Recusal is not a word heard often in Montserrat and probably not before the turn of the century, and probably only once before recent occurrences. Now from mid-2019 to now.
From then there has been a spathe of ‘recusals’ of High Court judges in the Montserrat High Court of the Eastern Caribbean Supreme Court mostly involving His Lordship Justice Iain Morley.
We thought it might be beneficial to you at this time to know the general meaning of the word, ‘recusal’: “To disqualify or seek to disqualify (a judge or juror) from participation in the decision in a case, as for personal prejudice against a party or for personal interest in the outcome.” In another but similar meaning: (law) the disqualification of a judge or jury by reason of prejudice or conflict of interest; a judge can be recused by objections of either party or judges can disqualify themselves.
We recall in our welcome to Mr. Morley via an exclusive interview regarding his tour of duty with the Eastern Caribbean Supreme Court (ECSC). https://www.themontserratreporter.com/new-high-court-judge-iain-morley.
The interview sought his reaction to the welcome he received in Montserrat, and “generally how he plans to address his work; his vision for the court in Montserrat; in light of the new vision that the Hon Chief Justice has been encouraging – equal justice and fairness.”
It is Justice Iain Morley who has now found himself a subject of recusals over the past year.
Justice Morley was the first installed for the trial, The Queen vs David Brandt long-standing case from 2015, and once again set for a hearing some time next year. Morley recused himself willingly, but his replacement, retired Justice Gareth Evans QC flown in from the UK to replace him after revoking Brand’s bail and remanding him to prison, was later also requested Attorney Dr. David Dorsett to recuse himself from the Brandt matters.
He refused to be recused in a 90-clause-long Ruling which was delivered within half an hour of the end of the hearing. See – https://www.themontserratreporter.com/second-judge-off-the-brandt-trial/
Brandt’s Attorney had applied to the Court, after Judge Morley had been recused from the case, for Judge Gareth himself to be recused as well.
Meanwhile, over the years, Morley has by virtue of being the judge assigned to Montserrat in most high court matters civil and criminal has seen several of his judgments ending before the East Caribbean Court of Appeal, much ending disfavorably to him.
Last year Keston Riley had several outings before Justice Morley and in matters evolving therefrom.
As the appellant, Keston Riley, was charged with and pled guilty to fraudulent evasion of duty, following which he was sentenced by the learned judge Morley to a term of imprisonment. Riley successfully appealed his conviction to the Court of Appeal, following which the Public Prosecutions sought to appeal to the Privy Council.
Upon his release from prison, Riley had 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.
In light comments by the judge Morley and prior involvement in the criminal matter, Riley’s Attorney Warren Cassell 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. He refused to recuse himself from hearing the matter, at which point Riley appealed, alleging, in the main, that the learned judge erred in law by refusing to recuse himself.
The respondents being the Attorney General and the Director of Public Prosecutions applied to strike out the notice of appeal arguing that the grounds of appeal among other things that 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.
The matter turned out an interesting judgment by the Court of Appeal which ordered Morley be recused, dismissed 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.
Judge Morley would only this week accede to a request, challenging him to recuse himself in a matter, where Dunstan Lindsey of Baker Hill is involved before the court for a criminal matter stemming from words allegedly published of Henry Gordon and Ryan Kohli. The learned Justice Ian Morley was currently the adjudicating judge in this matter.
Following in or about the month of June 2020 Lindsey says he was charged with two offences of Criminal Libel alleging that “I committed libel against Henry Gordon the Prosecutor within the office of the DPP. The matter was eventually committed to High Court for trial and I appeared before Justice Iain Morley on at least three occasions for the management of the case.”
On July 21 this year in support of an application for Justice Morley to recuse himself, Lindsey deposes in an Affidavit that the learned Justice Morley is a buddy of Crown Prosecutor Henry Gordon who is the virtual complainant in the criminal matter and one of the Claimant in the civil suit brought against the Applicant in the High Court.
He also deposed in paragraph 10 of his Affidavit that the learned Judge and Henry Gordon along with the Attorney for Henry Gordon were having dinner at a local restaurant. Moreover, Henry Gordon comes as a Prosecutor before Justice Morley on a regular basis.
