LORD HAMBLEN (with whom Lord Briggs, Lord Kitchin, Lord Burrows and Lord Richards agree):
This appeal concerns a claim by the appellant, Akili Charles, for compensatory and vindicatory damages for alleged breach of his constitutional right to “the protection of the law” under section 4(b) of the Constitution of the Republic of Trinidad and Tobago (“the Constitution”).
The factual circumstances in which this claim arises are in summary as follows.
On 5 December 2010 the appellant was charged with murder. He was remanded in custody as murder was a non-bailable offence under the law at that time. On 16 January 2012 a preliminary inquiry was begun before the Chief Magistrate. This proceeded for over five years until April 2017 when the Chief Magistrate was sworn in as a judge of the High Court. She had 53 part-heard matters before her at that time, including the appellant’s preliminary inquiry.
On 1 June 2017 the new Acting Chief Magistrate ruled that all part-heard matters had to be heard de novo before another magistrate. At this stage the appellant had been in prison for six and a half years and faced the prospect of having to start his lengthy preliminary inquiry all over again. Moreover, for the first preliminary inquiry he had been able to fund representation by Mr Wayne Sturge, described by the judge in this case as an experienced attorney who is “one of the country’s most renowned members of the criminal bar”, but he could not afford to pay for Mr Sturge or indeed any legal representation a second time.
The appellant sought to challenge the decision that the preliminary inquiry had to be heard de novo in judicial review proceedings. These were ordered to be heard together with an interpretation summons brought by the Attorney General, the respondent to this appeal, seeking guidance from the court on the issue. On 4 January 2019 Gobin J ruled on the interpretation summons. She held that the Acting Chief Magistrate’s ruling was correct and dismissed the judicial review proceedings.
On 7 March 2019 the appellant filed a claim for constitutional relief under section 14 of the Constitution. He sought compensatory and vindicatory damages for breach of his constitutional rights and in particular an order that the respondent pay the appellant’s legal costs of and occasioned by the second preliminary inquiry for counsel of his choice, Mr Sturge.
On 12 March 2020 Ramcharan J gave judgment on the constitutional claim. He dismissed the claims made for breach of sections 5(2)(c)(ii) (rights of arrested persons to retain a lawyer) and 5(2)(h) (deprivation of procedural protections). The judge, however, upheld the claim for breach of section 4(b) and awarded the appellant compensatory damages of TT$150,000 and vindicatory damages of $125,000.
The respondent appealed and on 15 July 2021 the Court of Appeal (Lucky, Dean-Armorer and Wilson JJA) allowed the appeal, primarily on the ground that the judge had found a breach of duty by the Judicial and Legal Service Commission (“JLSC”) and the court considered that default by the JLSC had not been pleaded and that the respondent had not had adequate notice of the case which had to be answered.
On 18 October 2021 the Court of Appeal granted final leave to appeal to the Privy Council from its decision.
Meanwhile, following the issue of the claim for constitutional relief, an arrangement was made with Mr Sturge whereby he agreed to act for the appellant on the second preliminary inquiry on the basis that his fees would be paid out of any damages awarded on the constitutional claim, failing which the appellant would remain liable for them. In the event, on 21 May 2019 the second preliminary inquiry was dismissed on the basis of there being no case to answer.