Court name
Supreme Court of Turks and Caicos Islands
Case number
CL 48 of 2020

Misick and Others v. AG (CL 48 of 2020) [2020] TCASC 3 (18 June 2020);

Law report citations
Media neutral citation
[2020] TCASC 3
Coram
Lobban-Jackson, J

IN THE SUPREME COURT

TURKS AND CAICOS ISLANDS

                                                                                                                                           CL 48/20

 

IN THE MATTER OF THE TURKS AND CAICOS ISLANDS CONSTITUTION ORDER 2011 (“THE CONSTITUTION”)

IN THE MATTER OF THE EMERGENCY POWERS ORDINANCE (“THE ORDINANCE”)

IN THE MATTER OF THE EMERGENCY POWERS (OVERSEAS TERRITORIES) ORDER 2017 (“THE ORDER”)

IN THE MATTER OF THE MERGENCY POWERS (COVID-19) (COURT PROCEEDINGS) REGULATIONS 2020 (“THE REGULATIONS”)

IN THE MATTER OF THE CRIMINAL PROCEEDINGS NO CR 34/12, 35/12, 36/12, 37/12, 39-40-42,44/12, 46/12 (“THE PROCEEDINGS”)

IN THE MATTER OF THE SUPREME COURT ORDINANCE

 

BETWEEN

 

MICHAEL EUGENE MISICK, FLOYD BASIL HALL, MCALLISTER EUGENE HANCHELL, LILLIAN BOYCE, JEFFREY CHRISTOVAL HALL, CLAYTON STANFIELD GREENE,

THOMAS CHALMERS MISICK, LISA MICHELLE HALL AND MELBOURNE ARTHUR WILSON ..........................                                                                      PLAINTIFFS

AND

THE ATTORNEY GENERAL OF THE TURKS AND CAICOS ISLANDS  ........                                                                                                                              DEFENDANT

 

BEFORE:

The Hon. Ms. Justice Tanya A. Lobban Jackson

 

APPEARANCES:

Mr. Ariel Misick Q.C.

Mr. Selvyn Hawkins for the Plaintiffs

Mr. Andrew Mitchell Q. C, Mr. Quinn Hawkins, Ms. Clemar Hippolyte,

Ms. Latisha Williams & Ms. Katherine Duncan for the Defendant

 

HEARD: May 14, 15, 21, 22, 26, 27, 28, 29, June 2, 2020.

DELIVERED: June 18, 2020.

 

JUDGMENT

 

Introduction

[1]  On March 20, 2020, the Governor, acting on the advice of the Cabinet and in the exercise of powers conferred upon him by s. 3(1) of the Emergency Powers Ordinance (“EPO”); for the purpose of preventing, controlling or containing the spread of COVID-19 in the Islands, declared that a state of emergency exists in the Turks and Caicos Islands. [1] The Proclamation took effect on March 24, 2020 at midnight. On the same date the Governor acting on the advice of the Cabinet and pursuant to s. 3(1) the EPO, made the Emergency Powers (COVID-19) Regulations 2020. This also came into operation on March 24, 2020. The Regulations dealt with inter alia the closure of the airports and seaports and restrictions on the size of gatherings.

[2]  Flowing from the Proclamation of Emergency, a number of other Regulations were made concerning health, economic relief and financial services to name a few. However, the only Regulation which is relevant to these proceedings is the Emergency Powers (COVID-19) (Court Proceedings) Regulations 2020 (“the Regulations”). This was made by the Governor on April 17, 2020, having consulted Cabinet and acting pursuant to s. 4(1) of the EPO and article 6(1) of the Emergency Powers (Overseas Territories) Order 2017 (“the 2017 Order”). The Regulations came into effect on April 20, 2020 and are due to expire on December 31, 2020 or on such date as the Governor appoints by Notice published in the Gazette, whichever is sooner[2].

[3]  The stated purpose of the Regulations is to put measures in place during the Covid-19 pandemic to ensure that the administration of justice, including enforcement of orders and access to justice is carried out so as not to endanger public health.[3] It also made provision for remote sittings.

[4]  By Originating Summons filed on April 24, 2020, and supported by the first and second affidavits of Mr. Mark Anthony Fulford, the Plaintiffs have challenged the constitutional validity of Regulation 4(6); and to add context, I have included Regulation 4(5), which states as follows:

“(5) Court sittings shall be done remotely in the manner provided by Rules or Orders from the Chief Justice.

(6) The courtroom shall include any place, whether in or outside of the Islands, the Judge or Magistrate elects to sit to conduct the business of the court:

Provided always that the video and audio link facility at the said location must be accessible remotely to the court recorder, interpreter in the appropriate cases, parties and witnesses.”

[5]        The Plaintiffs have mounted this challenge based on a claim that Regulation 4(6) violates their right to protection of law guaranteed by s.1(a) of the Turks and Caicos Islands Constitution Order 2011 (“the Constitution”). They contend that protection of law encompasses not only the right to a fair trial but the right to protection against irrational, unreasonable, and arbitrary exercise of power affecting the individual. Further, that s. 6 of the Constitution makes no provision for where a trial is to take place, but must be presumed that the trial is to take place within the territorial jurisdiction of the Court.[4]

 

Factual Background

[6]        The evidence establishes the following history of events leading up to the challenge:

a.   The Plaintiffs are defendants in criminal proceedings, (“the proceedings”) instituted by the Crown, which formally commenced on December 7, 2015. The case is presided over by Mr. Justice Paul Harrison sitting as judge alone and who was specially appointed as a Judge in the Supreme Court of the Turks and Caicos Islands solely for the purpose of trying the case. The Learned Judge is ordinarily resident in Jamaica and travels regularly to these Islands to hear the case which is currently part-heard.

b.   On March 11, 2020 the World Health Organization declared the novel coronavirus (COVID-19) outbreak a global pandemic. As a result, the following day March 12, 2020, the Learned Judge adjourned the proceedings to April 20, 2020.

c.   On March 25, 2020 the then Acting Chief Justice issued Covid -19 Practice Direction No. 2 of 2020 which suspended all Supreme Court criminal trials until further notice except for those matters determined to be urgent by the judge in any particular case. The case was further adjourned administratively at the direction of the Learned Judge to June 22, 2020.

d.   On March 25, 2020 the Premier outlined to the nation, the Turks and Caicos Islands Emergency Powers (COVID-19) Regulations which included a period of lockdown.

e.   On March 30, 2020 the new Chief Justice was sworn in.

f.    On April 10, 2020 a proposal authored by the Chief Justice titled “Protocols to Enable Remote Court Trials and to Provide for Ancillary Matters” was circulated to the Bar Association through the Bar Council for comment. The document was received with interest and sparked some discussion and or debate.

g.   The proposed protocols stated the following:

“In these unprecedented COVID-19 times, ways of doing things traditionally in every sphere of life must doubtless be adapted for the times. Strategies to enable the court to do its work must ensure that access to justice is not compromised even as we respond to the COVID crisis and all the ancillary matters it has brought in its wake ….

