John Henry Smith and another v Attorney General of Trinidad and Tobago and others (Trinidad and Tobago)

The test for apparent bias is whether a fair-minded and informed observer, having considered the relevant facts, would conclude that there was a real possibility that the tribunal was biased. It is objective and does not require proof of actual bias, a causal link between the concern and the outcome, or judicial misconduct. An appellate court should assess the test for itself on undisputed facts. The relevant facts are those existing when the impugned decision was made, without an artificial baseline derived from earlier proceedings. Financial beholdenness to a politically interested law officer, combined with a direct interest in connected proceedings, may establish apparent bias. An independent and impartial tribunal is integral to due process and a fair hearing.

The appellants, senior officers of insurance companies, faced fraud and corruption charges in the Piarco 1 preliminary inquiry before Chief Magistrate Sherman McNicolls. The proceedings concerned airport-contract allegations in a politically charged setting. The Chief Magistrate had received and returned a $400,000 payment connected with a land transaction involving a CLICO company. The Attorney General had intervened in matters affecting him and had a direct interest in related prosecutions.

After a separate conviction was quashed for apparent bias in Panday v Virgil (Mag App No 75 of 2006), and after further matters emerged from the Mustill inquiry, the appellants sought the Chief Magistrate’s recusal. He refused without reasons, labelled the applications frivolous and vexatious, and committed the defendants to trial. The High Court dismissed the judicial review and constitutional claims. The Court of Appeal dismissed the appeals on 28 June 2017. The central questions were whether apparent bias was established and whether the same circumstances breached constitutional rights to due process and a fair hearing.

1. Disposition. Lord Malcolm, delivering the judgment of the Board, allowed both appeals. The Court of Appeal’s decisions were quashed. The applications for judicial review and constitutional relief were granted. The Piarco 1 committal decision of 7 January 2008 was quashed, and consequential matters were remitted to the High Court.
2. Applicable test and appellate review. The governing test, stated in Porter v Magill ([2001] UKHL 67; [2002] 2 AC 357), asks whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility of bias. It is an objective test. Actual bias, actual influence, or proof that the decision would have been different is unnecessary. The Board rejected any special deference to the Court of Appeal on this issue. Once the facts were established, the question was evaluative rather than discretionary and the Board was well placed to decide it for itself.
3. Linkage. The three-stage analysis derived from Ebner v Official Trustee in Bankruptcy ((2000) 205 CLR 337) could be useful, but it was not a necessary approach. The Court of Appeal had wrongly converted the requirement for a logical connection between the source of concern and the feared departure from impartiality into a requirement to prove actual influence. That approach contradicted the objective apparent-bias test.
4. Application. By January 2008, the observer knew that the Attorney General was responsible for the body investigating airport-contract corruption, that its senior officer was the complainant in Piarco 1, and that the Attorney General and government had a preferred outcome. The observer also knew of the Chief Magistrate’s financial indebtedness, the Attorney General’s assistance with the land transaction and the closure of an investigation into his conduct. The related political and subject-matter context made the connection to Piarco 1 plain. The earlier finding in Panday v Virgil and the matters later revealed were material. The Court of Appeal wrongly treated the absence of an earlier bias challenge as a baseline and failed to assess all relevant facts at the date of the committal decision.
5. Constitutional relief. An independent and impartial tribunal is part of due process under sections 4 and 4(a) of the Constitution and of the right to a fair hearing under section 5(2)(f)(ii). The constitutional claim therefore succeeded on the same facts. A separate, vague challenge based on a judge’s alleged lack of moral authority or general unfitness would have been difficult to reconcile with judicial independence.

1. Privy Council. Both appeals allowed; the Court of Appeal decisions and the Piarco 1 committal decision were quashed. Judicial review and constitutional relief were granted, with consequential matters remitted to the High Court.
2. Court of Appeal of the Republic of Trinidad and Tobago. On 28 June 2017, Rajkumar JA, with Smith and Pemberton JJA agreeing, dismissed the appeals on the merits after rejecting procedural objections to the proceedings below.
3. High Court. Bereaux J refused leave for judicial review on 12 January 2009 and dismissed the constitutional claim on 14 January 2009. Reasons for the constitutional decision were delivered on 30 June 2010.