The United Kingdom (UK) Privy Council the highest and final Court for the British dependent territory of Montserrat has quashed all convictions of Attorney-at-Law Warren Cassell in March 2012, leaving Cassell with no criminal record, but with the doubtful question of whether or not there should be a retrial to be considered by the Court of Appeal on the matter.
Five British Justices sitting on the Judicial Committee of the Privy Council in London, on July 4, 2016, handed down their judgment in a 28 page document. The Privy Council’s ruling declared that all of Cassell’s convictions be quashed because of what the court described as the trial judge’s “serious misdirections” to the jury and in some instances the fact that the trial judge “made his own opinion on the topic too explicit”.
In 2012, the lawyer was convicted by Montserrat’s High Court of two counts of Conspiracy to Defraud, nine counts of procuring the execution of a valuable security by deception and one count of money laundering and served two years imprisonment.
The Privy Council judges probably did not hear of Justice Redhead’s unusual behavior when summoned before him, he banned for life from jury service a juror she dared to vote against his induced guilty verdict on Cassell. This, since it shamefully became known that some jurors including the foreman, had from early days declared believed him guilty without hearing the evidence…and we might add even now are making “will do it again,” statements.
That juror and the others who might otherwise been so moved, must now be vindicated as the PC judges ruled, ”… Cumulatively, these were very serious misdirections. On behalf of the Crown, Mr Knox QC (for the Crown) has realistically accepted that he cannot contend otherwise.
The judges listened, questioned, discussed and in their judgment said: “The jury was not at any stage told in relation to the conspiracy counts that it was not enough that the acts were unlawful unless the appellants knew that they were. Moreover, in relation to the deception counts, the test for deceit was suggested to be whether the purchasers would have bought if they had known that Cassell had no authority to sell PEL land. That was no doubt a proper question, but the answer was not capable of dispute and to answer it did not decide the question of guilt. What mattered was whether the appellants dishonestly intended to deceive.”
With regard to some other situations: “…But it is not defensible for the judge to tell the jury in such uncompromising terms what his own opinion is on the central issue in the case, and the error is not cured by adding, as from time to time the judge did, that such questions were for the jury. The impact on the jury of the opinion of a senior and obviously experienced judge is not lessened by such formalistic directions. The judge returned to the topic a number of times…” they noted.
In the judgment the judges noted further, what we believed from the beginning. “In those circumstances it was essential that the jury was presented with the issue whether Cassell acted deliberately unlawfully or might honestly have believed that he was entitled to do what he did, especially if he might have thought he had legitimately acquired (through C&L Inc) control of a majority shareholding… He needed to make it clear that their knowledge and intention was a matter solely for the jury to determine… Instead, he made his own opinion on the topic only too explicit. In relation to the application to restore, with Cassell’s and Wood’s affidavits in support, he said that it was ““in my view … cleverly crafted and was meant to deceive anyone who should rely on it …He used the expression “cleverly crafted” more than once.”
It does not escape our note, but more importantly not the judges, that the representation at EC Court of Appeal, was lacking, leaving some very bad taste in the mouths of the concerned. The judgment said: “It remains unexplained why no complaint was made about them, if not at the time, then on appeal to the Court of Appeal, but none was. There were no less than 23 grounds advanced before the Court of Appeal but, as that court recorded, some were abandoned during the hearing.”
Instead, “A ground had been advanced relating to judicial behaviour, but it was a quite different complaint. It asserted that the judge had intervened excessively and frustrated cross-examination by defence counsel. There is very little sign of that in the transcript and the complaint seems not to have been pursued.” The judges during the trial had made some disparaging remarks about the transcript before them also.
In the end the judges reasoned, “This is a case of extensive misdirections allied with doubtless well-intentioned but quite improper judicial comment which was likely to influence the jury and lead to it not doing its job properly. It is not a case in which it is impossible to address the proviso question, but it is one where the errors are so pervasive that it is difficult to be satisfied that any properly directed jury must have convicted.
In the conclusion, one note a somewhat confusing, not for the legal brains, but for the layman reporting as the judges in the face of the foregoing, regarding the pervasion of errors and the “serious misdirections,” by the trial Judge Redhead, bother to go “In conformity with its usual practice the Board will advise remission to the Court of Appeal of the question whether there ought to be a re-trial on counts other than…” those specifically mentioned.
The judgment read in the end: “It follows that…the several defects in the directions to the jury mean that the Board must humbly advise Her Majesty that these appeals against conviction must be allowed on grounds which were never before the Court of Appeal.
Finally therefore should that not apply also to the other counts not specifically mentioned. The judges did note however that sentence was already served in respect of those. We hope to be able to bring legal clarity to our ignorance.