UK Government Consider Proposal For Outside Judges, Including Jamaicans, To Sit On Final Appeal Court

PRESIDENT of the Judicial Committee of the United Kingdom Privy Council, Lord Reed of Allermuir on Wednesday disclosed that he has asked the British Government to consider a proposal to invite senior judges from outside England “to sit again on the Privy Council”.

Making the disclosure while delivering the distinguished lecture hosted by The University of the West Indies (The UWI), Mona’s Faculty of Law and the Norman Manley and Hugh Wooding law schools’ Class of ’97, in St Andrew, Lord Reed, who appeared virtually, said “having the benefit of the opinion of a judge with direct experience of local conditions can only enhance the quality of the Privy Council’s decision-making”.

“In the past, senior judges from a number of other jurisdictions sat on the Privy Council when those countries had it as their highest court of appeal,” he said, noting that judges from India and Jamaica have sat on the Privy Council before.

In expressing the hope that his proposal will be accepted soon, Lord Reed said, “this isn’t currently possible in relation to most of the Privy Council jurisdictions under the legislation which currently governs appointments”.

He told the audience that the exceptions include judges of the Eastern Caribbean Supreme Court, the High Court of Trinidad and Tobago, and the Supreme Court of Jamaica, who can sit on the Privy Council even if they are first appointed as privy councillors.

“At present, none of the judges from these jurisdictions are privy councillors, but I am hopeful that position may change before long. In the meantime, I and my colleagues pay the greatest attention to the understanding of local conditions explained by the local Court of Appeal and by the local counsel who appear before us. That helps explain why it’s important that the judges who sit on the Privy Council pay close attention to the decisions of the courts in the proceedings below us when deciding the appeals that come before us,” the Privy Council president said.

In the meantime, he said the Privy Council “has made it clear that it should not pronounce upon what may be issues of considerable constitutional importance without having the benefit of the opinion of the local Supreme Court or the Court of Appeal”.

Lord Reed said the recent Privy Council ruling quashing the murder convictions of Adidja “Vybz Kartel” Palmer and his co-accused Shawn “Shawn Storm” Campbell, Kahira Jones, and Andre St John for the 2011 murder of Clive “Lizard” Williams, and placing the question of a retrial back in the lap of Jamaica’s Court of Appeal, is an example of this stance.

The British court, on that occasion, said it opted to offer no conclusions whatsoever on a ground in the appeal asking it to rule on whether the original trial judge should have excluded the telecommunications evidence relied on by the prosecution. The defense had argued that the evidence was obtained in breach of the constitutional rights of the men and was therefore inadmissible.

Instead, the Privy Council said it would defer any answer to the constitutional issue to “another occasion” where it can hear the mind of the Jamaican judiciary.

“On this appeal the board has been presented with elaborate submissions, both orally and in writing, as to the correct approach to constitutional issues surrounding the admissibility of illegally obtained evidence. The board has been invited to lay down new principles, and extensive reference has been made to comparative jurisprudence in a number of jurisdictions. It is unfortunate that these submissions were not canvassed before the Jamaican courts in the proceedings,” the law lords had said in the ruling.

“Rather, before the Court of Appeal these issues were argued and decided on the basis of conventional Privy Council jurisprudence from which we are now invited to depart. As a result, the board does not have the benefit of the views of the Jamaican courts on these important matters. In circumstances where the convictions are to be quashed on other grounds the board takes the view that consideration of these constitutional issues should be deferred to another occasion on which the board may be assisted by the views of the Jamaican judiciary,” they stated further.

Making reference to that instance, Lord Reed said: “This doesn’t mean the Privy Council should always defer to the local courts. However, our judgments should be informed ones, reached, where possible, with the benefit of the analysis of the local judiciary.”

“In the Privy Council we always display the flag of the jurisdiction from which the appeal before us is being brought on the flagpole in the courtroom; this helps to remind everyone in the court that we are sitting as the highest appellate court of the jurisdiction to which the flag belongs and we are applying the laws of that jurisdiction,” he added.

In the meantime, Lord Reed made it clear that British attitudes are not imposed on the treatment of cases, emphasizing that the conclusions of the court are based on interpretation of law and not on policy issues. He said the Privy Council has made a concerted effort to find ways of assuring the public that cases are not decided based on the personal views of judges. This assurance, he said, manifests itself in the liberty given to individuals to access the proceedings of the court which has seen some 100,000 visitors every year. Furthermore, hearings are live-streamed as part of a hybrid approach.

More than 55,000 individuals viewed the vybz Kartel ruling online, Lord Reed said Wednesday.

He said, as the council continues to evolve, it is eager to maintain the relationship with Commonwealth countries in being their final appellate court.

The distinguished lecture, held under the theme ‘Judicial Policy Construction by Apex Courts’, gave legal professionals, policymakers, academics and other scholars, students, and the general public the opportunity to better understand how final courts of appeal incorporate policy considerations in their decision-making.

Privy councillors are current or former members of either the House of Commons or the House of Lords, who are appointed for life by the king of England on the advice of the prime minister. They are individuals who hold or have held senior political, judicial, or ecclesiastical offices in the UK or in Commonwealth realms.