The Judicial Committee of the Privy Council Decisions

 


Forbes v Attorney General of Trinidad and Tobago (Trinidad and Tobago) [2002] UKPC 21 (15 May 2002)

ADVANCE COPY

Privy Council Appeal No. 2 of 2001

Clinton Forbes Appellant

v.

The Attorney General of Trinidad and Tobago Respondent

FROM

THE COURT OF APPEAL OF

TRINIDAD AND TOBAGO

---------------

JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 15th May 2002

------------------

Present at the hearing:-

Lord Slynn of Hadley

Lord Nicholls of Birkenhead

Lord Hobhouse of Woodborough

Lord Millett

Lord Scott of Foscote

[Delivered by Lord Millett]

------------------

1. On 12th November 1985 the appellant, together with his wife Valerie Forbes and a relative Glen Cooper, were arrested and charged under section 4(1) of the Narcotics Control Ordinance No. 27 of 1961 with being in possession of 600 grammes of canabis sativa (marijuana).
2. On 14th April 1987 the appellant was convicted at the Princes Town Magistrates Court and sentenced to five years imprisonment with hard labour. His wife was also convicted; Glen Cooper was acquitted. On the following day the appellant gave notice of appeal and applied for bail. He was granted bail subject to conditions on 15th November 1988, that is to say some 19 months after his conviction, and he was duly released from custody.
3. The magistrate gave no reasons for his decision at the time and has never done so. Under section 130A of the Summary Courts Act Chapter 4:20 as amended a magistrate is bound to draw up and sign a statement of the reasons for his decision within 60 days of the giving of the notice of appeal against it.
4. The appeal did not come on for hearing until 24th March 1997, that is to say nearly ten years after the appellant's conviction. By then the magistrate was no longer on the bench.
5. The Court of Appeal examined the record to see if there was sufficient evidence upon which the appellant could properly have been convicted. It found that there was and dismissed the appeal, but ordered the sentence to be varied to one of 18 months' imprisonment with hard labour. This was because the sentence imposed by the magistrate exceeded the maximum authorised by the law in force at the time of the offence, such maximum having been later increased. Pursuant to the provisions of section 150(2) of the Summary Courts Act the Court of Appeal ordered the term of imprisonment to commence from the date on which it gave its decision.
6. The appellant obtained special leave to appeal to the Privy Council from the judgment of the Court of Appeal, and on 24th February 1998 the appeal was allowed and his conviction quashed. The reasons for the Board's decision were given on 16th March 1998 and are reported as Clinton Forbes v Maharaj ...1998) 52 WIR 487. The Board quashed the appellant's conviction because of the magistrate's failure to comply with his statutory duty to state the reasons for his decision. It considered that the case did not provide an appropriate occasion on which to decide whether such a failure would always prove fatal to a conviction, but considered that the Court of Appeal had applied the wrong test. In Dean Cedeno v Logan (unreported), 18th December 2000, the Board held that the failure of the magistrate to give reasons does not necessarily invalidate the conviction; and in that case, where the reasons for his decision were obvious without being stated expressly, the conviction was upheld.
7. Meanwhile on 3rd October 1997 the appellant had issued a constitutional motion for a declaration that the failure or refusal of the Magistrate to give reasons deprived him of his constitutional rights to (i) due process (ii) the protection of the law (iii) a fair hearing and (iv) procedural provisions necessary for giving effect to such rights; and for an award of monetary compensation.
8. On 23rd March 1998, that is to say after the Board had delivered its reasons for quashing his appeal, the appellant issued a second constitutional motion for a declaration that the Court of Appeal's erroneous approach to the consequences of the magistrate's failure to give reasons deprived him of his constitutional rights (i) not to be deprived of his liberty except by due process and (ii) to the protection of the law; and for an award of monetary compensation. The two constitutional motions were consolidated and ordered to be heard together.
9. Following the appellant's conviction he was imprisoned on 15th April 1987. Since he had already given notice of appeal he was treated, not as a convicted prisoner, but as an accused person on remand in custody. He was placed in a special area set aside for appellants and treated as a First Division prisoner. Having obtained bail he was released from prison on 29th or 30th November 1988. Following the order of the Court of Appeal he was again taken into custody on 24th March 1997, this time as a convicted prisoner serving a sentence of imprisonment with hard labour. He was released on 26th February 1998 following the order of the Board setting aside the judgment of the Court of Appeal and quashing his conviction.
10. The constitutional motions were heard by Lucky J who dismissed them. He did so on the ground that the magistrate's failure to give reasons and the approach adopted by the Court of Appeal to the question whether this invalidated the conviction were errors of law which were remediable within the judicial system itself and which, having been remedied on appeal, were not susceptible of forming a continuing basis for constitutional relief. The appellant's appeal to the Court of Appeal was dismissed for substantially the same reasons.
11. Their Lordships would begin by observing that the statutory duty of the magistrate to state the reasons for his decision and the right of a convicted person to be provided with such a statement arises only once a notice of appeal has been given. The statement is, therefore, required for the purpose of the contemplated appeal. It follows that the magistrate's failure to provide the appellant with such a statement does not of itself vitiate the trial which has already taken place or invalidate the conviction: see Dean Cedeno v Logan (supra); and it is possible to uphold the conviction even where no reasons have been given, as happened in that case.
12. But if the accused does not know the reasons for his conviction he cannot show them to be erroneous. He may thus be deprived of a fair or proper appeal process. This is not necessarily the case; but, if it is, then it is impossible for the Court of Appeal to be satisfied that the conviction is safe, and it ought to be quashed.
13. The appellant has spent two periods in custody, one of 19 months as a prisoner on remand and one of 11 months as a convicted prisoner serving a term of imprisonment with hard labour. The first was the result of a conviction which cannot be shown to be safe; the second was the result of an error of law on the part of the Court of Appeal in upholding the conviction. The conviction has now been quashed. The question, therefore, is whether a person who has served a term of imprisonment before his conviction is quashed on appeal has been deprived of his constitutional rights to due process and the protection of the law.
14. This question has been considered by the Board on more than one occasion. In Maharaj v Attorney General of Trinidad and Tobago (No. 2) [1979] AC 385, which arose under the 1962 Constitution, the appellant, a barrister engaged in a case in the High Court, had been committed to prison for seven days for contempt without being told plainly enough what he had done wrong to enable him to explain or excuse his conduct. This was a failure to observe a fundamental rule of natural justice which infringed the appellant's constitutional right not to be deprived of his liberty save by due process of law. In effect, he had been condemned without a trial. But Lord Diplock cautioned against making claims to constitutional redress save in exceptional circumstances. At p. 399 he said:

“In the first place, no human right or fundamental freedom recognised by Chapter I of the Constitution is contravened by a judgment or order that is wrong and liable to be set aside on appeal for an error of fact or substantive law, even where the error has resulted in a person's serving a sentence of imprisonment. The remedy for errors of these kinds is to appeal to a higher court. Where there is no higher court to appeal to then none can say that there was error. The fundamental human right is not to a legal system that is infallible but to one that is fair. It is only errors in procedure that are capable of constituting infringements of the rights protected by section 1(a); and no mere irregularity in procedure is enough, even though it goes to jurisdiction; the error must amount to a failure to observe one of the fundamental rules of natural justice. Their Lordships do not believe that this can be anything but a very rare event.”

15. In Chokolingo v Attorney General of Trinidad and Tobago [1981] 1 WLR 106 an editor who had been committed for contempt issued a constitutional motion complaining that he had been deprived of his liberty without due process of law because his conduct could not have constituted a contempt in law. His motion was dismissed. At pp. 111-112 Lord Diplock said:

“Acceptance of the applicant’s argument would have the consequence that in every criminal case, in which a person who had been convicted alleged that the judge had made any error of substantive law as to the necessary characteristics of the offence, there would be parallel remedies available to him: one by appeal to the Court of Appeal, the other by originating application under section 6(1) of the Constitution to the High Court with further rights of appeal to the Court of Appeal and to the Judicial Committee. These parallel remedies would be also cumulative since the right to apply for redress under section 6(1) is stated to be ‘without prejudice to any other action with respect to the same matter which is lawfully available’. The convicted person having exercised unsuccessfully his right of appeal to a higher court, the Court of Appeal, he could nevertheless launch a collateral attack (it may be years later) upon a judgment that the Court of Appeal had upheld, by making an application for redress under section 6(1) to a court of co-ordinate jurisdiction, the High Court. To give to Chapter I of the Constitution an interpretation which would lead to this result would, in their Lordships’ view, be quite irrational and subversive of the rule of law which it is a declared purpose of the Constitution to enshrine.”