I would like the court to resume sitting after April 20, 2020 ….

I am therefore respectfully asking the Attorney General to use all means possible to get these matters provided for:

1.   That full criminal trial be conducted by video link.

2.   That all trials by jury be suspended until the COVID 19 crisis is declared by WHO to be at an end.

3.   That all civil trials be conducted by video link.

4.   That all trials/hearing be done using video media such as Microsoft Teams, Zoom, Skype or other such media with recording capability approved by the court.”

h.   The schedule to the said proposed protocols prescribed the “Mode of Remote Sitting” in 7 parts, 4 of which are set out as follows:

1. That in order to qualify as public hearings, the media must have access to the video link and be able to capture the proceedings as they would in open court trials/hearings.

2. That the Judge/Magistrate, and a recorder will operate from the court room observing social distancing protocol;

3. That counsel and witnesses as well as accused persons will testify/give evidence remotely which will be beamed onto the court screen by the recorder, if possible. If that is impracticable, that all participants including Judge /Magistrate and recorder use laptops for the purpose.

4. That the court recorder will record the proceedings;”

i.    On April 17, 2020 the Governor made the Regulations of which 4(6) is now challenged.

j.    On April 23, 2020 Queen’s Counsel for the Crown in the proceedings, submitted to the Registrar of the Court, a proposal for the resumption of the trial prior to June 22, 2020.  The proposal stated that it was possible, desirable, and even to be encouraged pursuant to the Emergency Powers (COVID-19)       (Court Proceedings) Regulations 2020, that the current trial resume as soon as possible, following the making of rules by the Chief Justice[5]

k.   In addition to making suggestions for video conferencing platforms, access to documents and open justice Queen’s Counsel also proposed that the Learned Judge remain in Jamaica and two screens be set up (in Jamaica) to replicate the current physical set up in court. The Learned Judge has made no ruling on the proposal.

l.    On April 23, 2020 the Chief Justice issued Practice Direction No. 3 (“PD3”) which revoked and replaced Practice Direction No 2. PD3, the COVID 19 Temporary Protocols for Audio-Visual Hearings and Related Matters, was made pursuant to Regulations 4 and 5 of the Regulations and s.17 of the Supreme Court Ordinance. The Directions which established guidelines and security measures for the conduct of court business electronically, and to enable sittings of court to take place remotely took effect on May 4, 2020 and are to remain in force until December 31, 2020 unless sooner varied, revoked or replaced by the Chief Justice.

 

The Relief Sought

[7]        By virtue of s.21 (1) of the Constitution, if any person alleges that any of his fundamental rights have been or is likely to be contravened then, without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the Supreme Court for redress. This section of the Constitution has been invoked in relation to Regulation 4(6) of the Regulations and the Plaintiffs have sought a number of declarations set out below as follows:

1.   A declaration that Regulation 4(6) of the Regulations constitutes an unlawful infringement by the Governor with the Plaintiffs’ right to protection of the law, including their right to fair hearing in the Proceedings and the right against irrational, unreasonable and arbitrary exercise by the Governor of his powers under the Constitution, the Ordinance, and the Order.

2    A declaration that Regulation 4(6) contravenes the principle of separation of powers as it is specifically directed at the Proceedings and made for the purpose of directing and /or enabling, permitting, soliciting and encouraging the judge in the Proceedings to conduct the proceedings from Jamaica during the period the Regulations are in force.

3    A declaration that Regulation 4(6) is ultra vires the Governor’s powers under the Constitution, the Ordinance and the Order in that it purports to confer power on the Supreme Court to conduct proceedings outside of its territorial boundaries.

4    A declaration that Regulation 4(6) violates international law and the territorial jurisdiction of Jamaica, a sovereign State, by purporting without the consent of the Parliament of Jamaica to establish a court/courtroom of the Supreme Court of the Turks and Caicos Islands (“TCI”) in Jamaica.

5    A declaration that to the extent that Regulation 4(6) seeks to direct and/or enable the judge in the Proceedings to revisit his decision to adjourn the trial to 22nd June 2020 or by further order of the Judge himself, it violates the Plaintiffs’ right to due process and /or their legitimate expectation that the Proceedings would not be resumed save by orders competently made by the Judge seized of the conduct of the Proceedings and sitting in TCI.

6    A declaration that to the extent that Regulation 4(6) seeks to direct and /or enable the Judge in the Proceedings to resume sitting in the Proceedings outside the territorial boundaries of the TCI it violates the Plaintiffs’ rights to due process and equality of treatment, and /or their legitimate expectation that they would be able to present their evidence and case in the same way as the prosecution and its witnesses.   

 

The Parties’ submissions                                                                                   

[8]        In view of the ocean separating the diametrically opposed positions held by the parties in this matter and the gravity of the central issue at the heart of the case, I intend to set out the rival arguments presented to the court in greater detail than is customary.

 

The Plaintiffs’ submissions

[9]        At paragraphs 30 to 36 of his Skeleton Argument, Mr. Ariel Misick Q.C. sets out the legislative history of both the Court of Appeal and the Supreme Court, which provides context to the submissions made by the Plaintiffs:

32. Both the Court of Appeal and the Supreme Court are created by the Constitution. The 1965 Constitution conferred on the Court of Appeal of The Bahamas jurisdiction to hear and determine appeals of the Supreme Court of the TCI. The Bahamas Court of Appeal naturally sat in The Bahamas, where appellants from the TCI out of necessity had to travel. The present Court of Appeal was first established under the 1976 Constitution and the judges initially appointed were the same judges of The Bahamian Court of Appeal. It is not therefore surprising that the 1976 Constitution provided for the Court of Appeal to be able to sit outside of the TCI.

