The Underlying Litigation

The Constitution of Trinidad and Tobago

“Whereas the People of Trinidad and Tobago -

(a)       have affirmed that the Nation of Trinidad and Tobago is founded upon principles that acknowledge the supremacy of God, faith in fundamental human rights and freedoms, the position of the family in a society of free men and free institutions, the dignity of the human person and the equal and inalienable rights with which all members of the human family are endowed by their Creator;

(b)       respect the principles of social justice and therefore believe that the operation of the economic system should result in the material resources of the community being so distributed as to subserve the common good, that there should be adequate means of livelihood for all, that labour should not be exploited or forced by economic necessity to operate in inhumane conditions but that there should be opportunity for advancement on the basis of recognition of merit, ability and integrity;

(c)       have asserted their belief in a democratic society in which all persons may, to the extent of their capacity, play some part in the institutions of the national life and thus develop and maintain due respect for lawfully constituted authority;

(d)       recognise that men and institutions remain free only when freedom is founded upon respect for moral and spiritual values and the rule of law;

(e)       desire that their Constitution should enshrine the above-mentioned principles and beliefs and make provision for ensuring the protection …”

Section 1 proclaims that the Republic of Trinidad and Tobago shall be a sovereign democratic state. Section 2 declares that the Constitution is the supreme law of this state. These provisions belong to the “Preliminary” compartment of the instrument.

“It is hereby recognised and declared that in Trinidad and Tobago there have existed and shall continue to exist, without discrimination by reason of race, origin, colour, religion or sex, the following fundamental human rights and freedoms, namely:

(a)       the right of the individual to life, liberty, security of the person and enjoyment of property and the right not to be deprived thereof except by due process of law;

(b)       the right of the individual to equality before the law and the protection of the law …”

“(1) Except as is otherwise expressly provided in this Chapter and in section 54, no law may abrogate, abridge or infringe or authorise the abrogation, abridgment or infringement of any of the rights and freedoms hereinbefore recognised and declared …

(2) Without prejudice to subsection (1), but subject to this Chapter and to section 54, Parliament may not - …”

There follows a series of prohibitions on what Parliament may do. By these provisions Parliament may not, inter alia, authorise or effect the arbitrary detention, imprisonment or exile of any person. The relevance of section 5 to these appeals will be revisited infra.

The Relevant Statutory Provisions

“(1)     A court, on remanding or committing for trial a child who is not released on bail, shall order that the child be placed in the custody of a community residence named in the Order for the period for which he is remanded or until he is brought before the court.”

The second is section 60(1) and (5):

“(1)     A court shall not order a child to be detained in an adult prison.

“(5)     Where a child is detained in any facility he shall not be allowed to associate with adult prisoners except with the express permission of the court in respect of the adult prisoner named in such order.”

The preceding provisions of section 60 contain a series of specially tailored prescriptions to apply in any case where a child is convicted of certain types of offence or is liable to imprisonment in default of payment of a fine, damages or costs.

The Material Facts

i)              On 29 January 2014 the appellants were charged with robbery and murder. They were then aged 16 and 13 years respectively. They were brought before the Chief Magistrate, who remanded Sasha to the Women’s Prison and Brian to the Youth Training Centre (“YTC”).

ii)            During the period of some 15 months which followed further remand orders, in the same terms, were made from time to time.

iii)          On 18 May 2015, as noted above, section 54 and section 60(1) of the Children Act came into operation.

iv)          On 30 June and 29 July 2015 the Chief Magistrate made further remand orders in the same terms as in (i).  

v)             Judicial review proceedings were commenced by both appellants. The respondents were the Chief Magistrate and the Attorney General of Trinidad and Tobago. Leave to apply for judicial review was granted to the appellants by successive orders of the High Court dated 20 August 2015 and 2 September 2015. By order of the High Court the Children’s Authority became a party to the proceedings from the outset.

vi)          In the case of Brian, the order of the High Court dated 20 August 2015 also granted interim relief. The effect of this was to require the Children Authority to make certain enquiries and assessments with a view to inter alia transferring him from the YTC to a suitable community residence or other suitable accommodation.

vii)        A consequential order giving further effect to the initial order of the court was made on 4 September 2015.

viii)     In the case of Sasha, the order of the High Court dated 2 September 2015 also contained a provision for interim relief which, in summary, directed the Authority to take certain steps with the aim of bringing about the transfer of Sasha to a community residence.

The Underlying Proceedings

“the very fact that these children were subjected to conditions which were unsuited to them and not in conformity with the philosophy of their rehabilitation or their best interest”.

The judge added at para 316:

“The compensation to be awarded to the claimants is as a result of the failure of the legal system or the executive’s administrative process to have in place a community residence appropriate for their respective detentions.”

