Attorney General of Trinidad and Tobago v Akili Charles (Trinidad and Tobago)

The constitutional right to the protection of the law is broad and fact-sensitive. It may be breached where State action or omission involves an irrational, unreasonable or fundamentally unfair exercise of power, causes real and substantial prejudice, and is not met by a prompt and effective legal remedy. The assessment must consider all material circumstances in the round. A claimant need not identify the particular State body responsible if State responsibility for the constitutional wrong is sufficiently pleaded and not disputed. Constitutional redress may include compensatory damages for proved loss and vindicatory damages where necessary to mark the importance and gravity of the breach, public outrage, distress or non-pecuniary harm. The assessment of amount is principally for the local court.

The appellant was charged with murder in 2010 and remained on remand while a preliminary inquiry proceeded for more than five years. When the Chief Magistrate was appointed to the High Court, the Acting Chief Magistrate directed that 53 part-heard matters, including the appellant’s, be heard de novo. The appellant challenged that decision by judicial review, but the challenge was dismissed after Gobin J held that a new magistrate could not determine a part-heard matter.

The appellant then brought constitutional proceedings under section 14 of the Constitution of the Republic of Trinidad and Tobago, alleging breaches of sections 4(b), 5(2)(c)(ii) and 5(2)(h). Ramcharan J upheld the section 4(b) claim and awarded compensatory and vindicatory damages. The Court of Appeal allowed the State’s appeal, holding that the judge had decided the case on an unpleaded and unsupported finding concerning the Judicial and Legal Service Commission. The central issues before the Board were whether that criticism was valid, whether the right to protection of the law had been contravened, and whether the damages awards were justified.

Appeal allowed. The Board restored Ramcharan J’s order.

1. Pleading and State responsibility. The Court of Appeal erred in treating the judge’s reference to the Judicial and Legal Service Commission as a materially new basis of decision. A constitutional claim is brought against the State, with the Attorney General as a notional party. The claimant need not identify the particular State body or officials responsible, provided that State responsibility for the alleged constitutional breach and the essential prejudice are advanced.
2. Protection of the law. The Board applied the broad approach reflected in Maharaj v Prime Minister (Trinidad and Tobago) [2016] UKPC 37, Seepersad v Commissioner of Prisons of Trinidad and Tobago [2021] UKPC 13 and Maya Leaders Alliance v Attorney General of Belize [2015] CCJ 15 (AJ). The relevant considerations were whether there had been an irrational, unreasonable, fundamentally unfair or arbitrary exercise of power; whether it caused real and substantial prejudice; and whether a prompt and effective legal remedy existed.
3. The State gave no explanation for the failure to address the Chief Magistrate’s 53 part-heard matters before her appointment. The resulting “colossal misstep” was irrational and unreasonable, though not necessarily arbitrary, and was fundamentally unfair. The appellant suffered real and substantial prejudice through prolonged remand in inhumane conditions, loss of the benefit of a five-year preliminary inquiry and experienced counsel, financial ruin and distress. Judicial review was the appropriate remedy sought, but it was not effective and was not prompt. Section 4(b) was therefore contravened.
4. Damages. Under section 14(1), compensatory damages may be awarded for proved loss, and vindicatory damages where compensatory damages do not fully vindicate the constitutional right. Vindicatory damages may mark public outrage, the importance and gravity of the breach, distress and other non-pecuniary loss; they are not punitive or exemplary damages. The Board upheld TT$150,000 compensatory damages and TT$125,000 vindicatory damages. The amount was principally a matter for the local court.

• Privy Council: The appeal from the Court of Appeal of Trinidad and Tobago was allowed, and Ramcharan J’s order was restored.
• Court of Appeal of Trinidad and Tobago: On 15 July 2021, the court allowed the State’s appeal from Ramcharan J’s constitutional judgment, primarily because it considered that the finding concerning the Judicial and Legal Service Commission was unpleaded and unsupported.
• High Court of Trinidad and Tobago: Ramcharan J dismissed the claims under sections 5(2)(c)(ii) and 5(2)(h), but upheld the section 4(b) claim and awarded compensatory and vindicatory damages.