Keston Riley v The Attorney General

• Jurisdiction: Montserrat
• Judge: ‘Baptiste JA’
• Judgment Date: 17 September 2020
• Judgment citation (vLex): [2020] ECSC J0917-1
• Court: Court of Appeal (Montserrat)
• Date: 2020
• Docket Number: MNIHCVAP2020/0003

[2020] ECSC J0917-1

EASTERN CARIBBEAN COURT OF APPEAL

IN THE COURT OF APPEAL

Before:

The Hon. Mr. Davidson Kelvin Baptiste Justice of Appeal

The Hon. Mde. Louise Esther Blenman Justice of Appeal

The Hon. Mr. Mario Michel Justice of Appeal

MNIHCVAP2020/0003

Between:

Keston Riley

Appellant

and

[1] The Attorney General

[2] Director of Public Prosecutions

Respondents

Appearances:

Mr. Warren Cassell for the Appellant

Ms. Sherasmus Evelyn, on behalf of the Attorney General, for the Respondents

Interlocutory appeal — Application to strike out appeal — Whether notice of appeal vague or in general terms — Whether notice of appeal disclosed reasonable grounds for bringing appeal — Appeal against refusal of application for recusal — Apparent bias — Whether learned judge erred in refusing recusal application — Whether fair-minded informed observer would conclude that there was real possibility of bias — Whether learned judge ought to have recused himself given his knowledge and prior involvement in matter — Whether learned judge prejudged or predetermined claim — Judicial oath — Weight to be attached to judicial oath in context of recusal application — Approach to be taken by judge where there are doubts as to need for recusal — Whether inconvenience, delay and costs are relevant considerations in determining whether judge ought to be recused

The appellant, Keston Riley, was charged with and pled guilty to fraudulent evasion of duty, following which he was sentenced by a learned judge to a term of imprisonment. Riley successfully appealed his conviction to the Court of Appeal, following which the Director of Public Prosecutions sought to appeal to the Privy Council. Upon his release from prison, Riley filed a fixed date claim seeking damages and declaratory relief from the State, flowing from the circumstances surrounding his successful appeal against conviction. The damages claim was set down for hearing before the same judge who presided over Riley's criminal matter.

During the course of an unrelated criminal matter, the learned judge remarked in open court, in relation to Riley's criminal matter, that ‘hopefully the Privy Council will get it right’, the implication being that the Court of Appeal was wrong in quashing Riley's conviction and sentence. In light of his comment and prior involvement in the criminal matter, Riley applied to the learned judge to recuse himself from hearing the damages claim on the basis that he would not bring an impartial mind to bear on the matter. The learned judge delivered what he referred to as an ‘interim decision’ on the matter, by which he refused to recuse himself from hearing the matter.

Being dissatisfied with the judge's decision, Riley appealed, alleging, in the main, that the learned judge erred in law by refusing to recuse himself. The respondents applied to strike out the notice of appeal arguing that the grounds of appeal were vague or general in terms and did not disclose any reasonable grounds for bringing the appeal. The respondents further resisted the appeal on the grounds that the judge's prior involvement in the matter and his remarks made in open court would not cause the fair-minded and informed observer to conclude that there was a real danger that the judge was biased.

Held: dismissing the application to strike out the appeal; allowing the appeal; setting aside the decision of the judge not to recuse himself; ordering that a different judge is to be assigned to conduct the hearing of the matter; awarding costs to the appellant to be assessed by a master if not agreed within 21 days, that:

• 1. Striking out is a severe sanction which ought not to be lightly employed. In this case, the subject of the appeal is made clear from the contents of the notice of appeal and the other material before the Court. Accordingly, the grounds advanced by the respondents for striking out the appeal are unmeritorious and would not conduce to the overall fairness of the proceedings and the wider interests of justice.

  HRH Prince Abdulaziz Bin Mishal Bin Abdulaziz Al Saud v Apex Global Management Ltd and Anor [2014] UKSC 64 applied; Real Time Systems Limited v Renraw Investments Limited and Ors [2014] UKPC 6 applied.

• 2. A judge should not sit to hear a case in which the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the judge was biased. An appellate court is well-positioned to assume the vantage point of a fair-minded and informed observer and make such an assessment. The Court has to ascertain all the circumstances and ask whether those circumstances would lead to the conclusion that there was a real possibility that the judge was biased.