33. The provision of the 1976 Constitution relating to the Court of Appeal were repeated in every subsequent Constitution up to and including the 2011 Constitution.

34. By contrast, there is no legislative history of the Supreme Court being able to sit abroad. The Supreme Court was first constituted in 1904. In its early days the Court consisted of a single itinerant judge who lived abroad and came to the Islands periodically to try cases. The first time there was a resident judge in the TCI was when the office of Chief Justice was created in 1985. The Court now consists of three full-time resident judges. The fourth judge, Mr. Justice Harrison is a non-resident judge assigned exclusively to the Proceedings.

35. Apart from the historical context, there was sound policy reason for the Constitution conferring jurisdiction on the Court of Appeal to serve from abroad but not the Supreme Court. The judges of the Supreme Court are adjudicators of fact and assert considerable coercive powers during a trial. The Court of Appeal is of course a court of ‘review’ and is seldom required to exert any kind of coercive powers over Appellants or Respondents.

36. It is against this historical background that the provisions of the Constitution related to the jurisdiction of the Supreme Court are to be construed”

 

[10] In developing the submissions as to the contrast between the legislative framework of the Supreme Court as against that of the Court of Appeal, Mr Misick Q.C made the following observations:         

37. Part V of the present Constitution sets out those constitutional provisions by which both the Supreme Court and the Court of Appeal continue to exist. Section 77(1) of the Constitution establishes the Supreme Court and confers on it such jurisdiction and powers as conferred by the Constitution and any other law. Similarly, section 80 (1) establishes the Court of Appeal, conferring on it such jurisdiction and powers as conferred by the Constitution and ‘any other law.’ The meaning of ‘any other law’ as appearing in these provisions must be confined to any other law which is constitutionally valid, judged against the provisions of the Constitution as being compliant with the rule of law and other characteristic features of a democratic society.

38. Though establishing the Court of Appeal on the same terms as the Supreme Court, an exceptional provision is made in section 80 (2) of the Constitution to allow the Court of Appeal to “sit either in the Islands or in such places outside the Islands as the President of the Court may from time to time direct.” This exception is purposefully made in the light of the historical background and framework of the Court of Appeal. Section 80 (2) recognizes that historical background, functional framework, and the fact that the Court of Appeal’s justice are not resident in jurisdiction. Without this provision, such a power is not one which would be expected in democratic society.

39. There is no exception made under section 77 of the Constitution, as in the case of the Court of Appeal under section 80(2) of the Constitution, to allow the Supreme Court to sit outside of the territorial jurisdiction of TCI. There is no reasonable argument which can suggest that the legislative drafters intended that there could be a jurisdictional exception founded on ‘any other law.’ Any such argument runs contrary to the history of the Supreme Court and what would be expected in a democratic society. The drafters of the 2011 Constitution would have been aware that there was no law permitting the Supreme Court to sit abroad. Had it been the intention to confer jurisdiction on the Supreme Court to sit abroad, express provisions would have been made in the same way express provision was made for the Court of Appeal.

40. The reason why it was necessary for express provisions to be made in the Constitution for the Court of Appeal to sit abroad in because it was obvious to the drafters of the Constitution that the English High Court (whose jurisdiction had been conferred on the TCI Supreme Court) had no inherent jurisdiction to sit outside of its geographical boundaries. This is such a fundamental principle in a democratic society that it is one of those features which is inherently implied in the Westminster model of written constitutions.”

 

[11]      Having made those observations, Mr. Misick Q.C. went on to submit that to allow a Judge of the Supreme Court to sit outside the territorial boundaries of these Islands would require a constitutional change. The Constitution is an Order in Council which cannot be amended by local legislation in the absence of express provision in the Constitution to do so. It was further submitted that it could not have been the intention of the Constitution that the expression “any other law” as appearing under s. 77 of the Constitution, could extend a law to confer jurisdiction to the Supreme Court which it does not possess under the Constitution. In support of that submission he cited the dicta of Lord Browne-Wilkinson in R v Secretary of State for the Home Department ex parte Pearson[6]

[12]      The Plaintiff went on to argue that:

“50. The same principle must apply by analogy to the basic principles upon which the Constitution is based. The Constitution cannot be taken to have intended that the Governor or the House of Assembly whether acting under emergency powers or otherwise, was free to abrogate fundamental rights or to violate the rule of law.”[7]

 

The Separation of Powers

[13]      The Plaintiffs have argued that the making of the Regulation contravened the principle of the separation of powers. They submitted that at the time the Learned Judge adjourned the proceedings to April 20, 2020 and returned to his home country, Jamaica that he was aware of the pandemic and the advanced stage of the trial. The Prosecution had completed its case and the first witness for the Defence had commenced giving evidence. Based on the Practice Direction of the then Acting Chief Justice, the case was administratively adjourned to June 19, 2020 when the said Directions were scheduled to expire and further to June 22, 2020 when it was discovered that June 19, 2020 was a Friday. Based on the sequence of events the plaintiffs made the following submission at paragraphs 56 and 57 of their Skeleton Arguments:

“56. It is pellucid from the facts as outlined, that Harrison J did not envisage continuing the proceedings by sitting in a court room in Jamaica. It is also clear that in making Regulation 4(6) the Governor would have been aware that the Proceedings had been adjourned until 22nd June 2020. It is therefore evident that Regulation 4(6) was made for the purpose of directing and/or would have the effect of enabling, permitting, soliciting, and encouraging Harrison J, to elect to continue the Proceedings at an earlier date and/or at some point before the expiration of the Proclamation of Emergency, while sitting from Jamaica. This is a plain and obvious violation of the principle of separation of powers by the misuse by the Governor of his executive power to accelerate the hearing by Harrison J from Jamaica. It is an indirect inference with an order that Harrison J previously made. Properly construed in context, it seeks to overturn an order properly and competently made in the Proceedings by Harrison J.

