Taitt v The State (Trinidad and Tobago)

A defendant’s low intelligence or learning disability does not by itself establish unfitness to plead. The court must assess whether the defendant can understand the charge, decide how to plead, challenge jurors, instruct lawyers intelligently, follow the proceedings and, if desired, give evidence. Fitness is a question for the court and should ordinarily be addressed at trial. On a final appeal, fresh reliance on unfitness based on low intelligence will be entertained only exceptionally, where the evidence clearly indicates a miscarriage of justice. The constitutional question whether imposing the death penalty on a mentally impaired person constitutes cruel and unusual punishment should not be determined without the benefit of the local Court of Appeal’s view.

The appellant was convicted of murder and sentenced to death in Trinidad and Tobago. His appeal to the Court of Appeal was dismissed on 11 December 2009. Before the Privy Council, he sought permission to appeal out of time and to adduce fresh psychological and psychiatric evidence concerning his fitness to stand trial. He also argued that executing a mentally impaired person would contravene section 5(2)(b) of the Constitution of Trinidad and Tobago.

The Board had refused permission on other grounds. The central issues were whether the fresh evidence justified raising fitness for the first time at the final appeal stage and whether the constitutional question should be remitted to the local appellate court.

1. Permission and fresh evidence. The Board admitted the fresh evidence for scrutiny, but stressed that it will entertain an argument raised for the first time at the final appeal stage only in an exceptional case. Counsel is responsible for assessing fitness at trial and is ordinarily best placed to judge whether the defendant understands the charge and can give instructions. Counsel’s conclusion that the defendant is fit will normally carry great weight. Fresh evidence must point very clearly to a miscarriage of justice.
2. Fitness to plead. The governing inquiries, drawn from Pritchard (1836) 7 C&P 303 and summarised with reference to R v M [2003] EWCA Crim 3452, are whether the incapacity is genuine; whether the defendant can plead to the indictment; and whether he has sufficient intellect to understand the course of the proceedings so as to make a proper defence. In practical terms, the court must consider whether he understands the charges, can choose his plea, challenge jurors, communicate his case and defence to his lawyers, follow the proceedings and give evidence if he wishes. The quality of instructions or evidence is not the issue; the issue is the ability to perform those functions.
3. Application to the appellant. Fitness was a question for the trial court, but no application was made despite the issue having arisen for the co-accused. The Board considered the expert evidence together with trial counsel’s account and the appellant’s demonstrated ability to recall significant matters. Taken as a whole, the evidence did not clearly show that a properly directed trial court would have found him unfit. Permission to appeal on fitness was therefore refused.
4. Constitutional issue. Section 5(2)(b) prohibits Parliament from imposing or authorising cruel and unusual treatment or punishment. Following the approach taken in Benjamin and Ganga v The State [2012] UKPC 8, the Board held that it would be inappropriate to determine whether execution of a mentally impaired person contravenes that provision without the views of the Trinidad and Tobago Court of Appeal. The issue was fully argued at the permission stage, so permission was granted, the appeal allowed on that issue, and the question remitted to that court for further hearing and consideration.

• Privy Council: The Board granted permission to appeal on the constitutional question, allowed the appeal on that issue and remitted it to the Court of Appeal of Trinidad and Tobago. Permission to appeal on fitness to stand trial was refused.
• Court of Appeal of the Republic of Trinidad and Tobago: The appellant’s appeal against conviction was dismissed on 11 December 2009.
• Trial court: The appellant was convicted of murder and sentenced to death on 9 May 2008.