Lord Bingham of Cornhill & Lord Walker of Gestingthorpe
The appellant is Chief Justice of Trinidad and Tobago. In July 2006 he faced the imminent prospect of prosecution on a charge of attempting to pervert the course of public justice. To avert such prosecution he obtained leave on 10 July from Jones J to seek judicial review of an alleged decision to prosecute by the first respondent [Carla Brown-Antoine], the Deputy Director of Public Prosecutions, and an order staying all action consequential on that decision. Later, on 13 July, Jones J made similar orders against the second respondent [Wellington Virgil], the Assistant Commissioner of Police. On 14 July the judge added the third respondent [Trevor Paul], the Commissioner of Police, to the proceedings and granted injunctions (varied on 16 July and in part discharged against the Assistant Commissioner on 24 July) restraining the Assistant Commissioner and the Commissioner from taking steps to prosecute the Chief Justice. On 24 July she granted the Chief Justice leave to seek judicial review against the Commissioner. An application by the Deputy Director to set aside the grant of leave was dismissed by the judge on 17 July, and on 25 July all three of the present respondents appealed against the orders made against them. The Court of Appeal, on 31 July, allowed the appeals, set aside the grant of leave to seek judicial review of the Deputy Director’s decision, vacated other orders against the Deputy Director, discharged the injunctions against the Assistant Commissioner and the Commissioner and granted the Chief Justice leave to appeal to the Board. The Court of Appeal was not asked to, and did not, set aside the grants of leave to seek judicial review of the decisions made by the Assistant Commissioner and the Commissioner, but it is accepted that if the Court of Appeal’s decision is upheld those grants would, on application, be set aside.
The central issue before the Board is, in legal terms, whether the Court of Appeal should have disturbed the orders made by the judge. In practical terms the question is whether the decision to prosecute the Chief Justice, by whosoever made, should be examined by way of judicial review, or whether the criminal process (subject to any application the Chief Justice may hereafter make) should at this stage be allowed to take its course. It is not suggested that both processes can be pursued at the same time. For convenience, we will refer to the various parties by their professional titles, irrespective of their standing in the proceedings at any stage.
The case is one of acute sensitivity and moment. On the one hand, very serious accusations have been made against the Chief Justice, who holds an office of high constitutional importance in the state and whose complete integrity should not be lightly questioned. His answer, on the other hand, involves an accusation of improper, politically-motivated, interference in the prosecution process by the Prime Minister and the Attorney General; of politically-inspired dishonesty by the Chief Magistrate, a subordinate but important figure in the judicial hierarchy; and of improper, politically-inspired, decision-making and conduct by the Deputy Director, the Assistant Commissioner and the Commissioner, respectively an attorney discharging the important functions of the Director of Public Prosecutions and two of the most senior police officers in the state. In this fraught and unwelcome situation, the interests of the state and of all those involved require the Board to avoid forming or expressing any premature opinion where the truth may lie but scrupulously to apply what it conceives to be the legal principles applicable to the situation. Such indeed is its plain duty.
Pursuant to its duty as just defined, we will give a brief and colourless summary of the facts, sufficient only to explain how the present unhappy situation has arisen. A number of matters are in dispute, and on these no finding of fact can be made.
In early 2005 the Attorney General and the Director of Public Prosecutions reported to the Prime Minister that the Chief Justice had attempted to persuade them to withdraw a charge of murder against a named suspect. The Prime Minister, pursuant to section 137(3) of the Constitution (which provides the sole constitutional means of removing a chief justice), represented to the President that the question of removing the Chief Justice from office under section 137 ought to be investigated. The Chief Justice obtained leave to seek judicial review of the Prime Minister’s decision. An attempt to mediate the matter has not been successful, and the application for judicial review has not yet been heard. His involvement in this matter led the Director of Public Prosecutions to disqualify himself from any involvement in the present case and delegate the matter to the Deputy Director, but this episode has no bearing on anything the Board has now to decide.
In early 2006 the Chief Magistrate heard a case in which Mr Basdeo Panday, then leader of the opposition and a former prime minister, was charged with failure to disclose certain assets, contrary to section 27(1) of the Integrity in Public Life Act 1987. Having taken time after the hearing to consider his decision, the Chief Magistrate on 24 April 2006 convicted Mr Panday and imposed a severe sentence of imprisonment (now suspended pending appeal).