16. In Boodram v Attorney General of Trinidad and Tobago [1996] AC 842 the appellant, who was on trial for murder, complained that his constitutional rights had been infringed by continuing press reports which were calculated to prejudice his trial and by the failure of the Director of Public Prosecutions to take measures to forestall or prevent their publication. His constitutional motion was dismissed by the Court of Appeal and their decision was affirmed by the Board. At p. 854 Lord Mustill said:

“The ‘due process of law’ guaranteed by this section has two elements relevant to the present case. First, and obviously, there is the fairness of the trial itself. Secondly, there is the availability of the mechanisms which enable the trial court to protect the fairness of the trial from invasion by outside influences. These mechanisms form part of the "protection of the law" which is guaranteed by section 4(b), as do the appeal procedures designed to ensure that if the mechanisms are incorrectly operated the matter is put right. It is only if it can be shown that the mechanisms themselves (as distinct from the way in which, in the individual case, they are put into practice) have been, are being or will be subverted that the complaint moves from the ordinary process of appeal into the realm of constitutional law …

In expressing this conclusion their Lordships do not altogether foreclose the possibility of an application to the High Court for relief under the Constitution in a case of trial by media where the chance of a fair trial is obviously and totally destroyed, for there is no due process of law available in such a case to put the matter right … Equally, however, they have no doubt that it is only in a very rare case that an application to the High Court should be entertained. The proper forum for a complaint about publicity is the trial court …”

17. In Hinds v Attorney General of Barbados [2002] 2 WLR 470 the appellant was convicted of a serious offence and sentenced to eight years imprisonment. He had been refused legal aid and was unrepresented at his trial, though he was represented by counsel on his appeal to the Court of Appeal against conviction. His appeal was dismissed. He then brought a constitutional motion in which he complained that his right to a fair trial had been infringed. The motion was dismissed by the Court of Appeal and its decision was affirmed by the Board. The Board held that, since the appellant had been represented by counsel on his appeal against conviction and this had enabled him to argue any matters reasonably open to him, the ordinary appellate processes had given him adequate opportunity to vindicate his right to a fair hearing, so that his constitutional motion had properly been dismissed. At p. 484 Lord Bingham of Cornhill said:

“It would be undesirable to stifle or inhibit the grant of constitutional relief in cases where a claim to such relief is established and such relief is unavailable or not readily available through the ordinary avenue of appeal. As it is a living, so the Constitution must be an effective, instrument. But Lord Diplock's salutary warning remains pertinent: a claim for constitutional relief does not ordinarily offer an alternative means of challenging a conviction or a judicial decision … The applicant's complaint was one to be pursued by way of appeal against conviction, as it was …”

18. Their Lordships do not think that it would be helpful or desirable to add their own observations to the foregoing citations. They establish that it is only in rare cases where there has been a fundamental subversion of the rule of law that resort to constitutional redress is likely to be appropriate. However the exceptional case is formulated it is clear that the constitutional rights to due process and the protection of the law do not guarantee that the judicial process will be free from error. This is the reason for the appellate process. In the present case the appellant was deprived of his liberty after a fair and proper trial before the magistrate, that is to say by due process of law. The appellant was able to challenge his conviction by way of appeal to the Court of Appeal and, when the Court of Appeal wrongly failed to quash his conviction, by way of further appeal to the Board. The appeals were conducted fairly and without procedural error, let alone any subversion of the judicial process. The appellant thus enjoyed the full protection of the law and its internal mechanisms for correcting errors in the judicial process. His constitutional rights have not been infringed, and the Courts of Trinidad and Tobago were right to dismiss his constitutional motions.
19. The appeal is dismissed.