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The appearance of justice
Published: Friday | October 29, 2010
Appearances are important. Lord Chief Justice Hewart's famous statement that "it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done" ties the definition and meaning of fairness and justice to whether there is any appearance of bias in the proceedings intended to deliver justice.
The above aphorism is often quoted, but the context is not often appreciated. In 1923 in Sussex, England, a motorcyclist named McCarthy was involved in a road accident which resulted in his prosecution before a magistrate's court for dangerous driving. Unknown to the defendant and his solicitors, the clerk to the justices was a member of the firm of solicitors acting in a civil claim against the defendant arising out of the accident that had given rise to the prosecution. The clerk retired with the justices, who returned to convict the defendant.
On learning of the clerk's connection, the defendant applied to have the conviction quashed. The justices swore affidavits stating that they had reached their decision to convict the defendant without consulting their clerk. The appeal was essentially one of judicial review and was heard by Lord Chief Justice Hewart.
In his judgment, Lord Chief Justice Hewart said, "Speaking for myself, I accept the statements contained in the justices' affidavit, but they show very clearly that the deputy clerk was connected with the case in a capacity which made it right that he should scrupulously abstain from referring to the matter in any way, although he retired with the justices; in other words, his one position was such that he could not, if he had been required to do so, discharge the duties which his other position involved. His two-fold position was a manifest contradiction." On this basis, Lord Chief Justice Hewart overturned McCarthy's conviction, and established the principle that the mere appearance of bias is sufficient to overturn a judicial decision.
Integrity not in question
Note that it was not the integrity of the judges that was in question; Lord Chief Justice Hewart clearly stated that he accepted the truth of their affidavit that they came to their conclusion without consulting the clerk, and that while in chambers the clerk did not refer to the case in any way. The question is whether he was so related to the case in its civil aspect as to be unfit to act as clerk to the justices in the criminal matter.
The answer to that question depends not upon what actually was done but upon what might appear to be done. Because the clerk to the justices had a conflict of interest, the decision of the justices might appear to be tainted and, therefore, was fatally flawed, and was overturned.
I believe that most of us Jamaicans who want an end to the connection between politics and crime in Jamaica are happy that the Government has decided to establish a commission of enquiry into the Dudus/Manatt, Phelps & Phillips (D/MPP) affair. What we don't want is another commission of enquiry - like the ones into the Street People Scandal, the Braeton and Kraal killings, the beating of prisoners at the St Catherine District Prison, and the 2001 Tivoli Incursion - where no one is found accountable. The findings of this one will not be credible unless the arrangements for the commission are beyond question.
In the first place, the prime minister, by his own admission, is involved in the D/MMP Affair, yet the law makes him responsible for recommending to the governor general the composition and the terms of reference of the commission of enquiry. Surely, he must see that justice will not appear to be done if he recommends the inquirers into an affair in which he and his conduct will be under investigation. He should have found a way to distance himself from the recommendations.
Second, to select as a commissioner anyone who is a member of either the People's National Party or the Jamaica Labour Party, or is close to one of the parties, must be considered inappropriate. Like Lord Chief Justice Hewart, I am not impugning the characters of any of the commissioners chosen, but the issue with a commissioner being closely connected with a political party is whether his "two-fold position was a manifest contradiction". If the commission finds very little connection between politics and criminality, will the findings be credible?
Peter Espeut is a sociologist and a Roman Catholic deacon. Feedback may be sent to columns@gleanerjm.com.
http://jamaica-gleaner.com/gleaner/2...cleisure2.html
Published: Friday | October 29, 2010
Appearances are important. Lord Chief Justice Hewart's famous statement that "it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done" ties the definition and meaning of fairness and justice to whether there is any appearance of bias in the proceedings intended to deliver justice.
The above aphorism is often quoted, but the context is not often appreciated. In 1923 in Sussex, England, a motorcyclist named McCarthy was involved in a road accident which resulted in his prosecution before a magistrate's court for dangerous driving. Unknown to the defendant and his solicitors, the clerk to the justices was a member of the firm of solicitors acting in a civil claim against the defendant arising out of the accident that had given rise to the prosecution. The clerk retired with the justices, who returned to convict the defendant.
On learning of the clerk's connection, the defendant applied to have the conviction quashed. The justices swore affidavits stating that they had reached their decision to convict the defendant without consulting their clerk. The appeal was essentially one of judicial review and was heard by Lord Chief Justice Hewart.
In his judgment, Lord Chief Justice Hewart said, "Speaking for myself, I accept the statements contained in the justices' affidavit, but they show very clearly that the deputy clerk was connected with the case in a capacity which made it right that he should scrupulously abstain from referring to the matter in any way, although he retired with the justices; in other words, his one position was such that he could not, if he had been required to do so, discharge the duties which his other position involved. His two-fold position was a manifest contradiction." On this basis, Lord Chief Justice Hewart overturned McCarthy's conviction, and established the principle that the mere appearance of bias is sufficient to overturn a judicial decision.
Integrity not in question
Note that it was not the integrity of the judges that was in question; Lord Chief Justice Hewart clearly stated that he accepted the truth of their affidavit that they came to their conclusion without consulting the clerk, and that while in chambers the clerk did not refer to the case in any way. The question is whether he was so related to the case in its civil aspect as to be unfit to act as clerk to the justices in the criminal matter.
The answer to that question depends not upon what actually was done but upon what might appear to be done. Because the clerk to the justices had a conflict of interest, the decision of the justices might appear to be tainted and, therefore, was fatally flawed, and was overturned.
I believe that most of us Jamaicans who want an end to the connection between politics and crime in Jamaica are happy that the Government has decided to establish a commission of enquiry into the Dudus/Manatt, Phelps & Phillips (D/MPP) affair. What we don't want is another commission of enquiry - like the ones into the Street People Scandal, the Braeton and Kraal killings, the beating of prisoners at the St Catherine District Prison, and the 2001 Tivoli Incursion - where no one is found accountable. The findings of this one will not be credible unless the arrangements for the commission are beyond question.
In the first place, the prime minister, by his own admission, is involved in the D/MMP Affair, yet the law makes him responsible for recommending to the governor general the composition and the terms of reference of the commission of enquiry. Surely, he must see that justice will not appear to be done if he recommends the inquirers into an affair in which he and his conduct will be under investigation. He should have found a way to distance himself from the recommendations.
Second, to select as a commissioner anyone who is a member of either the People's National Party or the Jamaica Labour Party, or is close to one of the parties, must be considered inappropriate. Like Lord Chief Justice Hewart, I am not impugning the characters of any of the commissioners chosen, but the issue with a commissioner being closely connected with a political party is whether his "two-fold position was a manifest contradiction". If the commission finds very little connection between politics and criminality, will the findings be credible?
Peter Espeut is a sociologist and a Roman Catholic deacon. Feedback may be sent to columns@gleanerjm.com.
http://jamaica-gleaner.com/gleaner/2...cleisure2.html