Attorney General of Trinidad and Tobago v Akili Charles (substituted by Melina Charles)
| Jurisdiction | UK Non-devolved |
| Judge | Lord Hamblen,Lord Briggs,Lord Kitchin,Lord Burrows,Lord Richards |
| Judgment Date | 08 December 2022 |
| Neutral Citation | [2022] UKPC 49 |
| Docket Number | Privy Council Appeal No 0017 of 2022 |
| Court | Privy Council |
[2022] UKPC 49
Lord Briggs
Lord Kitchin
Lord Hamblen
Lord Burrows
Lord Richards
Privy Council Appeal No 0017 of 2022
Privy Council
Michaelmas Term
From the Court of Appeal of Trinidad and Tobago
Appellant
Anand Ramlogan SC
Rowan Pennington-Benton
Adam Riley
(Instructed by Ganesh Saroop of Freedom Law Chambers (Trinidad))
Respondent
Peter Knox KC
Daniel Goldblatt
(Instructed by Charles Russell Speechlys LLP (London))
Heard on 5 October 2022
Lord Hamblen ( with whom Lord Briggs, Lord Kitchin, Lord Burrows and Lord Richards agree):
This appeal concerns a claim by the appellant, Akili Charles, for compensatory and vindicatory damages for alleged breach of his constitutional right to “the protection of the law” under section 4(b) of the Constitution of the Republic of Trinidad and Tobago (“the Constitution”).
The factual circumstances in which this claim arises are in summary as follows.
On 5 December 2010 the appellant was charged with murder. He was remanded in custody as murder was a non-bailable offence under the law at that time. On 16 January 2012 a preliminary inquiry was begun before the Chief Magistrate. This proceeded for over five years until April 2017 when the Chief Magistrate was sworn in as a judge of the High Court. She had 53 part-heard matters before her at that time, including the appellant's preliminary inquiry.
On 1 June 2017 the new Acting Chief Magistrate ruled that all part-heard matters had to be heard de novo before another magistrate. At this stage the appellant had been in prison for six and a half years and faced the prospect of having to start his lengthy preliminary inquiry all over again. Moreover, for the first preliminary inquiry he had been able to fund representation by Mr Wayne Sturge, described by the judge in this case as an experienced attorney who is “one of the country's most renowned members of the criminal bar”, but he could not afford to pay for Mr Sturge or indeed any legal representation a second time.
The appellant sought to challenge the decision that the preliminary inquiry had to be heard de novo in judicial review proceedings. These were ordered to be heard together with an interpretation summons brought by the Attorney General, the respondent to this appeal, seeking guidance from the court on the issue. On 4 January 2019 Gobin J ruled on the interpretation summons. She held that the Acting Chief Magistrate's ruling was correct and dismissed the judicial review proceedings.
On 7 March 2019 the appellant filed a claim for constitutional relief under section 14 of the Constitution. He sought compensatory and vindicatory damages for breach of his constitutional rights and in particular an order that the respondent pay the appellant's legal costs of and occasioned by the second preliminary inquiry for counsel of his choice, Mr Sturge.
On 12 March 2020 Ramcharan J gave judgment on the constitutional claim. He dismissed the claims made for breach of sections 5(2)(c)(ii) (rights of arrested persons to retain a lawyer) and 5(2)(h) (deprivation of procedural protections). The judge, however, upheld the claim for breach of section 4(b) and awarded the appellant compensatory damages of TT$150,000 and vindicatory damages of $125,000.
The respondent appealed and on 15 July 2021 the Court of Appeal (Lucky, Dean-Armorer and Wilson JJA) allowed the appeal, primarily on the ground that the judge had found a breach of duty by the Judicial and Legal Service Commission (“JLSC”) and the court considered that default by the JLSC had not been pleaded and that the respondent had not had adequate notice of the case which had to be answered.
On 18 October 2021 the Court of Appeal granted final leave to appeal to the Privy Council from its decision.
Meanwhile, following the issue of the claim for constitutional relief, an arrangement was made with Mr Sturge whereby he agreed to act for the appellant on the second preliminary inquiry on the basis that his fees would be paid out of any damages awarded on the constitutional claim, failing which the appellant would remain liable for them. In the event, on 21 May 2019 the second preliminary inquiry was dismissed on the basis of there being no case to answer.
Much of the relevant factual background is set out in the judgment of Gobin J in the combined judicial review and interpretation summons proceedings. Her findings are of importance as both the appellant and the respondent were party to these proceedings. As she notes in her judgment, there was a “common factual background”.