57. The fact that the Regulation was affirmed by the House of Assembly does not give it any greater validity because the doctrine of the Separation of Powers prevent both the Executive and the Legislature from using constitutional powers to interference with the Judicial branch of Government. The fact that the House of Assembly has confirmed Regulation 4(6) does not alter its ultra vires nature. Whilst Parliament may ratify an ultra vires instrument, Parliament must have in mind the ultra vires point and did not merely continue the ultra vires instrument assuming it to be valid (Re Fletcher, A Debtor, Ex parte Fletcher v Official Receiver (1965) Ch. 129).”

 

International Law

[14]      The Plaintiffs contend that Regulation 4(6) violates international law and the territorial jurisdiction and the sovereignty of Jamaica, by purporting to establish a court/court room of the Supreme Court of the Turks and Caicos Islands (TCI), without the consent of the Jamaican Parliament. Further, that the rule of law requires that public authorities comply with international law whether deriving from treaty or international custom or practice.

[15]      At paragraph 62 of his Skeleton Argument Mr. Misick Q. C summarized the essence of his position on behalf of the Plaintiffs as follows:

“62. The effect of Regulation 4(6) is the purported unlawful empowerment of the trial judge unilaterally to elect to exercise official powers only properly exercisable within the jurisdiction of the TCI from within the jurisdiction of a foreign sovereign state, without the express and lawful consent of that State, in accordance with the will of the parliament of that state and consistent with the constitution of that state. In the case of the Proceedings, that consent would require a treaty being entered into between the TCI and Jamaica (with the approval of the Jamaican Parliament or at the very least an indication that the Jamaican government does not object to the exercise of that official power from its territory). The fact that the defendants are located within the TCI is immaterial. The material issue is the fact that the judge exercising official powers will be doing so from within the territorial boundaries of another state, which is contrary to international law. These powers would include coercive powers, for example the power to imprison a witness who refuses to answer a question for contempt whilst the trial is proceeding. It is notable that within the Canadian cases referred to above, one of the basis upon which the Courts ruled that the judges of the two provincial courts could sit outside their home jurisdiction was that the hearing did not require or involve the possibility of those judges exercising coercive powers.”

 

Ad Hominem

[16]      The Plaintiffs submitted that Regulation 4(6) is invalid because it is ad hominem in that it specifically targeted the proceedings. It was submitted that at the time the Regulations were made, there were three resident judges and one non-resident. By a process of elimination, the learned trial judge in the proceedings was the only judge capable of being able to invoke the right of election given by Regulation 4(6). In support of this submission the Plaintiffs relied on Lord Sumption’s dicta in Ferguson v. The Attorney General of Trinidad and Tobago[8], in turn citing Lord Pearce in Liyanage v The Queen:[9]

But such a lack of generality in criminal legislation need not, of itself, involve the judicial function, and their Lordships are not prepared to hold that every enactment in this field can be described as ad hominem and ex post facto must inevitably usurp or infringe the judicial power. Nor do they find it necessary to attempt the almost impossible task of tracing where the line is to be drawn between what will and what will not constitute such an interference. Each case must be decided in light of its own facts and circumstances, including the true purpose of the legislation, the situation to which it was directed and ……. the extent to which the legislation affects, by way of direction or restriction, the discretion or judgment of the judiciary in specific proceedings”

 

The Defendant’s submissions

[17]      Mr. Andrew Mitchell Q.C.’s arguments in the defence of challenge mounted by the Plaintiffs can be summarized by the following paragraphs of the Defendant’s Skeleton Arguments:

‘24. If there are adequate means of redress available under other laws, in the Turks and Caicos Islands, then this Court must decline to exercise its constitutional jurisdiction. It follows that any submission that imposes on discretion or impacts the trial itself is a matter for the trial judge and this Court is constrained from, and must not impose its views or will. Thus, in so far as the Court is invited to consider the “constitutionality” of Regulation 4(6) it has the authority and power to do so. In so far as the Plaintiffs claim that it is unfair for the trial to continue by remote link, that is a matter for Harrison J.

25. The sole issue for this Court therefore is whether it is contrary to the Constitution, given the current pandemic and State of Public Emergency for the provision for remote hearings with the trial judge logging in from outside the Islands as opposed to from within. The redress available to the Plaintiffs in respect of the way in which Harrison J exercises his discretion under the inherent jurisdiction of the court to manage the trial process is, if convicted, to appeal to the Court of Appeal and then if unsuccessful to the Privy Council, to have their convictions quashed.”

 

[18]      The Defendant relies on s. 21(2) of the Constitution as authority for submitting that the court out not to exercise its discretion to grant the reliefs sought where another remedy exists.  Section 21 (2) provides:

“(2) The Supreme Court shall have original jurisdiction—

(a) to hear and determine any application made by any person in pursuance of subsection (1); and

 (b) to determine any question arising in the case of any person which is referred to it in pursuance of subsection (3), and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of any of the foregoing provisions of this Part to the protection of which the person concerned is entitled; but the Supreme Court shall not exercise its powers under this subsection if it is satisfied that adequate means of redress are or have been available to the person concerned under any other law”.

[19]      Mr Mitchell Q. C submitted that there are well established authorities that support his contention regarding parallel actions in the context of constitutional claims. He relied on the dicta of Lord Diplock in Maharaj v Attorney General of Trinidad and Tobago[10], where he set out the governing principles of collateral attacks against conviction. Noting that in the present case the attack has not yet reached the stage of conviction:

“In the first place, no human right or fundamental freedom recognized by Chapter I of the Constitution is contravened by a judgement or order that is wrong and liable to be set aside on appeal for an error of fact or substantive law, even where an error has resulted in a person’s serving a sentence of imprisonment. The remedy for errors of these kinds is to appeal to a higher court. Where there is no higher court to appeal to then none can say that there was an error. The fundamental human right is not to a legal system that is infallible but to one that is fair. It is only errors in procedure that are 8 capable of constituting infringements of the rights protected by section 1(a); and no mere irregularity is enough, even if it goes to jurisdiction; the error must amount to a failure to observe one of the fundamental rules of natural justice. Their Lordships do not believe that this can be anything but a rare event.”

