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Justice Carol Gobin.

Derek Achong

The Court of Appeal will have to decide whether to force a High Court Judge to recuse herself from a constitutional lawsuit, in which three men accused of murder including a pair of siblings are challenging the conditions of their remand.

Appellate Judges Nolan Bereaux and Charmaine Pemberton reserved their decision on the issue after hearing submissions from the trio’s lawyers and those for the State during a virtual hearing, yesterday.

Presenting submissions on behalf of the State, which appealed after Justice Carol Gobin refused to recuse herself, Senior Counsel Fyard Hosein claimed that she 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.

Bereaux questioned the claims as he noted that the judgement referred to by Hosein was delivered 12 years ago.

“Judges are open to persuasion…Why can she not be persuaded to go the other way?” Bereaux said.

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.

Noting that the State raised the issue after Gobin had been dealing with the case for over four years, Ramlogan also pointed out the previous cases decided by Gobin 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.

The appeal panel is expected to deliver the decision on the issue on a date to be determined.

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.

Gobin was 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, Linda Gopee-Khan, Savi Ramhit, Vincent Jardine, Hillary Muddeen and Nairob Smart are appearing alongside Hosein for the State.