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As commentators mark the eight hundredth anniversary of Magna Carta by celebrating its influence in exporting ‘British values’, including the right to trial by jury, across the common law world, it is a good time to reflect on a recent decision of the Judicial Committee of the Privy Council (JCPC), Misick and Others v The Queen, which concerned the denial of the right to trial by jury to the former Premier of the Turks and Caicos (TCI) (a British Overseas Territory located in the Caribbean), Michael Misick, and a number of his government ministers and their associates for offences of conspiracy to accept bribes in public office, conspiracy to defraud and associated money laundering.
I have written elsewhere about the denial of the right to trial to slaves in the so-called ‘sugar colonies’ of the Caribbean from the seventeenth through to the nineteenth century (‘‘Magna Carta, the ‘sugar colonies’ and ‘fantasies of empire’’ in R Hazell and J Melton (eds) Magna Carta and its Modern Legacy (CUP:2015)). This was connected, in part, to the settlers’ belief that the right to trial by jury, being one of the rights guaranteed by Magna Carta, was an inheritance which they exclusively enjoyed as Englishmen based on their blood ancestry. It was also, however, in large part, connected to a belief in the racial superiority of the settlers:
Being Brutish slaves, [they] deserve not, from the Baseness of their condition, to be tried by the legal trial of twelve men of their Peers, or Neigbourhood, which truly neither can be rightly done, as the Subjects of England are (Barbados Slave Code Act, Clause 13).
For reasons that should become apparent below it is important to have this historic context in mind when thinking about the political ramifications of the JCPC’s decision in Misick.
Before looking at the decision in more detail, however, I wish, briefly, to remind the readers of this blog of an earlier decision of the Administrative Court, (R (Misick) v Secretary of State for Foreign and Commonwealth Affairs), which concerned a challenge by Michael Misick to the lawfulness of the British Government’s decision to enact an Ordinance suspending the right to trial by jury under s.6(2)(g) of the TCI Constitution 2006.
General suspension of the right to trial by jury
The background to the general suspension of the right to trial by jury in the first instance arose out of the findings of a Commission of Inquiry, led by the Rt Hon Sir Robin Auld (the Auld Commission), which had been charged with investigating “possible corruption or other serious dishonesty in relation to past and present elected members of the Legislature [of TCI] in recent years.” The Auld Commission’s report makes fascinating reading, not least for its insights into the lavish lifestyle of Michael Misick and his wife, the sitcom actress and self-styled ‘motivational speaker’, LisaRaye McCoy. This included a private jet hired for flights between her Hollywood home and the TCI at a cost of $100,000 per return flight during their courtship as well as the building of an $8m Los Angeles home. In her evidence to the Auld Commission, following her divorce from Michael Misick on the grounds of his adultery, Ms McCoy revealed that she had planned to redecorate the interior of another jet, complete with a carpet bearing a crest designed for the couple. She also revealed that Michael Misick had spent more than £190,000 on jewellery purchased for her and had charged more than £600,000 to an American Express card in 2006 alone. Most damningly, the Auld Commission’s Interim Report concluded that this lavish lifestyle was evidence of the existence of “a high probability of systemic corruption in the Government …accompanied by extravagant and ill-judged commitments by those in public office, primarily ministers, in their private expenditure at public expense.” This led the Auld Commission to make a number of recommendations, including the partial suspension of the Constitution and the general suspension of the absolute right to trial by jury. These recommendations were effected by the TCI Constitution (Interim Amendment) Order 2009 which also provided for the removal of representative government on TCI to be replaced by temporary direct rule by the Governor.
Michael Misick immediately sought to challenge the lawfulness of the 2009 Ordinance on the grounds that the suspension of the 2006 Constitution, in particular the removal of representative government and the right to trial by jury, was outside the powers conferred on Her Majesty in Council by the West Indies Act (WIA) 1962. In support of their challenge the lawyers for Michael Misick sought to argue that the right to trial to jury could be traced back to Magna Carta and had been a part of the law of the territory since TCI was first settled, during the years when it was part of the colony of Jamaica, before finally becoming enshrined in the 2006 Constitution. The Administrative Court was of the view, however, that the plenary nature of the power conferred by WIA 1962, although in principle subject to judicial review, was in practice not open to question in the courts other than in the most exceptional circumstances which did not include the abrogation of the basic rights relied on by the appellants. The Court also noted in passing that the right to trial by jury was not of such a fundamental nature that it could not be modified. As the Court observed, jury trial is not seen as essential in other parts of the world and in the UK the great majority of criminal offences are tried without a jury.
The decision of the JCPC
After a period of just over two years of direct rule self-government was restored to TCI and a new 2011 Constitution was inaugurated. In accordance with the Auld Commission’s recommendation, the 2011 Constitution did not contain an equivalent of the former s.6(2)(g). Though jury trial would remain the norm for serious offences in TCI it was no longer an absolute right. Moreover, the Governor enacted the Trial Without a Jury Ordinance 2010 (TWAJO), which allowed a judge to order a trial without a jury if satisfied that this was required by the interests of justice, having regard to: the nature of the charges; the complexity of the issues or matters to be determined; the length of the trial; the likelihood of pre-trial publicity influencing the decision of the jury; and any information tending to suggest that jury tampering might arise.
