Before:                                         The Hon. Mr. Justice Anthony S. Gruchot

Appearances:                            Mr. Keith James of James Law for the Petitioner

No appearance by the Respondent

Hearing Date:                           3 November 2022  

Venue:                                          Court 5, Graceway Plaza, Providenciales

Handed Down:                         7 November 2022 at 2:30 p.m. by email

1. This is a matter of divorce of the 2 parties and ancillary financial relief. On 10 February 2022, Decree Nisi was granted by Simons J.
2. On 11 July 2022 the Petitioner filed her application for ancilliary relief which came before me on 20 October 2022.
3. On 20 October 2022 I adjourned the matter to 3 November 2022 in order for the Respondent to obtain independent legal advice with respect to my concerns as to the appearance of apparent or apprehended bias and, if so advised, for him to make a formal application for my recusal.
4. The reason for this was that whilst I was in practice at the Turks and Caicos Islands private Bar, I had acted for a number of clients in which the Respondent had been involved inter alia, as a prosecution witness, investigating officer, arresting officer, and the officer preferring charges in the course of  his previous employment as a fisheries / conservation officer with the Department of Environment and Coastal Resources (‘DECR’) or as it then was, the Department of the Environment and Maritime Affairs (‘DEMA’).
5. Pursuant to section 38 of the Fisheries Protection Ordinance (Cap. 10.08), a fisheries officer is deemed to have all the powers of a police officer. Similarly, pursuant to section 2 of the National Parks Ordinance (Cap. 10.01) an enforcement officer under that ordinance is defined as including a conservation officer, police officer and a fisheries officer, the Respondent was therefore charged with significant powers.
6. In the course of the matters in which I was involved, which were a number of incidents of accidental damage caused to the Turks and Caicos Islands reef by visiting yachts and also fishing licence violations, which matters fall under the purview of DECR/DEMA, certain serious allegations were made against the Respondent, albeit no formal complaints were made by any of my then clients. I also had cause to make urgent applications to the court for the release of persons detained in custody at the behest of the Respondent.
7. No formal application has been made by the Respondent for my recusal and accordingly there is no suggestion of actual bias; however, as he failed to appear on 3 November 2022, I am obliged to consider the appropriate test in respect of apparent or apprehended bias in order, inter alia, to ensure that there is no breach of the Respondent’s protected right to a fair hearing. I do not intend that these reasons should be considered a full exposition on the present law on recusal, but they are to provide sufficient reasons so the parties are aware of why I have made my decision.
8. Section 6(8) of the Turks and Caicos Islands Constitution provides a fundamental right that the determination of the existence or extent of any civil right or obligation shall be independent and impartial.
9. In Locabail (U.K.) Ltd -v- Bayfield Properties Ltd. [2000] Q.B. 451the Court of Appeal stated:

“The reason is obvious. All legal arbiters are bound to apply the law as they understand it to the facts of individual cases as they find them. They must do so without fear or favour, affection or ill-will, that is, without partiality or prejudice. Justice is portrayed as blind not because she ignores the facts and circumstances of individual cases but because she shuts her eyes to all considerations extraneous to the particular case.”

10. The accepted test for apparent bias is that set out by Lord Hope in Porter -v- Magill [2002] 2AC 357 where at paragraph 103 he states:

“the appropriate test in determining an issue of apparent bias was whether the fair-minded and informed observer, having considered the relevant facts, would conclude that there was a real possibility that the tribunal was biased.”

Further, in R -v- Bow Street Metropolitan Stipendiary Magistrate and others, ex-parte Pinochet Ugarte (No. 2) [2000] 1 A.C. 119 Lord Nolan agreeing with the opinion of Lord Browne-Wilkinson and Lord Goff of Chieveley added:

“… that in any case where the impartiality of a judge is in question the appearance of the matter is just as important as the reality.”

11. The High Court of Australia formulated the test in Ebner -v- Official Trustee in Bankruptcy (2000) 205 CLR 337 as:

“whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge was required to decide.” (at 33)

12. Recusal has recently been considered by the Cayman Islands Court of Appeal. In the unreported judgement in Perry -v- Lopag Trust Reg. and others (19 November 2021) Sir Jack Beatson, JA set the test as being:

“It is whether the fair-minded and informed observer, having considered all of the facts, would conclude that there was a real possibility that the judge was biased.”

13. Even more recently the above was cited in Jian Ying Ourgame High Growth Investment Fund (In Official Liquidation) (July 2022)(unreported) with respect to an application for recusal brought by Powerful Warrior Limited, a BVI company. In that case Doyle J held that:

“I am quite sure that I could deal with the summonses fairly and justly but that, of course, is not the relevant test. My own protestations that I am not and would not be biased against Powerful Warrior are not to the point and can be given no weight in this context. We are dealing with apparent bias rather than allegations of actual bias. I have to look at the matter objectively through the eyes of a fair-minded and informed observer. It is important to maintain the community’s trust and confidence in the administration of justice, that justice must not only be done but it must also be seen to be done.”

14. The authorities go on to consider the relevant personal characteristics of the ‘fair-minded and informed observer’ but for the purposes of the present case I do not need to give in depth consideration to those authorities. I am satisfied that a fair-minded observer informed of the circumstances of my previous interactions with the Respondent would conclude that there may be a possibility of partiality. I am of the view the recusal test has been met and accordingly I must recuse.

7^th November 2022

The Hon. Justice Anthony S. Gruchot

Judge