Commissioner of Prisons and another v Seepersad and another (Trinidad and Tobago)

Constitutional rights must be construed generously and purposively, having regard to their language, context and evolving social conditions. The due process of law guarantee principally protects procedural fairness and does not ordinarily convert every unlawful administrative act or loss of a substantive statutory benefit into a due process breach. The protection of the law guarantee is broader. It may require positive state action to make substantive rights practical and effective, and may be breached by arbitrary executive acts or omissions which frustrate mandatory legislation, impair liberty and leave no prompt and efficacious remedy. A child’s right to detention in the place and conditions prescribed by law forms part of the protected interest in liberty.

Two minors charged with murder were remanded to the Women’s Prison and the Youth Training Centre. After relevant provisions of the Children Act came into force, those institutions were not lawful placements and no suitable licensed community residences existed. The High Court declared statutory and constitutional breaches and awarded damages. The Court of Appeal upheld the statutory unlawfulness but reversed the constitutional declarations and damages. The appeals concerned whether the detention breached the constitutional rights to due process of law and protection of the law. The cruel and unusual treatment issue was no longer pursued.

The appeals were allowed on the protection-of-the-law ground. The Court of Appeal’s decision on due process was left undisturbed.

1. Constitutional interpretation. Constitutional rights require a generous and purposive approach, informed by the language and substance of the right, the whole constitutional instrument, historical context and evolving conditions. The Board followed the guidance in Reyes v The Queen [2002] 2 AC 235.
2. Due process. The guarantee principally protects procedural fairness and fair-trial safeguards. Authorities including Thomas v Baptiste [2000] 2 AC 1, State of Trinidad and Tobago v Boyce [2006] 2 AC 76 and Ferguson v Attorney General [2016] UKPC 2 supported that analysis. The appellants were remanded by an independent, impartial and duly constituted court. There was no procedural unfairness or denial of constitutional safeguards. The unlawful placement in unsuitable accommodation was a loss of substantive statutory benefit and did not, in the circumstances, breach section 4(a).
3. Protection of the law. Section 4(b) is broad and multi-dimensional. It extends beyond access to courts and may require positive state action to secure substantive rights. The Board applied the reasoning in The Maya Leader’s Alliance v Attorney General of Belize [2015] CCJ 15 and Maharaj v Prime Minister (Trinidad and Tobago) [2016] UKPC 37. The assessment is fact-sensitive and requires consideration of whether a prompt and efficacious remedy was available.
4. Application. The executive brought mandatory child-protection provisions into force without providing the facilities needed to implement them. That frustrated Parliament’s purpose, compelled unlawful remand orders, impaired the separation of powers, and exposed the appellants to real and substantial harm. The right to liberty included detention in the legally designated place and conditions. The available proceedings did not provide prompt and efficacious redress.
5. Orders. Declarations were made that the unlawful remands violated section 4(b). The question of damages, if not agreed, was remitted to the High Court for assessment.

• Privy Council. In [2021] UKPC 13, the appeal was allowed on the section 4(b) ground, while the section 4(a) decision was left undisturbed.
• Court of Appeal of the Republic of Trinidad and Tobago. On 19 December 2018, it upheld the declarations that the remand orders contravened the Children Act, but reversed the constitutional declarations, damages and other remedies.
• High Court of Trinidad and Tobago. On 24 May 2016, it declared the remands unlawful and unconstitutional and awarded damages to both appellants.