Marcia Ayers-Caesar v The Judicial and Legal Service Commission (Trinidad and Tobago)

A judge may be removed only for inability or misbehaviour and through the constitutional procedure. Conduct before appointment can fall within that regime where it bears on judicial capacity or public confidence in the administration of justice. Before deciding that a complaint meets the threshold for initiating removal proceedings, the responsible commission must act fairly, normally by giving notice and an opportunity to respond. A commission cannot avoid those safeguards by offering resignation under threat of disciplinary proceedings. A resignation procured by such pressure is ineffective.

The respondent became a High Court judge on 12 April 2017 after serving as Chief Magistrate. On 27 April 2017, the Commission decided that the information before it met the threshold for disciplinary proceedings, offered her the option of returning to the magistracy, and indicated that disciplinary action under section 137 might follow if she refused. She resigned the same day.

Harris J made orders in the High Court. The Court of Appeal of Trinidad and Tobago, by order dated 12 October 2023, set aside most of those orders and granted declarations that the Commission had acted unlawfully, that the resignation was ineffective, and that compensation should be assessed. The appeal concerned pre-appointment conduct, procedural fairness, the legality of offering resignation as an alternative to section 137 proceedings, and causation.

Appeal dismissed. Lord Reed delivered the judgment of the Board. The Board disagreed with the majority of the Court of Appeal on whether the claimant’s conduct was legally capable of falling within section 137, but that disagreement did not affect the order under appeal. The Board agreed with the Court of Appeal on the remaining issues.

1. Removal regime. Section 137 of the Constitution of Trinidad and Tobago is an exclusive scheme for the suspension and removal of judges. It protects judicial independence and the due administration of justice. The Commission’s role is limited to deciding whether to represent to the President that removal ought to be investigated. Rees v Crane [1994] 2 AC 173 supported that conclusion.
2. Pre-appointment conduct. Conduct before appointment can provide a lawful basis for investigation where it may affect the judge’s capacity to perform judicial functions or public confidence in the administration of justice. The reasoning in Lawrence v Attorney General of Grenada [2007] UKPC 18, Hearing on the Report of the Chief Justice of Gibraltar [2009] UKPC 43, and Therrien v Minister of Justice [2001] 2 SCR 3 supported that approach. The Board held only that the matters were capable of falling within section 137, not that they were established or justified removal.
3. Applicable inquiry. Inability and misbehaviour are assessed by considering the direct effect on the judge’s ability, the effect on others’ perceptions of that ability, whether continued office would be perceived as inimical to the due administration of justice, and whether the office would be brought into disrepute.
4. Procedural fairness. Before deciding whether the complaint is sufficiently supported and serious to warrant a representation to the President, the Commission must act fairly. This normally requires notice of the allegations and an opportunity to answer them. The duty applies before deciding what material is sufficient and before reaching the threshold decision; it does not arise only after that decision. The protection of the law under section 4(b) includes natural justice.
5. Resignation and causation. Once engaged in its section 137 functions, the Commission cannot procure removal by offering resignation as an alternative to disciplinary proceedings. That approach places improper pressure on the judge and circumvents the constitutional safeguards. The Chief Justice was authorised to communicate the Commission’s decision, and the Commission thereby brought about the claimant’s resignation. The declarations of unlawfulness and the consequential orders therefore stood.

• Privy Council — In [2025] UKPC 15, the appeal was dismissed and the declarations of unlawfulness made below stood.
• Court of Appeal of the Republic of Trinidad and Tobago — By order dated 12 October 2023, the court set aside Harris J’s High Court orders, subject to specified exceptions, granted declarations concerning the Commission’s conduct and the claimant’s continuing office, and ordered assessment of compensation.
• High Court of Trinidad and Tobago — Proceedings were determined by Harris J. The judgment does not state the citation of that decision.