The Honourable Chief Justice of Trinidad and Tobago Mr Justice Ivor Archie O.R.T.T. v The Law Association of Trinidad and Tobago

A constitutional procedure for removing a judge does not exclude preliminary inquiries by other persons or bodies. Section 137 of the Constitution of Trinidad and Tobago permits a professional association to investigate serious allegations sufficiently to decide whether a prima facie case exists for a complaint to the proper constitutional authority.

The association cannot make binding factual findings, exercise disciplinary authority or hold the judge accountable. Its investigation is not a judicial or quasi-judicial determination attracting conventional natural justice rules. Public authorities must nevertheless act fairly, with fairness assessed contextually. The fair-minded and informed observer test governs apparent bias.

The appellant, the Chief Justice of Trinidad and Tobago, challenged the respondent Law Association’s decision to investigate press allegations concerning his conduct. He argued that the removal procedure in section 137 of the Constitution of Trinidad and Tobago was exclusive, that the investigation was outside the Association’s powers under the Legal Profession Act 1986, and that the Association was biased and procedurally unfair.

Kangaloo J allowed the judicial review claim and quashed the decision. The Court of Appeal unanimously allowed the Association’s appeal and dismissed the Chief Justice’s cross-appeal. The central issues before the Board were whether the investigation was constitutionally or statutorily prohibited and whether it was affected by apparent bias or unfairness.

1. Constitutional procedure. The appeal on section 137 failed. The removal procedure in the Constitution of Trinidad and Tobago is not the only lawful means by which allegations concerning a judge may be investigated. A preliminary inquiry may be undertaken to decide whether a complaint should be made to the Prime Minister. The Board considered In re Chief Justice of Gibraltar [2009] UKPC 43; [2010] 2 LRC 450 and Meerabux v Attorney General of Belize [2005] UKPC 12; [2005] 2 AC 513 as consistent with that conclusion.
2. Statutory powers. Where allegations are sufficiently serious to threaten confidence in the administration of justice or the rule of law, sections 5(f) and 5(g) of the Legal Profession Act 1986 empower the Association to take steps conducive to those statutory purposes. Rule 36(4) of the Code of Ethics reinforces its ability to make representations to the proper authorities. The Association may conduct an inquiry sufficient to establish whether there is a prima facie basis for a complaint and must defend the judiciary against unjustified criticism. It has no power to hold the Chief Justice accountable or make findings binding on him or any later constitutional tribunal.
3. Natural justice and fairness. The investigation was not a judicial or quasi-judicial determination of civil rights, liabilities or disciplinary responsibility. The conventional rules of natural justice therefore did not apply. Nevertheless, a public authority must exercise a statutory function fairly. As explained in R v Secretary of State for the Home Department, Ex p Doody [1994] 1 AC 531, p 560, fairness is contextual and may require an opportunity to make representations and knowledge of the gist of the case. The Board did not need to define the minimum requirements because the Association had supplied the material requested and invited a response; fairness was satisfied on any view.
4. Apparent bias. Applying the test in Porter v Magill [2001] UKHL 67; [2002] 2 AC 357, and the explanation in Gillies v Secretary of State for Work and Pensions [2006] UKHL 2; [2006] 1 WLR 781, the question was whether a fair-minded and informed observer would conclude that there was a real possibility of bias. The local courts were better placed to assess that observer’s perspective in Trinidad and Tobago. The Board therefore declined to disturb their concurrent finding that no such possibility arose.
5. The appeal was dismissed. The injunction restraining the Association from convening a meeting concerning its inquiry was discharged.

• Privy Council: On 16 August 2018 the Board dismissed the Chief Justice’s appeal and discharged the injunction restraining the Law Association from convening a meeting concerning its inquiry.
• Court of Appeal of the Republic of Trinidad and Tobago: On 22 May 2018 the Court unanimously allowed the Law Association’s appeal and dismissed the Chief Justice’s cross-appeal.
• High Court of Trinidad and Tobago: Kangaloo J allowed the judicial review claim and quashed the Law Association’s decision to continue its investigation.