The Judicial Committee of the Privy Council Decisions

Ali v The State (Trinidad and Tobago) [2005] UKPC 41 (2 November 2005)

ADVANCE COPY

Privy Council Appeal No. 56 of 2004

(1) Kumar Ali Appellant

v.

The State Respondent

and

Privy Council Appeal No. 63 of 2004

(2) Leslie Tiwari Appellant

v.

The State Respondent

FROM

THE COURT OF APPEAL OF

TRINIDAD AND TOBAGO

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JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 2nd November 2005

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Present at the hearing:-

Lord Bingham of Cornhill

Lord Steyn

Lord Rodger of Earlsferry

Baroness Hale of Richmond

Lord Carswell

[Delivered by Lord Carswell]

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1. The appeals before the Board raise in a rather extreme form the issue of how appellate courts should determine the date from which an unsuccessful appellant's sentence should run. Since legislative provisions and the practice of appellate courts vary in different jurisdictions, their Lordships have examined the issue in relation to these appeals in order to assist courts in adopting a principled approach to it.
2. The applicable provision in the law of Trinidad and Tobago is contained in section 49(1) of the Supreme Court of Judicature Act (cap 4:01), which reads:

"The time during which an appellant, pending the determination of his appeal, is admitted to bail, and subject to any directions which the Court of Appeal may give to the contrary to any appeal, the time during which the appellant, if in custody, is specially treated as an appellant under this section, shall not count as part of any term of imprisonment under his sentence, and, in the case of an appeal under this Act, any imprisonment under the sentence of the appellant, whether it is the sentence passed by the Court of trial or the sentence passed by the Court of Appeal, shall, subject to any directions which may be given by the Court of Appeal, be deemed to be resumed or to begin to run, as the case requires, if the appellant is in custody, as from the day on which the appeal is determined, and, if he is not in custody, as from the day on which he is received into prison under the sentence."

This provision mirrors that contained in section 14(3) of the English Criminal Appeal Act 1907. Their Lordships will discuss later in this judgment the changes made in the law of England and Wales by subsequent legislation. The effect in Trinidad and Tobago accordingly is that a prisoner in custody on remand awaiting trial or pending determination of an appeal does not receive credit for the time so spent, subject to contrary direction from the Court of Appeal. During that time he will be subject to a more lenient prison regime in a number of respects (as to which see Jagessar v The State (No 2) (1990) 41 WIR 373).

3. The appellant Leslie Tiwari was convicted on 12 April 1989 after a trial before Wills J and a jury on counts of rape, two charges of robbery with aggravation and arson. He was unrepresented at the trial. The judge sentenced him on the count of rape to 30 years' imprisonment with hard labour and 20 strokes of the whip, 10 years' imprisonment with hard labour on the first robbery count, to run consecutively to the sentence of 30 years, 10 years' imprisonment with hard labour on the second robbery count, concurrent with the sentence on the first robbery count, and imprisonment for life on the count of arson, to run consecutively to the other sentences.
4. Tiwari appealed to the Court of Appeal against conviction and sentence by notice dated 1 May 1989, drafted by himself. A further notice of appeal drafted by counsel was filed on 14 February 1991. It appears that a letter was written to the court by or on behalf of the appellant on 4 September 1991 complaining of the delay in having the appeal heard. The appeal was eventually heard over four days in July 1995 and judgment was reserved on 21 July 1995. Judgment was not delivered until 31 October 1996, when the appeal against conviction was dismissed. On sentence, the court (de la Bastide CJ, Sharma and Gopeesingh JJA) considered that the combination of sentences was inordinately long and ordered that they all run concurrently. De la Bastide CJ, giving the judgment of the court, added in conclusion:

"There has been an unusually long delay in the delivery of this judgment and accordingly we order that the sentences should run from the 21st July, 1995, the date on which judgment was reserved."

