Naresh Boodram v Attorney General of Trinidad and Tobago (Trinidad and Tobago)

Where prolonged delay makes implementation of a lawful mandatory death sentence unlawful, the constitutional court’s remedial jurisdiction is not confined to commuting it to life imprisonment. Under section 14(2) of the Constitution of Trinidad and Tobago, the High Court may vacate the death penalty and impose any lawful substitute sentence appropriate to the individual case. It must consider the relevant facts, including sentencing aims, aggravating and mitigating circumstances, time detained, rehabilitation and public protection. This accords with the broad approach in Pratt and Morgan v Attorney General for Jamaica [1994] 2 AC 1 and the approach adopted from Lendore and others v Attorney General of Trinidad and Tobago [2017] UKPC 25. A successful constitutional appeal ordinarily attracts costs.

Mr Boodram was convicted of two murders in 1996 and sentenced to death. After a prolonged delay, the High Court commuted the sentence to life imprisonment, but later dismissed his claim that he should be resentenced to any lawful penalty other than death.

The Court of Appeal allowed his appeal, holding that the High Court’s remedial jurisdiction under section 14 of the Constitution of Trinidad and Tobago was not limited to life imprisonment. It remitted the matter for resentencing and made no order as to costs. The Attorney General appealed on the scope of the High Court’s power. Mr Boodram cross-appealed on costs. The central issues were the appropriate constitutional remedy and whether costs should follow the event.

In the joint judgment of Lord Lloyd-Jones and Sir Tim Holroyde, with whom Lord Sales, Lord Hamblen and Lord Stephens agreed, the appeal was dismissed and the cross-appeal was allowed.

1. Constitutional remedy. Section 4 of the Offences against the Person Act lawfully requires the criminal court to impose the death penalty for murder. However, where prolonged delay has made implementation of that sentence unlawful, section 4 imposes no obligation on the High Court and gives no guidance as to the substitute sentence. Section 14(2) of the Constitution of Trinidad and Tobago permits the High Court to vacate the death penalty and impose an appropriate substitute sentence. Treating the first part as constitutional relief and the second as impermissible resentencing was a semantic distinction. The High Court is not restricted to life imprisonment.
2. Authorities. Pratt and Morgan v Attorney General for Jamaica [1994] 2 AC 1 established that the corresponding constitutional language allowed substitution of such order as the court considered appropriate. Its reference to life imprisonment after five years was pragmatic guidance to the Jamaican executive, not a rule that life imprisonment was the only judicial substitute. The life sentence imposed in Matthew v State of Trinidad and Tobago [2005] 1 AC 433 likewise created no general rule. The Board expressly adopted as correct the relevant passage in Lendore and others v Attorney General of Trinidad and Tobago [2017] UKPC 25; [2017] 1 WLR 3369, although that passage had been obiter.
3. Sentencing factors. The High Court must consider the individual circumstances, including the aims of sentencing, aggravating and mitigating circumstances, time detained, rehabilitation and the need to protect the public. Review mechanisms under rules 281 and 282 of the Prison Rules do not make life imprisonment irreducible. Any error by the Court of Appeal concerning review did not undermine its conclusion on the scope of section 14(2).
4. Remittal. The Court of Appeal lacked sufficient information to determine the appropriate sentence, particularly concerning rehabilitation. Remittal to the High Court was proper. It preserved the right of appeal under section 14(5), and sentencing and tariff decisions were matters for judges in the local courts.
5. Costs. Rule 66.6 of the Civil Proceedings Rules 1998, and Seepersad v Persad [2004] UKPC 19, establish that costs ordinarily follow the event unless there is sufficient reason to depart. Mr Boodram was wholly successful on the important constitutional issue. The fact that the decision provided guidance for other litigants did not justify denying costs or awarding them only on a pro bono basis. The Attorney General was ordered to pay his costs below and the costs of the appeal and cross-appeal on the standard basis, to be assessed if not agreed.

• Privy Council: In [2022] UKPC 20, the Attorney General’s appeal was dismissed and Mr Boodram’s cross-appeal on costs was allowed. The matter remained remitted to the High Court for resentencing.
• Court of Appeal of the Republic of Trinidad and Tobago: On 8 March 2018, the appeal from the High Court was allowed. The matter was remitted for consideration of an appropriate substitute sentence, with no order as to costs.
• High Court: On 23 July 2010, Rajkumar J dismissed Mr Boodram’s constitutional claim.