Anthony Henry and another v Attorney General of St Lucia
| Jurisdiction | UK Non-devolved |
| Judge | Lord Sales |
| Judgment Date | 27 November 2023 |
| Neutral Citation | [2023] UKPC 41 |
| Court | Privy Council |
| Docket Number | Privy Council Appeal No 0067 of 2022 |
[2023] UKPC 41
Lord Reed
Lord Lloyd-Jones
Lord Sales
Lord Hamblen
Lord Leggatt
Privy Council Appeal No 0067 of 2022
Privy Council
Michaelmas Term
From the Court of Appeal of the Eastern Caribbean Supreme Court (St Lucia)
Appellants
Anand Ramlogan SC
Robert Strang
Katharine Bailey
Lydia Faisal
(Instructed by Jared Jagroo of Freedom Law Chambers (Trinidad))
Respondent
Katherine Deal KC
(Instructed by Charles Russell Speechlys LLP (London))
Heard on 12 June 2023
This case is concerned with the rights of persons charged with serious criminal offences but found unfit to plead at trial and detained in prison until the Governor General's pleasure should be known.
There are two appeals before the Board. In each appeal the appellant was detained on this basis for a very lengthy period. The first appellant, Mr Henry, was detained for 24 years before being released. The second appellant, Mr Noel, was detained for 32 years.
The appellants' complaint is that they were detained in prison rather than in a mental hospital, as they should have been. They also say there was no proper review of whether continued detention remained appropriate throughout these periods. They maintain that if there had been they would have been released much earlier, possibly after trial on the charges against them once they were fit to plead. They claim damages for breach of their rights to personal liberty and to protection from inhuman and degrading treatment set out in the Constitution of St Lucia at section 3(1) and section 5, respectively.
Mr Henry was arrested on 26 September 1995 and charged with two counts of murder. He was detained on remand until his arraignment on 7 February 2000, when he was found unfit to plead. The judge ordered that he be detained in prison “until the Governor General's pleasure shall be known”.
At first Mr Henry was detained in the prison at Castries but later he was transferred to the prison at Bordelais. He remained there until he was unconditionally discharged by the High Court sitting in its criminal jurisdiction on 30 May 2019. This discharge was the result of proceedings commenced on his behalf by his current solicitor, who had learned of his situation.
According to Mr Henry's medical notes compiled in the medical unit at the Bordelais Correctional Facility (“Bordelais”), he was seen by visiting consultant psychiatrists at the unit on a number of occasions each year from 2003 (when the unit opened) until his release in 2019, totalling 103 occasions. There is no evidence in the form of medical notes regarding what (if any) psychiatric attention was received by him prior to 2003.
Mr Henry has been mentally ill for most of his life. His medical notes show that he was examined by the psychiatrists at the medical unit and diagnosed variously with psychosis, schizophrenia, bipolar affective disorder and anti-social personality disorder. He was given medication for these conditions throughout the period of his detention covered by the medical notes.
Mr Henry remained in prison and was not admitted to any mental health facility. He was not subjected to periodic reviews to decide whether his mental health had improved such that he might be fit to stand trial.
Mr Noel was arrested and charged on 13 December 1987 with causing grievous harm. He was detained on remand at the Royal Gaol. At trial on 21 November 1991 the jury found that he was not fit to plead. On the basis of that finding, on 20 July 1992 the judge ordered that he be detained in prison “until the Governor General's pleasure shall be known.”
Mr Noel's detention continued at the Royal Gaol until he was transferred to Bordelais when it opened in February 2003. He remained there until trial on 24 October 2019 in the present civil proceedings, which were commenced by his current solicitor after he learned of Mr Noel's plight.
Medical notes for Mr Noel compiled at the medical unit at Bordelais show that he was seen by visiting consultant psychiatrists at the unit on a number of occasions each year between 2003 and his release, totalling 89 occasions in all. As with Mr Henry, there is no evidence in the form of medical notes regarding what (if any) psychiatric attention was received by him prior to 2003.