On Friday 5 May 2006 the Chief Magistrate signed a statement to the effect that on three occasions, one before, one during and one after the Panday trial, the Chief Justice had endeavoured to influence the decision in favour of the defendant. It is unnecessary and undesirable to rehearse the terms of the statement. The Chief Justice roundly contradicts the thrust of the statement, and most of the detail. It was not, however, argued on his behalf that the statement, if substantially true, did not disclose prima facie evidence of the commission of an offence. The statement was given or sent to the Prime Minister within days of its being signed.
There is evidence that the Chief Magistrate voiced his complaint against the Chief Justice at least a month before the date of his written statement, and that this reached the ears of the Prime Minister who expressed the opinion at a private meeting on 5 April 2006 that the Chief Justice had endeavoured to influence the outcome of the Panday trial and that he should go. The Chief Justice also heard of the complaint, and raised it, and also the real property transaction mentioned below, at a meeting with the Chief Magistrate on 1 May. They give differing accounts of this meeting. There is also evidence that on 8 May, after the date of the statement, the Attorney General urged the Chief Justice to resign rather than face the prospect of prosecution, indicating that section 137 would not be invoked again. A similar conversation is said to have taken place between the Prime Minister and the Chief Justice on 9 May: according to the Chief Justice the Prime Minister said that he would not make the mistake of invoking section 137 again, that a decision on prosecution would not depend on the DPP and that he was giving the Chief Justice the option to resign; if he did not he would hand the file over to the police and the Chief Justice would face criminal prosecution. The Prime Minister implored the Chief Justice to spare himself and the country the disgrace and embarrassment of a criminal trial.
It is suggested in the evidence that at about the time of the Panday trial but before the decision was given the Chief Magistrate found himself embarrassed by a real property transaction from which he was extricated by the Attorney General, giving him (it is said) a motive to fall in with the wishes of the Attorney General. The Board has no evidence on this matter from either the Chief Magistrate or the Attorney General, and at present the facts are far from clear.
On 10 May 2006 the Prime Minister told the Chief Justice that he had sent the Chief Magistrate’s report to the Attorney General with instructions to take such action as he might deem to be appropriate. Having received the statement the Attorney General, on 11 May, wrote two letters. The first was to the then acting Commissioner of Police (neither the second nor third respondent), enclosing the statement, and also drawing attention to a newspaper article criticising his own role in the real property transaction already referred to, which he invited the police to investigate as well as the statement. The second letter was to the Director of Public Prosecutions, to whom he also enclosed a copy of the statement, describing the matter as one of the greatest constitutional significance and inviting the Director to give it very urgent attention. The Director, for reasons already given, disqualified himself and delegated performance of his function to the Deputy Director. He instructed her to review the statement, to take any decisions she considered necessary under section 90(3) of the Constitution (which provides for the institution, taking over, continuance and discontinuance of criminal proceedings) and to give advice to the Commissioner of Police on any lines of investigation as she saw fit. For the removal of doubt, he told her to make her own independent decision in the matter. She has sworn that she has never met or spoken to the Prime Minister and has never communicated with the Attorney General on any matter connected with the Chief Magistrate’s allegations against the Chief Justice. There is no evidence to contradict this. On 12 May the Acting Commissioner and the Assistant Commissioner visited the Chief Justice in his chambers and raised some of the Chief Magistrate’s complaints with him.
Over several weeks the Deputy Director advised the police on the conduct of the investigation. On 18 May she advised the police to apply for a warrant to search the Chief Justice’s chambers, seeking evidence of a meeting or meetings between Mr Panday and the Chief Justice in his chambers, and such a warrant was obtained. The acting Chief Justice asked that execution of the warrant be deferred until the Chief Justice returned from abroad, but she did not agree and the warrant was executed. On 2 June she supplied the Chief Justice with a summary of the allegations being investigated and told his legal representative that she would consider any representations he might think it necessary to make. Such representations were submitted to her in writing on 23 June.
On 22 June the Assistant Commissioner, who had been in charge of the police investigation, forwarded his report on the allegations made by the Chief Magistrate against the Chief Justice to the Commissioner and asked that the Deputy Director’s advice be sought. He complied, and the police file was forwarded to her. According to her affidavit evidence the police file contained 21 statements including notes of an interview with the Chief Justice and a statement by him. It contained a number of documents and statements relating to the real property transaction already mentioned. There was a report by the Assistant Commissioner summarising the evidence and giving his views. She read the whole file and asked the Assistant Commissioner to carry out further investigations, the results of which were reported to her on 7 July. According to her evidence, the Assistant Commissioner in his report acknowledged the extreme seriousness of the Chief Magistrate’s allegations, but considered his version of events as “more credible as there is some support for his contention”. He was of opinion that the matter should be placed before the courts. The Deputy Director has sworn that she perused all the information on the police file and carefully considered the written representations submitted by the Chief Justice’s lawyers. Having done so, she concluded that an offence of attempting to pervert the course of justice was made out, and she agreed with the views of the Assistant Commissioner. On 10 July she recorded these conclusions in writing and forwarded a draft charge to the Commissioner, to whom she also sent the file. It does not appear that she exercised the Director’s power to institute proceedings under section 90(3) of the Constitution, but she plainly gave her full approval to the initiation of a prosecution by the police.
