15th Dec 2022
On the 15th December 2022 the Judicial Committee of the Privy Council handed down judgment in the constitutionally important appeal of Jean-Rony Jean Charles v The Hon. Carl Bethel and Ors  UKPC 51. Tom Poole KC and Kayla Green-Smith acted for the successful Respondents, instructed by Charles Russell Speechlys LLP. The judgment is a must read for anyone interested in the procedure to be adopted when applying for constitutional relief in the Caribbean and beyond.
The two main issues in the case were (i) whether the appellant was entitled to seek constitutional redress in the context of an application for habeas corpus, and (ii) whether, in the circumstances in which the application for constitutional redress was made, the judge failed to act with procedural fairness.
On the first issue, the JCPC held that the parties were correct in their agreement that it was competent for the appellant to raise an application for constitutional redress by motion in an action for habeas corpus. In so holding, the JCPC confirmed that an expansive and liberal interpretation should be given to Article 28 of the Bahamian Constitution (right to apply for constitutional redress) in order to give individuals the full measure of the rights and freedoms which the Constitution confers (Minister of Home Affairs v Fisher  AC 319). More specifically, the JCPC emphasised that a person who alleges that his or her fundamental rights are threatened or contravened should have unhindered access to the court (Jaundoo v A-G of Guyana  AC 972). Importantly, however, the JCPC recognised one qualification to this, which was determinative of the second issue on appeal, namely that the procedure adopted when considering constitutional redress must be such as will give notice of the application to the person or body against who redress is sought and “afford to him or it an opportunity of putting the case why the redress should not be granted.”
On the second issue, the JCPC held that there had been procedural unfairness towards the respondents. In so holding, the JCPC rejected the appellant’s contention that it was incumbent on the respondents to apply for an adjournment and that by not doing so they had waived any procedural objections. As the JCPC has observed in appeals from Trinidad and Tobago, where applications for constitutional redress are brought by originating motion, a summary procedure is not suited to deciding substantial factual disputes except in the simplest of cases (Jaroo v A-G of Trinidad and Tobago  1 AC 871 and A-G of Trinidad and Tobago v Ramanoop  1 AC 328). Accordingly, the JCPC remitted the application for constitutional redress to the Supreme Court of The Bahamas to enable it to direct that the application proceeds as though begun by writ.
Those advising or representing clients involved in applications for constitutional redress should consider the judgment and its implications.