UKPC 21
Privy Council Appeal No 0026 of 2011
Ajay Dookee (Appellant) v State of Mauritius (Respondent)
From the Supreme Court of Mauritius
JUDGMENT DELIVERED BY
28 May 2012
Heard on 26 March 2012
S. Ysang Mang Kin
(Instructed by MA Law (Solicitors) LLP)
Satyajit Boolell SC DPP
Ms Sulakshna Beekarry
(Instructed by Royds Solicitors LLP)
"As regards [the appellant], I direct you to acquit him of the charge levelled against him if you find that he did not know that when he drove the contract car for some 3.5km from the bungalow . . . [the other accused] were to murder the victim, you should return a verdict of not guilty for he drove the car without knowing that the person in the boot would be murdered. If you find that [the appellant] knew that the victim was to be murdered when he drove the car with the victim, gagged and tied . . . then you can find him guilty, but I have told you I doubt whether there is evidence."
It is not now suggested that there was insufficient evidence upon which the jury could properly convict the appellant as they did.
"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 [it] 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. . . .
11. The Board invites the Supreme Court of Mauritius to consider in the light 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 . . .".
"Where an accused has been in custody or has been imprisoned under a warrant or process before his trial for an offence of which he has been convicted, the Court or judge in passing sentence shall take into account the time spent by the accused in custody and may sentence the accused to a term less than the minimum by a term not exceeding the aggregate of the term of imprisonment already served".
"While it may be a good thing, for the sake of transparency, to resort to some form of arithmetical deduction for time spent on remand, such deduction would not necessarily represent the time actually spent on remand. There are other factors which could have a bearing on the deduction to be granted in each individual case.
The Law Lords themselves [in Callachand] asked a question about the equality of treatment afforded to a detainee on remand as compared to a convicted prisoner. If conditions on remand are significantly less rigorous, the deduction should reflect this fact.
. . . Since conditions are not the same, there is a case for debate that a point-to-point arithmetical deduction would not apply. Indeed, from the affidavit evidence of the Assistant Commissioner of Prisons, the conditions of applicant whilst on remand from 4 January 2002 to 5 August 2003 appear significantly lighter than conditions applicable to him after his conviction. They are set out in List A and List B respectively:
Conditions of applicant whilst on remand
(a) applicant was kept separate from convicted detainees. The sleeping conditions were the same as for convicted detainees.
(b) applicant did not have to work whilst on remand.
(c) applicant was allowed up to one visit per week.
(d) applicant could write as many letters as he wishes to his relatives/friends.
(e) applicant was wearing civilian clothing.
(f) applicant was allowed to purchase canteen goods for an amount not exceeding MRU1,000 per week from private cash.
(g) applicant was not compelled to have his hair cut or to shave.
Conditions of applicant as convicted detainee
(a) applicant is compelled to work (about 40 hours a week) in the workshops at the Prisons and entitled to an earnings scheme.
(b) applicant is restricted to two visits per month. He could only write two letters per month.
(c) applicant has to wear prisons uniform.
(d) applicant is allowed to purchase canteen goods for an amount not exceeding MRU200 weekly from private cash.
(e) applicant is required to have regular haircuts and shaving.
Furthermore, a subjective appreciation of the percentage which would be open to each individual trial Court to deduct from the time spent on remand could create havoc and uncertainty since no sentencing guidelines exist. We propose to cure this to a certain degree as we shall expatiate later. . . .
While it would be advisable, following Callachand, that henceforth trial Courts mention the sentence they would normally have imposed and then deduct what they consider a fit allowance for the time spent on remand therefrom, we believe that the old formula whereby the trial Court imposes the sentence to be served in the light of the time already spent on remand does not contain any intrinsic flaw. Considering that detention on remand is a deprivation of liberty prior to a finding of guilt, and considering equally the difference in the conditions of detention between a remand prisoner and a convicted one as we have seen outlined in Lists A and B, we believe that it would be fair to allow a discount of between one half to two thirds of the time spent on remand when passing sentence. We also believe that a scale must exist to take into account individual situations, like for example rights of visit which may not be exercised effectively where the detainee is a foreign national for example and the family lives abroad. It is such individual situations which would influence on the scale of discount between one half to two thirds as we have mentioned above."