Oct 18
In 2002 the three defendants were convicted of murder and attempted murder before a judge and jury but their appeals against conviction were allowed and a retrial was ordered. In 2007 a second trial took place before a different judge and jury and the judge made certain rulings of law and fact relating to the admissibility of evidence and dock identification. However on the first day of the judge’s summing up the trial was aborted. In 2013 a third trial took place before yet another judge and jury and the defendants were convicted and sentenced to life imprisonment. The defendants appealed. When the Court of Appeal convened in 2015 to hear the defendants’ appeals, the judge before whom the 2007 trial had taken place was one of the three judges sitting on the appeal. The defendants objected and invited the judge to recuse himself. The Court of Appeal rejected the defendants’ objections and considered that the participation of the same judge in the second trial and in the appeal would not give rise to a reasonable apprehension of bias. The Court of Appeal heard and dismissed the appeal.
On the defendants’ appeal —
Held (1) that the basic common law principle was that a judge should not sit to hear a case where the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased; that that principle would be violated if a judge were to sit in an appellate capacity to determine the correctness of his own earlier decision in an appeal against conviction in a jury trial in which he had presided; that in England and Wales that principle was given statutory form in section 56(2) of the Senior Courts Act that in the absence of such a statutory provision in the Bahamas, the practice of the English court would be followed.
(2) Advising that the appeals be allowed and the cases remitted to the Court of Appeal for rehearing, that the issue for consideration in the defendants’ appeals appeared in a novel form, namely whether the involvement of the judge in an earlier stage of the proceedings should require him to recuse himself; that the appearance of bias as a result of pre-determination or pre-judgment was a recognised ground for recusal; that the appearance of bias extended to any real possibility that a judge would approach a case with a closed mind or anything other than an objective view; that during the defendants’ second trial the judge had made rulings on questions of mixed fact and law or involving the exercise of judicial discretion, and those were major issues in the trial; that now as a member of the appellate court he was required to address essentially the same issues on which he had ruled in the second trial, and the proximity of those issues would weight heavily in the mind of the fair-minded and independent observer; that the defendants were entitled to a hearing before an independent and impartial tribunal without any appearance of bias; that the judge’s decisions made during the second trial would lead a fair-minded and informed observer to conclude that there was a real possibility that the judge had pre-judged the issues which fell for consideration in the Court of Appeal and that the defendants did not have the appearance of a fresh tribunal of three judges to consider their appeals; and that, accordingly, Her Majesty would be advised that the decision of the Court of Appeal be quashed.
Per curiam A judge should not recuse himself unless there is a sound reason for recusal, lest unmeritorious applications for recusal become the norm and result in damage to the administration of justice. In particular it is necessary to stand firm against illegitimate attempts to influence which judge shall sit in a particular case.
Edward Fitzgerald QC (instructed by Simons Muirhead & Burton llp) for the defendant in the first case.
Richard Thomas (instructed by Simons Muirhead & Burton llp) for the defendant in the second case.
Ben Cooper and Amanda Clift-Matthews (instructed by Simons Muirhead & Burton) for the defendant in the third case.
Peter Knox QC and Tom Poole (instructed by Charles Russell Speechlys llp) for the Crown.