5. Tiwari appealed to the Privy Council against conviction and sentence, by special leave granted by order dated 15 November 2000. The major ground of appeal considered by the Board was that the trial judge had failed to advise the appellant of his right to call witnesses in his defence and if necessary to adjourn the trial in order to enable him to do so. It was represented to the Board that there were two witnesses whom he had wished to call at his trial and who could have given material evidence in his defence, a case which had not been made to the Court of Appeal. Lord Hutton, giving the judgment of the Board [2002] UKPC 29, para 32, expressed the view that it was most unsatisfactory that more than five years after the judgment of the Court of Appeal the appellant should submit for the first time that there were witnesses whom he was unable to call at his trial because of the default of the trial judge. Their Lordships considered nevertheless that it would not be right without further investigation to reject the account given in affidavits sworn by the two named persons. The Board therefore remitted the case to the Court of Appeal to investigate their evidence and consider further whether the convictions of the appellant should be quashed in the light of the Board's judgment.
6. On the issue of sentence counsel appearing for the State did not oppose an order that sentences should run from 14 February 1991, the date on which the notice of appeal settled by counsel was filed. Lord Hutton stated at para 42 of his judgment:

"Their Lordships appreciate that a convicted prisoner in custody who has served notice of appeal is given a considerable number of privileges which are withheld from a convicted prisoner who has not appealed, but it appears to their Lordships that this consideration is greatly outweighed by the fact that an appellant who has served notice of appeal and who has not been admitted to bail has lost his liberty and is confined in prison, albeit with a number of special privileges. Their Lordships also appreciate that the distinction between a convicted prisoner who appeals and one who does not is a distinction recognised by section 48(1) and by the Prison Rules, but nevertheless section 49(1) expressly gives the Court of Appeal a discretion to direct that the time in custody after service of notice of appeal shall count as part of the term of imprisonment. In these circumstances their Lordships consider that there is much force in the appellant's submission that time that is spent in prison in Trinidad and Tobago awaiting determination of an appeal should, as in England, count as part of the term of imprisonment passed on the appellant, unless the appeal is one devoid of any merit. But their Lordships also consider that it would not be appropriate for the Board to express a concluded opinion on the point without the Court of Appeal having had an opportunity to hear submissions on the issue and to express its opinion on the matter. Therefore their Lordships will also remit the matter of the issue of the exercise of the discretion under section 49(1) in this case to the Court of Appeal for it to give that matter further consideration."

7. The Court of Appeal (Nelson, Lucky and Kangaloo JJA) heard the remitted appeal and gave judgment on 31 July 2003. After examining the material placed before it by the appellant it held that no credible evidence had been presented which would have established that the evidence of the two proposed witnesses would have been material to the case. It therefore confirmed the appellant's conviction. On the issue of sentence the court considered the changes in the English legislation since the Criminal Appeal Act 1907, which it considered was designed to cause a change of approach, but concluded that whether there should be a similar change in Trinidad and Tobago was a matter within the exclusive domain of Parliament. Nelson JA, giving the judgment of the court, stated at para 56:

"We emphasize that in substituting a sentence a Court of Appeal must necessarily apply afresh the principles of sentencing. It must take all relevant facts into consideration, the period in remand, the known conduct of the prisoner, the heinousness of the offences committed."

He went on to say at paras 68-69:

"68. In considering the exercise of our discretion we have considered the factors referred in paragraph 56 hereof. We consider it important that the appellant from as early as September 1991 has persisted in an elaborate attempt to hoodwink the appellate courts into believing that he had credible evidence that he was wrongly identified and that Wills J denied him that opportunity …

69. Further, the crimes committed by the appellant are particularly dastardly, heinous and offensive to the community's values. He has shown no remorse at any time during the remand period."

8. Nelson JA set out the conclusions of the court in paras 70 to 73:

"70. Nevertheless we must take into account that the period of remand is long. We give some credit for time served, as the first panel did. Accordingly we would direct that the period from the filing of the appeal to the date of the purported letter to the clerk of appeals dated September 4, 1991 should be treated as part of the term of imprisonment substituted by the first panel.

71. We bear in mind the period of systemic delay from 1991-1994. Because of the appellant's deception we allow a period of one year from September 5, 1991 to September 4, 1992 to count as part of the substituted term of imprisonment.

72. We also confirm that the time served from July 21, 1995 to October 31, 1996 will also count as part of the substituted term of imprisonment.

73. Save as above stated, we confirm the sentences and order that they run concurrently as ordered by de la Bastide CJ in the judgment of the court dated October 31, 1996."

