Everton Welch v The Attorney General of Antigua and Barbuda (Antigua and Barbuda)

Where a prisoner has been detained under an unconstitutional sentence, section 5(7) of the Antigua and Barbuda Constitution Order 1981 entitles him at least to nominal compensation.

Compensatory damages beyond nominal compensation require a counterfactual assessment of the lawful sentence, including any required periodic review, and whether it would have produced earlier release. The personal effects of failing to review detention may also be relevant. Vindicatory damages are exceptional. Exemplary and vindicatory damages should not both be awarded for the same constitutional wrong.

The appellant was convicted of murder in 1994 for an offence committed when he was under 18. He was sentenced under section 3(1) of the Offences against the Person Act to detention during Her Majesty’s pleasure.

The High Court declared the sentence invalid, substituted detention at the court’s pleasure and ordered a review. The appellant was subsequently released. The Court of Appeal dismissed his appeal against the refusal of damages, reasoning that he would have been imprisoned in any event.

The Privy Council considered whether that conclusion could be reached without determining the lawful sentence and the period that would have been served, and what forms of compensation were available under section 5(7) of the Antigua and Barbuda Constitution Order 1981.

Appeal allowed and compensation issues remitted.

1. Constitutional premise. The Board proceeded on the basis, established in Browne v The Queen [2000] 1 AC 45 and Director of Public Prosecutions of Jamaica v Mollison [2003] 2 AC 411, that a sentence allowing the executive to determine the measure of punishment was incompatible with constitutional separation of powers. The constitutionally correct approach required detention at the court’s pleasure.
2. Nominal and compensatory damages. Detention under an order subsequently found invalid entitled the appellant at least to nominal damages. Compensatory damages beyond nominal compensation required a finding that he had been detained longer than he would have been under the appropriate lawful sentence. The sentence and likely period of detention had to be determined before compensation could be assessed.
3. Counterfactual sentence. The reasoning in R (WL (Congo)) v Secretary of State for the Home Department [2012] 1 AC 245 was applied. The fact that imprisonment was justified did not establish that the appellant would have served the same period. The assessment had to account for the accepted need for periodic review.
4. Sentencing comparisons. Elvon Barry v The Queen and Peter Solomon v The Queen did not establish a 15-year ceiling for murders committed by offenders under 18. Youth was only one factor. The individual facts, subsequent reform and evidence available at review were material.
5. Further damages. Following Seepersad v Attorney General of Trinidad and Tobago [2012] UKPC 4, the judge on remittal had to consider whether the absence of review had a personal psychological effect. Vindicatory damages were potentially available only in a very limited class of cases where a declaration did not sufficiently recognise the seriousness of the breach. The Board indicated that exemplary damages appeared inappropriate, subject to the judge’s determination, and held that exemplary and vindicatory damages would be duplicative if both awarded.
6. Order. The matter was remitted to a judge of the Eastern Caribbean Supreme Court sitting in Antigua and Barbuda to determine whether a lawful sentence would have resulted in earlier release and, if so, the appropriate compensation.

• Privy Council: The appeal was allowed and the compensation issues were remitted to the Supreme Court for determination. [2013] UKPC 21
• Court of Appeal of Antigua and Barbuda: The appeal from the High Court’s refusal of damages was dismissed. The court held that the appellant would have been imprisoned in any event.
• High Court: The sentence was declared invalid, modified to detention at the court’s pleasure and referred for review. A later review resulted in the appellant’s release.