Duncan and Jokhan v Attorney General of Trinidad and Tobago (Trinidad and Tobago)

Section 4(a) protects the right to a fair legal system, not an infallible one. Ordinary appeal is normally the remedy for judicial error, and imprisonment before an appeal is determined does not itself establish a constitutional violation or a general right to compensation.

Constitutional redress is available as a gap-filling remedy where continuing detention is unjustified and there is no prompt local avenue to apply for bail or immediate release, even though an appeal to the Privy Council exists. The right is to have release tested, not to automatic bail. Compensation requires proof that the claimant would have applied for, and obtained, bail.

The appellants were convicted in 1999 and sentenced to 15 years’ imprisonment. Their appeals were partly successful, but on 30 November 2001 the Court of Appeal affirmed the sentences and gave loss-of-time directions under section 49(1) of the Supreme Court of Judicature Act. It failed to consider whether the time spent awaiting appeal should count towards sentence.

The appellants later sought constitutional relief under sections 4(a) and 14 of the Constitution, claiming that their continued detention violated their rights and seeking release and compensation. Harris J dismissed the constitutional motion as an abuse of process. The Court of Appeal dismissed their appeal. The central issue was whether the judicial error, and the absence of a prompt local remedy for continuing detention, engaged section 4(a).

Appeals allowed in part. The order of the Court of Appeal was set aside. The Board declared violations of section 4(a) from about 23 March 2010 for the first appellant and from about 21 June 2010 for the second appellant, and remitted the claims for monetary compensation to the High Court for assessment.

1. Ordinary appellate correction. Section 4(a) guarantees a fair legal system, not a system free from judicial error. Errors of fact or substantive law, including errors affecting conviction or sentence, ordinarily fall to be corrected by appeal. The fact that imprisonment continues before the appellate decision does not itself establish a constitutional violation or a general entitlement to compensation. This reflected the approach in Maharaj (No. 2) [1979] AC 385, as clarified in Independent Publishing Co. Ltd v Attorney General of Trinidad and Tobago [2005] 1 AC 190, Hinds v Attorney General of Barbados [2001] UKPC 56 and Forbes v Attorney General of Trinidad and Tobago [2002] UKPC 21.
2. Section 49(1). The Court of Appeal must consider of its own motion whether to exercise its discretion to backdate a sentence. A loss-of-time direction must reflect the provision’s rationale and be proportionate. It may discourage frivolous use of the appellate process, but must not impose an unfairly long extension of imprisonment. The failure to consider that discretion in the appellants’ cases was a clear legal error.
3. Prompt local release. A continuing detention which is unjustified by law engages the constitutional protection of liberty where the legal system provides no prompt local avenue to apply for bail pending appeal. A special-leave appeal to the Board is insufficient for this purpose because of the delay involved. Section 4(a), read with section 14, supplies a form of constitutional habeas corpus or its equivalent. The right is to have immediate release tested by a court; it is not an automatic right to bail. The court may consider whether the alleged error is serious and obvious and whether other factors favour release.
4. Compensation and delay. A claimant seeking compensation for the absence of a bail avenue must show that they would have applied for bail and would have obtained it. The appellants could not recover compensation for detention before they sought release. Once their letters placed the Attorney General on notice that their detention was unjustified, the state should have supported steps securing their prompt release. The appellants’ failure to raise the issue earlier did not waive their constitutional rights or relieve the state of its responsibility to protect liberty.
5. Earlier decisions. The decision in Renne Civ. App. 57/2013 was correct on its facts, but the Board could not endorse the reasoning that an appeal to the Board alone made the system fair. Bhola v Attorney General CV 2010-03410 was wrongly decided insofar as it awarded compensation for past detention where the claimant had not sought release.

1. Privy Council: allowed the appeals in part, set aside the Court of Appeal’s order, made declarations of constitutional violations from specified dates, and remitted compensation claims to the High Court.
2. Court of Appeal of the Republic of Trinidad and Tobago: dismissed the appellants’ appeals and held that the constitutional motions were an abuse of process.
3. High Court: Harris J accepted that the Court of Appeal had erred under section 49(1), but dismissed the constitutional claim and struck it out as an abuse of process.