[20]      Quite a few authorities on the principle stated above, were cited by Mr. Mitchell Q. C, the essence of which was captured in the passage on which he relied in Harrikisoon v Attorney General of Trinidad and Tobago[11]:

““The right to apply to the High Court under section 6 of the Constitution for redress when any human right or fundamental freedom is or is likely to be contravened, is an important safeguard of those rights and freedoms; but its value will be diminished if it is to be allowed to be misused as a general substitute for the normal procedures invoking judicial control of administrative action. In an originating application to the High Court under section 6(1), the mere allegation that a human right or fundamental freedom of the applicant has been or is likely to be contravened is not of itself sufficient to entitle the applicant to invoke the jurisdiction of the court under the subsection if it is apparent that the allegation is frivolous and vexations or an abuse of the process of the court as being solely for the purpose of avoiding the necessity of applying in the normal way for the appropriate judicial remedy for unlawful administrative action which involves no contravention of any human right or fundamental freedom.”

[21]      Against that background, Mr. Mitchell Q.C, submitted that the final two declarations sought at paragraph 7 should be struck out as they offend against s.21 of the Constitution since the trial judge has inherent jurisdiction to manage the process of the trial. Further that it is for the judge to decide what orders he makes and the manner in which he receives the evidence in the case. In summary his position is that there are adequate means of redress within the trial process or if convicted then in the appellate court.

[22]      The Defendant has argued that Regulation 4(6) is simply an enabling provision which does not mandate that any trial be conducted in a particular manner. The provision would enable the court to proceed efficiently in a way it deems appropriate and in the interests of justice.

[23]      Mr. Mitchell Q. C submits that the Plaintiffs have misstated the position in relation to the test to be applied for the making of Emergency Regulations. This is set out in the paragraphs 32 to 34 and 37 of his Skeleton Argument:

“32. The summons refers to section 6 as being ‘reinforced by’ section 19 of the Constitution (para 2). It is submitted that section 6 deals with fair trial entitlements whereas section 19 relates solely to administrative decision-making and the right to apply for review. Section 19 reads:

Lawful administrative action

19.— (1) All decisions and acts of the Government and of persons acting on its behalf must be lawful, rational, proportionate and procedurally fair. (2) Every person whose interests have been adversely affected by such a decision or act has the right to request and be given written reasons for that decision or act.

33. The test in respect of the decisions and acts of Government must be lawful, rational, proportionate and procedurally fair. The Constitution also recognizes that in periods of public emergency this test should be modified. Section 20 of the Constitution provides the modification to section 19 in the following terms;

Provisions for periods of public emergency

20.—(1) Nothing contained in or done under the authority of any regulation made under the Emergency Powers (Overseas Territories) Order 20173 [“the Order”]] or any other law in force in the Islands to like effect shall be held to be inconsistent with or in contravention of section 5, section 6 other than subsections (4), (5) and (6) or any provision of sections 7 to 19 (inclusive) to the extent that the regulation in question makes in relation to a period of public emergency provision, or authorizes the doing during any such period of anything, that is reasonably justifiable in the circumstances of any situation arising or existing during that period for the purpose of dealing with that situation

34. Thus, the test to be applied to Regulations is limited to the extent that it is reasonably justifiable in the circumstances of any situation arising during the period of public emergency” (emphasis added by the Defendant).

37. The suggestion in the Summons (at para 6) that ‘the requirement that the Emergency Regulations be necessary is consistent with the Constitutional requirement that they be rational, reasonable, and proportionate in order to meet a situation of urgency which has arisen’ misstates the constitutional requirement. The test required is that any interference with the foregoing sections of the Constitution by a Regulation made in a state of public emergency is reasonably justifiable.”

 

[24]      It is the Defendant’s position that in order to consider the enabling provision of Regulation 4(6), it is necessary for the Court to have regard to the issues of jurisdiction, namely:

“what is the reach of the authority of the court and whether it is necessary, given the pandemic to conclude that such authority whilst necessarily exercisable by a person appointed to high judicial office only in the Turks & Caicos Islands has to be physically present in the islands to have that authority recognized. The jurisdiction of the court is the Turks and Caicos Islands”[12]

[25]      Mr. Mitchell Q. C, then traced the history of the jurisdiction of the court back to its origins and concluded that in reference to the UK provisions, there was no bar to a judge of the High Court sitting outside of England and Wales. He developed the submissions by reference, firstly, to s77 of the Constitution which established the Supreme Court and went on to s. 3 of the Supreme Court Ordinance, set out below:

  1. The Court shall be a Superior Court of Record which, in addition to any jurisdiction previously exercised by it or conferred upon it by this Ordinance or any other law, shall have within the Islands the jurisdiction vested in the following Courts in England –

(a)  The High Court of Justice; and

(b)  The Divisional Court of the High Court of Justice as constituted by the Supreme Court of Judicature (Consolidated) Act, 1925, and any Act of the Parliament of the United Kingdom replacing that Act. …

(3) In any matter of practice or procedure for which no provision is made by this Ordinance or any other law or by any rules, the practice and procedure in similar matters in the High Court of Justice in England shall apply so far as local circumstances permit and subject to any directions which the court may give in any particular case.”

 

[26]      The 1925 Act was repealed by the Supreme Court Act of 1981 and renamed the Senior Courts Act of 1981. Mr. Mitchell Q. C directed the courts attention to s. 71 of the said Act which sets out the provisions for the sitting of the Court as follows:

“(1) Sittings of the High Court may be held, and any other business of the High Court may be conducted, at any place in England or Wales.

(2) Subject to rules of court—

(a) the places at which the High Court sits outside the Royal Courts of Justice; and

(b) the days and times when the High Court sits at any place outside the Royal Courts of Justice, shall be determined in accordance with directions given by the Lord Chancellor.

 

[27]      It was further submitted by Mr. Mitchell Q. C, that the reference to sitting is merely enabling and does not exclude the ability of the judge in England and Whales from a remote location whether in England or Whales or elsewhere. He relied on Peer International Corp v Termidor Music Publishers Ltd(No. 3)[13] as authority for saying so.

[28]      Relying on paragraphs 21-23 of the Affidavit of Ms. Clemar Hippolyte, Mr. Mitchell Q.C. submitted that reliance on remote hearings is common place and noted that the Cayman Islands was one such example where the court had video hearings with the judge sitting outside the Cayman Islands and exercising his authority in the Cayman Islands even before pandemic became an issue. Reference was made to Order 33, r. 1 of the Cayman Island Grand Court Rules, which was exhibited in the said Affidavit and set out below as follows:

“(1) Subject to the provisions of these Rules, the place of a trial in the cause of the matter, or any question or issue arising therein, shall be the Law Courts, George Town, Grand Cayman, or any other building in George Town at which sittings of the Court are authorized by the Chief Justice to be held, unless for some special reason the Court orders that the trial of a cause or matter, or any question or issue arising therein shall be heard-

(a)  Elsewhere in the Islands; or

(b)  In any place outside the Islands.