On 10 July, as already recounted, Jones J made her first orders, which were ex parte and addressed to the Deputy Director, then the only respondent. In addition to granting leave to seek judicial review she ordered that all action or proceedings consequential upon the Deputy Director’s decision to institute or advise the police to institute criminal proceedings against the Chief Justice and the implementation of such decision be stayed pending the hearing and determination of his application for judicial review. She extended the grant of leave by ex parte order on 13 July to apply to the Assistant Commissioner’s decision to institute criminal proceedings against the Chief Justice and extended the stay to him also.
On Friday 14 July 2006 the police obtained a warrant endorsed with bail for the arrest of the Chief Justice, which they sought to execute at his home at about 5.00 p.m. In so acting, the police did not, as it appears, consult the Deputy Director, but relied on the advice of Senior Counsel that the existing order against the Deputy Director did not preclude such action by the police. Execution of the warrant was resisted by the Chief Justice and his legal adviser, promptly summoned to the scene, and contact was made with Jones J, who made orders prohibiting the arrest of the Chief Justice by any police officer. The police left the Chief Justice’s house without executing the warrant.
The rule of law requires that, subject to any immunity or exemption provided by law, the criminal law of the land should apply to all alike. A person is not to be singled out for adverse treatment because he or she holds a high and dignified office of state, but nor can the holding of such an office excuse conduct which would lead to the prosecution of one not holding such an office. The maintenance of public confidence in the administration of justice requires that it be, and be seen to be, even-handed.
It is the duty of police officers and prosecutors engaged in the investigation of alleged offences and the initiation of prosecutions to exercise an independent, objective, professional judgment on the facts of each case. It not infrequently happens that there is strong political and public feeling that a particular suspect or class of suspect should be prosecuted and convicted. Those suspected of terrorism, hijacking or child abuse are obvious examples. This is inevitable, and not in itself harmful so long as those professionally charged with the investigation of offences and the institution of prosecutions do not allow their awareness of political or public opinion to sway their professional judgment. It is a grave violation of their professional and legal duty to allow their judgment to be swayed by extraneous considerations such as political pressure.
Under section 5(1) of the Judicial Review Act 2000 judicial review lies against a person acting in the exercise of a public duty or function. Section 5(3) lists a number of familiar grounds, which include an improper exercise of discretion, taking account of irrelevant considerations and acting on instructions from an unauthorised person. Leave to apply for judicial review must be obtained: section 6. The court may not, save in exceptional circumstances, grant leave for judicial review of a decision where any other written law provides an alternative procedure to question, review or appeal the decision: section 9.
The ordinary rule now is that the court will refuse leave to claim judicial review unless satisfied that there is an arguable ground for judicial review having a realistic prospect of success and not subject to a discretionary bar such as delay or an alternative remedy: R v Legal Aid Board, Ex p Hughes (1992) 5 Admin LR 623, 628; Fordham, Judicial Review Handbook, 4th ed (2004), p 426. But arguability cannot be judged without reference to the nature and gravity of the issue to be argued. It is a test which is flexible in its application. As the English Court of Appeal recently said with reference to the civil standard of proof in R(N) v Mental Health Review Tribunal (Northern Region)  EWCA Civ 1605,  QB 468, para 62, in a passage applicable mutatis mutandis to arguability:
.... the more serious the allegation or the more serious the consequences if the allegation is proved, the stronger must be the evidence before a court will find the allegation proved on the balance of probabilities. Thus the flexibility of the standard lies not in any adjustment to the degree of probability required for an allegation to be proved (such that a more serious allegation has to be proved to a higher degree of probability), but in the strength or quality of the evidence that will in practice be required for an allegation to be proved on the balance of probabilities.
It is not enough that a case is potentially arguable: an applicant cannot plead potential arguability to “justify the grant of leave to issue proceedings upon a speculative basis which it is hoped the interlocutory processes of the court may strengthen”: Matalulu v Director of Public Prosecutions  4 LRC 712, 733.