The Board was informed that the reference to systemic delay relates to the strain placed upon the appellate system in Trinidad and Tobago at that time, partly because of the high level of very serious crime and, largely, as Nelson JA said at para 49 of his judgment, because it was felt necessary for the Court of Appeal to concentrate exclusively on appeals in capital cases for a period, in consequence of the issue finally decided by the Board in 1993 in Pratt v Attorney General of Jamaica [1994] 2 AC 1. The extent of the problem of delay in the hearing and disposal of appeals appears clearly from the published addresses of successive Chief Justices of Trinidad and Tobago.

9. The effect of the second decision of the Court of Appeal accordingly was that of the seven and a half years which elapsed between the conviction and the date of judgment in the first appeal some four years and seven months were to count as part of the appellant's sentence, leaving almost three years of that time to be served by him in addition to the sentences imposed.
10. The details of the case of the appellant Kumar Ali are much simpler. He was convicted on 14 November 1991 on a count of robbery with aggravation, following a trial before Doughin J and a jury, and sentenced to eleven years' imprisonment with hard labour. He served a notice of appeal, which was followed on 28 May 1992 by grounds of appeal against conviction and sentence. The application for leave to appeal was not heard until 9 February 1996. The Board was informed that this was due to "administrative delay". The application was dismissed without reasons and the conviction and sentence were affirmed. The order of the court simply set out this result and added "Sentence to run from today 9th February 1996". The appellant was on 5 March 2003 granted special leave to appeal to the Privy Council.
11. The effect of the order of the Court of Appeal was that the sentence which the appellant would have to serve was increased from eleven years to fifteen years and almost three months, which exceeds the maximum sentence for the offence. He was actually in custody from the date of his conviction on 14 November 1991 until 6 June 2003, when he was granted parole. He accordingly served a term of eleven years and seven months in prison, a period exceeding the sentence originally imposed, without taking any account of remission to which he would have been entitled.
12. The main thrust of the argument presented on behalf of the appellants before the Board was that the Court of Appeal had adopted an incorrect approach to the application of section 49(1), requiring the case to be exceptional before exercising its discretion, an approach which resulted in serious unfairness. Moreover, in Tiwari's case the court had taken incorrect factors into account in the exercise of its discretion. Neither case was devoid of merit and it was submitted that in any case not so devoid the court ought to be ready to exercise its discretion in favour of allowing time served on remand to count towards the sentence. Each appellant also advanced an argument based on provisions of the Constitution of Trinidad and Tobago, though the focus of the submissions presented by counsel before the Board was on the other issues.
13. In order to determine the approach to be adopted by an appellate court to fixing the date from which an appellant's sentence is to run it is useful to consider the history of the English legislation and the practice of the courts. Section 14(3) of the Criminal Appeal Act 1907 made very similar provision to that of section 49(1) of the Supreme Court of Judicature Act in Trinidad and Tobago. The practice early developed that if leave to appeal was given the sentence would generally be backdated (see, eg, R v Peters (1908) 1 Cr App R 141), unless leave had been obtained by misstatement or deception (R v Westlake (1920) 15 Cr App R 100; R v Fenley (1920) 15 Cr App R 118). Where leave had been refused the Court of Appeal almost invariably declined to backdate the sentence, though it may be noted from the reported decisions that at that time appeals were usually heard within a few weeks after the convictions. When the delay grew longer in the 1940s, due to an increase in the number of appeals, the Court of Criminal Appeal adopted the practice of limiting the time lost to eight weeks. Then section 38(2) of the Criminal Justice Act 1948 was passed, whereby the time lost was capped at six weeks, subject to contrary direction by the court. The prisoner was not to lose time if leave to appeal had been given by the single judge. In practice appellants almost invariably lost time, with a limit of six or nine weeks, depending on the circumstances, if they were refused leave to appeal and then lost their appeals: see the report of the Interdepartmental Committee on the Court of Criminal Appeal, chaired by Lord Donovan (1965) Cmnd 2755), at para 170.
