LONDON, England (CMC) — The London-based Privy Council has dismissed an appeal filed by former Turks and Caicos Islands (TCI) premier Michael Misick and several other Government ministers challenging their trial before a retired Jamaican judge, whom they claimed did not have sufficient security of tenure and, thus, was not independent.

The appellants had also challenged the lawfulness of their proposed trial on the grounds that judge, referred to as “Harrison J”, failed to ask whether there was no reasonable doubt that the interests of justice required a trial without jury before deciding so.

“The Appellants’ claim was rejected by Harrison J himself and, subsequently, by the Court of Appeal,” the Privy Council noted.

In its ruling, the Privy Council noted that on the first ground, the judge was appointed on the recommendation of the independent Judicial Service Commission, and that he is guaranteed security of tenure during his appointment.

“… As for the limited term of his appointment, no objective observer would fear that Harrison J would entertain any sense of lack of independence in trials which he has been specifically asked to take on, outside his home territory and in his retirement. Far from a danger of lack of independence, his appointment has been made precisely to bring to locally highly controversial cases an independent outsider,” the Privy Council noted.

The Privy Council said that it does not need to decide whether other Supreme Court judges in the Turks and Caicos Islands lack sufficient security of tenure and has insufficient evidence of practice to do so.

“They are routinely appointed for an initial period of three years, subject to renewal by agreement, but appointments are subject to the independent Judicial Service Commission. Whatever may be the practice as to their situation, it cannot affect Harrison J. He has been brought in ad hoc from outside and there is no sensible prospect that a judge who enjoys sufficient security of tenure to maintain his independence might lose it on the grounds that others lack his advantages,” added the Privy Council.

On the second ground, the Privy Council — the TCI’s highest court — noted that not every decision which has to be made by a judge during or in preparation for a criminal trial is susceptible to analysis in terms of burden and standard of proof.

“Here, there is no doubt that the decision required by trial without a jury — where, in relation to predictive conditions, a judge is required to weigh different factors and make a judgment as to necessity — is not susceptible of analysis in terms of proof or the standard of it .

“This applies to both the finding of facts and the evaluation of the interests of justice in light of those findings. Indeed, in this case there were no significant disputed primary facts according to Harrison J,” the Privy Council ruled.

It said that the judge had recalled the fundamental importance of jury trials before working through the factors relevant to the interests of justice test.

“He was entitled to come to the conclusion he did. This was particularly the case in light of (a) the complexity of the trial issues; (b) the impracticability of finding jurors with no prior knowledge or opinions on the issues at stake given the very small pool (of approximately 6,000) to choose from; and, (c) the inevitability that such jurors would be exposed to extra-evidential opinions and information, which had led the appellants to submit forcefully to Sir Robin Auld that trial by jury could not be fair to them.

“In any event, even if Harrison J ought to have applied the criminal standard of proof, he could not realistically have reached any conclusion other than the one he did,” the Privy Council ruled.

Misick and the other ministers were removed from office during the period 2008/9 when Britain took over the administration of the Overseas British Territory.

A Commission of Inquiry was later appointed “into possible corruption or other serious dishonesty in relation to past and present elected members of the Legislature in recent years”.

The sole commissioner, Sir Robin Auld, published a report recommending, amongst other things, the partial suspension of the 2006 Constitution, the creation of a special prosecution team to investigate evidence of corruption and dishonesty and the suspension of the absolute right to trial by jury.

The 2006 Constitution had provided for government by a governor, acting on the advice of the premier and his Cabinet. However, following the report and the effect given to the report by the United Kingdom Government, temporary direct rule by the Governor was instituted.

The legislature was dissolved, the Cabinet ceased to exist and the principal offices of Government and legislature, such as the premier and speaker of the Assembly, were declared vacant.

After two years, self-government was restored and a new 2011 Constitution inaugurated.

A Special Investigation Team was created and it was this body that brought charges of conspiracy to accept bribes in public office, conspiracy to defraud and associated money laundering against the premier, other Government ministers and their associates.

The retired Jamaican judge was appointed on February 26, 2015 for the specific purpose of presiding over these cases.