| TRINIDAD AND TOBAGO — Crime — Abuse of process — Court of Appeal allowing appeal against conviction on grounds of apparent bias during trial — Whether proper to order retrial
Panday v Virgil (Senior Superintendent of Police) [2008] UKPC 24; [2008] WLR (D) 102
PC: Lord Hoffmann, Lord Scott of Foscote, Lord Walker of Gestingthorpe, Lord Brown of Eaton-under-Heywood and Lord Neuberger of Abbotsbury: 9 April 2008
The Court of Appeal might order the retrial of a defendant whose conviction was quashed on the grounds of apparent bias if the defendant had been properly charged and brought before the court without any violation of the rule of law and a fair retrial before a different judge was possible.
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 (Warner, Archie and Weekes JJA) on 20 March 2007 to order a retrial before a different judge when allowing the defendant’s appeal from a decision dated 24 April 2006 of the Chief Magistrate who convicted the defendant of three offences of knowingly making false declarations as to his financial affairs, contrary to s 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.
LORD BROWN OF EATON-UNDER-HEYWOOD, delivering the opinion of their Lordships, said that the defendant, the leader of the opposition in Trinidad and Tobago and a former Prime Minister, 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. In R v Horseferry Road Magistrates’ Court, Ex p Bennett [1994] 1 AC 42 the House of Lords had held that the English court should refuse to try a defendant who had been unlawfully brought to this country as a result of collusion between the South African and British police, and on arrival had been arrested and committed for trial. The House of Lords said in that case that the judiciary accepted a 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. 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.
|
