15th Feb 2012
The appellants (S) appealed against a decision of the Court of Appeal (Trinidad and Tobago) that there had been no breach of their rights under the Constitution of Trinidad and Tobago s.4 and s.5.
S had committed two murders when they were aged under 18 and had been sentenced, under the Children Act (Trinidad and Tobago) 1925 s.79, to be detained at the state's pleasure. That statute did not provide for periodic review of detention. Some 17 years after imposition of the sentences, S brought constitutional proceedings, alleging that the sentences offended the principle of the separation of powers because under s.79 and s.81 of the 1925 Act they were detained at the pleasure of the state rather than the court and that was incompatible with s.4 and s.5, which provided the right to liberty and protection of the law and the right to certain freedoms, such as a fair hearing. They also argued that the sentences breached s.4 and s.5 because they were not being reviewed periodically by the court. In light of the decisions in Attin v Attorney General of Trinidad and Tobago and Griffith v Queen, The  UKPC 58,  2 A.C. 235, the court held that it had power to modify s.79 and s.81 to order that S should be detained at the court's pleasure and held that their rights under s.4 and s.5 had been infringed because they had been deprived of periodic review by the court. It ordered that damages, if any, should be assessed by a High Court judge. S were released. The Court of Appeal upheld the High Court's decision, save for ruling that s.6(1) of the Constitution, which provided that nothing in s.4 or s.5 should invalidate an existing law, precluded S from objecting that the failure to provide for periodic review of their sentences meant that their rights had been breached under s.4 and s.5. The Board had to determine (i) whether s.6(1) precluded S's claim that their rights under s.4 and s.5 had been breached; (ii) whether the issue of damages arose.
The Attorney General argued that until s.79 of the 1925 Act was modified, the effect of s.6(1) was that detention had to be at the pleasure of the state, not the court, and no question of periodic review could arise. S argued that although the 1925 Act was silent on the subject of periodic review of detention, the right to a review was to be found in the common law and was protected by s.4 and s.5. The Attorney General also argued that a constitutional remedy was not available because S could have availed themselves of the remedy of judicial review or an appeal against sentence.
(1) The modification made by the court to the sentence of detention in Attin had to be taken to have affected not only his case and any subsequent detentions under s.79, but the cases of others who had been sentenced earlier. The sentences passed on S therefore had to be taken to have been sentences of detention at the court's pleasure from the outset. S were entitled to seek the application of an existing common law right to review of detention to the sentencing regime laid down by statute. They were entitled to claim that the absence of periodic review of their sentences of detention was a breach of their right not to be deprived of their liberty except by due process of law, their right to the protection of the law and their right not to be deprived of the right to such procedural protections as were necessary to give effect and protection to those rights and freedoms in s.4 and s.5. The Court of Appeal had erred in finding that s.6(1)(a) precluded S from challenging the manner of the execution of their detention on the ground that the failure to review the sentence and detention resulted in a breach of their rights under s.4 and s.5. S were entitled to a declaration that their constitutional rights had been breached by the failure to conduct such reviews, Attin and Griffith considered (see paras 29-32, 37 of judgment). (2) The power to award damages for a contravention of an applicant's constitutional rights was discretionary under s.14 of the Constitution. In the instant case, it was not obvious that the redress afforded by S's release and by the declarations made by the Board was sufficient to exclude the possibility of an award of damages. The order that damages, if any, would be assessed by a judge of the High Court would be restored (paras 38-41).
The Court of Appeal (Trinidad and Tobago) had erred in finding that the Constitution of Trinidad and Tobago s.6(1)(a) precluded detainees from challenging the manner of the execution of their detention on the ground that the failure to review the sentence and detention resulted in a breach of their rights under s.4 and s.5 of the Constitution. They were entitled to a declaration that their constitutional rights had been breached by the failure to conduct such reviews.