In the case of Sasha, the judge stated at para 318:

“[Sasha] was subjected to ‘prison like’ conditions and treated as a young adult in an adult prison. She ought not to have been placed in a women’s prison amongst other convicted persons and in conditions which were designed to treat and reform adult prisoners. She associated with adults even in a limited way through the eyes of the child. This would have been a startling, frightening and scarring experience. There was an apparent lack of proper amenities and facilities to preserve her human dignity as a vulnerable child.”

As regards Brian, the judge (at para 317) highlighted inter alia his age, the period of his detention, the conditions of his detention, his deficient learning skills, his social interaction with teenagers aged over 18 and, finally, “the failure of the YTC to provide a relevant and child specific treatment plan … to address his obvious deficiencies”.

The Appeals

i)              Were the appellants detained without due process of law in breach of section 4(a) of the Constitution?

ii)            Was there a violation of the appellants’ rights to the protection of the law under section 4(b) of the Constitution?

Construing the Constitution of Trinidad and Tobago

“enshrine the above-mentioned principles and beliefs and make provision for ensuring the protection in Trinidad and Tobago of fundamental human rights and freedoms.”

In this way the Constitution proclaims and establishes a constitutional democracy.

The Section 4(a) Ground

i)              Section 54(1) which, with effect from 18 May 2015, mandated that the Chief Magistrate remand both appellants to a community residence;

ii)            Section 60(1) which, with effect from the same date, precluded the Chief Magistrate from ordering the detention of Sasha in an adult prison; and

iii)          Section 60(5) which, with effect from the same date, prohibited the association of both appellants with adult prisoners in the absence of the express permission of the court.

The periods under scrutiny have been specified above and the case made by each appellant is in substance indistinguishable. While the factual matrix pertaining to the two appellants differs somewhat, this is a matter of no moment in the exercise of construing section 4(a) - or, indeed, section 4(b) - in the context of these appeals.

“The object of section 2 is to secure the protection of all the rights and freedoms which are enshrined in section 1. Since the administration of justice is the instrument by means of which the citizen seeks to enforce or prevent encroachment on [his] rights, the scheme of section 2 is to prohibit the enactment of legislation which may have the effect either of (a) abrogating, abridging or infringing any of those rights or (b) depriving the citizen of the benefit of any of several procedural safeguards established for the purpose of ensuring the due administration of justice. The observance of these safeguards is, in my view, an essential requirement for the preservation of all the substantive rights and freedoms guaranteed by section 1 of the Constitution.”

As Thornhill later made clear, the rights listed in section 5 of the Constitution are not necessarily comprehensive of everything included in the compendious expression “due process of law”.

“This is the first occasion on which the due process clause of the Constitution has been the subject matter of interpretation by this court. Little authority is to be found with reference to the interpretation of its counterpart in the Canadian Bill of Rights. The expression ‘due process of law’, although having its roots in Magna Carta (1215), which has come to be regarded as the palladium of the basic liberties of the British citizen, has not found a firm footing in British legal terminology …

Its origin is generally accepted as being in the 39th clause of Magna Carta wherein it was provided that:

‘No free man was to be arrested, imprisoned, put out of his free hold, outlawed, destroyed or put upon in any way except by the lawful judgement of his peers or the law of the land’.”

Phillips JA then traced the use of this phrase in subsequent English legislative enactments, the Fifth Amendment of the Constitution of the USA and the Canadian Bill of Rights. He also noted the analysis of Professor Holdsworth in History of English Law (Vol 1, p 63 and Vol 2, pp 215-216), passages in which one finds emphasis on the protection of the citizen against arbitrary government conduct, including arbitrary deprivation of personal liberty. Phillips JA continued, at 319G:

“The concept of ‘due process of law’ is the antithesis of arbitrary infringement of the individual’s right to personal liberty; it asserts his ‘right to a free trial, to a pure and unbought measure of justice’. While it is not desirable and, indeed, may not be possible to formulate an exhaustive definition of the expression, it seems to me that, as applied to the criminal law … it connotes adherence, inter alia, to the following fundamental principles:

(i)        reasonableness and certainty in the definition of criminal offences;

(ii)       trial by an independent and impartial tribunal;

(iii)     observance of the rules of natural justice.”

His Lordship then noted that two of these safeguards are expressly specified in paragraphs (e) and (f) of section 2 (now section 5) while the third is impliedly provided for in paragraph (c).