Mr Noel has also suffered from mental illness for most of his life. His medical notes from Bordelais show that he was diagnosed as being delusional, schizophrenic and occasionally psychotic. He was given medication for these conditions in the period covered by the notes.
Like Mr Henry, Mr Noel remained in prison and was not admitted to any mental health facility. He was not subjected to periodic reviews to decide whether his mental health had improved such that he might be fit to stand trial.
The Constitution includes the following provisions:
“ Section 3: Protection of Right to Personal Liberty
(1) A person shall not be deprived of his or her personal liberty save as may be authorised by law in any of the following cases, that is to say—
(a) in consequence of his or her unfitness to plead to a criminal charge or in execution of the sentence or order of a court … in respect of a criminal offence of which he or she has been convicted;
…
(h) in the case of a person who is, or is reasonably suspected to be, of unsound mind … for the purpose of his or her care or treatment or the protection of the community; …
(3) Any person who is arrested or detained—
…
(b) upon reasonable suspicion of his or her having committed, or being about to commit, a criminal offence under any law
and who is not released, shall be brought before a court without undue delay and in any case not later than 72 hours after such arrest or detention.
…
(5) If any person arrested or detained as mentioned in subsection (3)(b) is not tried within a reasonable time, then without prejudice to any further proceedings that may be brought against him or her, he or she shall be released either unconditionally or upon reasonable conditions, including in particular such conditions as are reasonably necessary to ensure that he or she appears at a later date for trial or for proceedings preliminary to trial, and such conditions may include bail so long as it is not excessive.
(6) Any person who is unlawfully arrested or detained by any other person shall be entitled to compensation therefor from that other person or from any other person or authority on whose behalf that other person was acting:
Provided that a judge, a magistrate or a justice of the peace or an officer of the court or a police officer shall not be under any personal liability to pay compensation under this subsection in consequence of any act performed by him or her in good faith in the discharge of the functions of his or her office and any liability to pay any such compensation in consequence of any such act shall be a liability of the Crown.
…
Section 5: Protection from Inhuman Treatment
No person shall be subjected to torture or to inhuman or degrading punishment or other treatment.
…
Section 8: Provisions to Secure Protection of Law
(1) If any person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.
…”
Title 67 of the Criminal Code is entitled “Trial of Issue of Insanity”. Section 1019(1) provides that “[i]f any accused person appears before or upon arraignment to be insane”, a jury may be impanelled to determine whether such person “is or is not insane and unfit to stand trial.” Subsection (3) provides that such a verdict “shall not affect the trial of any person so found to be insane for the offence for which he was indicted, in case he subsequently becomes of sound mind.”
Section 1021 provides in relevant part as follows:
“(1) Where any person is found to be insane under the provisions of section 1019 … the Court shall direct the finding of the jury to be recorded and thereupon the Court may order such person to be detained in safe custody, in such place and manner as the Court thinks fit, until the Governor-General's pleasure shall be known.
(2) The Judge shall immediately report the finding of the jury and the detention of such person to the Governor-General, who shall order such person to be dealt with as a person of unsound mind under the laws of this State for the time being in force for the care and custody of persons of unsound mind, or otherwise as he may think proper.”
This group of sections re-enacted sections 207 to 209 of the Criminal Code for St Lucia of 1888 with minor and irrelevant differences (such as to replace reference to “the laws of this Colony” with “the laws of this State”), which had also been re-enacted in the Criminal Code of 1895 and a number of times thereafter. The current version of the Criminal Code post-dates the Mental Hospitals Act, but the Codes of 1888 and 1895 and other re-enactments pre-dated that Act.
The Mental Hospitals Act (“the MHA”) makes provision for persons suffering with mental illness, including prisoners. So far as relevant, it includes the following:
“ Section 30: Appointment of Mental Hospital for Prisoners
(1) The Governor General may appoint the whole or any part of any building, prison, hospital, house or other place with any out-houses, yards, gardens, grounds or premises thereto belonging, to be a mental hospital for prisoners.
…
Section 31: Insanity Before Verdict
(1) If any person, upon arraignment before the High Court in its criminal jurisdiction or during his or her trial for any offence, is found by the jury to be insane, the Court...
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