was any evidence capable
of giving rise to the inferences suggested by the CJ In
doing so, though the Court was not to engage in a minute
weighing and testing of the evidence to determine its veracity,
it had to ensure that it rose to a certain minimum standard.
2. Where, as was the case here, the exercise of a discretion
to prosecute was being challenged, a closer look is required
than would be the case in an ordinary judicial review application
and the discretion to grant leave to apply for judicial
review of such a decision should be exercised sparingly.
3. No analysis having been given by Jones J as to why she
gave leave, the Court of Appeal was entitled to undertake
a fresh examination of the evidence to see if there was
any material upon which she could reasonably have come to
the conclusion that she did.
The Court of Appeal then identified the evidence that the
CJ had relied upon as follows;
That in April 2006, the PM had told a retired judge that
the CJ must go because he was attempting to influence the
Chief Magistrate in the Panday case.
That on May 8 the AG had told the CJ that he had received
statements that the CJ had interfered in the administration
of justice and that this time they were not going to try
to remove him using s.137 of the Constitution and that he
should resign rather than face a criminal prosecution.
That on May 9 the PM had expressed sentiments to the CJ
that were similar to those expressed the previous day by
That in a report by a judge there were hearsay details of
a possible motive for the Chief Magistrate to make a false
allegation against him as well as the means by which the
PM and the AG could have exercised leverage over the Chief
Having considered the evidence, the Court concluded that
in order for the Jones J to have given leave to apply for
judicial review on the ground of political interference,
there would have to be some evidence from which it could
be inferred that there was some pressure coming from
the top down but there was none.
In the case of the CoP and the ACP
The Court held that the case against the CoP and the ACP
was even weaker as there was no evidence of any specific
misconduct in the CoPs decision to prosecute the CJ
and no allegations of the ACP succumbing to political interference.
The Court of Appeal noted Jones Js concern that irreparable
harm would have been caused to the CJ if his arrest were
carried out, but expressed the view that it was difficult
to see how any significant harm beyond that which had already
been caused would have ensued since any damage to his reputation
and career would have already occurred by the charge being
laid and the accusations being in the public domain and
bail having been set, he was likely to suffer only the briefest
deprivation of liberty.
They therefore expressed the view that the Judges
concern with respect to the irreparable harm should not
have assumed overriding importance and that the maintenance
of public confidence in the fair and impartial administration
of justice required all persons, whatever their status to
submit to judicial process.
The order of the Court of Appeal
Accordingly the Court of Appeal ordered that the leave granted
against the Assistant DPP, the CoP and the ACP and all the
consequential orders of Jones J be set aside.
The undertakings given to the Privy Council
The Court having been informed that certain undertakings
had been given before the Privy Council in the event that
they had made a finding that was adverse to the CJ, expressed
concern that the jurisdiction of the Privy Council had been
invoked while the Court was still seised of the case. They
stated that it would have been more appropriate for any
undertakings to have been sought and obtained before them
have an obligation to promote and maintain public confidence
in the administration of justice. The wrong signal is sent
when attorneys do not appear to have the confidence that
this Court, in the event that it does not rule in favour
of a litigant, would do what is necessary to preserve his
rights until the final determination of the matter.Historical
note: The suggestion by various commentators that this is
the first time that a Trinidad and Tobago CJ has been investigated
is inaccurate. In Law, Justice and Empire: The Colonial
Career of John Gowrie, 1829-1892 U.W.I. Press (1992)
@ Chap.9 The storm that Burst: Trinidad 1889-92,
Professor Brereton describes how Trinidad and Tobagos
CJ Sir John Gorries populist reforms in the late 19th
century led to the appointment of Judicial Enquiry Commission,
the adverse findings of which led to him being asked to
resign and then being interdicted from performing his duties
when he refused.