Sherman McNicholls v Judicial and Legal Services Commission (Trinidad and Tobago)

Under the Public Service Commission Regulations, an investigating officer’s mandate is confined to the substance of the notified allegation, but the Judicial and Legal Services Commission may prefer a charge identified in the investigation report or the officer’s explanation. The charge is valid if the officer had a fair opportunity to answer and was left under no misapprehension about its precise nature. In committal proceedings conducted through tendered witness statements, refusing to testify may be substantively the same as refusing cross-examination. A mistaken legal view that parallel proceedings should be stayed does not, without more, constitute misconduct. Whether the conduct was misconduct, and whether it caused the prosecution to end, were matters for the disciplinary tribunal. The appeal was dismissed.

The Chief Magistrate challenged six disciplinary charges preferred by the Judicial and Legal Services Commission after criminal proceedings against the Chief Justice were discontinued when the appellant indicated that he would not testify. He sought judicial review of the decision to prefer the charges and of the proposed suspension.

Jamadar J quashed four charges and allowed two to proceed on 7 February 2008. Both parties appealed, but the Court of Appeal of the Republic of Trinidad and Tobago dismissed both appeals. The Commission did not pursue its appeal to the Board. The appellant relied on comments in Sharma v Brown-Antoine [2006] UKPC 57; [2007] 1 WLR 780 concerning the parallel proceedings. The central issues were whether the charges were ultra vires, unfair, unsustainable in fact or law, or rendered fundamentally unfair by the appellant’s evidence before a separate constitutional tribunal.

1. Appeal dismissed. The Judicial and Legal Services Commission had not acted ultra vires in preferring the two extant charges.
2. Under section 111 of the Constitution of Trinidad and Tobago the Commission had disciplinary jurisdiction over the Chief Magistrate. Regulation 84B required an investigation of the allegation, but the Regulations did not give the investigator a roving brief. Applying common sense, an investigation of the substance of the notified allegation was sufficient. Regulation 90(6) was not confined to an offence identical to the allegation originally notified. It included an offence identified in the investigating officer’s report or in the officer’s explanation, provided the officer had an opportunity to respond and was under no misapprehension as to the precise allegations.
3. In the circumstances, refusing to testify was in substance the same as refusing to allow cross-examination. The appellant’s written explanation admitted that he had informed the prosecutor that he would not testify. The charges therefore arose from the investigation and were not ultra vires.
4. The appellant had known the case against him and had been able to answer it at every stage. The leaking of the investigating officer’s report and adverse publicity did not establish relevant unfairness or prejudice to a fair trial.
5. Misconduct was not established merely by a misunderstanding of law. The appellant’s belief that the criminal proceedings should await proceedings under section 137 of the Constitution of Trinidad and Tobago could therefore be a mistake without itself amounting to misconduct. Nevertheless, there was an arguable case that his refusal to support serious allegations against the Chief Justice, and the resulting discontinuance of the prosecution, constituted misconduct. Those factual and legal issues were for the disciplinary tribunal.
6. Regulation 98 provided a detailed fair-hearing procedure and permitted challenges to the charge in fact or law. Save in an exceptional case, the disciplinary process should therefore be used rather than judicial review. The appellant’s evidence before the separate constitutional tribunal caused no material prejudice because his defence was already disclosed and remained available to him before the disciplinary tribunal.
7. All grounds of appeal failed. The appellant was ordered to pay the Commission’s costs unless application was made to the contrary within 28 days of 10 February 2010.

• Privy Council: dismissed the appellant’s appeal against the decision below and ordered costs.
• Court of Appeal of the Republic of Trinidad and Tobago: dismissed both parties’ appeals and granted leave to appeal to the Judicial Committee.
• Jamadar J: on 7 February 2008, quashed four of the six disciplinary charges and allowed two to proceed.