14. The authors of the Donovan Report explored carefully the rationale of "loss of time" orders. As they stated in para 171, the original reasons (i) the need to provide against frivolous appeals and (ii) the idea that a convicted prisoner ought not to be regarded as serving his sentence so long as he was enjoying the special privileges of an appellant. They stated (para 171) that with the general amelioration of prison conditions, the advantages of the special privileges received by appellants had become relatively slight. They also pointed out (para 173) that no distinction was made by the court between the flagrantly frivolous applicant and the applicant who only just failed to persuade the court to grant leave. Moreover, they pointed out that the proportion of cases in which the application is wantonly frivolous, in the sense that the applicant himself knows it to be without merit, is probably relatively small (para 174). They said in para 175 that the majority of applicants sincerely believe that they have grounds for appeal. This belief may be quite misconceived, but nonetheless sincere. At the other end of the scale are cases in which the prisoner may have reasonable grounds (perhaps on legal advice) for believing that he can persuade the court to intervene.
15. The Donovan Committee accordingly recommended that the presumption be reversed and that the time served by a prisoner between conviction and appeal should count towards his sentence unless the court ordered to the contrary. This was enacted by section 29 of the Criminal Appeal Act 1968 (bringing English law into line with that in Scotland), and the law has so remained in England and Wales. Loss of time orders were hardly ever made, though practice directions were issued in 1970 (Practice Note (Crime: Applications for Leave to Appeal) [1970] 1 WLR 663) and 1980 (Practice Direction (Crime: Sentence: Loss of Time) [1980] 1 WLR 270) reminding applicants of the court's power to make such orders. In spite of these warnings very few loss of time orders were made until recent years -- four in 1998, two in 1999, none in 2000 and two in 2001: see R v K (Herbert) [2005] EWCA Crim 955 at [18]. Since the publication, however, of the Practice Direction (Criminal Proceedings: Consolidation) [2002] 1 WLR 2870, para 16.1 of which deals with lost time orders, it is understood that orders are made more commonly, though it appears that they are generally limited to a few weeks in length.
16. The legislation governing loss of time varies between the several Caribbean jurisdictions. The majority of enactments now are in terms similar to the Criminal Appeal Act 1968 in England, but several, including Trinidad and Tobago, make provision on the same lines as the Criminal Appeal Act 1907. Their Lordships are very conscious that it is a matter for the legislature in each jurisdiction to enact its own rules, reflecting conditions in its own state. They accordingly do not consider it appropriate to express a preference for either approach. In a jurisdiction which has a statutory provision similar to section 49(1), an appellate court must start with the statutory injunction regarding loss of time. It should consider in each case in the light of the relevant facts whether to exercise its discretion to backdate the sentence and, if so, for what length of time. Appellate courts are entitled to exercise their discretion in the manner which they think appropriate, provided it is consistently exercised and in accordance with proper principle. What their Lordships propose to do is to make clear the approach which appellate courts should adopt to provisions on lines similar to section 49(1), bearing in mind the rationale and objective of such provisions.
17. In the first place, their Lordships consider that the making of orders backdating sentences to the date of conviction should not be restricted to exceptional cases. Secondly, it is wrong in principle to take into account the heinousness of the offence or the prisoner's lack of remorse, for these are factors which are relevant only when the original sentence is passed. Counsel for the State cited to the Board an Australian decision, R v Wort [1927] VLR 560, also referred to by the Court of Appeal in Tiwari's case, in which the Court of Criminal Appeal of Victoria had regard to the prisoner's record and the leniency of the sentence. Their Lordships consider that this was incorrect in principle and that this decision should not be followed. Similarly, regard should not be paid to the prisoner's conduct since conviction, except in so far as it may tend to show his state of mind in applying for leave to appeal. Thirdly, any decision by which it is determined that there should be loss of time should be proportionate, that is to say, it should impose a penalty for bringing or persisting with a frivolous application which fairly reflects the need to discourage wasting the court's time without inflicting an unfairly long extension of imprisonment upon the applicant. Their Lordships do not wish to be prescriptive about the appropriate length of loss of time orders, which is a matter for each appellate court in each individual case. They consider, however, that they should be made with regard to the abuse which they are designed to curb and would not expect them to exceed a few weeks in the large majority of cases.
18. In the light of these principles their Lordships turn to the appeals before them. They consider that in Tiwari's case the Court of Appeal was in error in several respects:

(a) Although it was not expressly so stated in the court's judgment, it is apparent from its previous decisions, such as Renaud v The State (unreported) 16 November 2000; Cr App No 74 of 1998, that "good reason" has to be shown before the court will backdate a sentence. Their Lordships consider that this approach is tantamount to saying that backdating will only be permitted in exceptional cases, whereas each case should be looked at on its merits, to ascertain whether the application is devoid of merit, an attempt to manipulate the criminal appeal system for the applicant's benefit or is otherwise a deliberate waste of the court's time and resources.