According to the Affidavit by Lindsey in support of his application, the virtual complainant (VC) appears before the said Judge on a regular basis. Attorney Jean Kelsick (who also often appears before the Judge) is the Attorney-at-law for the said VC. A photograph with all three parties having dinner at a local restaurant was brought to the attention of the Applicant who is alleging apparent bias.
Judge Morley complied with the request in the face of a 44-clause response submitted by DPP Sullivan opposing Lindsey’s application. In his final clauses at clause 42 he said: “…It should be clear to this honorable court that [what] is being pursued by the applicant, in this case, is what can be considered as judge shopping… we invite this honorable court to dismiss the application with cost.”
In the next clause, he submits: “Prior involvement and knowledge does not disqualify a judge from hearing a matter. Critically, however, a judge must not predetermine or prejudge the matter or for or give the impression that he or she has formed a firm view adverse to the credibility of a party hearing the evidence.
“Finally,” the DPP said, “I remind this honorable court that by itself there is nothing wrong with the bench having dinner with the bar ad vice versa…”
Then comes a successful application by David Dorsett on September 7, 2020, for Attorney Warren Cassell where Justice Morley has recused himself from the case of The Queen vs. Warren Cassell after hearing arguments from both the Attorneys-at-law representing the Crown and Dr. David Dorsett, Attorney-at-law.
Mr. Cassell is before the court after the same charge of Money laundering that was laid in 2007 was brought again 12 years later in May 2019.
Cassell was convicted in 2012 of the offence of Money Laundering under the 2010 Proceeds of Crime Act. 15 other convictions were quashed by the Privy Council in 2015 and the court of Appeal refusing to order a retrial stating that it was not in the interest of justice to retry Cassell. The money laundering conviction was quashed by the court of appeal after lawyers for Cassell argued that he could not be convicted under a 2010 law when the offence allegedly took place in 2007. This is because the constitution says that no person could be convicted under a law that was not in force when alleged offending act took place. The court of appeal ordered a re-trial and the privy council set aside the order for re-trial.
In an Affidavit in support of the Application for Morley’s recusal, Cassell cited some 14 grounds; Justice Iain Morley is the presiding judge on Montserrat and presides over all criminal and civil matters in Montserrat’s High Court; citing also the same grounds on which he recused himself in the David Brandt matter currently before the Court. Mr. Gordon also is a litigant in a civil matter in which I am the counsel; and associates and appears before him in numerous matters; Henry Gordon is a practising Attorney-at-law who regularly comes before the High Court Criminal division in his capacity as Senior Crown Counsel with the Director of Public Prosecutions (DPP) being his immediate Supervisor.
He is also the Attorney-at-law who has appeared as Crown Counsel in this matter. Justice Morley has made unflattering remarks in relation to me in judgements. For example he described me as “a lawyer of moderate ability ” in a preliminary ruling in this matter dated on or about the 25th of October 2019.
[11] Nonetheless, the said Justice Morley indicated that he would be minded to recuse himself but was never requested to do so.
In announcing this latest recusal in Court Order dated 13th November, 2020 Dr. Dorsett informs that the Director of Public Prosecutions has now brought the single charge of Money laundering 12 years later (different from the single charge of Concealing the proceeds of criminal conduct contrary to section 33(1)(a) of the Proceeds of Crime Act 1999, CAP 4.04, by virtue of an indictment filed on or about 19th of May 2020.
Dr. Dorsett says, “Given the recusal of Justice Morley, a new judge will have to be appointed as the trial judge in the matter.”
The Order also stated that a “tentative trial date is set to commence on 19th April, 2021, during a four-week trial window.”
It is already being speculated that from other statements in the Order that because of the British interest in these trials (to include Brandt’s) another British Judge will be foisted in for the trials.
In an interesting note regarding our ‘recusal’ observations, DPP Sullivan notes, contrary to our thought that recusals have been rare, he submits: “It is my experience that full recusal applications are routinely made to trial judges both in criminal and civil matters.
Obviously there may be cases where out of common courtesy such as when material that may be potentially scandalous or highly embarrassing to the judge or where really serious allegations are made against a trial judge that the “letter “route raising the matter, would be kinder and preferable and allow a judge to recuse himself without litigation or disclosure of his wrongdoing. Otherwise, such applications, particularly in criminal matters where a trial date is imminent are invariably dealt with as expeditiously as the circumstances allow in respect of his case.
