Privy Council

Published April 11, 2008

Panday v Virgil (Senior Superintendent of Police)

Before Lord Hoffmann, Lord Scott of Foscote, Lord Walker of Gestingthorpe, Lord Brown of Eaton-under-Heywood and Lord Neuberger of Abbotsbury

Opinions April 9, 2008

When allowing an appeal against conviction on the ground of apparent bias in the conduct of the trial, the Court of Appeal could order a retrial if the defendant had been properly charged and brought before the court without any violation of the rule of law and it was possible to have a fair retrial before a different tribunal.

The Judicial Committee of the Privy Council so held dismissing an appeal by the defendant, Basdeo Panday, from a decision of the Court of Appeal of Trinidad and Tobago (Justices of Appeal Warner, Archie and Weekes) on March 20,, 2007 to order a retrial when allowing his appeal from his conviction before the Chief Magistrate on April 24, 2006 of three offences of knowingly making false declarations as to his financial affairs in the calendar years 1997, 1998 and 1999, contrary to section 27(1)(b) of the Integrity in Public Life Act 1987, and imposing a sentence of two years imprisonment with hard labour on each charge concurrently, a fine of $20,000 with three years imprisonment in default, and payment to the state of the equivalent of £159,599.

Mr Richard Clayton, QC, Mr Anand Beharrylal and Miss Mickela Panday (of the Trinidad and Tobago Bar) for the defendant; Mr James Dingemans, QC, Mr Wayne Rajbansie (of the Trinidad and Tobago Bar) and Miss Sarah Crowther for the prosecution.

LORD BROWN, delivering the opinion of the board, said that the defendant was the Leader of the Opposition in Trinidad and Tobago, having previously been Prime Minister.

He appealed against the order for a retrial on the ground, inter alia, that the Court of Appeal should have stayed any further proceedings as an abuse of process because, in convicting him, the Chief Magistrate had been influenced by improper government pressure, a fundamental violation of the rule of law..

The defendant’s appeal against conviction was allowed on the ground of apparent bias. Shortly before convicting and sentencing the defendant, the Chief Magistrate signed a statement to the effect that on three occasions, one before, one during and one after the defendant’s trial, the Chief Justice of Trinidad and Tobago (he and the defendant being the two most prominent members of Trinidad and Tobago’s Indo-Caribbean community) had sought to influence the Chief Magistrate in the defendant’s favour. The Chief Justice roundly contradicted the allegation.

Over the same period, the Chief Magistrate had also met the Attorney-General of Trinidad and Tobago in connection with a real property transaction in which the Chief Magistrate was then engaged (involving amongst other things his receipt of a cheque for $4,000,000 which shortly afterwards he returned) which transaction it was suggested, was also discussed between the Chief Magistrate and the Chief Justice, and which in some way was said to give the Government a hold over the Chief Magistrate.

None of that was mentioned to the defendant before the Chief Magistrate’s written judgment convicting him and that was the reason for the Court of Appeal finding the case of apparent bias made out.

The Court of Appeal held that the Chief Magistrate had a duty to inform the parties about the cheque, his approach to the Attorney-General and the conversations which he said he had with the Chief Justice.

In R v Horseferry Road Magistrates Court, Ex parte Bennett ([1994] 1 AC 42) the House of Lords held that when a defendant was unlawfully brought to this country as a result of a collusion between the South African and British police and on arrival was arrested and brought before magistrates to be committed for trial, the English court should refuse to try the defendant.

The House said that the judiciary accepted responsibility for the maintenance of the rule of law that embraced a willingness to oversee executive action and to refuse to countenance behaviour that threatened either basic human rights or the rule of law.

That principle was applied also in cases of entrapment. The factor common to all those cases, indeed the central consideration underlying the entire principle, was that the various situations in question all involved the defendant standing trial when, but for an abuse of executive power, he would never have been before the court at all.

In the wrongful extradition cases, the defendant ought properly not to have been within the jurisdiction; only a violation of the rule of law had brought him there. Similarly, in the entrapment cases, the defendant only committed the offence because the entrapment officer wrongly incited him to do so.

In both cases a fair trial could take place. But given that there should have been no trial at all, the imperative consideration became the vindication of the rule of law. As Lord Hoffmann said in R v Looseley ([2001] 1 WLR 2060), the jurisdiction could be accurately described as “the jurisdiction to prevent abuse of executive power”.

That principle simply had no application in the defendant’s case. He had quite rightly had his conviction quashed. A fortiori that would have been the appropriate result had he established not merely apparent bias but, consequent on government pressure to convict, actual bias.

But the quashing of his conviction restored the defendant to the position he was in before the unfair trial. That success should not gain him immunity from what was conceded to be the position he now faced under the Court of Appeal’s order: a fair trial upon charges properly brought.

Solicitors: Lee & Kan; Charles Russell, LLP.

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