(2)       No order shall be made under subparagraph (1)(b) unless the Secretary of State for Foreign and Commonwealth Affairs has certified the neither he nor the country concerned have any objection to the Court sitting in such country”[14]

 

[29]      The imperative to move with the times and to adapt in order to achieve the ends of justice was also part of Mr. Mitchell Q. C’s answer to the challenge to Regulation 4(6).

He noted that it was not only the judges of the Cayman Islands who made use of this practice and referred to the case of R v Sawoniuk,[15]a case in which all the parties in an Old Bailey criminal trial went to Poland to receive evidence.

[30]      In meeting the challenge head on as to the requirement for making of Emergency Regulations and the test to be applied, Mr Mitchell Q C’s submission are helpfully summarized in paragraphs 53 to 56 his Skeleton Argument set out below:

“53. The challenge to the Regulations includes a challenge to the lawfulness, rationality and proportionality of the impugned Regulation 4(6) in the context of s.20 constitution. While the test for the purposes of section 20 of the constitution is ‘reasonable justification’ consideration of the test set out in section 19 will be of assistance to the Court.

54. As to lawfulness it is clear that the Governor whilst exercising his power under the Emergency Powers Ordinance and the Overseas Territories Order, was supported by Cabinet and also the House of Assembly[16] and was doing so in the context of a state of emergency. That is the answer to the lawfulness point.

55. As to rationality, this requires the court to approach this issue by addressing the simple question, given the Covid 19 Pandemic and the lack of rules in the Supreme Court, was it rational for the Governor following a request from the Chief Justice for assistance to seek Cabinet support to enable a judicial officer to sit outside the Islands. Given that this was already provided for in the Cayman Islands, where pre-Pandemic the rules of court provided, under the same constitutional arrangement for the Court to sit “overseas” it is clear that there was nothing irrational in making such a provision in the Islands. It also has to be considered that the judges of the Islands are all citizens of other countries and given the nature of the pandemic and the longevity of the Regulations to make provision for them to be able to sit and deal with matters whilst away makes perfect sense. It is submitted that the decision of Cabinet in supporting the promulgation of the Regulations with the subsequent support of the House of Assembly supports the submission that the Regulations are perfectly rational.

56. As to proportionality, this requires the court to approach this issue by considering the means by which the Governor has sought to provide for the exercise of discretion (which is not circumscribed or mandated) by a judge of the Supreme Court to regularize proceedings to his convenience with the interests of justice, including the parties as the continuing guiding principle”

[31]      As to the Plaintiff’s submission that Regulation 4(6) is ad hominem, Mr. Mitchell Q. C, accepts that neither the executive, nor the legislative branch of government, can act in a way that interferes with the enshrined independence of the judiciary. But says that the complaint in this case is that the executive with the assistance of the legislature have dictated a direction of travel to a judge or in general terms, the judiciary the way they must deal with litigation. It was further submitted that had it been the case that the court was mandated to do something which was directed at the conviction or sentencing of specified individuals and that law would return to its normal state thereafter, then that would point toward ad hominem legislation.

[32]      Mr. Mitchell Q. C stated in no uncertain terms that a general procedural change at a time of a state of public emergency, social distancing requirements for vulnerable persons, and closure of borders which as a consequence enables a judge to decide, if he wishes to do so, to continue a trial from abroad, is not capable of beginning to be understood as ad hominem. The classic case of Liyanage [17] was relied on in support of this submission. Queen’s Counsel cited the passages already quoted at paragraph 16 of this judgment.

[33]      It was argued on behalf of the defendant that the reasons that the legislation was struck down by the Privy Council in Liyanage plainly do not obtain in relation to Regulation 4(6). In that case it was held that Acts passed with retroactive effect, which modified the Ceylon Penal Code so as to enact new offences, the law of evidence and the minimum punishment to suit the circumstances of a case involving an abortive coup, were invalid.

[34]      Mr. Mitchell Q. C submitted that in the case of Regulation4(6), the purpose of the change is an improvement in the general law, without fettering or directing judicial discretion in a particular way but merely to enable the judge to determine whether or not he wishes to proceed. What is ‘altered’ by the Regulations is means by which the administration of justice can continue without risk to public health due to a deadly pandemic. The law will “revert to its normal state” not at the conclusion of the part-heard trial but when there is no longer a danger to public health.

The legal framework

[35]      The most appropriate starting point when examining the legislative framework in relation to Regulation 4(6) is s. 20 of the Constitution set out at paragraph 23.

[36]      The Plaintiffs have invoked s. 21 of the Constitution in that they allege, that their right to protection of law guaranteed by s. 6, is being or likely to infringed by Regulation 4(6). The caveat in s. 20 is that any regulation made during a period of emergency must be reasonably justifiable to meet the circumstances of the situation existing at the time.

[37]      Article 5 of the 2017 Order gives the Governor power to make a Proclamation of Emergency, if the Governor is satisfied that a state of public emergency has occurred, is occurring or is about to occur. Article 6, states that where the Governor has made a Proclamation of Emergency under Article 5(1) and the Governor is satisfied that the conditions of Article 7 are met, the Governor may make Regulations for the purpose of preventing, controlling or mitigating an aspect or effects of state of that public emergency. The point of disagreement between parties is on the application of article 7 in relation to Regulation 4(6).  Article 7 states as follows:

(a) that the provision is necessary for the purpose of preventing, controlling or mitigating an aspect or effect of the state of public emergency in respect of which the Regulations are made;

(b) that the effect of the provision is proportionate to that aspect or effect of the state of public emergency; and

(c) that the need for the provision is urgent.”

 

      Discussion

[38]   It is against the legislative framework set out above that the court must consider the constitutional validity of Regulation 4(6). Under s.21(1) of the Constitution, if a person alleges that any of his fundamental right has, is being or is likely to be contravened in relation to him or her, then, without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the Supreme Court for redress. In the circumstances the Plaintiff’s challenge is not premature.

