Privy Council blocks CJ’s arrest

The Law Lords were meeting almost simultaneously as the Court of Appeal in Port-of-Spain, which was hearing an application to deem the appeal of the State urgent. The Appeal Court deemed the appeal urgent and fixed it for 9 a.m. today.

The State is appealing the decisions of Madame Justice Judith Jones — firstly, to grant leave to Sharma to file for judicial review, and secondly, the six injunctions granted stopping the authorities from arresting the Chief Justice.

Two days ago, the Privy Council was put on notice that following the July 24 judgment of Jones, the State was planning to appeal to the Court of Appeal. A special sitting was arranged for yesterday before Lord Rodger, Lady Hale, and Lord Mance.

The State was represented by Sir Godfray Le Quesne QC, while Mark Summers appeared for the Chief Justice. At the end of the hearing, both attorneys gave an undertaking to the Privy Council. The undertaking states, “on behalf of the respondents and the Attorney General, an undertaking is given that the terms of the injunctions granted by Jones J on the 10th of July, 13th July, 14th July, 16th July, 18th July, and the 24th July, 2006 will continue to be observed by all persons bound by them unless and until judgment of the Privy Council is given against the Chief Justice in any appeal which he may make to the Privy Council against the judgment of the Court of Appeal or until further order of the Privy Council, so long as the Chief Justice’s appeal to the Privy Council is prosecuted with due expedition. This undertaking is to take effect immediately upon the delivery of the said judgment of the Court of Appeal.”

In Trinidad, the application in the Court of Appeal was adjourned from Wednesday to yesterday. When the matter was called, Justice Wendell Kangaloo, who had appeared on Wednesday, was missing. The new panel comprised Justices Margot Warner, Ivor Archie, and Paula Mae Weekes.

Warner pointed out that deputy DPP Carla Brown-Antoine, Assistant Commissioner Wellington Virgil, and Commissioner of Police Trevor Paul want an early hearing. But Alvin Fitzpatrick SC, lead counsel for the Chief Justice, objected, saying there was nothing to show that the appeal should be heard urgently. He said there were new developments between Wednesday and yesterday. He pointed out that the Privy Council was sitting to have an order in place in the event the Court of Appeal discharges the injunction and leaves the CJ open to arrest by the police.

Warner intervened, “What does this have to do with this court? Are you objecting to the application for an early hearing?” Fitzpatrick replied, “Yes.”

Douglas Mendes SC, who appeared for Brown-Antoine, said he was not aware of the developments in London and therefore could not assist the court.

Mendes said the application was made to expedite the appeal. He pointed out that the police made a decision that the Chief Justice should be prosecuted for an offence. He said whatever defence Sharma has should be raised during the criminal proceedings. He said it was highly unusual for action to be taken for the High Court to become involved in the criminal proceedings, even before they are started in the Magistrates’ Court.

But Fitzpatrick wondered about the three appellants. He could not determine what was Brown-Antoine’s urgency; he said the injunction was discharged against Virgil, but he is appealing; and the Commissioner of Police is appealing although he consented to the stay of the criminal charge.

He accused Mendes on embarking on matters which did not concern him.

Mendes insisted that Brown-Antoine did not make any decision to institute or advise the police. He said the court has to decide who made the decision to institute criminal proceedings. “The order which was made affects my client, whom we say did not institute anything. It is an unusual situation where a criminal prosecution is interrupted in this way. A criminal prosecution can’t go forward.”

Mendes said if there is no basis for this judicial review case, then the matter should be dealt with as soon as possible. He asked for it to be dealt with before the October 9 date fixed for the hearing.

Mendes said the case had generated a lot of public interest. “It concerns a clash between the judicial power (the court) on one hand and the power of the executive (the DPP and the police) on the other hand to perform their functions. It is creating tension, as it must.”

Gilbert Peterson SC, who appeared for the Commissioner, and Ian Benjamin for Virgil, adopted the submissions made by Mendes. Benjamin said although the injunction was lifted against Virgil, he (Virgil) was still covered by the order made against the entire police service.

In response, Fitzpatrick said he could see no reason for any speedy appeal. He said that there was little time between the filing of the judicial review case in July to the hearing on October 9.

“Everybody wants to have their cases heard urgently. The court cannot hear all the cases, the court has set a high threshold. There is no basis to hear this appeal urgently,” Fitzpatrick argued. He pointed out that if the injunction is removed, there is the likelihood that the Chief Justice could be arrested.

After a 30-minute break, Warner said this was a matter to be dealt with, with despatch. She said the case fell within a novel and exceptional category as demonstrated by the facts of the case.

She agreed that the public has an interest in this case and fixed the appeal to be heard from 9 am today.