Joshua Hitchens successful in constitutional rights appeal against the Attorney General of Trinidad and Tobago
Joshua Hitchens acted as part of a team who were successful in a constitutional rights appeal for two appellants who wrongly served additional time in prison in Duncan and Jokhan v Attorney General of Trinidad and Tobago.
Joshua Hitchens was led by Anand Beharrylal QC in a constitutional rights appeal against the Attorney General of Trinidad and Tobago for two appellants whom, due to an error by the Court of Appeal in criminal proceedings, were required to serve 29 months in prison after their earliest date of release which they ought not have served. The Privy Council allowed the appeal of Duncan and Jokhan (Appellants) v Attorney General of Trinidad and Tobago (Respondent) (Trinidad and Tobago)  UKPC 17 and the matter was remitted to the High Court for assessment of damages.
The appellants were sentenced to lengthy terms of imprisonment in the High Court Assizes following their conviction for criminal offences in 1999. They appealed to the Court of Appeal and whilst their appeals were partially successful their prison sentences were affirmed in 2001. In affirming their sentences the Court of Appeal erred in not making an order that the time spent in custody pending appeal should count towards their sentences and consequently to their earliest date of release. This followed the decisions of the Privy Council in Ali v The State  UKPC 41;  1 WLR 269 and Bhola v The State  UKPC 9 as to the correct application of s49(1) of the Supreme Court of Judicature Act Chap 4:01 to the effect that appellants in criminal proceedings should have time served pending an appeal credited to their sentences, unless a loss of time direction is merited due to the appeal being frivolous.
In 2010, early during the excess period they were serving in custody due to the court’s error, the appellants tried to secure their release. They issued a pre-action letter with a view to bringing a constitutional motion asserting that their human rights pursuant to s4(a) of the Constitution (the right of the individual to life, liberty, security of the person and enjoyment of property and the right not to be deprived thereof except by due process of law) were breached. The letter also sought the appellants immediate release and compensation. The Attorney General in a short pre-action response denied the appellants’ proposed claims, described it as an abuse and asserted the issue of their release did not arise, essentially because there was no breach of their constitutional rights.
In 2011, still during their excess custodial period the appellants issued their constitutional motion in the High Court seeking release and compensation. The motion was heard in 2013 and whilst the High Court accepted the appellants’ submission that the Court of Appeal in the criminal proceedings had committed an error of law by failing to consider the exercise of its discretion under s49(1), it dismissed their constitutional claim in its entirety. The court’s reasons were essentially that s4(a) is a right that the justice system as a whole should be fair, not that it should operate infallibly and without error. In this case the system was fair, because it provided the appellants with a right to appeal to the Privy Council against an error of law committed by the Court of Appeal and the appellants had had ample time to exercise that right of appeal before the decision of the Court of Appeal had any practical impact (from 2009) in terms of extending the time they spent in prison. On the same basis, the court held the appellants’ constitutional motion was an abuse of process and struck it out. The appellants appealed to the Court of Appeal.
The Court of Appeal affirmed the High Court’s judgment and dismissed the appellants’ appeals essentially on the basis that the system as a whole allowed for correction of the error and was therefore fair, since there was the possibility of an appeal to the Privy Council to correct what the Court of Appeal had done in error. It also held the fact that there had been a delay between the filing of the appellants’ constitutional motion, before their sentences came to an end, and its hearing, after that time, did not show that the system as a whole was unfair. That was so even though, on an appeal to the Privy Council, it would not be possible to claim damages for any unjustified period of detention. The Court of Appeal also overruled two High Court decisions dealing with similar arguments.
On appeal to the Privy Council the principal issue was whether, in the circumstances of the case, there was a violation of the appellants’ rights under s4(a) of the Constitution which arose by reason of the error committed by the Court of Appeal. The Privy Council also to examined what remedy was available to the appellants, whether for violation of their constitutional rights or otherwise.
The Appellants argued that the manner in which s49(1) operated led to an arbitrary period of detention, that the courts below were wrong in their interpretation of law and specifically s4(a) of the Constitution as it pertained to liberty of the subject in the circumstances of the appellants, that the appellants were primarily seeking their release which could have been agreed even if compensation was disputed and that there was no abuse of process since the constitutional motion procedure was the only appropriate procedure to swiftly secure the appellants’ release. This was so especially as the point of law at stake had already been determined by the Privy Council, which as the apex court should not need to re-determine an issue upon which it had already given guidance. The Attorney General sought to uphold the decisions of the courts below.
The Privy Council allowed the appeal considering that just as the State, acting by the Court of Appeal in 2001, was required to consider of its own motion the exercise of discretion under s49(1) by reason of the constitutional importance of the interests of the appellants which were at stake, so also in 2010 was the State, now acting by the Attorney General, required to take action to protect those interests, where it had been put on notice that they were being subjected to unjustified detention. The appropriate response of the State at that point would have been to accept that they ought to be released, to agree to support a constitutional motion by the appellants to secure their immediate release from detention and, if thought necessary, to agree to support an application by the appellants for special leave to appeal to the Board to have the Court of Appeal’s loss of time direction set aside. Instead, the Attorney General responded negatively in 2010.
The Privy Council concluded that the appellants established that they had suffered material harm by reason of the absence of a right to apply locally for immediate release (bail) in respect of their continuing detention, in breach of their rights under s4(a), and that they are entitled to monetary compensation in respect of that harm.
It concluded that, just as the onus was on the State, acting by the Court of Appeal, to ensure that consideration was given to the exercise of the discretion in s49(1) at the outset, so the onus was on the State, this time acting by the Attorney General, to take steps to remove the unjustified impact of the previous error on the appellants’ right to liberty and security of the person when the appellants drew his attention to their plight. Accordingly, the appellants’ claims for monetary compensation were remitted to the High Court for assessment of the compensation from the dates of their pre-action letters.
Anand Beharrylal QC of 2 Bedford Row led Joshua Hitchens, assisted by Sian McGibbon of 4-5 Gray’s Inn Square and Kenneth Thompson of the Trinidadian Bar. They were instructed by Alvin Pariagsingh (Trinidad).
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Joshua Hitchens is regularly instructed in international cases and has been instructed to appear before the Privy Council as led counsel in matters relating to chancery, commercial, media and public law. His experience includes claims for Judicial Review and Human Rights matters in the High Court. He is a member of the Equality and Human Rights Commission Panel of Counsel and has acted in a number of high-profile public law matters. He was instructed by a national charity in their application to intervene in the UK Supreme Court case of Miller v The Prime Minister UKSC2019/0192.
If you would like to discuss this case or find out more about Joshua, please contact his practice management team; Paul Barton or Mark Gardner on +44 (0)20 7353 6381 who would be happy to have a discussion in the strictest of confidence.
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