Steve Ferguson v The Attorney General of Trinidad and Tobago

Retrospective legislation altering general law applicable to pending proceedings does not, without more, infringe the separation of powers, the rule of law or due process. The necessary additional feature is legislation directed at identifiable persons or cases, assessed objectively from its statutory effect and the categories of cases to which it applies. A statutory limitation defence may be removed consistently with the Constitution, and a right to acquittal without trial is not itself constitutionally protected. Abuse of process requires an unfair trial or, in limited circumstances, gross executive misconduct making a trial unjust. The valid legal consequences of an Act cannot be recast as injustice merely because prosecutorial conduct contributed to its enactment.

Three appeals arose from constitutional motions brought by Steve Ferguson, Ameer Edoo and companies involved in the Piarco prosecutions. The appellants challenged the retrospective repeal of section 34 of the Administration of Justice (Indictable Proceedings) Act 2011, which had introduced a ten-year limitation period for certain criminal prosecutions and a right to discharge and acquittal.

The motions were dismissed by Dean-Armorer J and by the Court of Appeal of the Republic of Trinidad and Tobago. Before the Privy Council, the issues were whether the repealing legislation unlawfully interfered with judicial power, due process or legitimate expectation, and whether the Director of Public Prosecutions’ conduct made continuation of the prosecutions an abuse of process.

The appeals were dismissed. Lord Sumption delivered the judgment of the Board.

1. Separation of powers. The Westminster constitutional model entails a qualified separation of powers. Direct legislative interference occurs where legislation exercises an inherently judicial function or pre-empts the outcome of proceedings. Indirect alteration of general law affecting pending proceedings is different: retrospectivity and the removal of vested rights do not alone constitute unconstitutional interference. The governing authorities included Hinds v The Queen [1977] AC 195, Thomas v Baptiste [2000] 2 AC 1 and Liyanage v The Queen [1967] AC 259.
2. Ad hominem legislation. Something more is required before a general alteration of law violates the separation of powers or rule of law: the legislation must be targeted at identifiable persons or cases. The test is objective and depends on the statute’s effect as a matter of construction and the categories of cases to which it could be expected to apply when enacted. The Amending Act applied to all cases affected by section 34, past, present and future. Section 6 was merely consequential and procedural. The Act was therefore general legislation, not targeted legislation.
3. Due process and legitimate expectation. The right to discharge and acquittal without trial, irrespective of guilt or innocence, was not a right protected by section 4(a) of the Constitution. Repeal exposed the appellants to trial, whose fairness remained constitutionally protected. Any later deprivation of liberty or property would result from judicial proceedings. The statutory limitation defence also generated no constitutionally protected legitimate expectation, since a statutory entitlement was defeasible.
4. Section 13. The Board noted that the Amending Act had been expressly enacted notwithstanding sections 4 and 5 and had received the required majority. Since the Act was not unconstitutional, the further question whether it was reasonably justifiable under section 13 did not arise.
5. Abuse of process. The adjournment application did not establish that the DPP had already decided to promote repeal. His campaign for repeal was officious and the press release ill-advised, but, in the unusual circumstances, his conduct remained within acceptable limits. In any event, a valid Act’s legal consequences could not be characterised as injustice, and the court could not inquire behind the enactment. The continuing prosecutions were not abusive.

1. Privy Council: Appeals dismissed on 25 January 2016: [2016] UKPC 2.
2. Court of Appeal of the Republic of Trinidad and Tobago: Appeals dismissed.
3. High Court: Constitutional motions dismissed by Dean-Armorer J.