Hassen Eid-En Rummun v The State of Mauritius

Where substantial delay has occurred in a criminal case, the sentencing court must examine, even without a defence submission, whether the right to a fair hearing within a reasonable time under section 10(1) of the Constitution 1968 has been breached. The court must assess each defendant’s responsibility, considering the case’s complexity, the defendant’s conduct, and the conduct of the administrative and judicial authorities. A breach must always be considered in deciding disposal or sentence, although its weight may be nil where countervailing factors, including offence gravity, prevail. A not guilty plea or unsuccessful defence does not automatically justify attributing delay to the defendant. Passive acquiescence may affect sentence but does not excuse the breach.

The appellant was convicted by the Intermediate Court of Mauritius of larceny while armed with an offensive weapon and sentenced to four years’ penal servitude. The Supreme Court of Mauritius affirmed the sentence on 21 September 2011, rejecting the argument that delay should reduce it. Before the Board, the respondent accepted that the delay breached the appellant’s right under section 10(1) of the Constitution 1968. The central issues were whether the lower courts had properly examined the delay, the appellant’s individual responsibility for it, and the effect of the breach on sentence.

Disposition. The Board remitted the case to the Supreme Court of Mauritius for reconsideration of the appellant’s sentence in light of the constitutional breach and the guidance given.

1. In a case involving substantial delay, the sentencing court must examine, whether or not the issue has been raised, whether the accused’s right to a fair hearing within a reasonable time under section 10(1) of the Constitution 1968 has been breached. It must also consider the individual responsibility of each defendant for the delay.
2. A breach of the reasonable-time guarantee must always be considered when deciding the appropriate disposal, including sentence. It may receive little or no weight where countervailing considerations, such as the gravity of the offence, prevail.
3. The assessment requires consideration of three factors: the complexity of the case; the conduct of the defendant; and the conduct of the administrative and judicial authorities. The Board relied on the approach stated in Dyer v Watson [2004] 1 AC 379, which had been endorsed in Boolell v State of Mauritius [2006] UKPC 46, [2012] 1 WLR 3718.
4. A defendant is entitled to put the prosecution to proof. A defence or not guilty plea that later proves unsuccessful should not automatically be treated as responsibility for delay. The circumstances require anxious scrutiny before the defendant is penalised in sentence.
5. Passive acquiescence in postponements may be relevant to sentence, but it cannot excuse a breach of the constitutional guarantee. The appellant had not pressed for an expeditious trial, but there was no evidence that he had been actively complicit in the delaying manoeuvres. The prosecuting authorities bore substantial responsibility for the delay.
6. The magistrate and the Supreme Court had failed to address the constitutional issue and had treated delay as irrelevant without assessing individual responsibility. The Supreme Court was directed to examine the reasons for the inordinate delay, the seriousness of the offence, and the appropriate sentence absent delay, and then determine any adjustment required.

The parties were given 21 days to make submissions on costs.

1. Privy Council—In [2013] UKPC 6, the Board remitted the sentence for reconsideration in light of the breach of the reasonable-time guarantee.
2. Supreme Court of Mauritius—On 21 September 2011, the court affirmed the appellant’s sentence and rejected the argument that delay should reduce it.
3. Intermediate Court of Mauritius—The appellant was convicted on 9 October 2009 and sentenced on 5 November 2009 to four years’ penal servitude.