It is well-established that a decision to prosecute is ordinarily susceptible to judicial review, and surrender of what should be an independent prosecutorial discretion to political instruction (or, we would add, persuasion or pressure) is a recognised ground of review: Matalulu, above, pp 735-736; Mohit v Director of Public Prosecutions of Mauritius  UKPC 20, paras 17, 21. It is also well-established that judicial review of a prosecutorial decision, although available in principle, is a highly exceptional remedy. The language of the cases shows a uniform approach: “rare in the extreme” (R v Inland Revenue Commissioners, Ex p Mead  1 All ER 772, 782); “sparingly exercised” (R v Director of Public Prosecutions, Ex p C  1 Cr App R 136, 140); “very hesitant” (Kostuch v Attorney General of Alberta (1995) 128 DLR (4th) 440, 449); “very rare indeed” (R (Pepushi) v Crown Prosecution Service  EWHC 798 (Admin),  Imm AR 549, para 49); “very rarely” (R (Bermingham) v Director of the Serious Fraud Office  EWHC 200 (Admin),  3 All ER 239, para 63. In R v Director of Public Prosecutions, Ex p Kebilene  2 AC 326, 371, Lord Steyn said:
My Lords, I would rule that absent dishonesty or mala fides or an exceptional circumstance, the decision of the Director to consent to the prosecution of the applicants is not amenable to judicial review.
With that ruling, other members of the House expressly or generally agreed: pp 362, 372, 376. We are not aware of any English case in which leave to challenge a decision to prosecute has been granted. Decisions have been successfully challenged where the decision is not to prosecute (see Mohit, para 18): in such a case the aggrieved person cannot raise his or her complaint in the criminal trial or on appeal, and judicial review affords the only possible remedy: R (Pretty) v Director of Public Prosecutions  UKHL 61,  1 AC 800, para 67; Matalulu, above, p 736. In Wayte v United States (1985) 470 US 598, 607, Powell J described the decision to prosecute as “particularly ill-suited to judicial review.”
The courts have given a number of reasons for their extreme reluctance to disturb decisions to prosecute by way of judicial review. They include:
“the great width of the DPP’s discretion and the polycentric character of official decision-making in such matters including policy and public interest considerations which are not susceptible of judicial review because it is within neither the constitutional function nor the practical competence of the courts to assess their merits” (Matalulu, above, p 735, cited in Mohit, above, para 17);
“the wide range of factors relating to available evidence, the public interest and perhaps other matters which [the prosecutor] may properly take into account” (counsel’s argument in Mohit, above, para 18, accepting that the threshold of a successful challenge is “a high one”);
the delay inevitably caused to the criminal trial if it proceeds (Kebilene, above, p 371; Pretty, above, para 77);
“the desirability of all challenges taking place in the criminal trial or on appeal” (Kebilene, above, p 371; and see Pepushi, above, para 49). In addition to the safeguards afforded to the defendant in a criminal trial, the court has a well-established power to restrain proceedings which are an abuse of its process, even where such abuse does not compromise the fairness of the trial itself (R v Horseferry Road Magistrates' Court, Ex p Bennett  1 AC 42). But, as Lord Lane CJ pointed out with reference to abuse applications in Attorney-General's Reference (No 1 of 1990)  QB 630, 642,
We should like to add to that statement of principle by stressing a point which is somewhat overlooked, namely, that the trial process itself is equipped to deal with the bulk of complaints which have in recent Divisional Court cases founded applications for a stay.
the blurring of the executive function of the prosecutor and the judicial function of the court, and of the distinct roles of the criminal and the civil courts: Director of Public Prosecutions v Humphrys  AC 1, 24, 26, 46, 53; Imperial Tobacco Ltd v Attorney-General  AC 718, 733, 742; R v Power  1 SCR 601, 621-623; Kostuch v Attorney General of Alberta, above, pp 449-450; Pretty, above, para 121.
Where leave to move for judicial review has been granted, the court’s power to set aside the grant of leave will be exercised very sparingly: R v Secretary of State for the Home Department, Ex p Chinoy (1991) 4 Admin LR 457, 462. But it will do so if satisfied on inter partes argument that the leave is one that plainly should not have been granted: ibid. These passages were cited by Simon Brown J in R v Secretary of State for the Home Department, Ex p Sholola  Imm AR 135 and we do not understand him, in his reference to delivering “a knockout blow” at p 139, to have been propounding a different test.
The effective judgment of Jones J was given in writing on 17 July 2006, when she dismissed the Deputy Director’s application to set aside the leave granted to the Chief Justice ex parte on 10 July 2006. The judge did not give further reasons when, on 24 July, she made the orders which the Assistant Commissioner and the Commissioner challenge.
