Attorney General of the Turks and Caicos Islands (Respondent) v Misick and others (Appellants)
Case ID: JCPC 2020/0072
Jurisdiction: The Court of Appeal of the Turks and Caicos Islands
(1) Whether the Constitution of the Turks and Caicos Islands ("TCI") bars
a Supreme Court judge located outside the territorial boundaries of the TCI from presiding over and determining proceedings including criminal trials?
(2) Whether Regulation 4(6) of the Emergency Powers (Covid-19) (Court Proceedings) Regulations 2020 goes no further than providing that a TCI Supreme Court judge located abroad could be deemed to be sitting in the TCI and presiding over and determining proceedings, including criminal trials, taking place in the TCI?
(3) Whether this reading of Regulation 4(6) is compatible with the Constitution?
(4) Whether Regulation 4(6), though framed in general terms, would in practice only apply to the Appellants’ criminal trial?
(5) Having regard to the stage of the trial which had been reached, whether the application of Regulation 4(6) so as to enable the judge to resume conduct of the Appellants’ trial from Jamaica would create an inequality of arms between the prosecution and the defence, contrary to the Appellants’ right to a fair trial?
The Appellants are the defendants ("the Defendants") in criminal proceedings which were commenced by the Crown on 7 December 2015 ("the Criminal Proceedings"). The Criminal Proceedings are being conducted by Harrison J, without a jury. Though Harrison J is a judge of the TCI Supreme Court, he chose to continue to reside in Jamaica, his native country, travelling to the TCI to preside over the Criminal Proceedings when the court is in session. To date, except for a couple of hearings in relation to administrative matters, sittings have taken place with Harrison J sitting in the TCI, with the parties and counsel appearing in person at the same location.
On 11 March 2020, the World Health Organisation ("WHO") elevated Covid-19 to the status of a ‘global pandemic’. On 12 March 2020, Harrison J adjourned the Criminal Proceedings following the WHO declaration, by which date the trial had lasted 490 sitting days. This adjournment was initially intended to last until 20 April 2020 but was later extended until 22 June 2020.
In the meantime, on 20 March 2020, the Governor of the TCI issued a Proclamation of Emergency, pursuant to section 3(1) of the Emergency Powers Ordinance ("the Ordinance"), to prevent and control or contain the spread of Covid-19. On 17 April 2020, the Governor, acting under section 4(1) of the Ordinance made the Emergency Powers (Covid-19) (Court Proceedings) Regulations 2020 ("The Regulations") which came into force on 20 April 2020. The Regulations, among other things, made provision for the remote sitting of criminal and civil proceedings by courts of the TCI. In particular, Regulation 4(6) provides that the "courtroom" shall include any place "whether in or outside of the Islands" the judge elects to sit, provided that video and audio link facility at the given location is accessible remotely to the parties, counsel, witnesses and others.
On 23 April 2020, following the introduction of the Regulations, the Crown submitted a proposal for the resumption of the Criminal Proceedings in accordance with Regulation 4(6). On the 24 April 2020, the Appellants filed an Originating Summons in the TCI Supreme Court challenging Regulation 4(6) on the basis that it breached their right to protection of the law guaranteed by section 1 of the TCI Constitution. The Defendants sought relief, which included a number of declarations from the Court as to the unconstitutionality of Regulation 4(6). On 18 June 2020, the Supreme Court declared that Regulation 4(6) was unlawful to the extent that it purported to create a courtroom outside the jurisdiction of the TCI. All other relief sought by the Defendants was denied.
On 20 June 2020, the Attorney General applied to appeal the Supreme Court’s declaration (CL-AP 06/20). On 7 July 2020, the Defendants also applied to appeal the Supreme Court’s decision on the ground that it denied the other relief sought (CL-AP 07/20). On 31 August 2020, the Court of Appeal allowed the Attorney General’s appeal but dismissed the Defendants’ appeal. The Defendants now appeal to the Privy Council.
Misick and others
Attorney General of the Turks and Caicos Islands
Lady Black, Lord Lloyd-Jones, Lord Briggs, Lord Hamblen, Lord Stephens
Hearing start date
04 Nov 2020
Hearing finish date
04 Nov 2020
|04 Nov 2020||Morning session||Afternoon session|
13 Nov 2020