Attorney General of Trinidad and Tobago v JM (A minor by his kin and next friend NM)
| Jurisdiction | UK Non-devolved |
| Judge | Lord Burrows,Lord Hodge,Lord Leggatt,Lady Rose,Lord Richards |
| Judgment Date | 19 December 2022 |
| Neutral Citation | [2022] UKPC 54 |
| Court | Privy Council |
| Docket Number | Privy Council Appeal No 0018 of 2022 |
(A minor by his kin and next friend NM)
[2022] UKPC 54
Lord Hodge
Lord Leggatt
Lord Burrows
Lady Rose
Lord Richards
Privy Council Appeal No 0018 of 2022
Michaelmas Term
From the Court of Appeal of the Republic of Trinidad and Tobago
Appellant
Anand Ramlogan SC
Robert Strang
Adam Riley
Ganesh Saroop
(Instructed by Freedom Law Chambers (Trinidad))
Respondent
Howard Stevens KC
Katharine Bailey
(Instructed by Charles Russell Speechlys LLP (London))
THE COURT ORDERED that no one shall publish or reveal the name or address of the child who is the subject of these proceedings, or publish or reveal any information which would be likely to lead to the identification of the child or any member of his family in connection with these proceedings, in accordance with the Court Order of 13 October 2022.
Lord Burrows ( with whom Lord Hodge, Lord Leggatt, Lady Rose and Lord Richards agree):
JM, who is now 19 years old, suffers from a rare genetic disorder called Prader-Willi Syndrome (“PWS”). Typically, PWS inhibits physical and cognitive development, produces feelings of insatiable hunger leading to obesity, and is associated with behavioural problems. At the age of nine, JM was removed from the care of his mother and placed in the care of the State. He was sent to St Michael's Boys Industrial School (“St Michael's”), an institution for young offenders aged 10–16, even though JM was only aged nine and had neither committed, nor been charged with, any criminal offence. Some four years later, he was transferred to an adult psychiatric hospital, St Ann's Psychiatric Hospital (“St Ann's”), despite the fact that he was still a child and that PWS is not itself a mental illness. In both institutions, JM suffered appalling physical and sexual abuse and ill-treatment.
JM (through his mother) brought a claim alleging that the State, represented by the Attorney General of Trinidad and Tobago, had infringed JM's constitutional rights under sections 4 and 5 of the Constitution of Trinidad and Tobago (“the Constitution”). That claim succeeded before the trial judge, Quinlan-Williams J, who awarded JM compensatory damages of $921,200 plus vindicatory damages of $1,000,000 (throughout this judgment the relevant currency being referred to is the Trinidad and Tobago dollar). On appeal by the Attorney General, the compensatory damages were reduced by the Court of Appeal to $844,650 and it was held that no vindicatory damages should be awarded. JM now appeals to the Privy Council seeking the restoration of the compensatory and vindicatory damages awarded at first instance.
The main issue, both as a matter of principle and in terms of practical importance, is whether vindicatory damages should be awarded in this case and, if so, whether the quantum of $1,000,000 is excessive. There are also issues relevant to the quantum of the compensatory damages. The correct analysis of the constitutional rights infringed (ie of JM's cause of action) will also be examined albeit that that analysis has a limited bearing on the damages issues that are being appealed.
It is helpful to set out straightaway the sections of the Constitution that are relevant. They are sections 4 and 5 which, as far as material, provide as follows:
“4. It is hereby recognised and declared that in Trinidad and Tobago there have existed and shall continue to exist, without discrimination by reason of race, origin, colour, religion or sex, the following fundamental human rights and freedoms, namely:
(a) The right of the individual to life, liberty, security of the person and enjoyment of property and the right not to be deprived thereof except by due process of law;
(b) The right of the individual to equality before the law and the protection of the law;
…
5. …
(2) … Parliament may not—
(a) authorise or effect the arbitrary detention, imprisonment or exile of any person;
(b) impose or authorise the imposition of cruel and unusual treatment or punishment;
…”
On 17 September 2012 JM, then aged nine, was removed (with his younger sister) from the care of his mother and placed into the care of the State. The event precipitating this removal was that JM's mother (“NM”) had been arrested and charged with child abandonment and neglect under section 3(1) of the Children's Act (No 4 of 1925) as amended (which for shorthand will be referred to as the “Old Act”). The Old Act (including amendments) was replaced by the new Children Act (No 12 of 2012) which, so far as relevant to this case, came into force on 18 May 2015.