In her judgment, the judge first set out the Deputy Director’s grounds for seeking the setting aside of the grant of leave. These were, in summary, that she had made no decision to institute proceedings against the Chief Justice, and had not advised or directed the police to do so; that the police had power to prosecute and had made their own decision to do so; that no one had at any stage attempted to influence her actions or advice; that there was no evidence of dishonesty, mala fides or any exceptional circumstance affecting her; and that the application was accordingly bound to fail. The Deputy Director’s submission was, in essence, that there were limited circumstances in which a challenge to the institution of a criminal prosecution could be mounted and the instant case was not one of them. There was no evidence to support the Chief Justice’s claim.
It was agreed between the parties that the relevant law was as stated by the Supreme Court of Fiji in Matalulu, above, as adopted by the Board in Mohit, above, and the judge cited the relevant passage. She then summarised her understanding of its effect:
In my opinion the above statement does no more than accept that the exercise of a prosecutorial discretion, in the context of a written constitution, can be subject to review; accepts that the categories identified are not exhaustive and theorises that it would be difficult to conceive of circumstances where unreasonableness, in the Wednesbury sense of the term [Associated Provincial Picture Houses Ltd v Wednesbury Corpn  1 KB 223], or want of natural justice would be successful.
She then continued:
What cannot be disputed is that these are unusual circumstances. It is not in dispute that what the [Chief Justice] is required to show at this stage is that an arguable case exists. The purpose for leave is to prevent the time of the Court being wasted by busybodies with misguided or trivial complaints of administrative error. Permission should be granted where a point exists which merits investigation on a full inter parties basis with all the relevant evidence and arguments on the law. In my opinion given the state of the law it is open for the [Chief Justice] to argue that the grounds as framed present a situation in which the exercise of a prosecutorial discretion can be reviewed.
The judge first addressed the question, much relied on by the Deputy Director, whether she had made any relevant decision. It was argued for the Deputy Director that the court should have regard to all the evidence. For the Chief Justice it was contended that the court should rely on his evidence. The judge accepted that the Deputy Director had adduced evidence which supported her assertion, and that the court had no option but to look at that evidence. But she concluded that, however attractive the Deputy Director’s evidence, there was an issue of fact which it was not appropriate to determine at that stage. The question therefore was whether the Chief Justice had placed before the court sufficient evidence to allow the issue to be determined by the court. The judge continued:
In examining the evidence therefore I must constantly bear in mind that however attractive the arguments of the [Deputy Director] may be at this stage it is only necessary for the [Chief Justice] to show an arguable case and that since I am not at this stage a fact finder I must for the purpose of ascertaining whether there is an arguable case assume that the facts as raised by the [Chief Justice] are true.
I do not propose here to go into a detailed examination of all the evidence placed before the Court by the [Chief Justice]. The [Deputy Director] submits that there is no evidence to show that the [Deputy Director] was influenced by politicians or that there was any communication between the DPP and the Prime Minister and the Attorney General. In my opinion that part of the statement in the Matalulu case that refers to acting on political instruction is merely used as an example of one of the circumstances in which it could be said that there was a failure to exercise an independent discretion. The question that I have to answer is therefore on the evidence as presented by the [Chief Justice] is it arguable that the [Deputy Director] acted under the control and direction of another person or body and failed to exercise her independent discretion? The [Deputy Director] says that there is absolutely no evidence to support the allegation. The [Chief Justice] submits that on the totality of the evidence placed before the Court there is sufficient evidence for a Court to come to such a conclusion.
In my opinion on the totality of the evidence raised by the [Chief Justice] the [Chief Justice] has presented an arguable case to the Court and by so doing has discharged the burden placed upon him at this stage of the proceedings. In any event, to my mind, the evidence apart, there has been raised important questions of constitutional law that in my opinion demand further consideration and a determination by the Court.
The Court of Appeal judgment
The Deputy Director appealed against the judge’s order of 17 July declining to set aside her grant of leave, and the Assistant Commissioner and the Commissioner appealed against the injunctions to which they were subject by virtue of the orders made on 24 July. In a written judgment of the court given on 31 July 2006 the court (Warner, Archie and Weekes JJA) allowed all three appeals.
