08 October 2014

British application of "Trial without Jury" law in Turks and Caicos Islands could violate human rights of defendants


One of Britain's top lawyers, Queen's Counsel Courtenay Griffiths, has indicated that the controversial Trial Without Jury law which was recently enforced in the Turks and Caicos Islands, is part of well-orchestrated master-plan that is designed to secure convictions against certain high-profile individuals who are presently before the courts.

Griffiths, who is the lead counsel for former Premier Michael Misick, gave this assessment last week while making submissions to the Court of Appeal to dismiss the decision by Mr. Justice Paul Harrison who ruled on Monday June 23rd, 2014, that several persons charged with corruption by the Helen Garlick-led Special Investigation and Prosecution Team (SIPT) should be tried by a judge only, instead of a jury of their peers.

The Jamaica-born Griffiths, who has been involved in some of the most high-profile and notable cases of the past two decades, told the Court of Appeal: "The Trial Without Jury Ordinance was introduced in November 2010 and four years on, no attempt has been made to use it in any other criminal proceedings; not even the Emerald Cay case which is alleged to have arisen during that same period of criminality."

He added: "When we look at certain factors following the Sir Robin Auld Inquiry together, it appears that a structure is being put in place to create a particular outcome and one cannot escape the conclusion that this was indeed the case when the Trial Without Jury Ordinance was introduced."

Griffiths is amongst the most sought after of International Criminal law specialists, providing representation in trials of genocide, crimes against humanity and other war crimes before international, internationalised and national courts. He is particularly noted for his work in the recent landmark case in The Hague defending the former president of Liberia, Charles Taylor.

The Queen's Counsel even suggested that the SIPT may have had some involvement in the framing of the Trial Without Jury Ordinance, which was introduced while the Turks and Caicos Islands were under direct rule by Britain, following the suspension of some of the most significant parts of the country's Constitution on August 14, 2009.

In addition to the Trial Without Jury Ordinance, during that time, there was also the introduction of a Hearsay Ordinance which takes the highly unusual step of allowing hearsay evidence to be admitted; and it seemingly will only apply to the SIPT trial.

"Any reasonable by-stander will conclude that all of these things were put in place just for these defendants," Griffiths stated. To substantiate his point, Griffiths quoted extensively from a landmark case, Don John Francis Douglas Liyanage against the Queen, in which the Privy Council, the highest court in the United Kingdom, dismissed a case that was similar to the one currently before the TCI courts.


He quoted from the case law which stated: 

"The first Act was wholly bad in that it was a special direction to the judiciary as to the trial of particular prisoners who were identifiable and charged with particular offences on a particular occasion. The pith and substance of both Acts was a legislative plan ex post facto to secure the conviction and enhance the punishment of those particular individuals. It legalised their imprisonment while they were awaiting trial. It made admissible their statements inadmissibly obtained during that period. It altered the fundamental law of evidence so as to facilitate their conviction. And finally it altered ex post facto the punishment to be imposed on them. 

In their Lordships' view that cogent summary fairly describes the effect of the Acts. As has been indicated already, legislation ad hominem which is thus directed to the course of particular proceedings may not always amount to an interference with the functions of the judiciary. But in the present case their Lordships have no doubt that there was such interference; that it was not only the likely but the intended effect of the impugned enactments; and that it is fatal to their validity. The true nature and purpose of these enactments are revealed by their conjoint impact on the specific proceedings in respect of which they were designed, and they take their colour, in particular, from the alterations they purported to make as to their ultimate objective, the punishment of those convicted. These alterations constituted a grave and deliberate incursion into the judicial sphere. Quite bluntly, their aim was to ensure that the judges in dealing with these particular persons on these particular charges were deprived of their normal discretion as respects appropriate sentences." 


However, on Thursday September 11th,2014, the Court of Appeal which comprises President, Edward Zacca, QC, Elliott Mottley,QC, and Ian Forte, QC, sided with Judge Harrison and dismissed the appeal.

When contacted in England for a comment on the Court of Appeal decision, Griffiths stated: "It is astonishing that the Court of Appeal has come to a decision so quickly. We are very concerned that we are now required to appeal, when we don't even have a written decision or a transcript of the proceedings. However, we definitely intend to appeal the decision."
Among the reasons which Mr. Justice Harrison decided to order Trial Without Jury are as follows:

(a) the allegations of wrongdoing are by prominent public figures, including politicians and their activities and interaction with members of the public throughout TCI over the years 2003 to 2009, culminating in the Auld Inquiry and Report;

(b) the pre-trial media publicity, adverse to both the prosecution and the defence, consistently and relentlessly since the Commission of Enquiry Report in 2009 and up to January 2014. This could not have failed to influence adversely the minds of potential jurors in the small jurisdiction of TCI;

(c) the charges are complex, allegedly comprising the payment of millions of dollars by various means and channels to various accounts and to numerous recipients. Inevitably, this will involve a heavy volume of documents, both at pretrial and at the trial, more appropriately dealt with by a judge alone;

(d) the trial is estimated to last for months; this will involve dislocation of the lives of potential jurors, their impecuniousity from loss of earnings, disadvantage to employers and inconvenience. The probable delays from adjournments and time-off for jurors for various reasons, is also inevitable.