Attorney General of the Turks and Caicos Islands v Michael Eugene Misick, Floyd Basil Hall, McAllister Eugene Hanchell, Lillian Boyce, Jeffrey Christoval Hall, Clayton Stanfield Greene, Thomas Chalmers Misick, Lisa Michelle Hall and Melbourne Arthur Wilson
| Jurisdiction | Turks and Caicos Islands |
| Judge | Mottley P,Stollmeyer JA,Adderley, JA |
| Judgment Date | 31 August 2020 |
| Neutral Citation | TC 2020 CA 12 |
| Docket Number | CL-AP 6/20 |
| Court | Court of Appeal (Turks and Caicos) |
Sir Elliott Mottley President
The Hon. Mr. Justice Stollmeyer Justice of Appeal
The Hon. Mr. Justice Adderley Justice of Appeal
CL-AP 6/20
CL-AP 7/20
COURT OF APPEAL
CIVIL
CL-AP 6/20
Andrew Mitchell, Q.C; Quinn Hawkins; Kate Duncan; Latisha Williams for the Appellants
Ariel Missick, Q.C; Selvyn Hawkins for the Respondents
CL-AP 7/20
Ariel Missick, Q.C; Selvyn Hawkins for the Appellants
Andrew Mitchell, Q.C; Quinn Hawkins; Kate Duncan; Latisha Williams for the Respondents
In these appeals the appellant in Civil Appeal 6/20 and the respondent in Civil Appeal 7/20 is referred to as “Attorney General”. The respondents in Civil Appeal 6/20 and the appellants in Civil Appeal 7/20 are referred to as “Misick et al”. In so doing, I mean no disrespect either to Mr. Michael Misick or any of the other respondents/appellants but do so for the sake of convenience in referring to the respondents/appellants in these appeals.
Civil Appeal 7/20 was heard at the conclusion of Civil Appeal 6/20. These appeals arose out of the judgment of Madam Justice Lobban-Jackson given on 18 June 2020, following a trial which lasted 9 days. The judge declared and ordered as follows:
The judge declined to make any of the other declarations sought by the applicants.
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1. That Regulation 4(6) of the Emergency Powers ( COVID-19) (Court Proceedings) Regulations 2020 is ultra vires the Governor's powers under the Constitution of the Turks and Caicos Islands, the Emergency Powers Ordinance and the Emergency Powers 2017 Order, to the extent that it purports to confer power on a judge of the Supreme Court to conduct proceedings while sitting outside of its territorial boundaries.
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2. That the said Regulation 4(6) is of no legal effect.
In the Amended Originating Summons re-dated 15 May 2020, Misick et al sought the following relief:
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1. A declaration that Regulation 4(6) of the Regulations constitutes an unlawful infringement by the Governor with the Plaintiffs' right to protection of the law, including their right to a fair hearing in the Proceedings and the right against irrational, unreasonable and arbitrary exercise by the Governor of his powers under the Constitution, the Ordinance, and the Order.
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2. A declaration that Regulation 4(6) contravenes the principle of separation of powers as it is specifically directed at the Proceedings and made for the purpose of directing and/or enabling, permitting, soliciting, and encouraging the judge in the Proceedings to conduct the proceedings from Jamaica during the period that the Regulations are in force.
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3. A declaration that Regulation 4(6) is ultra vires the Governor's powers under the Constitution, the Ordinance and the Order in that it purports to confer power on the Supreme Court to conduct proceedings outside of its territorial boundaries.
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4. A declaration that Regulation 4(6) violates international law and the territorial jurisdiction of Jamaica, a sovereign State, by purporting without the consent of the Parliament of Jamaica to establish a court/courtroom of the Supreme Court of the Turks and Caicos Islands (“TCI”) in Jamaica.
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5. A declaration that to the extent that Regulation 4(6) seeks to direct and/or enable the judge in the Proceedings to revisit his decision to adjourn the trial to 22nd June 2020 or by further order of the judge himself, it violates the Plaintiffs' rights to due process and/or their legitimate expectation that the Proceedings would not be resumed save by orders competently made by the Judge seised of the conduct of the Proceedings and sitting in the TCI.
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6. A declaration that to the extent that Regulation 4(6) seeks to direct and/or enable the judge in the Proceedings to resume sitting in the Proceedings outside of the territorial boundaries of the TCI it violates the Plaintiffs' rights to due process and equality of treatment, and/or their legitimate expectation that they would be able to present their evidence and case in the same way as the prosecution and its witnesses.
