Sir James Fitz Allen Mitchell Appellant v Ephraim Georges (Sole Commissioner of the Ottley Hall Commission of Inquiry) Respondent [ECSC]

• Jurisdiction: St Vincent and the Grenadines
• Judge: Mitchell JA [AG.],Justice of Appeal [Ag.],Justice of Appeal,Don Mitchell,Davidson Kelvin Baptiste,Clare Henry
• Judgment Date: 25 June 2012
• Judgment citation (vLex): [2012] ECSC J0625-1
• Court: Court of Appeal (Saint Vincent)
• Docket Number: HCVAP 2011/014
• Date: 25 June 2012

[2012] ECSC J0625-1

IN THE COURT OF APPEAL

EASTERN CARIBBEAN SUPREME COURT

Before:

The Hon. Mr. Davidson Kelvin Baptiste Justice of Appeal

The Hon. Mr. Don Mitchell Justice of Appeal [Ag.]

The Hon. Mde. Clare Henry Justice of Appeal [Ag.]

HCVAP 2011/014

Between:

Sir James Fitz Allen Mitchell

Appellant

and

Ephraim Georges (Sole Commissioner of the Ottley Hall Commission of Inquiry)

Respondent

Judicial review — Commission of Inquiry — Whether the learned trial judge erred in dismissing claim for relief — Commissioner sending Interim Report to Governor-General and DPP — Appellant and his witnesses had not yet testified — Interim Report describing appellant's behaviour on the evidence so far as inexcusable — Appellant alleged to have shut his mind to the obvious — Alleged he failed to act in accordance with the law and his duties as a Minister of Government — Whether the Interim Report contained concluded views — Whether the Interim Report should have been limited to facts, circumstances and evidence and not given opinions and argument — Whether showed a predisposition towards a particular view of the evidence — The fair minded and informed observer — Apparent bias — Procedural unfairness

This is an appeal arising out of a judge's dismissal of a claim for judicial review of a sole Commissioner appointed to inquire into the failure of the Ottley Hall and Union Island Projects. The appellant was at the relevant time in the 1990s the Prime Minister and Minister of Finance of Saint Vincent and the Grenadines. The sole Commissioner was a retired High Court Judge. His terms of reference authorised him inter alia to inquire into the bona fides and circumstances surrounding the Projects. He was to report immediately in writing to the Governor-General and the DPP any facts, circumstances or evidence that might give rise to, show, or establish that any criminal act may have been committed and in any event he was to issue an Interim Report within six months of the date of the establishment of the Commission. The Commissioner issued to the Governor-General and the DPP a "Report of Possible Criminal Acts or Offences by Certain Individuals". It contained a number of allegations adverse to the appellant. The appellant sought judicial review to quash the Interim Report and to restrain the sole Commissioner from continuing with the inquiry. The appellant complained that the Interim Report contained conclusionary statements and findings against him. They were arrived at without his having been given an opportunity to respond to any charges prior to the findings being made.

Held: dismissing the appeal and confirming the decision of the trial judge to dismiss the claim, and making no order as to costs, that:

• 1. It is generally accepted that a Commission of Inquiry must not exceed its common law powers and where it does, the Supreme Court in its supervisory jurisdiction will intervene. The question is whether a body exercising statutory powers of investigation and report has erred in law, exceeded its statutory jurisdiction, or failed to observe natural justice, if applicable, or committed some other abuse of power. Where such an error is established, the courts will usually be prepared to use their judicial review jurisdiction and they are unlikely to be deterred by arguments that a report is not a determination.

• 2. The principles that are laid down in the cases that dealt with the question of bias in courts or tribunals of a judicial or disciplinary nature have to be applied with great caution to the case of a Commission of Inquiry.

  In re Medicaments and Related Classes of Goods (No. 2) (2001) 1 WLR 700 ; Basdeo Panday v Wellington Virgil (Senior Superintendent of Police) Republic of Trinidad & Tobago Mag. App. No. 75 of 2006 (unreported) distinguished; Basdeo Panday v Senior Superintendent Wellington Virgil [2008] UKPC 24 distinguished; George Meerabux v The Attorney General of Belize [2005] UKPC 12 distinguished; Medical Board of Trinidad and Tobago v des Vignes (2000) 60 WIR 375 distinguished; Davidson (AP) v Scottish Ministers [2005] UKHL 74 distinguished; R v Kent Police Authority and Others Ex parte Godden [1971] 2 QB 662 distinguished; London Borough of Southwark v Jiminez [2003] EWCA Civ 502 distinguished.

