So, since the allegation of appearance of bias is directly connected to Godfrey Smith, who is representing the Financial Intelligence Unit, we asked him for his views on that new application from the defendants.
He insisted to us that, in his opinion, the grounds Barrow is relying upon to make that case is weak:
Godfrey Smith, SC - Attorney for the FIU
"The last time we were here, the counsel for Caribbean Brewery International, being dissatisfied with certain rulings made by the Magistrate, said he wouldn't wait for the case to conclude. He would apply for what's called a case stated, essentially trying to force the matter from the Magistrate Court to the Supreme Court on grounds that his client's constitutional rights were being breached. He thought better of that; it appears and withdrew it. In my view, it was bound to fail in any event. In replacement of that, he brought an application for permission for judicial review before the Supreme Court, and linked with that; he asked the court for an injunction. He called it an injunction. In my view, it ought to have been a stay of these proceedings before the magistrate. The High Court - the Supreme Court - yesterday refused to injunct these magisterial proceedings or refused to stay the proceedings, and in relation to his application for judicial review of the magistrate's rulings, the High Court said, 'Let's wait and see what happens with these proceedings.' So, we come to court this morning, prepared to resume and continue this matter that has been dragging out for a long time, in an unreal way - actually, only to be met by an application that the Magistrate ought to recuse herself, meaning she should withdraw from the case, and no longer sit on that. Why? His grounds, as far as we can understand it, is that when he applied for judicial review to the High Court, it was his client versus the Magistrate and the Attorney General. I appeared on behalf of the Attorney General. I said so on the record, and we argued that no stay, no injunction should be granted. His allegation is because of that - the suggestion is that I am representing the magistrate, and therefore, the magistrate will appear to be biased."
"Our position on that is in judicial review proceedings, where decisions of any tribunal are challenged, it's the decision, it's not the magistrate personally. So, if I can draw an analogy that you may be more familiar with. You go to court. Two parties go to court; they argue a case. One side wins. The next side appeals to the Court of Appeal. What happens? The winning side, what does he do? He defends the decision that went in his favor. There's no conflict there if the matter is sent back to the High Court. So, it's not the magistrate in her personal decision. It's a decision that one is dealing with. So, questions of bias based on family connection, based on interest don't arise. There are established grounds for actual bias and the appearance of biased. In this case, the magistrate is not personally involved."
He also shared his observation that it appears that the lead attorney representing the brewing company has made persistent attempts to stall this case and its process through the Magistrate Court:
Godfrey Smith, SC - Attorney for the FIU
"To be honest, it may be a strategy, but one I don't understand. Certainly, at every turn, he's at pains to stop this magistrate from making a ruling. As I said, whether, by preliminary objection, a case stated, by an actual application for an injunction against the Magistrate - a thing I've never heard of, by the way. I'm familiar with a stay of proceedings. So, I think he's hell-bent on the magistrate not reaching a final decision. I confess I don't know what the strategy is."
During the heated discussion on this recusal application, Magistrate Rogers lamented to Senior Counsel Barrow that he keeps ambushing the court with these applications. Barrow indicated that at the end of this application and her ruling, he does not intend to bring any more applications because the defendants will rely on the judicial review application in the Supreme Court.