Before the JCPC, the proper application of this provision was one of two separate grounds which formed the basis of the appellants’ challenge to their proposed trial (the other being the independence of the judicial system in TCI more generally). The thrust of the appellants’ challenge was that the judge could only have ordered that they be tried without a jury if he had been ‘satisfied’ so that he was ‘sure’, or ‘beyond reasonable doubt’, that this was required by the interests of justice. Both the trial judge and the Court of Appeal of TCI had rejected this argument and it completely failed to gain any purchase with the members of the JCPC. Instead the JCPC agreed with the judgment of the New Zealand Court of Appeal in R v Iti  NZCA 114, concerning a similar legislative provision, that such a decision requires the evaluation of all relevant factors rather than being amenable to analysis in terms of standard of proof. While the JCPC accepted that in common law countries, any suggested curtailment of trial by jury is met by the greatest caution at the level of parliamentary and public debate, it did not follow that any departure from the norm of a jury trial depended on an analysis of the decision in terms of the standard of proof. In refusing to overturn the decision of the lower courts the JCPC had regard to the fact that the documentation in this case was voluminous (15,000 pages), that the trial was estimated to last between three to four months, and that the pool from which jurors could be drawn was in practice limited to those of the 6000 “belongers” of TCI who live on either Providenciales or Grand Turk. The relentless publicity that this highly unusual and controversial case had attracted and the close-knit nature of the community on TCI also meant that:
[I]t would be highly impracticable to find a jury composed of those with no prior knowledge of, or opinion upon, the issue at stake, and that even if such were possible, the identity of jurors would inevitable become known, thus exposing them to inevitable extra-evidential opinions and/or information, whether innocently communicated or not.
Before concluding, the JCPC could not resist the opportunity of pointing out that Michael Misick, who at the time had been represented by ‘leading counsel of great experience from London’, had previously argued before the Auld Commission that he would not be able to get a fair trial by jury in TCI because of the likely contamination of the jury as a result of the adverse media publicity surrounding the case (an argument endorsed by the lawyers representing all of the other appellants before the Auld Commission): a classic example of an appellant and his lawyer being hoist by their own petard. As the JCPC witheringly put it:
The present attempt to put the submissions made to [the Auld Commission] into dramatic reverse is most kindly to be described as a change of strategy, or perhaps as a change appraisal of currents of press or public opinion.
While it is clear that there were very serious concerns, at different times on both sides, about the possibility of any trial by jury on TCI being fair, the decision to deny the right to jury trial to Michael Misick and his ministers is already putting an increasing strain on already difficult relationship between the current TCI Government and the British Government (see the report submitted to CARICOM by the current Premier, Rufus Ewing, and the response of the Foreign Secretary, William Hague). Meanwhile, in the Caribbean press, the trial court is being portrayed as “a court set up by the British Government specifically for the Misick case, with an imported judge and foreign prosecutors.”
For those within the region, there is, at the very least, a vestigial memory of a period when the right to trial by jury was a right enjoyed only by English (later British) settlers because of their blood ancestry whilst slaves were tried by the Governor in Council alone. Though the comparison may not be exact, it is close enough: here, once again, is an example of a right to trial by jury being denied as a result of an ordinance enacted by the British Government’s representative in the TCI, the Governor. The suggestion that there may be an element of racial bias in the prosecution of Michael Misick and his government ministers is also evident in the report of a CARICOM Ministerial Fact-Finding Mission, which visited TCI in June 2013, and which detected amongst those who had been interviewed a feeling that foreign developers who had bought Crown land from the TCI Government had been allowed to return the land and to pay compensation in order to avoid prosecution, a dispensation not afforded to Michael Misick and his ministers. Indeed, the Governor had even been obliged to issue a denial of the assertion that “white people can buy justice, while back people go to jail.”
Differing perceptions about the legitimacy of the trial process are no doubt also influenced by differing views of Michael Misick himself. For the British press, he is the adulterous, designer-suited, playboy, ‘king of sleaze’ in the colonies. By contrast, to a significant number of the citizens of the TCI, he is the mastermind of the 2006 Constitution and the champion of greater independence from Britain. Since he came to power in 2003 the size of the islands’ economy had dramatically increased, with GDP soaring from $216m to $722m. Even though by 2009 the TCI was, effectively, bankrupt, he received ‘nothing short of a hero’s welcome’ upon his return to the country after being extradited from Brazil, where he had fled to avoid prosecution. The prosecution of Michael Misick and his ministers is thus being characterised locally as a clash of differing political cultures. As Hayden Boyce, the editor of the Turks and Caicos Sun has observed: “Misick is accused of taking money from all kinds of people. That’s bad politics, but is it criminal?” Indeed, in his evidence to the Auld Commission Michael Misick repeatedly argued that accepting political donations, as he and his government ministers had done, and using them as they saw fit to advance their political causes, was just the way that things were done in the Caribbean.
This may very well be an entirely specious argument. However, it is trite law to say that justice must not only be done, but must be seen to be done. If Michael Misick is eventually found guilty of criminal offences the question will remain whether it was ‘bad politics’ for him to be convicted without having had the benefit of a trial by jury and on the basis of a law enacted on the diktat of the British Government? Those who know something about the experience of colonial rule in the Caribbean will immediately foresee the problem of how this narrative could play out amongst Michael Misick’s supporters and the political unrest that could ensue.
Derek O’Brien is Reader in Law at the School of Law, Oxford Brookes University and Caribbean Correspondent for the UKCLA Blog.
(Suggested citation: D. O’Brien, ‘Magna Carta, the Right to Trial by Jury and the ‘King of Sleaze” UK Const. L. Blog (31st Aug 2015) (available at https://ukconstitutionallaw.org/))