[39]      The legislative scheme that applies to the Supreme Court is not the same as that of the Court of Appeal, the clear words of s. 80(2) of the Constitution state that the Court of Appeal may sit either in the Islands or in such places outside the Islands as the President may from time to time direct. No similar provisions exist in the Constitution in relation to the Supreme Court. The parameters of the court’s jurisdiction are then set out in s. 3 of the Supreme Court Ordinance. The wording of this section must to be given its plain and ordinary meaning when it says that in addition to any jurisdiction previously, by it or conferred upon it by this Ordinance or any other law the court, shall have “within the Islands” the jurisdiction vested in the High Court of Justice in England. When one looks at s 71(1) of the Senior Court Act of 1981, it says that the sittings of the High Court may be held at any place in England and Wales. These long established geographical limitations have been discussed in a number cases. In Parsons v Canadian Red Cross Society [18] Winkler J said:

“[25] For the same reasons that the rigid English common law requirements for enforcing foreign judgments are not suited to modern commercial realities or the Canadian constitutional landscape, English common law prohibiting English courts from sitting outside England should not be applied to prohibit the superior courts of this country from sitting outside their home provinces when it would be in the interests of justice to do so. The English common law rule precluding English courts from sitting outside England is not suited to modern realities of increasingly complex litigation involving parties and subject matters that transcend provincial borders. Moreover, there is a significant difference between an English court sitting outside England and a provincial superior court sitting elsewhere in Canada. The latter situation does not engage any issue of sovereignty among foreign states.”

[40]      Mr. Mitchell Q. C. relied on dicta of Geopel J  at paragraph 46  of the Court of Appeal decision in Endean v British Columbia[19] to suggest that the position is outdated however, paragraph 47 is also instructive:

“[46] As of November 19, 1858 the English common law did not allow English Judges to sit outside their territorial boundaries. The test for determining whether such a law is applicable is based on its suitability, which is to be assessed as at the date of reception.

[47] There is no authority from any common law jurisdiction that holds that a judge of a court can hold hearings outside his or her territorial boundaries. What limited authority exist is to the contrary”

[41]      In Endean, the historical common law restrictions preventing the English court from sitting outside of England was traced back to the Magna Carta. However, due to the federal structure of the Canadian Constitution, they did not feel bound to conform to that rule. Especially since there is a significant difference between an English Court sitting outside of England and a provincial superior court sitting elsewhere in Canada.

Because of the legislative scheme outline above, unlike Canada, the Turks and Caicos Islands are wedded to the restrictions.

 

Are the Regulations ad hominem?

[42]      The classic case of Liyanage, is the leading modern authority for the proposition that under a written Constitution based on the separation of powers, the legislature may not determine by statute, the outcome of particular judicial proceedings[20]. The facts of the case are that two months after the Government of Ceylon discovered and disrupted a coup d’état, Parliament passed legislation which authorized the detention of suspected persons without warrants, of the offence of having waged war against the state. They modified the elements of the offence, the mode of trial and the rules of evidence to suit the case. The legislation was targeted at particular persons known individuals in a white paper and the alterations in the law were not intended to be of general application, it was limited to a group of persons involved in the abortive coup.

[43]      The test for determining whether legislation is ad hominem was discussed  by Lord Sumpton in Ferguson v The Attorney General of Trinidad and Tobago [21] at paragraph 26:

“Legislation may be framed in general terms as an alteration of the law yet be    targeted in this way. The Legislation considered in Liyanage was framed in general terms. It would have been valid if its operation had been wholly prospective. What made it invalid was the combination of three factors (i) it influenced or determined how inherently judicial functions would be exercised, notably in the matter of the admission of evidence and the minimum sentence; (ii) it was retrospective in the sense that it applied to current judicial proceedings; and (iii)the sunset clause and the fact that the legislation dealt with specific issues in the criminal proceedings against the plotters of the coup. The critical factor was the third without which the first two might have been unobjectionable”

[44]     It is agreed that the test is an objective one, and when applied to circumstances of this case, Regulation 4(6) would not qualify as ad hominem legislation. There is no true sunset clause in relation to the Regulation that could be said to be directed at the proceedings. The Regulations are scheduled to expire on December 31, 2020 like most of the other Regulations made under the Proclamation of Emergency.

[45]      The Plaintiffs also allege that Regulation 4(6) is unlawful because it is expressed to endure beyond the expiry of the Proclamation under which it was issued. The limitations placed on Regulations made under a Proclamation of Emergency are contained in Article 8 (4) of the 2017 Order. It states that:

“(4) Regulations shall cease to have effect upon the expiration of the Proclamation of Emergency in relation to which they have been made, unless the Governor otherwise directs that for a specified period the continued application of the Regulations, whether in whole or part, remains necessary for the purpose of preventing, controlling or mitigating an aspect or effect of the state of public emergency to which those Regulations relate”

[46]     With respect to The Emergency Powers (COVID-19) (Court Proceedings) Regulations 2020, the Governor, in line with Article 8(4) has directed that the Regulations will expire on December 31, 2020. This ground of the challenge therefore fails.

 

Conditions for making Regulations

[47]     It has been argued by the Plaintiffs that the Article 7 requirements of necessity, proportionality and urgency have not been fulfilled in relation the Regulation.  The questions would then arise-

(i) Is the sitting of the court outside the boundaries of the Turks and Caicos     Island necessary for the purpose of preventing, controlling or mitigating any aspect or effect of the state of public emergency?

(ii) Is the effect of so constituting the court, proportionate to that aspect or effect of the state of emergency; and

(iii) was the need for this provision urgent.

[48]      In relation to the answers to those questions, each party contends that the opposite is true. Not only should the Regulations be compliant with Article 7 but also with s. 20 of the Constitution, which empowers the Governor to make emergency regulations which are “reasonably justifiable” in the circumstances of any situation arising. The Plaintiffs contend that regulation fails the test because the circumstances prevailing at the time did not satisfy the test of necessity, since the Learned Judge had already elected, prior to the making of Regulation 4(6) to adjourn the proceedings until June 22, 2020. The purpose of the adjournment was to protect himself, the parties to the case, the court staff and the public at large against the threat of COVID 19.