On 12 April 2017 the then Chief Magistrate, Mrs Ayers-Caesar, was sworn in as a judge of the High Court at a time when there were 53 pending matters before her. Gobin J noted that “there was considerable public outcry in respect of the Pending Matters not having been concluded prior to her appointment” and described what ensued as a “debacle”. She recorded that on 24 April 2017 the Law Association of Trinidad and Tobago issued a press release stating that “it is unfair that anyone should suffer the expense and anxiety of an avoidable, repeat trial”.
On 1 June 2017 the Director of Public Prosecutions (“DPP”) appeared before the Acting Chief Magistrate, Mrs Maria Busby Earle-Caddle, at which hearing she ruled that the pending matters had to be started again and that “she had been instructed to treat” these matters in that way. He inquired whether Mrs Ayers-Caesar had resigned as a magistrate and was told by the Acting Chief Magistrate that she could not answer that question. The DPP then wrote to the Chief Justice both as Chief Justice and as Chairman of the JLSC raising “serious concerns about the jurisdiction of the Acting Chief Magistrate to determine that the outstanding part-heard matters should be started de novo” and asking to be informed as to the status of Mrs Ayers-Caesar. On 8 June 2017 the DPP wrote to the Attorney General noting that he was not satisfied that Mrs Ayers-Caesar's appointment as a magistrate had ended. In these “extraordinary circumstances” the Attorney General filed the interpretation summons seeking determination of the following issues:
“(a) The manner in which the matters commenced but not completed before Chief Magistrate Marcia Ayers-Caesar as at 12th April 2017 (“the Pending Matters”) are now to be determined and/or concluded;
(b) Whether Marcia Ayers-Caesar is a Magistrate and if so, whether the Pending Matters and or any of them may be continued before her;
(c) Whether the Pending Matters and or any of them are required to or may be restarted de novo before Magistrate Maria Busby-Earle Caddle and/or any other magistrate;
(d) Whether the Pending Matters, and or any of them, may be continued before Magistrate Maria Busby-Earle Caddle and/or a different magistrate at all, and/or with the consent to the parties;
(e) Whether the provisions of the Indictable Offence (Preliminary Enquiry) Act Chap 12:01 … and/or the Summary Courts Act Chap 4:20 permit the Pending Matters to be continued and or completed by any other magistrate.”
The interpretation summons was ordered to be dealt with together with the appellant's judicial review application and he was joined as a party. Although final submissions in the judicial review application were filed in June 2018, Gobin J held that it would be ruled upon at the same time as the interpretation summons, noting that all parties were aware that it was only sensible to await the determination of that application.
On 26 June 2018 Gobin J ruled that the former Chief Magistrate was deemed to have voluntarily resigned from her post as magistrate upon her being appointed as a judge of the High Court.
In her judgment of 4 January 2019 Gobin J ruled on the other issues raised by the interpretation summons and dismissed the judicial review claim. She held that there was no statutory provision that permits or prohibits the continuation of a part-heard matter before the former Chief Magistrate before another magistrate. She further held that even in the absence of a statutory prohibition she was bound by the Privy Council decision in Ng (alias Wong) v The Queen [1987] 1 WLR 1356 (“ Wong”) to conclude that a new magistrate who had not heard the oral evidence could not hear a part heard matter. In that case Lord Griffiths stated as follows at pp 1358–1359:
“In a criminal trial, whether before a jury or before magistrates, it is a fundamental requirement of justice that those called upon to deliver the verdict must have heard all the evidence. The evaluation of oral evidence depends not only upon what is said but how it is said. Evidence that may ultimately read well in a transcript may have carried no conviction at all when it was being given. Those charged with returning a verdict in a criminal case have the duty cast upon them to assess and determine the reliability and veracity of the witnesses who give oral evidence, and it is upon this assessment that their verdict will ultimately depend. If they have not had the opportunity to carry out this vital part of their function as judges of the facts, they are disqualified from returning a verdict, and any verdict they purport to return must be quashed.”
Gobin J further held that the consent of the parties would make no difference and could “not validate what is a nullity at law”, relying on Chimuza v Dzepasi [2015] ZWHHC 487. She further held that Wong equally applied to decisions as to whether a prima facie case had been made out in criminal proceedings, as in a preliminary inquiry, referring to The State v Latiffa Ali, 22 November 1990 (HC No 118 of 1990), approved by the Court of Appeal in ...
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