“The references which I have cited, both from the United States and from Canada, serve to demonstrate that in both countries ‘due process‘ is seen to be construed as a restraint upon action or a limitation on law which affects personal liberties to a degree of unreasonableness or arbitrariness which is coloured by discrimination or otherwise. The introduction of the due process clause in the Constitution of Trinidad and Tobago seems to me to have been similarly inspired, although the method has been different and at the same time more clearly explicit of the legislative intention. Section 1 (a) of the Constitution declares a fasciculus of individual rights to have existed and assures their continuity without deprivation except by due process of law; but the section does not itself provide the means whereby the individual might be protected against their abrogation, abridgment or infringement. Such protection is to be found in section 2 of the Constitution and because this is so I think that subsections 1 (a) and 2 are complementary and, together, provide the content and values which underscore the legal civil liberties of the individual as distinct from his political civil liberties, his economic civil liberties or his egalitarian civil liberties. The individual legal civil liberties concern the justice of the legal order and speedy trial, and include freedom from arbitrary arrest, or arbitrary search and seizure of person, premises and papers; protection of impartial adjudication, involving notice and fair hearing, an independent tribunal and the right to counsel, the privilege against compulsory self-incrimination, the protection from cruel and unusual treatment and punishment; the right to be informed promptly of the reasons for his arrest or detention; the presumption of innocence; the right to the assistance of an interpreter and to all the other facilities and rights. It is not necessary or even possible to venture a comprehensive definition of the phrase ‘due process of law’ such as might be of permanent application.”

His Lordship added (at 412C) that the declaration of the individual rights in section 4(a) and the stipulation for due process of law in the deprivation of any of them -

“is intended basically to ensure the individual against oppressive or arbitrary use of authority.”

This is a clear reference to the interface between the executive and the courts. Furthermore the rule of law is readily discernible in this pithy statement.

“What is comprised in due process has never been exhaustively defined. But it has always been taken to include the resolution of justiciable issues by courts of law without interference by the executive or the legislature.”

The fundamental reason for rejecting the breach of section 4(a) complaint in Ferguson was that the legislation had not interfered with judicial proceedings to the extent of purporting to exercise an inherently judicial power. Furthermore, while under the previous statutory regime the appellants could not have been prosecuted:

“The right to be acquitted and discharged without trial and irrespective of innocence or guilt is not as such a right protected by section 4(a) or any other provision of the Constitution” (see para 35).

The Board further emphasised that the due process rights of the appellants would be guaranteed by their fair trial rights protected by the Constitution. Mere exposure to possible deprivation of liberty or property, each being a possible outcome in the event of a conviction, did not contravene their rights under section 4(a).

“Due process rights must include the most basic of all requirements of the rule of law, namely to be treated in accordance with the legislative framework in force. However, this was rendered impossible by the executive’s unexplained failure to do what it was statutorily required to do, which was to give effect to sections 54(1) and 60(1) of the Children Act” (Original emphasis.)

Mr Clayton further submitted that this failure by the executive deprived the appellants of the benefits of the aforementioned two statutory provisions and diluted their right of access to the court.

“110. Insofar as the Chief Magistrate is concerned, there is no issue of arbitrary or high-handed action on her part. As far as she was aware there were no community residences in existence to which she could remand the children. She had no discretion to grant bail or to release the children into the care of their mother. She considered the possibilities which were available to her and eventually remanded Brian to St Michael’s YTC and Sasha to the Women’s Prison. There is no question raised as to her bona fides in doing so.

“111. In addition, no question has been raised that the Chief Magistrate did not constitute an independent and impartial tribunal. If the Chief Magistrate made an error of law in remanding the children to places which were not community residences then the legal system provides avenues of redress in the form of judicial review, or an appeal of the decision.

“113. Likewise, there is no question of arbitrary or high-handed conduct on the part of the state or the Commissioner of Prisons in depriving the children of their liberty. No issue has been raised that there was a failure by the state or the Commissioner of Prisons to observe any rule of natural justice in depriving the children of their freedom. The issue that has been raised is whether the failure of the state to provide licensed community residences suitable to accommodate the children at the time that the suite of children legislation was proclaimed amounted to a breach of the right to due process.”

The Court of Appeal, focusing on the narrower meaning of due process expounded by Lord Hoffman in Boyce, reasoned and concluded, at para 115:

“The issue becomes whether the breach of the statutory mandate to place child offenders in community centres under the circumstances as they existed at the time renders the system of justice unfair. This court believes that the breach in these circumstances did not.” (Emphasis added.)

The Section 4(a) Ground: Conclusions

The Section 4(b) Ground

“… deprives no one of the ‘protection of the law’, so long as the judicial system of Trinidad and Tobago affords a procedure by which any person interested in establishing the invalidity of that purported law can obtain from the courts of justice, in which the plenitude of the judicial power of the state is vested, a declaration of its invalidity that will be binding upon the Parliament itself and upon all persons attempting to act under or enforce the purported law. Access to a court of justice for that purpose is itself ‘the protection of the law’ to which all individuals are entitled under section 4(b).”

