AG v Misick and Others (CL-AP 6 of 2020) [2020] TCACA 14 (31 August 2020)

Case summary

Appeal in CL-AP 6/2020 allowed and the declaration made by the first instance judge is set aside. A judge sitting outside the territorial limits of the TCI in the circumstances set out in the judgment, would not offend the common law rule.  Appeal in CL-AP 7/2020 dismissed. Regulation 4(6) is not ad hominem and is not unconstitutional.  Costs in both appeals awarded to the Appellant.  CL-AP 6/2020  Per Mottley JA: In arriving at her conclusion, it would appear that the first instance Judge accepted that Regulation 4(6) purported to confer power on the Supreme Court to conduct proceedings outside of the territorial boundaries of the TCI. It does not appear that the Judge considered placing a purposive construction on Reg 4(6), nor did she consider applying the mischief rule to its construction. The judge ought to have approached the construction of Reg 4(6) by placing the plain meaning rule. If this construction did not provide an adequate or proper meaning, she was required to adopt a purposive construction and consider meaning of the words in the context of the Emergency Regulations and the reason for the need for these Regulations, which is contained in the explanatory note to the Regulations. The intention of the Regulations was to ensure that during the COVID-19 pandemic, the administration of justice, including trial, continues in a manner that would not endanger public health (para 18-32, 98, 122): R (The Good Law Project) v. Electoral Commission [2017] EWHC 2414 at [33] CONSIDERED; DPP v. Schildkamp [1969] 3 All ER 1640, [1971] AC 1 CONSIDERED; R v. Secretary of State for the Environment, Transport and the Regions and another ex p Spath Holme Ltd [2001] 1 All ER 195 CONSIDERED; Regina (Quintaville) v. Secretary of State for Health [2003] 2 AC 687 dicta of Lord Bingham APPLIED; Flora v Wakom (Heathrow) Ltd [2006] EWCA Civ 1103 CONSIDERED.  Per Adderley JA: In order to construe the Reg 4(6), the question is not whether the enactment, read literally, contains a plain meaning; the question is whether, on an informed interpretation, there is no real doubt that the grammatical interpretation is that intended by Parliament. Consideration must be had to the purpose for which the regulation was passed, the mischief it intended to remedy, the mandatory duties imposed by the Regulations on the Recorder, the Registrar, the Clerk of the Magistrate’s Court as the case may ne, and the statutes in pari materia if any (paras 140-150) Pinner v. Everett (1969) 3 All ER 257 at 258 CONSIDERED, AG v. Prince Ernest of Hanover [1957] AC 436 CONSIDERED  Per Mottley JA: The provisions made by Reg 4(6) and the Practice Direction ensure that if a judge is presiding outside the territorial boundaries of the TCI, the provision of s 6(9) of the Constitution is not offended. Changes have already been made to the common law by the enactment of the Audio Visual Link Ordinance permitting a witness in criminal and civil trials to give evidence remotely. Endean v. British Columbia 2014 BCCA 61 CONSIDERED.  Per Stollmeyer JA: The common law is clear that a judge cannot commence a trial in another jurisdiction, but the common law develops to meet the changing needs of society. There is no dispute that the pandemic required drastic measures to be taken to protect the health and safety of people. There is nothing to prevent, and everything to be gained, by courts making use of technology (paras 109-115) Endean v. British Columbia 2014 BCCA 61 CONSIDERED.  Per Adderley JA: Applying the informed interpretation rule, it is clear from the 2020 Regulations and Practice Directions, by using modern technology to allow for virtual hearings, Parliament intended to enable a Supreme Court Judge to hear matters before the Supreme Court or the Magistrate’s Court in the Turks and Caicos Islands from whatever physical location (whether inside or outside the TCI) s/he happened to be. However, the mandatory administrative role of the Registrar, Magistrate’s Clerk and Recorder directed by the Chief Justice makes it clear that the hearing is intended to take place in the TCI. Regulation 4(6) does not displace or override the common law. The fact that a judge or magistrate is not physically within the territorial boundaries of the Islands when exercising jurisdiction to hear matters and conduct the business of the court on the TCI does not offend the common law, nor is it inconsistent with the constitution (paras 190-192) R (on the application of the Child Poverty Action Group) v. Secretary of State for Work and Pensions [2011] 1 All ER 729 CONSIDERED, Endean v. British Columbia 2014 BCCA 61 CONSIDERED.    CL-AP 7/2020  In deciding whether Reg 4(6) is ad hominem, it is necessary to examine the circumstances which led to the Regulation being made, the purpose of the Regulation and whether and to what extent the Regulation affected any discretion or judgment of the judge in the criminal case involving Misick et al. The court found that the Regulation does not interfere with the exercise of any discretion which the judge has or will in future (paras 77-85, 122) R v. Linyanage [1967] 1 AC 259 CONSIDERED; Ferguson v The Attorney General of Trinidad and Tobago [2016] UKPC 2 CONSIDERED.  In considering whether legislation which would otherwise contravene fundamental rights of an individual is reasonably justifiable, the questions to be asked are whether: (i) the legislation objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective. The use of technology by the judge who is presiding over the trial is necessary to assist in the administration of justice (paras 87- DeFreitas v. P.S. Ministry of Agriculture [1999] AC 69 APPLIED, Sporong v. Sweden [1982] ECHR 5 CONSIDERED, Neville v. Lewis [2001] 2 AC 15 CONSIDERED 

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