  Otkritie International Investment Management Ltd and Ors v Mr George Urumov [2014] EWCA Civ 1315 applied; Mr Ashley Dobbs v Triodos Bank NV [2005] EWCA Civ 468 applied; Shaw v Kovac and Anor [2017] EWCA Civ 1028 applied; Beard Winter LLP v Kersasp Shekhadar [2016] OJ No. 3257 (QL) applied; Virdi v Law Society [2010] EWCA Civ 100 applied; Helow v Secretary of State for the Home Department [2008] 1 WLR 2416 applied; Harb v HRH Prince Aziz bin Fahd bin Abdul Aziz [2016] EWCA Civ 556 applied; Morrison and Anor v AWG Group Ltd and Anor [2006] EWCA Civ 6 applied; Resolutions Chemicals Limited v H Lundbeck A/S [2013] EWCA Civ 1515 applied; National Assembly for Wales v Condron [2006] EWCA Civ 1573 applied.

• 3. Prior involvement and knowledge does not automatically disqualify a judge from hearing a matter. Critically however, a judge must not predetermine or prejudge the matter, or form or give the impression that he or she has formed a firm view adverse to the credibility of a party prior to hearing the evidence. The judge's recusal ruling clearly demonstrates that he was satisfied that the Court of Appeal erred in quashing the conviction; he knew all the evidence; he had reviewed the incriminating evidence against Riley and, as the judge who presided over the criminal matter, he was waiting to put things right in the damages claim. The fair-minded and informed observer would recognise that the learned judge would have approached the matter with a closed mind or would not have brought an objective mind to bear on the claim.

  Stubbs v The Queen [2018] UKPC 30 applied; Steadman–Byrne v Amjad and Ors [2007] 1 WLR 2484 applied; Costello v Chief Constable of Derbyshire [2001] EWCA Civ 381 applied; Arab Monetary Fund v Hashim [1993] 6 Admin LR 348 applied.

• 4. Where there is real doubt as to the presence of apparent bias, that doubt should be resolved in favour of recusal. In the present case, the learned judge left open the possibility of reviewing his decision not to recuse, asserting that it was an interim decision to be kept under review, and that he will encourage further argument as to actual bias if he or the parties sense his mind is closing unfairly as the case develops. In these circumstances, the judge ought not to have refused the recusal application and ought to have resolved any doubts as to the presence of bias on his part, in favour of recusal.

  Locabil (UK) v Bayfield Properties Ltd [2000] QB 451 at 472 considered; Re Medicaments and related Classes of Goods (No.2) [2001] ICR 564 considered; Morrison and Anor v AWG Group Ltd [2006] EWCA Civ 6 considered; Wewaykum v Canada 2003 SCC 45 considered; Resolutions Chemicals Limited v H Lundbeck A/S [2013] EWCA Civ 1515 applied.

• 5. In the context of apparent bias, much weight has been placed on the judicial oath of office and the fact that professional judges are trained to act objectively and dispassionately. The judicial oath, however, is more a symbol rather than, of itself, a guarantee of the impartiality on the part of a judge. It is just one of the factors which would inform the view of a fair-minded observer in arriving at her or his objective judgment as to the risk of bias and is not conclusive of whether a judge should recuse himself on the basis of apparent bias.

  R v S (RD) [1997] 3 SCR 484 considered; Jones v DAS Legal Expenses Insurance Co. Ltd. and Ors [2003] EWCA Civ 1071 considered; Helow v Secretary of State for the Home Department [2008] 1 WLR 2416 followed.

• 6. Whether a judge should recuse themself from hearing a matter is not a discretionary case management decision reached by weighing various factors in the balance. Once the test of apparent bias is satisfied, the judge is automatically disqualified from hearing the case, and considerations of inconvenience, cost and delay are irrelevant. Accordingly, the learned judge's concerns about the prejudicial effect that his withdrawal from the trial would have on the parties and the administration of justice are totally irrelevant, as the paramount concern of the legal system is to administer justice, which must be and must be seen to be fair and impartial.

  Man O' War Station Ltd v Auckland City Council [2002] UKPC 228 applied; Morrison v AWG Group Limited [2006] EWCA Civ 6 applied; Bates & Ors v Post Office Limited [2019] EWHC 871 (QB) applied.

‘Baptiste JA’

1 Hopefully the Privy Council will get it right. A hope that the Privy Council will get it right is, in the normal course of things, is hardly a starting point to engage an application for recusal. The expression of such a hope would more likely be associated with a party who feels convinced or at least satisfied, that the Court of Appeal erred in its decision, and that the error will be corrected on appeal to the Privy Council. The twist here is that the comment is attributed, not to any party, but to the learned judge who presided over a criminal matter in which the appellant, Keston Riley, pled guilty to fraudulent evasion of duty, as a result of which he was sentenced to imprisonment.

2 Riley successfully appealed his conviction. The Director of Public Prosecutions sought to appeal to the Privy Council. Upon his...