The Judicial Committee of the Privy Council Decisions

Callachand & Anor v State of Mauritius (Mauritius) [2008] UKPC 49 (4 November 2008)

Privy Council Petition No 44 of 2008

(1) Mohamed Iqbal Callachand

(2) Mohamed Anwar Callachand Petitioners

v.

The State Respondent

FROM

THE COURT OF APPEAL OF

MAURITIUS

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REASONS FOR DECISION OF THE LORDS OF THE

 JUDICIAL COMMITTEE OF THE PRIVY COUNCIL, OF THE

 26^th September 2008, Delivered the 4^th November 2008

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Present at the hearing:-

Lord Hope of Craighead

Lord Rodger of Earlsferry

Lord Carswell

Lord Mance

Sir Paul Kennedy

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[Delivered by Sir Paul Kennedy]

On 26^th September 2008 the Board, sitting in Mauritius, granted special leave to the appellants to appeal against the sentences imposed on them by the Supreme Court and remitted their appeals to that court for it to reconsider the sentences in the light of written reasons to be given by their Lordships. They now give those reasons.

The Issue

1. The issue which must now be considered is the approach to be adopted by sentencing courts in Mauritius to time spent in custody prior to sentence.

The Background to the Appeal

2. On 10^th January 1999 there was an violent incident involving the two appellants on the one hand and on the other hand Ismet Joomun and his wife Shenaz Bibi Joomun. As a result Ismet Joomun sustained fatal injuries and Shenaz Bibi Joomun was wounded. The second appellant was arrested on the 10^th January 1999, and the first appellant was arrested 3 days later on 13^th January 1999. They were initially held in police detention, but they were transferred to prison when they were remanded in custody on a provisional charge of murder. In the case of the first appellant that transfer took place on 11^th February 1999. In the case of the second appellant it took place on 17^th February 1999. On 4^th November 1999 both appellants were committed for trial for the offence of murder and on 21^st July 2000 they were released on bail. They had each been in custody on remand for 17 months.
3. On 17^th September 2001, after a review by the Director of Public Prosecutions, three fresh charges were laid by information before the Intermediate Court. Only two of the charges concerned the appellants. For present purposes they can be summarised as follows

(1) both appellants were charged with having on 10^th January 1999 caused the death of Ismet Joomun by inflicting wounds and blows but without the intention to kill, contrary to section 228(3) of the Criminal Code.

(2) the second appellant was also charged with having on the same occasion, together with Mohamed Sameen Callachand, inflicted a blow on Shenaz Bibi Joomun, contrary to section 230(1) of the Criminal Code.

On 29^th July 2004 the appellants were convicted of the first of those offences and the second appellant was convicted of the second offence. On 5^th August 2004 they were each sentenced to penal servitude for 7 years for the first offence. For the second offence the second appellant was fined Rs5000. The respondent accepts that no reference was made by the sentencing court to the time spent in custody on remand because it was not made aware of that period.

The Appeal Process so far

4. Both appellants appealed against conviction and sentence, and they were permitted to remain on bail. The only ground of appeal in relation to sentence which was pursued before the Supreme Court was that that the Intermediate Court failed to take into account the time which the appellants had spent in custody since the incident. The appeals were heard by the Supreme Court on 27^th March 2006, judgment being delivered on 5^th October 2006. The appeals were dismissed. In relation to the appeals against sentence the court said

"We have perused the record and, as pointed out by state counsel, it does not show that the appellants were on remand in respect of their case"

It is now accepted by the respondent that the record to which the Supreme Court referred must have been incomplete.

5. A petition for special leave to appeal against the decision of the Supreme Court in relation to both conviction and sentence was heard by the Judicial Committee of the Privy Council on 3^rd April 2008. The petition was dismissed, but liberty was granted to restore the application for leave to appeal against sentence in relation to the time spent in custody on remand if it should appear that the appellants spent time in custody on remand and that it would not be appropriately taken into account in computing their dates for release. The respondent now accepts that is the position. But there is no agreement as to the extent to which the sentencing court should have taken the time spent on remand into account.

