5th Dec 2023 | Articles & Newsletters, News

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 helpful guidance from the Privy Council on the principles of implied repeal, inhuman and degrading treatment, and calculating the quantum of constitutional damages. from the matter of Anthony Henry and another v Attorney General of St Lucia.

Anthony Henry and another v Attorney General of St Lucia – helpful guidance from the Privy Council on the principles of implied repeal, inhuman and degrading treatment, and calculating the quantum of constitutional damages   

SHORT READ (1 min)

The Privy Council gave judgment on 27 November 2023 in the case of Anthony Henry and another v Attorney General of St Lucia. Robert Strang and Katharine Bailey appeared for the Appellants (led by Anand Ramlogan SC), and Katherine Deal KC appeared for the Respondent.

In summary, this appeal to the Board raised the issue whether people charged with serious crimes but found unfit to stand trial by reason of mental illness may be detained in prison, as opposed to a mental hospital, under the law of St. Lucia. The relevant domestic legislation under consideration in this case was the Mental Hospitals Act (Chap. 11.14) (‘the Act’) and the Criminal Code Chap. 3.01 (‘the Code’). The Appellants, who were both charged with serious criminal offences but found unfit to stand trial, were detained in prison where they remained for 24 and 32 years respectively, until these claims were brought on their behalf. They claimed damages for breaches of their rights (section 3 – right to personal liberty, and section 5 – right to protection from inhuman and degrading treatment) under the Constitution of St. Lucia (‘the Constitution’).

The Board’s decision provides useful guidance on the principles of implied repeal (see [27] to [37]), and briefly considers (for the first time in this apex court) the decision of the ECtHR in Vinter v United Kingdom (2016] 63 EHRR 1 in the context of determining whether, on the facts of the Appellants’ case, their detention could not  be justified on legitimate grounds (or, as the judge found, amounted to criminalisation of the mentally ill) and thus constituted inhuman and degrading treatment (see [46] to [51]). The decision also helpfully reiterates important principles regarding quantification of damages for breach of constitutional rights (applying Takitota v Attorney General [2009] UKPC 11, and the more recent decision of the Board in Ngumi v Attorney General of the Bahamas [2023] UKPC 12 (in which Robert Strang also appeared)).

LONG READ (5 mins)

Background facts

Messrs Henry and Noel (‘the Appellants’) were both charged with violent criminal offences but found unfit to plead, due to serious mental illness, in 2000 and 1991 respectively. The Appellants were ordered by the judges presiding over their criminal cases to be detained in a prison “until the Governor General’s pleasure shall be known”. Mr Henry remained in prison until he was unconditionally discharged by the High Court (sitting in its criminal jurisdiction) on 30 May 2019. Mr Noel remained in prison until he obtained an order for his release to a mental health facility on 24 October 2019 as part of the present civil claim. The Appellants commenced proceedings seeking damages for breach of their constitutional rights. By the date of the High Court trial in the present matter, Mr Henry had been in prison for 24 years, and Mr Noel for 32 years.

The High Court’s decision

In the High Court, Smith J upheld the claims; he made declarations to the effect that the detention of the Appellants in prison after being found unfit to plead due to mental illness, instead of in a mental health facility, was a breach of their right to personal liberty under section 3 rights of the Constitution. The judge also made declarations to the effect that the absence of periodic reviews of the Appellants’ fitness to stand trial amounted to a breach of their section 3 rights and, further, a breach of their right to protection against inhuman and degrading treatment under section 5. The judge assessed damages at a rate of $500 per diem for the infringement of section 3 rights to personal liberty: he awarded Mr Henry damages of $3,526,000 for his detention in prison for 7,052 days and Mr Noel damages of $5,031,500 for his detention in prison for 10,063 days.

The Court of Appeal’s decision

The Attorney General appealed. The Court of Appeal (Pereira CJ and Webster and Cottle acting JJA) allowed the appeal in part. The Court of Appeal held that Smith J had been wrong to find that, pursuant to section 1021(1) of the Code, the Appellants had to be detained in a mental hospital as opposed to a prison—s.1021(1) of the Code gives the judge a discretion to that extent; it also found that, to the extent section 31 of the Act appeared mandatorily to require detention in a mental hospital, it conflicted with s.1021(1) of the Code and, given it pre-dated that section of the code and the two were inescapably in conflict, the incompatible elements of s.31 of the Act had been impliedly repealed by s.1021(1) of the Code. Accordingly, the Court of Appeal held, the Appellants’ detention was not in breach of the Code and the lack of periodic review made no different to the conclusion because there was no evidence this had prejudiced the Appellants. Thus, their detention ab initio did not constitute a breach of section 3 rights. However, the Court of Appeal upheld the Appellant’s claims in certain respects, holding that the Appellants’ right to a fair trial within a reasonable time had been breached and a fair trial was no longer possible, meaning that at some point their detention became arbitrary and their section 3 rights were breached—the Court of Appeal in its analysis placed weight, in particular, on the fact that the offence with which Mr Noel had been charged carried a maximum sentence of 10 years, and yet he had been in prison for 32 years. As to section 5 rights, the Court of Appeal held Smith J had erred in principle in coming to the view that detention in a prison rather than a mental hospital of a person unfit to plead, of itself, amounted to a section 5 breach—the question depended on an assessment of the particular circumstances (e.g., evidence of detainee punishment or ill-treatment). As to damages, the Court of Appeal held that an award based on $500 per diem could not be sustained—no taper had been applied, and Smith J, it was said, had failed to consider the facts of the case adequately. Awards of $250,000 and $500,000 were appropriate. A permanent stay of the indictments was awarded.