In their judgment the Court of Appeal rehearsed the respective grounds of appeal and summarised the history of the proceedings, including the abortive attempt to arrest the Chief Justice on 14 July. The court considered first the appeal of the Deputy Director, summarised the parties’ contentions and considered whether the evidence before the judge disclosed an arguable case. Since the judge had in her judgment made no analysis of the evidence, the court undertook a fresh examination of the evidence to see whether there was material upon which she could reasonably have come to the conclusion that she did. It then referred to the conversations involving the Prime Minister and the Attorney General (para 8 above) and observed that if this evidence was true
the obvious inference is that the Prime Minister and the Attorney General had formed the view that the Chief Justice had committed a grave offence (or at least there was credible evidence that he had) and must either face criminal prosecution or demit office. Arguably, someone placed in the Chief Justice’s position could have interpreted the words used as threatening. However, what is missing thus far is any evidence to suggest any improper influence or conspiracy between the Chief Magistrate and the Prime Minister or Attorney General. There is also up to this point nothing to suggest that, in deciding to refer the report for criminal investigation the Prime Minister improperly sought to influence its outcome.
Reference was made to the hearsay report of a real property transaction involving the Chief Magistrate, but in the absence of verification no weight could be attached to it. Having considered evidence of the correspondence between the Attorney General, the Director of Public Prosecutions and the Deputy Director (para 10 above), the court concluded that
there was no reasonable basis for concluding that the Deputy DPP’s decision or advice was influenced by political pressure. If the application had been presented and assessed in the way that it should have been, we are confident that leave would not have been granted on that basis.
The court accepted that there was room for the inference that the Deputy Director had been the effective decision-maker and that that issue could have been resolved in judicial review had such a challenge been otherwise appropriate. But for reasons already given the court did not consider judicial review to be appropriate. The court dealt shortly with other complaints raised by the Chief Justice, not pursued in argument before the Board. It allowed the appeals by the Acting Commissioner and the Commissioner, considering the absence of an arguable case against them to be even clearer than in the case of the Deputy Director.
On behalf of the Chief Justice, Mr Andrew Mitchell QC strongly argued that the facts disclosed an arguable case of political pressure on the Deputy Director and the police. He relied particularly on the involvement of, and the observations attributed to, the Prime Minister and the Attorney General; the time which elapsed between the first voicing of his complaint by the Chief Magistrate and the making of his written statement; the Chief Magistrate’s involvement in the real property transaction, and his extrication from it by the Attorney General; the wholesale leaking of official documents to the press; the search of the Chief Justice’s chambers in his absence; and the attempt to arrest the Chief Justice on the evening of Friday 14 July. The conduct of the police was criticised as heavy-handed, and attributed to extraneous pressure. The Deputy Director, the Assistant Commissioner and the Commissioner submitted that the Court of Appeal had reached the right conclusion for essentially the right reasons.
It is convenient to begin, as the courts below did, by considering the grant of leave to the Chief Justice to seek to challenge the Deputy Director’s decision to prosecute. It is clear, on the authority of Chinoy, above, that the leave previously granted should not have been set aside unless the court was satisfied on inter partes argument that the leave should plainly not have been granted.
Jones J was somewhat disadvantaged by the prominence, in the Deputy Director’s argument before her, of the question whether the Deputy Director had made any relevant decision. This, as rightly held by both courts below, was debatable. But this did not relieve the judge of the need to address the fundamental merits of the Chief Justice’s application. Here, as we respectfully conclude, her judgment is open to three criticisms.
First, the judge rightly cited Matalulu and Mohit, above, as authority for the proposition that a decision to prosecute is in principle susceptible to judicial review on the ground, among others, of interference with a prosecutor’s independent judgment. But both cases must be understood in context. In both cases challenges to decisions not to prosecute had been rejected, by the Court of Appeal of Fiji in Matalulu on the ground that flagrant impropriety was in effect the only available ground, and in Mohit by the Supreme Court of Mauritius on the ground that such a decision was not susceptible to review at all. The effect of the decisions by the Supreme Court of Fiji and the Board was to establish that such decisions are in principle susceptible to review and that the available grounds are somewhat wider than the Fiji Court of Appeal had suggested. But the judgments of the Supreme Court and the Board accepted, implicitly if not expressly, the extreme difficulty of obtaining such relief, and neither threw any doubt on the authority, in England and elsewhere, emphasising the reluctance of the courts to grant it. This had the result that the judge approached the question of arguability without any recognition of the very ambitious case the Chief Justice was seeking to establish. Nor did she consider which, if any, of the Chief Justice’s complaints could not be adequately resolved within the criminal process itself, either at the trial or, possibly, by application for a stay of the proceedings as an abuse of process. It is ordinarily a condition of obtaining relief that a complaint cannot be satisfactorily resolved in this way (as it cannot where the decision is not to prosecute) and a grant of leave which ignores this condition must be suspect.
