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Derek Achong

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, will have to be heard a second time.

During a virtual hearing yesterday, Appellate Judges Nolan Bereaux and Charmaine Pemberton stated that they failed to agree to the same outcome in the procedural appeal.

The appeal will now have to be heard and determined by a fresh panel of three judges in order to avoid another potential deadlock.

“It would be a completely new panel,” Bereaux said.

In the case, Kendelle Khan, his brother Antares and Lyndon James are claiming that their constitutional rights and freedoms 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 last month, 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 judgments 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 been 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 are appearing alongside Hosein for the State