• 3. The court, in determining issues related to bias must have regard to the context in which such issues have arisen. It would not be appropriate to apply across-the-board general principles of bias without regard for the statutory framework, the terms of reference, and the nature of the inquiry in question. The court must take into account the special nature of a Commission of Inquiry. This is an investigative body and not an adjudicatory one. The Commissioner's report was a confidential, interim report which was not published to the public. The Commissioner acted in compliance with his mandate which was to submit his Interim Report to the Governor-General and the DPP. Sir James had earlier been given every opportunity to participate in the hearings, but he had chosen not to come forward or to take advantage of the opportunity given to him. If his name was now mentioned in an interim report before he has had an opportunity to respond to a Salmon Letter, he cannot be heard to complain that he had been deprived of a right to be heard.

• 4. In view of the relevant authorities, Sir James was required to prove much more than the formulation or expression of a provisional or interim view or opinion to establish that the Commissioner had a closed or prejudiced mind. Sir James must prove that, in view of the nature of the inquiry, the terms of reference, and the opportunities given throughout the proceedings to him, the Commissioner has closed his mind. He must establish on the part of the Commissioner irreversible prejudgment and prejudice in the expression of his views in his Interim Report to the DPP, and that the Commissioner will not alter these views irrespective of the evidence and arguments which may be presented to him by Sir James and his counsel. He must demonstrate that in the conduct of the proceedings as a whole it has been shown that the Commissioner was biased or unfair. He has failed to do any of these.

  Mario Hoffmann v Commissioner for the Turks & Caicos Islands Commission of Inquiry and the Turks & Caicos Islands Commission of Inquiry v Dr Cem Kinay et al Nos. CL-AP 11/09 and CL-AP 8/09 (unreported) applied; Beno v Canada (Commissioner and Chairperson, Commission of Inquiry into the Deployment of Canadian Forces to Somalia) [1997] 2 FC 527 applied.

• 5. On the question of procedural fairness, the Commissioner's terms of reference required him, "to report immediately … any facts, circumstances, or evidence which in the opinion of the Commission may give rise to, show or establish …" any of the matters set out in clause 13. The Commissioner was therefore required to submit his Interim Report once he formed an opinion on any fact or circumstance which may have given rise to any of the matters in question. There was no obligation imposed on him to first hear Sir James before reporting. The fact that the Interim Report was entitled "Report on Possible Criminal Acts …" would indicate at the outset to a fair-minded and reasonable observer that the Commissioner had not yet found or concluded that Sir James had in fact committed and was guilty of the criminal acts alleged. Furthermore, after being served with a Salmon Letter and a Witness Summons, Sir James would have had the opportunity to answer the evidence and allegations made against him.

• 6. Clause 13 of the Terms of Reference did not require the Commissioner merely to list the facts, circumstances and evidence, without making any comment on them. The Commissioner was entitled to draw inferences and to make comments (which may have been of a conclusionary nature) on the evidence that he had heard to that date. It would seem clear to a fair-minded and reasonable observer giving it a fair reading that the Interim Report was not intended as a final report consisting of concluded findings of criminal liability on the part of any person, including Sir James. Nothing in the Interim Report suggested that the Commissioner had come to a concluded view, showed a closed mind, or had a particular view of the evidence amounting to a prejudgment, nor was there anything to suggest that there was other than co-incidence in the timing of the Interim Report. Sir James had long retired from active politics. There was no reason to believe that the Commissioner had any animus to Sir James' political party, or wished to do it any harm.

• 7. While the Commissioner's Interim Report was replete with strong and colourful language and while it was true that the Commissioner used the decisive language of a concluded finding, it would have been difficult for him to have fulfilled his mandate of reporting on the facts and evidence to the Governor-General without making an evaluation of the material before him. Even if his language was not as cautious and reserved as it should have been for an interim report prepared before all the evidence was in, the overall context would correct it. There was nothing that would give a fair minded and informed observer a reasonable apprehension that the Commissioner would at the end of the Inquiry reach a conclusion based other than on the evidence. There was simply no evidence that could displace the presumption that the Commissioner would act impartially.

• 8. Given the nature of the inquiry, the legislative framework, the terms of reference given to the Commissioner, the conduct of the Commissioner both before and after the delivery of his Interim Report, the duty of the Commissioner to make provisional findings and to form provisional views on the evidence and to give persons adversely affected an opportunity to be heard before making final findings and completing the...