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The facts of next week’s appeal before the Judicial Committee of the Privy Council are, by any standards, somewhat unusual.

It is an appeal by Trinidad’s Chief Magistrate, Sherman McNicolls (pictured), in judicial review proceedings. He is challenging two disciplinary charges, brought against him for failing to give evidence in criminal proceedings against the then Chief Justice of Trinidad, Sat Sharma.

The origin of the case was the trial of former Prime Minister, Basdeo Panday, on allegations of failing properly to declare his assets. McNicolls, as Chief Magistrate, presided over the trial, without a jury. The Chief Justice, Sat Sharma, is a friend of the former Prime Minister. So there was alarm when McNicolls was reported as saying that the Chief Justice had spoken to him about Mr Panday’s trial and asked him to take certain steps. Eventually Mr Panday was convicted of the financial non-disclosures, but the alleged comments by the Chief Justice to McNicolls led to the Chief Justice being charged with conspiracy to pervert the course of justice. But there was more to come. 

 When that matter reached trial, McNicolls – who was the main prosecution witness against the Chief Justice – did not  give evidence. The trial collapsed.

Amid a public outcry, McNicolls was then charged with six disciplinary matters arising out of his failure to give evidence. Four of those charges were dropped after being successfully challenged in the Trinidadian courts, but two remain.

On Monday’s hearing, Michael Beloff QC, representing McNicolls, will ask the Privy Council to quash the remaining counts.

Unfortunately the judgment of the Trinidad Court of Appeal is not available online so it is slightly difficult to ascertain the precise issues on the appeal, but as far as UKSCBlog can discern, in Monday’s hearing McNicolls will be submitting the following:

  1. The decision to place him on two charges was ultra vires, because the allegation which was investigated was not the same as the allegation which forms the subject matter of the two charges;
  2. It was unfair to bring the two charges without giving him an opportunity to say why it would not be appropriate to bring them. This was because of the particular sensitivity involved, given the damage to his reputation resulting from press leaks and comments in the two months occurring before the charges were laid;
  3. The charges are not sustainable in law, because the allegation that he told a third party he was not prepared to testify, did not result in the discontinuance of the proceedings against Sharma;
  4. Fairness demands that the charges be dropped, because he had to disclose his defence to the a Trinidadian inquiry chaired by retired law lord, Lord Mustill.

It is obvious, though, that whatever the Privy Council decides, the legal arguments are overshadowed by the political background to this case 

John Grisham could scarcely have devised something more dramatic: A country’s Chief Magistrate begins a case as the judge in the trial of the former Prime Minister; then he becomes the star prosecution witness in the trial of the Chief Justice for attempting to pervert the outcome of the former Prime Minister’s trial; and finally he is the defendant in disciplinary proceedings brought against him for not giving evidence in the Chief Justice’s trial.

It would be a controversy of the highest order in any country. But, it has been made even more complex by the subtext of Trinidadian ethnic divisions – between those of Indian and those of African ancestry – which may have been reflected in some of the extraordinary events. 

The Privy Council is, of course, an appeal court for a variety of jurisdictions including much of the Caribbean. But that position cannot be easy when it is asked to rule on a case that goes to the heart of another country’s bitter political disputes.  The introduction to Lord Mustill’s Tribunal report confirms just how messy the whole case has become:

“The picture presented to this Tribunal almost defies belief.

“We find contradictory accounts given by the Chief Justice and the Chief Magistrate (Mr Sherman McNicolls) on oath, of meetings between them where the discrepancies cannot be explained away by misunderstandings or poor recollection.

“We see the Chief Justice publicly arrested, and later ushered three times into the dock in a criminal court to undergo a summary trial on charges based on allegations by the Chief Magistrate, and then on the last occasion ushered out again in consequence of the refusal by the Chief Magistrate to give evidence against him.

“During the oral hearings before us we have heard counsel for the Chief Justice publicly accusing the Chief Magistrate of having been bribed to mls-try criminal proceedings against the leader of the opposition party, a former Prime Minister.

“We can study the battle of press releases between the Chief Justice, the Chief Magistrate and the Attorney General (Mr John Jeremie), putting their accusations directly before the public. We see formal complaints made by the protagonists to disciplinary and police authorities within days of the controversy coming to a head. We have heard allegations against the Attorney General, who could have given oral evidence to rebut them, but did not.

“The air was full of rumour, innuendo and gossip, around and across deep political (and, we are forced to say, ethnic) divides. At least within this narrow field of view, the concept of the separation of powers seems to have been ignored. We need not go on. The picture is “troubling” indeed, both for the Tribunal and for the peoples of Trinidad and Tobago.”