Attorney General of the Turks and Caicos Islands v Misick and others (Turks and Caicos Islands)

Emergency legislation enabling remote court hearings did not authorise the Supreme Court of the Turks and Caicos Islands to sit abroad. The Constitution confined that court’s sittings to the Islands, unlike the Court of Appeal. Properly construed, regulation 4(6) kept one courtroom in the Islands and treated the judge’s remote location as part of it. It enabled technology, not an offshore court. A remote criminal hearing is not inherently unfair or contrary to equality of arms. Whether it should proceed depends on the particular case, evidence, safeguards and circumstances, and is ordinarily for the trial judge. An appellate court should not pre-empt that assessment without a concrete decision and evidential basis.

Seven defendants appealed in criminal proceedings in the Supreme Court of the Turks and Caicos Islands. The part-heard trial was being conducted by Harrison J, who ordinarily travelled from Jamaica to sit in the Islands. It was adjourned after the Covid-19 pandemic began.

The Governor made the Emergency Powers (Covid-19) (Court Proceedings) Regulations 2020, including regulation 4(6), to facilitate remote hearings. The Supreme Court declared regulation 4(6) ultra vires to the extent that it purported to permit the Supreme Court to conduct proceedings outside the Islands. The Court of Appeal allowed the Governor’s appeal and dismissed the defendants’ appeal. The issues before the Board were the proper construction and validity of regulation 4(6), and whether continuing the trial remotely would create unfairness or inequality of arms.

The Board, in the joint judgment of Lord Hamblen and Lord Stephens, with whom Lady Black, Lord Lloyd-Jones and Lord Briggs agreed, unanimously dismissed the appeals.

1. Constitutional limit. The Constitution draws a clear distinction between the Supreme Court and the Court of Appeal. Section 80(2) expressly permits the Court of Appeal to sit outside the Islands, while section 77(1) contains no equivalent provision. The Supreme Court may therefore sit only within the territory of the Turks and Caicos Islands. If regulation 4(6) authorised an offshore sitting, it would be unlawful.
2. Interpretation. The natural and ordinary meaning of statutory language must be assessed in its full context, including the instrument as a whole and its legal, social and historical setting. Constitutional context is especially important. The Regulations were emergency measures intended to resume the administration of justice safely during the pandemic. Their drafting was grammatically imprecise, reducing the weight to be given to a strictly grammatical construction.
3. Meaning of regulation 4(6). The provision preserved a single courtroom in the Islands. It deemed the place from which the judge connected, whether inside or outside the Islands, to be included as part of that courtroom. The word sit referred to where the judge heard the case, not to the place where the court formally exercised its jurisdiction. The provision therefore authorised a remote connection without creating an offshore Supreme Court or transferring its jurisdiction abroad.
4. Inherent jurisdiction. The Board did not need to decide whether the common law or inherent jurisdiction would independently permit a judge to connect remotely. It considered the reasoning in Endean v British Columbia [2014] BCCA 61 to have considerable force, but left the issue undecided.
5. Fairness and equality of arms. Video links are not inherently incompatible with criminal proceedings. The appropriateness of remote evidence or a remote hearing is fact-sensitive and ordinarily falls within the trial judge’s discretion. Relevant matters include the particular case and evidence, any specific reason against remote participation, the actual effect on the judge’s ability to assess evidence, perceived imbalance, and available case-management safeguards. The Board declined to make a pre-emptive ruling because no decision had yet been made to resume the trial remotely and no evidential basis established general unfairness.
6. Final disposition. The Board rejected the suggested absolute requirement that the defendant, judge and evidence occupy the same physical space. Physical presence may be preferable, but a remote hearing may be justified in appropriate circumstances. The appeals were dismissed.

1. Supreme Court of the Turks and Caicos Islands. Lobban-Jackson J declared regulation 4(6) ultra vires to the extent that it purported to confer power on the Supreme Court to conduct proceedings outside the Islands.
2. Court of Appeal of the Turks and Caicos Islands. The Court of Appeal allowed the Governor’s appeal and dismissed the defendants’ appeal. Judgments were given by Mottley P, Stollmeyer JA and Adderley JA.
3. Privy Council. The Board dismissed the appeals against the Court of Appeal’s decision.