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7. Such Orders and Directions as the Court may think appropriate in this particular case.
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8. That the costs of and incidental to this application be paid by the Defendant.
Subsequent to the making of the Declarations set out in paragraph 2 above, the Attorney General on 20 June 2020, filed a Notice and Grounds of Appeal (Civil Appeal 6/20). The Grounds of Appeal are set out below:
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1. The judge failed to consider or explain, having been invited to do so, why the principles set out in the persuasive (but not binding) decision of the Court of Appeal of British Colombia in the case of Endean v Attorney General did not apply in the Turks and Caicos Islands, indeed the judge erred in not referring to the relevant parts of the decision in her judgment at all;
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2. The judge failed to consider and apply the purposive principle of statutory interpretation to the said Regulations, having been invited to do so, consistent with the state of public emergency and the clear intentions as expressed by the Chief Justice in her note to the Honourable Attorney General when expressing the need for regulatory assistance to enable the courts to operate;
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3. The judge failed to consider and apply the mischief rule, when considering the application of Regulation 4(6) having been invited to do so;
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4. The judge held, contrary to the clear intention of regulation 4(6) read as a whole, that the intention of the regulation was to create a court outside the Turks & Caicos Islands, yet when read as a whole the purpose and intent of the regulation is to enable a judicial officer to “sit” only when linked to the recording system in the court in the Turks & Caicos Islands and therefore only when so linked to have the authority of the Court in the Turks and Caicos Islands.
The Notice and Grounds of Appeal filed on behalf of Misick et al (Civil Appeal No. 7/20) contained the following Grounds of Appeal:
Para C was abandoned.
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(a) A declaration that Regulation 4(6) of the Emergency Powers ( COVID-19) (Court Proceedings) Regulations 2020 (“the Regulations”) constitutes an unlawful infringement by the Governor with the Plaintiffs' right to protection of the law, including their right to a fair hearing in the Proceedings and the right against irrational, unreasonable and arbitrary exercise by the Governor of his powers under the Constitution, the Ordinance, and the Order.
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(b) A declaration that Regulation 4(6) contravenes the principle of separation of powers as it is specifically directed at the Proceedings and made for the purpose of directing and/or enabling, permitting, soliciting, and encouraging the judge in the Proceedings to conduct the proceedings from Jamaica during the period that the Regulations are in force.
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(c) A declaration that Regulation 4(6) violates international law and the territorial jurisdiction of Jamaica, a sovereign State, by purporting without the consent of the Parliament of Jamaica to establish a court/courtroom of the Supreme Court of the Turks and Caicos Islands (“TCI”) in Jamaica.
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(d) A declaration that to the extent that Regulation 4(6) seeks to direct and/or enable the judge in the Proceedings to resume sitting in the Proceedings outside of the territorial boundaries of the TCI it violates the Plaintiffs' right to due process and equality of treatment, and/or their legitimate expectation that they would be able to present their evidence and case in the same way as the prosecution and its witnesses.
The Governor of the Turks and Caicos Islands on 20 March 2020, on the advice of the Cabinet exercised the powers conferred on him by section 3(1) the Emergency Powers Ordinance (“EPO”). Section 3(1) of the EPO provides as follows:
Proclamation of Emergency
3. (1) If the Governor is satisfied that a public emergency has arisen as a result of the occurrence of any earthquake, hurricane, flood, fire, outbreak of pestilence, outbreak of infectious disease, or other calamity whether similar to the foregoing or not, or that any action has been taken or is immediately threatened by any person or body of persons of such a nature and on so extensive a scale as to be likely to endanger the public safety or to deprive the community or any substantial part of the community of supplies or services essential to life, the Governor may by proclamation (hereinafter called a Proclamation of Emergency) declare that a state of emergency exists.
The Governor made the declaration for the purpose of preventing, controlling or containing the spread of COVID-19 in the Turks & Caicos Islands.
The Proclamation of Emergency, which was made on 20 March 2020, was to take effect on 24 March 2020, at midnight. The Proclamation stated:
“PROCLAMATION OF EMERGENCY
(Proclamation 1 of 2020)
(Legal Notice 16 of 2020)
WHEREAS section 3(1) of the Emergency Powers Ordinance provides that if the Governor is satisfied that a public emergency has arisen as a result of the occurrence of any earthquake, hurricane, flood, fire, outbreak of pestilence, outbreak of infectious disease, or other calamity whether similar to the foregoing or not, or that any action has been taken or is immediately threatened by any person or body of persons of such a nature and on so extensive a scale as to be likely to...
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