The Board’s decision

The Appellants were granted final leave to appeal to the Judicial Committee. The issues before the Board were:

  1. Was the Appellants’ detention in prison unlawful ab initio, or did it become unlawful at a later date when, as the Court of Appeal had found, it could no longer serve the purpose for which it was authorised (i.e., a fair trial was no longer possible)?
  2. Did s.1021(1) of the Code, when read with s.31 of the Act, permit the judge to order the detention of the Appellants in prison?
  3. Did s.1021(1) of the Code impliedly repeal s.31 of the Act?
  4. Did s.1021(2) permit the Governor General to order the detention of the Appellants in prison?
  5. Did the failure to review the Appellants’ fitness to plead periodically, whilst detaining them in prison, render their detention unlawful in any event?
  6. Did the Appellants’ treatment amount to a breach of their right to protection from inhuman or degrading treatment?
  7. Did the Court of Appeal err in its award of damages?

Lord Sales gave judgment on behalf of the Board.

Implied repeal

The relevant analysis is at [27] to [37]. In summary, the Board disagreed with the Court of Appeal’s analysis that there was an irreconcilable conflict between s.1021(1) of the Code and s.31 of the Act. The judgment here constitutes an instructive exercise in statutory interpretation, and repays reading for those practitioners who are required, from time to time, to grapple with the relatively niche issue of implied repeal.

Breaches of section 3 rights

The Board held it was significant in this case that the legal procedure for the Appellants’ treatment as persons unfit to stand trial was not properly brought into operation: there was no evidence that the court had exercised its power of detention in accordance with s.1021(1) of the Code, read with s.31(1) of the Act, as it was required to do so; further, there was no evidence that the courts dealing with the Appellants’ cases decades ago had in fact notified the Governor General immediately or at all. In those circumstances, the Appellants had been detained indefinitely on the basis of a court warrant which had been allowed to continue in circumstances of a total failure to operate the correct legal procedure—that was not, in the Board’s decision, detention ‘authorised by law’ and accordingly constituted a breach, ab initio, of the Appellants’ right under section 3 of the Constitution (see: [41] to [43]). The Board found it unnecessary to rule specifically on whether the failure to carry out periodic reviews of the fitness of the Appellants to stand trial constituted a separate breach of their section 3 rights.

Inhuman and degrading treatment

The Appellants contended that their detention constituted a breach of their section 5 right because it amounted to criminalisation of the mentally ill, without respect for their human dignity; and, in the absence of periodic reviews of their fitness to stand trial, that amounted to inhuman and degrading treatment. The Appellants relied on the judgment of the European Court of Human Rights in Vinter v United Kingdom (2016) 63 EHRR 1; in particular, paragraph 119 of that decision by way of analogy, where it is said:

“… the Court considers that, in the context of a life sentence, Article 3 must be interpreted as requiring reducibility of the sentence, in the sense of a review which allows the domestic authorities to consider whether any changes in the life prisoner are so significant, and such progress towards rehabilitation has been made in the course of the sentence, as to mean that continued detention can no longer be justified on legitimate penological grounds.”

The Board did not find Vinter a compelling analogy. It drew a distinction on procedural grounds: Vinter concerned the imposition of a life sentence, whereas the Appellants’ case concerned “the operation for an excessively extended period of a pre-trial procedure involving detention on remand which commenced in legitimate circumstances, but which was not converted (as it should have been) into detention in a mental hospital” (see [46] to [51]).

The Board also rejected the Appellants’ argument that the absence of periodic reviews of their detention by the executive constituted a breach (see [52] to 64]). The Board held that the Appellants’ detention was functionally similar to preventive detention on the advice of a medial practitioner of a person suffering from severe mental ill-health. The result was to postpone the criminal process for a period, with mental illness constituting “a supervening impediment to being tried in the usual way” [54]. In the Board’s decision, such preventive detention ought not to be confused with punishment. The Board also rejected the Court of Appeal’s analysis that detention became arbitrary once it exceeded the maximum punishment either Appellant could have received for the offence with which they were charged; the Board accepted the principle that detention could become arbitrary once a fair trial was no longer a reasonable possibility however, in this case, there was no evidence on the point.

Damages

The Board found the Court of Appeal had assessed damages on the wrong basis because they rejected the Appellants’ case that their section 3 right was breached ab initio; however, the trial judge had erred in applying a daily rate: as was held in Takitota v Attorney General [2009] UKPC 11, and the more recent decision Ngumi v Attorney General of the Bahamas [2023] UKPC 12, tapering ought to have been applied. The Board helpfully reiterated the law on quantifying damages in claims such as these: as in a claim for damages for false imprisonment, when determining quantum of damages for breach of constitutional rights, the law requires that quantum is assessed by reference to the counterfactual position had authorities acted lawfully, since that is the true measure of what the Claimant had lost (R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12). The Board remitted the assessment of damages, holding that a discrete new assessment of damages ought to be conducted by the High Court, with permission for both sides to adduce fresh evidence. (See [65] to [74].).


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