On 27 September 2012, the Magistrates' Court made an order that JM be “remanded” to St Michael's “for safe keeping”. St Michael's was an industrial school not an orphanage. By sections 29 and 43 of the Old Act, industrial schools were designated for housing and educating young offenders between the ages of 10 and 16. By sections 29 and 44, orphanages were designated for housing and educating other children. JM was not an offender and, as has already been said, in September 2012 was nine years old.
Nearly two years later, on 30 June 2014, NM was convicted, in the Magistrates' Court, of the charges in respect of JM. On the same date, the magistrate ordered that JM be “committed to St Michael's Boys Industrial School with effect from 30.6.14 until he attains the age of 18 years”.
Over the course of his first months at St Michael's, JM underwent assessment. In about January 2013, he was diagnosed with PWS. PWS is a rare and complex genetic disorder and is not itself a mental illness. It is characterised by low muscle tone, short stature, incomplete sexual development, cognitive disabilities, speech, sleep and motor problems, chronic feelings of insatiable hunger and a slowed metabolism that can lead to morbid obesity. Behavioural problems are also common and include stubborn, angry, controlling, manipulative behaviours, temper tantrums – especially when denied food – intolerance for changes in routine, obsessive-compulsive or repetitive behaviours, anxiety and skin-picking.
St Michael's staff produced a care plan for JM but in the latter part of 2014 most of the medical treatment and therapy ceased. The evidence of the manager of St Michael's was that St Michael's was not the proper environment to ensure the success of the interventions instituted under the care plan, or to provide long term management of JM's diagnosis, or to promote his growth and development. It was not disputed that St Michael's did not execute the care plan. A further care plan was completed in November 2015, but the social worker assigned in March 2016 to monitor the implementation of the recommendations of that plan reported that St Michael's was unable properly to implement them.
During the course of JM's detention at St Michael's, on 18 May 2015, the main provisions of the Children Act (No 12 of 2012), of the Children's Community Residences, Foster Care and Nurseries Act and of the Children's Authority Act came into force.
Over the course of his time at St Michael's, JM suffered from incidents of bullying and physical and sexual abuse by other residents and staff. The history of such incidents included the following:
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(i) JM's care plan of 6 March 2013 noted that he had a black eye, said to have been the result of being struck by another boy.
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(ii) On 30 April 2014, three other boys burned JM using insect spray and a lighter.
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(iii) On 26 May 2014, JM was beaten with a piece of wood by a member of staff. The Inspector of Orphanages and Industrial Schools was appointed to investigate.
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(iv) In early 2015, a resident threw pepper sauce in JM's eyes.
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(v) On 30 June 2015, JM complained that he was subjected to oral sex and buggery by a 14-year-old resident.
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(vi) On 28 July 2015, a member of staff reported that an inmate had beaten and threatened JM.
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(vii) In about May 2016, a security guard was specially assigned to JM to protect him from other residents, in response to continued incidents of physical abuse. However, after 30 days the guard asked to be reassigned because JM's behaviour was out of control, and no other guard was willing to take his place.
On 4 October 2016, Dr Jacqueline Sharpe, whose patients included residents of St Michael's and who had made the original diagnosis of PWS in respect of JM, wrote to Dr O'Brady-Henry at St Ann's thanking him for agreeing to admit JM. She wrote that JM was being physically abused by other residents of St Michael's and was unable to defend himself well. She explained that the boys were all sharing a makeshift dormitory and that the transfer would be a temporary arrangement until ongoing construction work had improved the physical conditions at St Michael's.
The transfer of JM to St Ann's was made by way of an application under section 7 of the Mental Health Act. The application was made on 6 October 2016 by Keisha Sullivan, an employee of St Michael's who declared that JM was mentally ill and that it was in the interest of his health and/or the safety and protection of others that he be admitted to the hospital. She said that she was making the application in her capacity as “Court Officer/Care Giver” and said that the basis for her application was “Complications arising as a result of his Prader-Willi[s] Syndrome”.
Upon examination of JM, Dr Stafford Pierre at St Ann's on 6 October 2016 certified that JM was mentally ill and ought to be detained in hospital, giving as his reasons: bodily scars consistent with burns and multiple scars about his chest, abdomen, arms and face; that JM was reported to be suffering from PWS; that the court officer stated that JM had been the victim of abuse, aggression and torture; and that St Michael's supervisor had reiterated that there...
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