Derek Achong

The Court of Appeal has dismissed the State’s appeal over the refusal of a High Court Judge to recuse herself from a constitutional lawsuit, in which three men accused of murder are challenging the conditions of their remand.

Appellate Judges Allan Mendonca, Mark Mohammed and Vasheist Kokaram took the decision following a virtual hearing of the case yesterday afternoon.

The appeal panel did not give reasons for its decision but said that those would be provided at a later date.

This was second time the appeal was considered by the Court of Appeal.

When the procedural appeal came up for hearing in March, Appellate Judges Nolan Bereaux and Charmaine Pemberton referred it to a three- member panel as they could not agree on the same outcome.

In the case, Kendelle Khan, his brother Antares and Lyndon James are claiming that their constitutional rights and freedom have been infringed as being forced to live in squalid conditions constitutes cruel and unusual punishment.

They are also claiming inequality of treatment as they contend that convicted prisoners live in far better conditions than remandees such as themselves.

The Khans, of Moruga, who are jointly charged with murder, and James, who is facing an unrelated murder charge, have all spent over eight years on remand awaiting trials or retrials.

Presenting submissions on behalf of the State earlier this year, Senior Counsel Fyard Hosein claimed that High Court Judge Carol Gobin made prejudicial statements while determining several pre-trial issues including her recusal.

Hosein pointed to the fact that Gobin delivered two judgement in which she was highly critical of the state of the country’s prisons.

“She used strong, colourful and decisive language,” Hosein said.

“It is nothing personal but we have to protect the administration of justice,” he added.

Responding to the State’s position, Senior Counsel Anand Ramlogan, who led the trio’s legal team, suggested that Gobin should be allowed to continue to preside over the case as the previously decided cases dealt with other legal issues.

“Predisposition is not pre-determination,” Ramlogan said.

He also stated that if the State was dissatisfied with Gobin’s handling of the substantive case, it could appeal to the Court of Appeal and Privy Council.

Gobin has also randomly assigned to preside over a similar landmark case brought by the University of the West Indies (UWI) Faculty of Law’s Human Rights Clinic on behalf of a group of remand prisoners, who have similar circumstances.

The trio is also being represented by Ganesh Saroop, Alana Rambaran, Renuka Rambhajan, and Alvin Pariagsingh.

Rishi Dass, Sanjeev Sookoo, Savi Ramhit, Vincent Jardine, Hillary Muddeen, and Nairob Smart appeared alongside Hosein for the State.