Secondly, the judge was wrong to assume, for the purpose of ascertaining whether there was an arguable case, that the facts as raised by the Chief Justice were true. This was not a demurrer, but an application for exceptional relief, to be judged on all the evidence (and it is perhaps surprising that the matter was ever thought suitable for decision ex parte). If the facts raised by the Chief Justice were taken as true, it necessarily followed that the Chief Magistrate’s statement was false, a conclusion which would indeed raise very disturbing and far-reaching questions. It may perhaps be doubted whether the judge really meant what she said, but the fact that she said it does not give confidence in the soundness of her approach to the evidence.
Thirdly, by referring compendiously to “the totality of the evidence raised by the [Chief Justice]” the judge gave no indication of the particular evidence which she found persuasive. A judge must of course, when giving reasons for an interlocutory ruling of this kind, make plain that she is not finding any facts and that the evidence relied on may turn out to be incorrect, incomplete or misleading. But it is ordinarily the duty of a professional judge to give reasons (Flannery v Halifax Estate Agencies Ltd  1 WLR 377, 381), and her failure to do so fully justified the Court of Appeal in making its own analysis.
The judgment of the Court of Appeal, like that of the judge, no doubt reflected the argument presented to it, and we would not accept all that it said. The court was, however, right to say that if the Prime Minister received a potentially credible report of serious misconduct by the Chief Justice he had a duty to act and could not simply ignore it:
What he cannot do is seek to influence the process once he refers it for investigation or action. One therefore has to examine [the Prime Minister’s] conduct, that of the person exercising the prosecutorial discretion and any other relevant evidence to see whether there is an arguable case that such interference has in fact taken place. That is the proper approach.
Counsel for the Chief Justice strongly criticised the court’s statement (see para 20 above) that “.... what is missing thus far is any evidence to suggest any improper influence or conspiracy between the Chief Magistrate and the Prime Minister or Attorney General”. This perhaps involves an element of forensic overstatement. But the same cannot, in our view, be said of its finding (para 20 above) that “there was no reasonable basis for concluding that the Deputy DPP’s decision or advice was influenced by political pressure”. She had been expressly instructed to make her own independent decision. She swore that she did so, having no contact with the Prime Minister on any subject nor with the Attorney General on this subject. It may of course be that the letter was a sham and her evidence perjured, but these are not hypotheses to be entertained without compelling reason to do so where it is sought to restrain a public officer from doing what she avers to be her public duty. It may be shown hereafter that the Chief Magistrate’s statement of 5 May 2006 is false. But on the evidence before the Board it was judged to disclose a serious offence and after some weeks of investigation was judged by the police to be credible. There is nothing to show that improper pressure was exerted on the police. The situation was indeed one in which a decision by the prosecuting authorities not to prosecute could well have been vulnerable to challenge. We are not persuaded that the Chief Justice has any complaint which cannot be fairly resolved within the criminal process. It is mindful that a full hearing of the application for judicial review, if unsuccessful, might greatly compromise the fairness of any criminal trial which ensued.
We accordingly affirm the decision of the Court of Appeal and dismiss the appeal with costs. This decision is made on legal grounds. We wish to emphasise that it casts no aspersion of any kind on the integrity of the Chief Justice, whose innocence of the conduct alleged against him is at this stage to be presumed.
Baroness Hale of Richmond, Lord Carswell & Lord Mance
We have had the benefit of reading in draft the opinion prepared in this matter by Lord Bingham of Cornhill and Lord Walker of Gestingthorpe. We shall in its light confine ourselves to what we perceive as the main areas where there may be a difference of view or emphasis. We start however by expressing our full agreement with the proposition that judicial review of a decision to prosecute is an exceptional remedy of last resort, for all the reasons which Lord Bingham and Lord Walker identify in paragraph 14.
The possibility of a challenge to the prosecutorial decision, and the apparent inevitability of full investigation in the course of any criminal proceedings into the background to the decision to prosecute, are in our view features central to the resolution of the present appeal. They could properly be raised in the criminal proceedings, either in the course of an application to stay those proceedings on the ground of abuse of process or in any substantive trial. Like Lord Bingham and Lord Walker, we are not persuaded that the Chief Justice’s complaint could not properly be resolved within the criminal process. It is clear that the criminal courts would have the power to restrain the further pursuit of any criminal proceedings against the Chief Justice if he could on the balance of probabilities show that their pursuit constitutes an abuse of the process of the court: cf R v Horseferry Road Magistrates’ Court, ex p. Bennett  1 AC 42, where Lord Griffiths (with whose speech Lord Bridge of Harwich, Lord Lowry and Lord Slynn of Hadley agreed) explained the rationale in the following passage (at pp.61H-62A):
If the court is to have the power to interfere with the prosecution in the present circumstances it must be because the judiciary accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law.
