Anthony Henry and another v Attorney General of St Lucia (Saint Lucia)

Detention after a jury finds an accused unfit to plead is preventive, not punitive. The statutory regime must be read as a whole: the court must direct detention in a mental hospital, and the Governor General cannot use a general discretion to bypass that regime. A prison may be used only if lawfully designated as a mental hospital and suitable treatment is provided. Failure to activate the required procedure makes detention unlawful from the outset. Continued detention under the trial-specific regime also depends on a fair trial remaining a reasonable possibility. Inhuman or degrading treatment requires a separate assessment; the absence of formal legal reviews does not automatically establish it. Damages for lengthy unlawful detention must be assessed globally, tapered and by reference to the lawful counterfactual, rather than by a fixed daily rate.

Anthony Henry and another v Attorney General of St Lucia concerned two appellants who were found unfit to plead and detained in prison for approximately 24 and 32 years respectively. They claimed that their detention breached the constitutional rights to personal liberty and protection from inhuman and degrading treatment.

The High Court held that the appellants should have been detained in a mental hospital, that periodic reviews were required, and that their rights under sections 3 and 5 of the Constitution had been breached. It awarded substantial damages. The Court of Appeal allowed the Attorney General’s appeal in part, rejecting some findings, reducing the damages, and permanently staying the indictments. The central issues before the Board were whether detention in prison was unlawful from the outset, whether periodic reviews were required, whether the treatment was inhuman or degrading, and how damages should be assessed.

The Board allowed the appeals concerning section 3(1) of the Constitution, dismissed the appeals concerning section 5, and remitted damages for a fresh assessment.

1. Statutory regime. Detention must be both authorised by law and within a specified constitutional category. The Board rejected the Court of Appeal’s view that section 1021(1) of the Criminal Code impliedly repealed section 31(1) of the Mental Hospitals Act. The presumption against implied repeal applied. The specific mental-health regime governed the general detention power.
2. Place and management of detention. Section 1021(1), read with section 31(1), required detention in a mental hospital. The Governor General’s discretion permitted only arrangements giving effect to that regime, including a short period in prison while suitable arrangements were made. A prison could be used only if designated as a mental hospital under section 30(1) and equipped to provide suitable treatment.
3. Section 3 breach. The courts had failed to operate the statutory procedure. There was no evidence of immediate reporting to the Governor General or designation of the prisons as mental hospitals. The appellants were therefore detained unlawfully from the outset. The Board did not need to determine whether the absence of periodic reviews constituted a separate breach, but accepted in principle that periodic review was implied into the detention regime, consistent with Bissessar v Attorney General of Trinidad and Tobago and Seepersad v Attorney General of Trinidad and Tobago.
4. Preventive detention and section 5. Detention following a finding of unfitness to plead was preventive and directed to treatment, not punishment or ordinary remand. It could remain justified while a fair trial remained a reasonable possibility, even if the period exceeded the maximum sentence for the alleged offence. Once a fair trial was no longer reasonably possible, continued detention required a separate basis under the general mental-health provisions. The Board rejected the Court of Appeal’s test that a section 5 breach depended on showing that review would probably have resulted in release or trial. Nevertheless, psychiatric assessment and treatment had been provided, and the circumstances did not reach the threshold of inhuman or degrading treatment.
5. Damages. A fixed daily rate was wrong in principle for lengthy unlawful detention. The assessment had to be tapered and made in the round, taking account of individual harm, conditions, comparable awards, the lawful counterfactual, and the initially lawful detention. The claims were remitted to the High Court for a fresh assessment, with permission for fresh evidence.

• Privy Council: In [2023] UKPC 41, allowed the appeals concerning section 3(1), dismissed the appeals concerning section 5, and remitted damages to the High Court.
• Court of Appeal of the Eastern Caribbean Supreme Court (St Lucia): Allowed the Attorney General’s appeal in part, rejected the section 5 findings, held that the detention became unlawful only at a later stage, reduced the damages, and permanently stayed the indictments.
• High Court: Held that detention in prison and the absence of periodic reviews breached the appellants’ constitutional rights, found a breach of section 5, ordered Mr Noel’s transfer to a mental-health facility, and awarded damages.