Ian Seepersad and Roodal Panchoo v The Attorney General of Trinidad and Tobago (Trinidad and Tobago)

A statutory saving clause preserving pre-constitutional laws from invalidation does not immunise omissions in the operation of a sentencing regime. Where a sentence carries an intrinsic common-law requirement of periodic judicial review, failure to provide that review may breach constitutional rights to liberty, protection of the law and necessary procedural safeguards. A constitutional claim is not barred merely because judicial review was also available where the complaint is genuinely constitutional and is not an abuse of process. Constitutional redress is discretionary: damages are not automatic, and declarations or mandatory orders may suffice depending on the circumstances.

Two appellants, convicted of murder while under 18, were sentenced under sections 79 and 81 of the Children Act to detention at the State’s pleasure. The provisions were later modified so that detention was at the court’s pleasure, but no periodic judicial reviews occurred during their custody. The High Court and Court of Appeal granted relief concerning the sentence and review framework but held that the constitutional savings clause prevented a challenge to the failure to review and that damages did not arise. The appeal concerned whether that omission breached constitutional rights and, if so, whether damages remained available.

1. Appeal allowed. The Board set aside the Court of Appeal’s finding that there had been no breach of the appellants’ constitutional rights. It declared that the failure to review their sentences and detention breached sections 4(a), 4(b) and 5(2)(h) of the Constitution. The order that damages, if any, be assessed by a High Court judge was restored, and the respondent was ordered to pay the appellants’ costs.
2. Section 6(1)(a) saved an existing law from invalidation under sections 4 and 5. Its protection extended to what sections 79 and 81 of the Children Act said and to their proper legal effect. It did not prevent a challenge based on an omission to apply a common-law principle forming part of the existing law.
3. A sentence of detention at the court’s pleasure for a child offender carried an intrinsic requirement of continuing judicial review. Review had to extend to the duration of detention and the detainee’s progress and development. The principles stated in R v Secretary of State for the Home Department, Ex p Venables [1998] AC 407 and R (Smith) v Secretary of State for the Home Department [2005] UKHL 51 were declaratory of the nature of the sentence. The modification made in Chuck Attin v Attorney General of Trinidad and Tobago operated retrospectively, so the appellants’ sentences were treated as sentences at the court’s pleasure from the outset.
4. The availability of judicial review did not make the constitutional proceedings an abuse of process. The warnings in Harrikissoon v Attorney General of Trinidad and Tobago [1980] AC 265 and Jaroo v Attorney General of Trinidad and Tobago [2002] UKPC 5 did not apply where the issues were genuinely constitutional and the proceedings were not being used to avoid ordinary judicial control.
5. Redress under section 14 was discretionary. There was no constitutional right to damages. A declaration or mandatory order could provide sufficient satisfaction, but the circumstances of this case did not make it obvious that those remedies excluded damages. The Board declined to formulate general damages guidelines, leaving that matter to the Court of Appeal of Trinidad and Tobago.

• Privy Council: On 15 February 2012, allowed the appeal, declared a breach of constitutional rights, restored the order for assessment of damages and awarded costs.
• Court of Appeal of the Republic of Trinidad and Tobago: On 14 December 2009, dismissed the Attorney General’s appeal. It upheld modification of the sentences and the periodic-review framework, but held that the constitutional savings clause prevented a claim based on the failure to conduct reviews.
• High Court: On 4 August 2005, modified the sentences to detention at the court’s pleasure, ordered periodic review and directed that damages, if any, be assessed.