Editorial: Of fundamental importance to justice

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In light of the strange appointment of Anthony Astaphan by the cabinet to “assist” the Office of National Drug & Money Laundering Control Policy (ONDCP) as it investigates the Odebrecht-Meinl Bank scandal, we thought that we would travel back in time and review an important legal case, as it relates to the perception of impartiality and dispensing of unbiased judgements.
The year was 1923 and a motorcyclist by the name of McCarthy was involved in a road accident which resulted in his appearance before a magistrates’ court for the determination of a charge of dangerous driving.   Unbeknownst to anyone on the bench or the defence side of the courtroom, the clerk to the justices was a member of a firm that was involved in a civil claim against McCarthy for the same accident.  At the end of the trial, the clerk retired with the justices, who eventually returned to find the defendant, McCarthy, guilty. 
Well, all hell broke loose when the clerk’s association with the civil matter became known.  McCarthy applied to have the conviction quashed and the justices all sought to defend their judgement (and honour) by swearing affidavits that the clerk had no input in their decision. 
The appeal, R v Sussex Justices, Ex parte McCarthy [1924], was a request for judicial review and was heard by Chief Justice Lord Hewart. The case and Lord Hewart’s judgement became a leading case on the impartiality and recusal of judges and it delivered one of the most quoted sayings on the matter.  He proclaimed, “…a long line of cases shows 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.”
The landmark judgement is a famous precedent in establishing one of the core principles of English law, that the mere appearance of bias is sufficient to overturn a judicial decision.  In the case of Astaphan’s appointment, the mere appearance of bias is sufficient to cause any outcome of the investigation to be dismissed. 
The crazy thing about this situation is that the appearance of bias is obvious.  Even Minister of Information Melford Nicholas eluded to this fact when he said, “We will resist any conversation in relation to whether or not any representation Mr Astaphan would have made on behalf of any other person in any other circumstance would taint his ability to provide legal guidance in respect of an investigation.”  What kind of crazy talk is that?
This issue at hand is not Mr. Astaphan’s “tremendous legal experience” or his “breath of knowledge of similar proceedings.”  No!  The issue at hand is Mr. Astaphan’s representation of and close association with members of the Antigua & Barbuda Labour Party (ABLP); especially those that have been named, in one way or another, in the Odebrecht scandal.
What we have here is a situation where the cabinet is appointing Mr. Astaphan to “assist” the ONDCP in determining whether public officials, and maybe even members of cabinet, are involved in any way with the global Odebrecht scandal, that was apparently facilitated, in no small part, by the locally based (offshore) Meinl Bank.
As an aside, there are some equally important questions that need answers:  What about the independence of the ONDCP?  Under what authority does cabinet decide who “assists” the ONDCP?  And in light of this discussion, and the need for justice to be seen to be done, why would Astaphan take this appointment and not recuse himself?
Although the appointment is not to a court of law, investigations by an organisation such as the Office of National Drug & Money Laundering Control Policy (ONDCP) are about justice and in this case, will the perception be that justice will be done?
Looking back at Lord Hewart’s judgement, he said, “The question therefore is not whether in this case the deputy clerk made any observation or offered any criticism which he might not properly have made or offered; 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.
“Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice. 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 twofold position was a manifest contradiction.”
We are not lawyers but we do grasp the concept that Lord Hewart laid out in his judgement.  It is, therefore, amazing that so many others do not in this case.  But not to worry, the conspiracy theorist have a lot to say on that matter and you would have no doubt heard one of two of them, by this point in time.

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