8th Nov 2012



The applicant (T) applied for permission to appeal against a decision of the Court of Appeal of Trinidad and Tobago upholding his conviction for murder.

T and a co-accused (B) had been found guilty of murder and sentenced to death. During the trial, B’s counsel had raised the issue of whether B was fit to be tried. It was found that he was. T’s counsel did not raise the issue in respect of T. After his appeal against conviction had been dismissed, T produced psychiatric and psychological reports indicating that he was of borderline low intellectual capacity and might not have understood the legal process well enough to mount a competent defence.

T sought permission to appeal on the grounds that (1) it was likely that he had been unfit to plead or stand trial; (2) the imposition of the death sentence on a mentally impaired defendant was cruel and unusual punishment contrary to the Constitution of Trinidad and Tobago s.5(2)(b).


(1) There were no reported cases in which the fact that a person was of low intelligence had been held to operate as a bar to trial. If a person was suffering from a severe physical or mental disability which made it impossible for him to understand what was going on or to give instructions, then he would clearly be unfit to plead. However, difficulties arose in the case of a defendant who had borderline low intellectual capacity which meant that he was likely to struggle to participate fully in a criminal trial if attention was not paid to his difficulties. In all cases where fitness to plead was raised, the court had to ask whether the incapacity was genuine, whether the defendant could plead to the indictment, and whether he had sufficient intellect to comprehend the proceedings so as to make a proper defence, R. v Pritchard 173 E.R. 135 applied. In cases such as T’s, it had to consider whether the defendant understood the charges and whether he was able to decide how to plead, exercise his right to challenge the jurors, intelligently convey his case to his lawyers, follow the proceedings in court, and give evidence on his own behalf. The quality of his instructions or evidence was not the point; the emphasis was on his ability, or his inability, to do those things. The question was one of fact for the court, and the proper time for it to be addressed was at the trial. That had not been done in T’s case, despite the point having been taken on behalf of B. It would only be in an exceptional case that the Board would entertain a low-intelligence fitness-to-plead argument when the point had not been raised at trial. It was defence counsel’s responsibility to assess whether his client was fit to stand trial, and his conclusion that he was would normally be given great weight. The Board would not permit the introduction of the issue for the first time at the final stage unless the evidence pointed very clearly to a miscarriage of justice, Brown v Trinidad and Tobago [2012] UKPC 2, [2012] 1 W.L.R. 1577 considered. T’s was not such a case: the evidence indicated that the trial judge would have been unlikely to have found him unfit to plead. Permission would not be given on that ground (see paras 15-19 of judgment). (2) In Benjamin v Trinidad and Tobago [2012] UKPC 8, the Board had noted that there was no Caribbean appellate authority on the question of whether the death penalty, if passed on a mentally impaired person, would constitute cruel and unusual punishment, either as contrary to a constitutional provision or in breach of a common law rule. It found that it was inappropriate for it to consider the question without the opinion of the Court of Appeal of Trinidad and Tobago, and it therefore remitted Benjamin’s case to that court, whose judgment was awaited. Until that judgment had been handed down, the Board found itself in the same position in the instant case as it had been in Benjamin. For the reasons given in that case, it would be inappropriate for the Board to examine the issue without having the views of the Court of Appeal before it. While the facts of the instant case were comparable with those in Benjamin, it was not possible to say whether any ruling that the Court of Appeal might give in Benjamin could be applied to T. Therefore, the only course open to the Board was to give T permission to appeal on the death penalty question and to remit the case to Court of Appeal of Trinidad and Tobago, Benjamin considered (paras 20-23).

Application granted in part.


It would only be in an exceptional case that the Judicial Committee of the Privy Council would entertain an argument, not put forward at trial or on appeal against conviction, that an appellant had not been fit to stand trial because he was of low intelligence. It would only entertain such an argument if the evidence pointed very clearly to there having been a miscarriage of justice.


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