(b) Nelson JA stated at para 56 of his judgment that in substituting a sentence an appellate court "must necessarily apply afresh the principles of sentencing". That is perfectly correct when it is performing its task of determining whether the sentence imposed by the trial judge should be altered. It is incorrect if it is applied, as the court did, to the issue of backdating, which is directed to those different considerations which their Lordships have discussed.

(c) The court took into account the heinousness of the appellant's offence and expressed the view (para 55) that it should have reports about his conduct on remand. Both factors are in their Lordships' opinion irrelevant to the issue of backdating and should not have been taken into account.

(d) The court expressed a strongly adverse view about the merits of the appeal, classing it as a "concocted story" (para 38), "deception" (para 71) and as "an elaborate attempt to hoodwink the appellate courts into believing that he had credible evidence that he was wrongly identified and that Wills J wrongly denied him that opportunity" (para 68). Their Lordships do not propose to set out in this judgment details of the evidence which the appellant wished to adduce and its credibility and possible relevance. They have, however, examined it with care and consider that there is insufficient evidence of a deliberate attempt to deceive the court. The Board had before it at the appeal in 2002 affidavits from the two witnesses whose evidence the appellant wished to adduce and thought that that evidence had enough credibility on its face to remit the case for investigation by the Court of Appeal. That court eventually rejected it after completing its investigation, but although it found that the averments contained in the affidavits are untrue it does not necessarily follow that the appellant knew that from the start and deliberately attempted to place false evidence before the court. Moreover, it appears fairly clearly from the judgment of the Court of Appeal in the appellant's first appeal, when the question of further witnesses was not raised, that the appeal was by no means devoid of merit. There were inconsistencies in the complainant's evidence and the court held that the judge's direction to the jury on identification "passes muster, if only just". At that stage, when the question of backdating the conviction fell to be considered, there were no grounds for classing the appeal as devoid of merit or a deliberate attempt to manipulate the appeal process. Their Lordships accordingly consider that the view taken by the Court of Appeal on the second appeal about the weakness of the merits cannot be sustained.

(e) The length of lost time to be served by the appellant as a result of the court's order, just short of three years, was in their Lordship's opinion entirely disproportionate. It could not on any view of the case be supported, even if one were to take the view that in the circumstances of the case a loss of time order was merited. On that ground alone the decision of the Court of Appeal cannot stand.

19. The case of Kumar Ali is simpler and even more clear. Since the Court of Appeal failed to give any reasons for its decision that the sentence should run from the date of the appeal, it cannot be said whether it directed its mind to any of the material considerations. It did not discuss the implications of the "administrative delay" whereby over four years elapsed between conviction and hearing of the application for leave. Nor did it advert to the fact that its order meant that the appellant would serve three and a quarter years more than the sentence originally imposed, a term which in total exceeded the statutory maximum for the offence. Such a disproportionate result simply cannot be sustained, as Mr Knox for the State recognised when he stated that he would not oppose limiting the loss of time to one year. Their Lordships can see no basis for limiting the time at all in Kumar Ali's case, let alone to such an arbitrary period of considerable length.
20. Their Lordships accordingly conclude for the reasons that they have given that the Court of Appeal ought to have directed in the case of each appellant that the full period of time spent between his conviction and the disposition of his appeal should count towards his sentence. It is accordingly unnecessary for them to consider the submissions based on the Constitution, which may be arguable, but they wish to reserve their opinion on them for a future occasion.
21. The appeal of each appellant will be allowed. Their Lordships direct in each case that the time between the appellant's conviction and the determination of his appeal shall count as part of the term of his imprisonment, which shall be deemed to run as from the date of his conviction.