The Mauritian Approach.

6. For the respondent Mr Geoffrey Cox QC accepted that it is the normal practice for sentencing courts in Mauritius to be informed of time spent on remand awaiting trial and for the court, in its discretion, to take that period into account when deciding the appropriate level of sentence. But Mr Cox submitted that the court is not obliged to make any deduction and that, if it decides that it should do so, it is free to do this to such extent as it considers appropriate. He indicated that the practice is for the court to state that the time spent in custody on remand has been considered in assessing the sentence imposed. The Board was shown examples of decisions made in accordance with that practice. It is to be noted that those decisions do not reveal the extent to which time spent in custody on remand was taken into account in assessing the length of the sentence or the principles, if any, which were applied.
7. There are no statutory provisions which are directly relevant. But section 135 of the Criminal Procedure Act allows for the possibility that when allowance is made for time spent in custody on remand the sentence passed may be less than the statutory minimum. Section 16 of the Criminal Appeal Act deals with time spent in custody or on bail pending the determination of an appeal. A similar provision can be found in section 49(1) of the Supreme Court of Judicature Act (cap 4:01) which forms part of the law of Trinidad and Tobago. That subsection mirrors section 14(3) of the English Criminal Appeal Act 1907.

General Considerations

8. In Kumar Ali v. The State (Privy Council Appeal No. 56 of 2004) the Judicial Committee considered the section which is part of the law of Trinidad and Tobago. In paragraph 14 of its judgment the Board drew attention to what was said in the report of the interdepartmental committee on the Court of Criminal Appeal chaired by Lord Donovan (1965) Cmnd 2755 in relation to "loss of time" orders. They were said to be justified in order to protect appellate courts from frivolous appeals, and because a convicted prisoner ought not to be regarded as serving his sentence so long as he was enjoying the special privileges of an appellant. The authors of the report pointed out the weaknesses of both types of justification, saying that as prison conditions had improved the advantages of the special privileges received by appellants had become relatively slight.
9. The Board is not concerned in the present case with time spent by a person in custody as an appellant. So their Lordships need not consider the need to deter frivolous appeals. But they are concerned with the basic right to liberty. In principle it seems to be clear that where a person is suspected of having committed an offence, is taken into custody and is subsequently convicted, the sentence imposed should be the sentence which is appropriate for the offence. It seems to be clear too that any time spent in custody prior to sentencing should be taken fully into account, not simply by means of a form of words but by means of an arithmetical deduction when assessing the length of the sentence that is to be served from the date of sentencing. We find it difficult to believe that the conditions which apply to prisoners held on remand in Mauritius are so much less onerous than those which apply to those who have been sentenced that the time spent in custody prior to sentence should not be taken fully into account. But if that is thought to be the position there should be clear guidance as to the extent to which time spent in custody prior to sentence should not be taken fully into account because of the difference between the prison conditions which apply before and after sentence. That is something which, as is seems to their Lordships, should now be considered by the Supreme Court, as it is familiar with local conditions and will be able to apply its own knowledge to this case.
10. Their Lordships recognise that there may be unusual cases where a defendant has deliberately delayed proceedings so as to ensure that a larger proportion of his sentence is spent as a prisoner on remand. In such a case it might be appropriate not to make what would otherwise be the usual order. Similarly a defendant who is in custody for more than one offence should not expect to be able to take advantage of time spent in custody more than once. These are not problems which arise in the present case. Other factors, such as exceptionally good behaviour whilst on remand or assisting the police with their investigations, might seem not to have any relevance to the extent to which time spent in custody on remand should be taken into account. But they may be reflected in the overall sentence.

Conclusion

11. The Board invites the Supreme Court of Mauritius to consider in the light of paragraphs 9 to 11 of this judgment whether, and if so to what extent, the time spent by the appellants in custody prior to sentence should count towards their sentences, to explain the reasons for its decision for the benefit of the appellants and the assistance of all sentencing judges and in the light of that decision to sentence the appellants anew for the offences of which they were convicted on 29 July 2004.