 [49]    The Plaintiffs also submitted that there was no urgency in making the said Regulations, because there was no reason to believe that a delay until the airports were open would have any effect on the proceedings being continued. It was also argued that the making of the Regulations was not justifiable as the consequence of its operational effect would be the conduct of the proceedings in a way not conducive to the principle of protection of law by way of fair and public trial.

[50]   It is worth noting that the operational effect of Regulation 4(6) does not in any way fetter the discretion of Judge or Magistrate to conduct proceedings or to manage the trial process in a fair and just manner. The Regulations which precede 4(6) are instructive in this regard:

                       

Remote Sitting

            “4. (3) A Judge’s duty to determine matters in a judicial manner in accordance with settled principles of adjudication and in accordance with Rules of Court and all pertinent Practice Direction is continued.

                (4) Rules of evidence shall be adhered to, except where by the agreement of the court, counsel/parties, these will be impracticable, the Judge or Magistrate will have judicial discretion as to how to proceed.

            (5) Court sitting shall be done in a manner provided by Rules or Orders of the Chief Justice.”

 

[51]     Whereas, the plaintiffs allege that their right to protection of law under s. 6 of the Constitution is likely to be infringed by Regulation 4(6) on one view, it provides an avenue to secure another right under the same section; that of a fair hearing within a reasonable time by an independent and impartial court established by law. But this does not dilute the requirement by s. 20 of the Constitution that the Regulations passed during periods of public emergency be justifiable in the circumstances.

[52]      The Audio Visual Link Ordinance makes provision for the appearance of an accused person in custody awaiting trial, via audio visual link. It also makes provision for the giving of evidence by a witness in Court via the said means. In that Ordinance “Court” means court having jurisdiction pursuant to any Ordinance of the Turks and Caicos Islands. “Court point” means the courtroom, and remote point means anyplace other than the courtroom. By virtue of the s. 4(1) of the said Ordinance, a court may, having heard representation from the parties in any criminal or non-criminal proceeding, direct that a witness may give evidence to the court by audio visual link from any remote point. However, where the court is constituted in the manner prescribed by Regulation 4(6) the remote point becomes the court room.

[53]     The position in the Cayman Islands which was mentioned in the Affidavit of Ms. Clemar Hippolyte is one that is narrow in scope compared to the broad provision made by Regulation 4(6). The Grand Court Rules in that territory regulate the circumstances in which hearings may be held outside the jurisdiction (O. 32. r 28 applies to interlocutory hearings and O33. r 1 applies to trials) These are supplemented by Practice Directions as well as the Financial Services Division (FSD) Users Guide and FSD protocols for video conference hearings, developed for part-time and full-time non-resident judges and applications on the papers.[22] That arrangement is peculiar to the Cayman Islands for the reasons stated.

[54]      Returning to the question of the constitutional validity of Regulation 4(6) which states that the courtroom, shall include any place, whether in or outside the Islands, the Judge or Magistrate elects to sit; the argument presented by the Defendant that the Judge sitting outside the jurisdiction would be “beamed into” the courtroom set up in the Turks and Caicos Islands via electronic means, would not suit the wording of the Regulation. The courtroom is wherever the Judge or Magistrate elects to sit.

[55]     Given the legislative frame work previously outlined, Regulation 4(6) ought not to attempt to alter the existing law, where there is no evidence to suggest that it was necessary, proportionate to the threat of the pandemic or urgent to do so, as required by Article 7 of the 2017 Order or indeed reasonably justifiable as required s. 20 of the Constitution.

[56]     The Regulation makes no mention of any particular territory, and is worded in such a way as to be of general application both in the Supreme Court and the Magistrate’s Court. To say that it was targeted solely at the proceedings and Learned Judge in Jamaica, would be to agree with the submission of Queen’s Counsel for the Plaintiff’s that the legislation was ad hominem, which I do not. The Learned Judge in the proceedings remains at liberty to conduct the trial in a manner he deems fit.

 

Conclusion

[57]      For the reasons given in the forgoing discussion, I declare that Regulation 4(6) is ultra vires the Governor’s powers under the Constitution, the Emergency Powers Ordinance and the 2017 Order, only to the extent that it purports to confer power on the Supreme Court to conduct proceedings outside of its territorial boundaries.

[58]    Given that the submissions with respect to other relief sought have failed, I make no declarations with respect to those.

 

 /s/ T. A. Lobban Jackson

         Judge

 

 

[1] Proclamation of Emergency (Legal Notice 16 of 2020) (Proclamation 1 of 2020).

[2] Emergency Powers (COVID-19) (Court Proceedings) Regulations 2020(Legal Notice Number 32 of 2020) page R 1(2) page 2.

[3] Emergency Powers (COVID-19) (Court Proceedings) Regulations 2020, R3 page 2.

[4]  Plaintiff’s Skeleton argument –Statutory Provisions, page 3

[5] Exhibit MAF 6, para22 page 42 referred to in the Affidavit of Mark Fulford sworn on April 27, 2020.

[6] [1997] 3 All ER 557, at 592:

[7] Plaintiffs’ Skeleton Argument paragraph 50, page 17.

[8] [2016] UKPC 2

[9] [1967] 1AC 259, at page 289-290

[10] [No2] [1979] A.C. 385 at page 399

[11] [1980]AC 265, at 286.

[12] Defendant’s Skeleton Arguments paragraph 41

[13] [2005] EWHC 1048

[14] Exhibit CH5, Affidavit of Ms. Clemar Hippolyte

[15][2000] EWCA Crim. 9

[16] Affidavit of Ms. Clemar Hippolyte Exhibit CH 1- Post Cabinet Statement relating to meeting of April 11, 2020

    Exhibit CH2- Post Cabinet Statement relating to meetings of April 16 and 17, 2020; Exhibit CH3 House of

    Assembly Motion 5 of 2020, April 23, 2020.

              

[17] [1967]1 A.C. 259

[18] [2013] ONSC 3053, para 25

[19] [2014] BCCA 61

[20] [2016] U.K. PC. Ferguson v the Attorney General of Trinidad and Tobago

[21] [2016] U.K. PC. Ferguson v the Attorney General of Trinidad and Tobago page 10

[22] Cayman Islands Practice Direction 6 of 2020, s 5