MC NICOLLS FACES JLSC CHARGES

However, sources yesterday indicated that Mc Nicolls, 54, and the Judicial and Legal Service Commission (JLSC) have brokered an agreement which would allow him to retire before the conclusion of any disciplinary proceedings. Sources indicated that given Mc Nicolls’ accumulated leave, he would be entitled to an early retirement. He has been a magistrate since 1988 and became Chief Magistrate in 1999. He turns 55 in December.

Mc Nicolls is currently abroad seeking medical treatment for an illness. He has been on leave since November. Since then, he was twice granted an extension and the last word was that he was due to return to office on March 1.

In August 2007, the JLSC brought six disciplinary charges against Mc Nicolls. The charges arose out of Mc Nicolls’ refusal to give evidence for the prosecution in committal proceedings against then Chief Justice Satnarine Sharma, which took place on March 5, 2007. Following Mc Nicolls’ refusal to give evidence, Sharma was discharged. The proceedings against Sharma stemmed from Mc Nicolls’ allegation that Sharma had sought to influence a case against Opposition Leader Basdeo Panday—who was accused of being in breach of the Integrity in Public Life Act while he was Prime Minister—which was before the Chief Magistrate.

Mc Nicolls denied all six charges and issued proceedings for judicial review. He sought an order that the JLSC’s decision to bring the charges and its proposal to suspend him be quashed.

On the substantive application for judicial review in February 2008, four of the six charges were quashed. Both Mc Nicolls and the JLSC appealed to the Court of Appeal and both appeals were dismissed. The Court of Appeal gave both parties leave to appeal to the Privy Council. The JLSC decided not to pursue an appeal.

The Chief Magistrate’s appeal raised four issues; whether the JLSC was acting ultra vires in bringing the charges against him; whether the JLSC was acting unfairly and /or contrary to the rules of natural justice in bringing the charges; whether the charges were sustainable in fact, and law; and whether the JLSC’s conduct of the disciplinary process against the Chief Justice made the proceedings against the Chief Magistrate unfair.

Yesterday, the Committee, which comprised Lord Phillips, Lady Hale, Lord Mance, Lord Clarke, and Sir Jonathan Parker, unanimously dismissed the appeal.

The panel, in a judgment delivered by Lord Clarke read as follows, “On the first issue, the Chief Magistrate can have been under no misapprehension as to the precise nature of the allegations on which the charges are based. The two charges that were not quashed were properly brought under the Public Service Commission Regulations, and there is no basis which it could be held that they are ultra vires.”

On the second issue, the Committee said, “It is clear that the Chief Magistrate has been made fully aware of the case against him. Further, he has exercised his right to comment upon that case at every stage of the proceedings. There is no basis on which to conclude that the JLSC was acting unfairly, or contrary to the rules of natural justice in bringing the charges.”

The Law Lords further reasoned that, “the Chief Magistrate has a case to answer first, that he was guilty of misconduct in informing the prosecutor that he would not give evidence against the Chief Justice and, secondly, that that misconduct caused the criminal proceedings against the Chief Justice to end. The two remaining charges brought against the Chief Magistrate are sustainable in fact and law.” Finally, on the fourth issue, the Committee found that, “there was nothing oppressive in the disciplinary process conducted by the JLSC, nor does it consider the Chief Magistrate’s defence to be prejudiced by it. The disciplinary process was not in any way unfair or prejudicial to the Chief Magistrate.”

The long awaited response from the Committee, which heard the matter on November 9, sent ripples through the local Judiciary.

The overall consensus among local attorneys on the Privy Council’s judgment was that “it was a sad, and shameful state of affairs for this country’s Judiciary.”

However, they wanted the “matter to end quickly.”

Senior Counsel Ramesh Lawrence Maharaj commented, “The JLSC should now act promptly to decide the matter in the interest of the public, and in the interest of the Chief Magistrate. This ruling shows that no one is above the law; and even the persons who may be considered to be in the highest positions, can be subjected to the law. It also emphasises the rights of individuals to challenge State action taken against them, and this is very important to a democracy.”

Senior Counsel Israel Khan, who along with attorneys Stanley Marcus and Ian Benjamin represented the Chief Magistrate at the Appeal Court, said this was a blow to the Chief Magistrate. (Benjamin also represented Mc Nicolls along with Tristan Jones and Queen’s Counsel Michael Beloff before the Privy Council.) “The two disciplinary matters mean, he must face a tribunal who will decide whether he is guilty, or not. A next process he will have to face is a panel of one or three persons.

I personally believe this issue has gone as far as it could go, and there should be closure to this matter. He should move on,” Khan said.

Case history
Chief Magistrate Sherman Mc Nicolls made a complaint to Prime Minister Patrick Manning on May 5, 2006, that then Chief Justice Satnarine Sharma had attempted to influence him in a decision he was to take in a criminal trial of former Prime Minister Basdeo Panday, on charges brought under the Integrity in Public Life legislation.

On May 8, 2006, the Chief Justice made a written complaint to the Commissioner of Police against Mc Nicolls about Mc Nicolls’ own complaint, and also made allegations about a land transaction in which Mc Nicolls was said to have been involved.

On May 11, 17, 24 , and June 13, 2006, Mc Nicolls made detailed statements to the police about the Chief Justice and about the land transaction. On July 14, 2006, the State filed criminal charges against the Chief Justice, and issued a warrant for his arrest.
By letter dated February 13, 2007 to the Office of the Director of Public Prosecutions, Mc Nicolls asked that immediate steps be taken to stay the instant criminal proceedings against the Chief Justice. On February 14, 2007, Mc Nicolls swore to written statements for the purpose of the criminal proceedings against the Chief Justice but, on the same day, he indicated to the DPP and lead prosecutor Gilbert Peterson SC his reluctance to give evidence in such proceedings.

On February 20, 2007, he also expressed similar reluctance to the Attorney General, who urged him to give serious consideration to testifying. On February 27, 2007, Mc Nicolls informed then Deputy DPP Carla Brown-Antoine he was not going to give evidence in the criminal proceedings against the Chief Justice. On March 1, 2007, Mc Nicolls telephoned Peterson to say that, he wanted to make his position clear, namely that he was not giving evidence in the criminal proceedings. Mc Nicolls telephoned Peterson again on March 5, 2007, and said the same. Later that same day, between 12.10 pm and 12.30 pm, Peterson telephoned Mc Nicolls and asked him to give a statement to the police saying that he refused to give evidence and setting out his reasons for his refusal.
At 1pm that same day the case was called.

However, before Mc Nicolls could be sworn, Peterson told the court that, based on the position which Mc Nicolls had indicated to him, the prosecution against the Chief Justice could go no further. The magistrate then discharged Sharma. It was based on this action that Mc Nicolls was slapped with six disciplinary charges by the Judicial and Legal Service Commission, which subsequently led to the series of court appeals ending with yesterday’s Privy Council judgment.