In the passage which followed Lord Diplock declined the invitation to supply a comprehensive definition of the expression “the protection of the law”. In doing so he drew attention to the passage in Thornhill noted in para [23] of this judgment and, in particular, the words in parenthesis “(though not necessarily exhaustively)”.

i)              The right asserted by the appellants, namely a right to protection of Maya customary land tenure, was protected by the relevant provisions of the Belize Constitution.

ii)            By section 3(a) of the Constitution of Belize every person in Belize enjoyed, amongst other “fundamental rights and freedoms of the individual … the protection of the law”.

iii)          While this right has “traditionally” been considered to guarantee access to courts and tribunals which are independent and impartial, the court considered this an unduly “narrow interpretation”: see paras 39-41.

iv)          The right to protection of the law encompasses “access to and the enjoyment of the fundamental rules of natural justice”: see para 42.

v)             This right “… goes well beyond the issue of access to judicial or quasi-judicial proceedings”: para 44.

vi)          It is a “broad spectrum right”: para 45.

vii)        This right also “… encompasses the international obligations of the state to recognise and protect the rights of indigenous people … to honour its international commitments” see para 52.

“The law is evidently in a state of evolution but we make the following observations. The right to protection of the law is a multi-dimensional, broad and pervasive constitutional precept grounded in fundamental notions of justice and the rule of law. The right to protection of the law prohibits acts by the Government which arbitrarily or unfairly deprive individuals of their basic constitutional rights to life, liberty or property. It encompasses the right of every citizen of access to the courts and other judicial bodies established by law to prosecute and demand effective relief to remedy any breaches of their constitutional rights. However the concept goes beyond such questions of access and includes the right of the citizen to be afforded ‘adequate safeguards against irrationality, unreasonableness, fundamental unfairness or arbitrary exercise of power’ [Attorney General v Joseph and Boyce at para 20]. The right to protection of the law may, in appropriate cases, require the relevant organs of the state to take positive action in order to secure and ensure the enjoyment of basic constitutional rights. In appropriate cases, the action or failure of the state may result in a breach of the right to protection of the law. Where the citizen has been denied rights of access and the procedural fairness demanded by natural justice, or where the citizen’s rights have otherwise been frustrated because of government action or omission, there may be ample grounds for finding a breach of the protection of the law for which damages may be an appropriate remedy.”

The court concluded that the Government of Belize had contravened the constitutional right of the appellants to the protection of the law on account of its failure to take appropriate positive measures to provide practical and effective protection for the substantive constitutional right in play, specifically - in the language of para 59 - “the obligation to put in place special measures to give recognition and effect to these rights so that the protection of the law can be enjoyed”. The court decided that the remedy of non-pecuniary damages was appropriate.

The Rights of Children

“Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances.”

“13.1  Detention pending trial shall be used only as a measure of last resort and for the shortest possible period of time.

13.2    Whenever possible, detention pending trial shall be replaced by alternative measures, such as close supervision, intensive care or placement with a family or in an educational setting or home.

13.3    Juveniles under detention pending trial shall be entitled to all rights and guarantees of the Standard Minimum Rules for the Treatment of Prisoners adopted by the United Nations.

13.4    Juveniles under detention pending trial shall be kept separate from adults and shall be detained in a separate institution or in a separate part of an institution also holding adults.

13.5    While in custody, juveniles shall receive care, protection and all necessary individual assistance-social, educational, vocational, psychological, medical and physical-that they may require in view of their age, sex and personality.”

Notably, the prohibition in rule 13.4 is expressed in absolute terms, a feature which the following Commentary reinforces:

“no minors shall be held in a facility where they are vulnerable to the negative influences of adult detainees and … account should always be taken of the needs particular to their stage of development.”

Similarly, the requirements of rule 13.5 relating to (inter alia) social, educational and vocational facilities are expressed in terms which admit of no exception.

“There is a sound legal basis therefore to recognise the child as a special class of person deserving of protection.”

Turning to these two cases, the judge continued at para 79:

“I am not encouraged by these stories of BS and SS as two youths in our criminal justice system. The respective stories of these children are one of fear, anxiety, shame, anger, frustration and despair. This is not the story one would expect to hear of children being rehabilitated and who are presumed innocent of any crime. These stories do not demonstrate that the youths are being removed from a criminogenic setting or are being encouraged, nurtured, protected and loved. Quite the opposite. They were in an environment that bred criminality in the case of SS or exposed their vulnerability in the case of BS. It is the type of environment which may develop criminals of young children by failing to provide systems to support deficiencies in their development and behaviour.”

Was Section 4(b) violated in this case?