My Lords, I have no doubt that the judiciary should accept this responsibility in the field of criminal law.
In our opinion, the same responsibility extends to the oversight of executive action in the form of a police or other prosecutorial decision to prosecute. The power to stay for abuse of process can and should be understood widely enough to embrace an application challenging a decision to prosecute on the ground that it was arrived at under political pressure or influence or was motivated politically rather than by an objective review of proper prosecutorial considerations (such as, in England, those set out in the Code for Crown Prosecutors issued under the Prosecution of Offences Act 1985).
Among the authorities which give support to these propositions we would point to R v Grays Justices, Ex p. Low  1 QB 54, Hui-Ching v The Queen  1 AC 34, 57, Attorney-General of Trinidad and Tobago v Phillip  1 AC 396, 417C-D and R v Director of Public Prosecutions, Ex p. Kebilene  2 AC 326. In so holding, however, we must emphasise that we are expressing only an opinion on the existence of a legal basis for such an application and none whatever on the prospects of its success or failure.
Viewing the matter generally, the present is clearly a case where all issues should if possible be resolved in one set of proceedings. There are potential disadvantages for all concerned, including the public, in a scenario of which one outcome might be long and quite probably public judicial review proceedings followed by criminal proceedings. We add that, in our view, it will in a single set of criminal proceedings be easier to identify and address in the appropriate way the different issues likely to arise. The suggestion of improper political interference in or influence over the prosecuting decision is distinct in principle from the question whether the proposed charge has any basis – the decision to charge may have been entirely proper, without the charge being in any way sustainable. But there is in this case some potential overlap in some of the evidence relevant to each of these matters, and a risk that they would not be easily severable in the evidence or judgment given on any judicial review hearing. A criminal judge would we think be better placed to manage the different potential issues, such as whether the decision to charge was politically influenced, whether there is evidence fit to be left to the jury (both matters for him at separate stages of any trial) and, if the case gets that far, how the evidence should be left to the jury. The court is entitled to weigh all such disadvantages in the balance along with any possible advantage that the Chief Justice might hope to gain by judicial review proceedings. That was, as we see it, the approach taken by Lord Steyn in Ex p. Kebilene.
Viewing the matter as a whole, and in the light of what we have said in paragraphs 31 to 34 above, this is not a case where judicial review proceedings ought to be permitted. We rest our decision on these grounds, and not upon any conclusion about the substantive strength or weakness of any challenge to the decision to prosecute. It is important to note in relation to any such challenge that the Chief Justice and the courts have to date seen only a very limited part of the evidence by reference to which the decision to prosecute was taken, viz one of the Chief Magistrate’s statements. But that statement itself is capable of giving rise to questions. It was made on 5th May 2006, a potentially significant period of time after the matters about which it complains. Twenty or so other statements covering, inter alia, the Home Construction Limited (“HCL”) property transaction (upon which the Chief Justice relies to suggest a motive for the Chief Magistrate to portray a false picture of events) have not been disclosed. However, before the police were involved, the contents of one further “detailed report” evidently made by the Chief Magistrate were the subject of a leak which must it seems have come from the government side: cf the Trinidad Express for 10th May 2006. The information so leaked in fact appears to confirm a number, though not all, of the points made by the Chief Justice about the property transaction. Subsequent events, some touched on in Lord Bingham’s and Lord Walker’s opinion at paragraph 21, including any suggested evidence or inference of continuing involvement of political figures during the police investigations and the uncertainty about who actually took any decisions to prosecute, as well as the circumstances in which and speed with which the initial decision to prosecute is said to have been replaced by another entirely independent decision to the same effect, would no doubt all be matters deployed and investigated at some stage.
For our part, therefore we feel unable at this stage to reach any conclusion about the possibility of a successful challenge to the decision to prosecute. We agree with Lord Bingham and Lord Walker that the approach taken by Jones J is open to criticism, in particular because
she failed to evaluate the extent to which the Chief Justice’s challenge could be resolved within the criminal process,
it was incumbent on her to look at the evidence overall, rather than simply assume (if she really did) that the facts as raised by the Chief Justice were true and
it was incumbent on her to identify her particular reasons for considering that the challenge was arguable.
But we are also unable to agree with the Court of Appeal’s evaluation of the evidential position. There are some features of the case which are to our mind troubling both individually and collectively. The place for their consideration is however in any criminal proceedings that may now be pursued. It is on this basis that we would dismiss the appeal with costs.
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