UKPC 4
Privy Council Appeal No 0017 of 2010
Ian Seepersad and Roodal Panchoo (Appellant) v The Attorney General of Trinidad and Tobago (Respondent)
Alan Newman QC
(Instructed by Herbert Smith LLP)
(Instructed by Charles Russell LLP)
"Sentence of death shall not be pronounced on or recorded against a person convicted of an offence if it appears to the Court that at the time when the offence was committed he was under the age of eighteen years; but in lieu thereof the Court shall sentence him to be detained during the State's pleasure, and, if so sentenced, he shall be liable to be detained in such place and under such conditions as the Minister may direct, and whilst so detained shall be deemed to be in legal custody."
Section 80 made provision for a sentence of detention in the case of children or young persons convicted on indictment of an attempt to murder, of manslaughter or of wounding with intent to do grievous bodily harm. Section 81 is in these terms:
"(1) A person in detention pursuant to the directions of the Minister under sections 79 and 80 may, at any time, be discharged by the Minister on licence.
(2) A licence may be in such form and may contain such conditions as the Minister may direct.
(3) A licence may at any time be revoked or varied by the Minister, and, where a licence has been revoked, the person to whom the licence related shall return to such place as the Minister may direct, and if he fails to do so may be apprehended without warrant and taken to that place."
(1) The wording of a sentence of detention during the State's pleasure indicates that the progress and development of the detainee, as well as the requirements of punishment, must be kept under continuous review throughout the sentence. The continuing review must extend to the duration of the detention as well as to the place where and the conditions under which the detainee is being kept, even if a minimum term for the detention has been set by the judiciary.
(2) The separation of powers is a basic principle on which the Constitution of Trinidad and Tobago is founded. Parliament cannot, consistently with that principle, transfer from the judiciary to an executive body which is not qualified to exercise judicial powers a discretion to determine the severity of the punishment to be inflicted upon an offender. The system of public law under which the people for whom the Constitution was provided were already living when it took effect must be assumed to have evolved in accordance with that principle.
(3) An indeterminate sentence of detention which is at the pleasure of the State and not in the hands of the court violates the common law constitutional principle. To bring the sentence into conformity with the principle, the determination of its duration must be transferred into the hands of the court from those of the executive.
(4) This can only be done if the Constitution itself, which is the supreme law and preserves the existing law from being invalidated, permits the statutory provisions which violate the common law constitutional principle to be modified so as to bring them into conformity with it.
"(vi) Even though the respondents were entitled to a periodic review the savings clause at section 6(1) precludes them from mounting a challenge based on sections 4 and 5 of the Constitution that the appellant failed to make provision for their periodic review."
The Court's holdings are set out in para 80, at the end of which it is stated:
"(5) There was no breach of the respondents' rights under sections 4(a) and (b) and 5(2)(h) of the Constitution and accordingly the question of damages does not arise."
She had noted in para 17 that counsel for the appellants in this appeal accepted that the Children Act was a pre-existing law as defined by section 6 of the Constitution.
"The Court of Appeal erred in law in finding that the section 6 saving provision in the Constitution was effective to preclude the appellant challenging the manner of the execution of his detention on the ground that the failure to review the sentence and detention of the appellant resulted in a breach of the appellant's fundamental rights under section 4(a) and (b) and section 5(2)(h) of the Constitution."
" Nothing in sections 4 and 5 shall invalidate –
(a) an existing law".
Section 6(3) provides that in that section "existing law" means a law that had effect as part of the law of Trinidad and Tobago immediately before the commencement of the Constitution.
"(1) For the removal of doubts it is hereby declared that if any person alleges that any of the provisions of this Chapter has been, is being, or is likely to be contravened in relation to him, then without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the High Court for redress by way of originating motion.
(2) The High Court shall have original jurisdiction
(a) to hear and determine any application made by any person in pursuance of subsection (1),
and may … make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing, or securing the enforcement of, any of the provisions of this Chapter to the protection of which the person concerned is entitled."
The issues in this appeal
(a) the first issue – is there a right to a constitutional remedy?
"The right to apply to the High Court under section 6 of the Constitution for redress when any human right or fundamental freedom is or is likely to be contravened, is an important safeguard of those rights and freedoms; but its value will be diminished if it is allowed to be misused as a general substitute for the normal procedures for invoking judicial control of administrative action. In an originating application to the High Court under section 6(1), the mere allegation that a human right or fundamental freedom of the applicant has been or is likely to be contravened is not of itself sufficient to entitle the applicant to invoke the jurisdiction of the court under the subsection if it is apparent that the allegation is frivolous or vexatious or an abuse of the process of the court as being made solely for the purpose of avoiding the necessity of applying in the normal way for the appropriate judicial remedy for unlawful administrative action which involves no contravention of any human right or fundamental freedom."
He made observations to the same effect in Maharaj v Attorney General of Trinidad and Tobago (No 2)  AC 385 and Attorney General of Trinidad and Tobago v McLeod  1 WLR 522, 530. In Hinds v Attorney General of Barbados  UKPC 56,  1 AC 854, para 24 Lord Bingham of Cornhill said that Lord Diplock's salutary warning remains pertinent. In Jaroo v Attorney General of Trinidad and Tobago  UKPC 5,  1 AC 871 the Board held that where a parallel remedy existed the right to apply for redress under section 14(1) of the Constitution was to be exercised only in exceptional circumstances.
(b) the second issue – are the appellants entitled to damages?