Hinds v Attorney General of Barbados and another
| Jurisdiction | UK Non-devolved |
| Judge | Lord Bingham of Cornhill |
| Judgment Date | 05 December 2001 |
| Neutral Citation | [2001] UKPC 56 |
| Court | Privy Council |
| Docket Number | Appeal No. 28 of 2000 |
| Date | 05 December 2001 |
[2001] UKPC 56
Present at the hearing:-
Lord Bingham of Cornhill
Lord Hobhouse of Woodborough
Lord Scott of Foscote
Sir Murray Stuart-Smith
Sir Kenneth Keith
Privy Council
[Delivered by Lord Bingham of Cornhill]
In this appeal against a decision of the Court of Appeal of Barbados the appellant seeks declaratory relief under section 24 of the constitution of Barbados. The appeal raises two broad questions. The first, a question of substance, is whether the denial of free legal representation to the appellant on his criminal trial in 1991 breached a right guaranteed to him under the constitution. The second is a procedural question: whether, if his constitutional right was breached, the appellant is entitled to declaratory relief under section 24.
On the night of 24 December 1988 the house of Viterose Hinds was burned to the ground. The appellant had had a relationship with the daughter of the owner, Heather Hinds, who was the mother of three of his children. But there were disputes concerning the two surviving children and the parents lived separately. After the fire, the appellant was arrested and charged with setting fire to the house contrary to section 4 of the Malicious Injury to Property Act (Cap 140). The evidence is that before his trial the appellant twice applied to the Community Legal Services Commission, the body responsible for administering the community legal aid scheme in Barbados, for the grant of legal assistance, but he received no answer. He appeared before Waterman J on 1 July 1991 and applied to the judge for legal aid. According to him he "was told by that judge that there was no legal aid for arson or words to that effect". Counsel who prosecuted at the trial gives a somewhat different account. He deposes:
"This request was considered by the said Learned Trial Judge within the provisions of the Community Legal Services Act, Cap 112A, which is an Act to provide for a system of free legal services to persons of insufficient means … the Learned Trial Judge refused the request on the ground that the case was not, and was not likely to be of difficulty to require the assistance of an Attorney– at-Law on behalf of the person charged therewith for its proper determination."
The appellant's recollection is different:
"I say that the Judge did state the offences for which legal aid was provided and told me that arson was not one of those offences. I don't recall the Judge saying that the case was not likely to be of difficulty to require the assistance of an Attorney-at-Law. I also do not recall that the Judge said anything to alert me to the fact that he had power to grant me legal aid for an offence that was not listed."
The Board cannot now, on the evidence available, be sure what passed between the appellant and the judge. It does not however appear that the judge attempted to investigate the appellant's understanding of the crime charged against him or his capacity to defend himself or the nature of any possible defence he might have wished to advance, and it is common ground that legal aid was not granted. In the course of the trial a voir dire was held to determine the admissibility of incriminating statements made by the appellant and there is evidence that he played some part in the trial by questioning witnesses, making a statement from the dock and addressing the jury. On 3 July 1991 he was convicted by the jury, and on 5 July he was sentenced to eight years' imprisonment.
The appellant appealed to the Court of Appeal against his conviction, and for this hearing he was represented by counsel. One of the points argued was that his constitutional rights had been infringed and that he had been denied legal representation. This argument was rejected by the Court of Appeal which held that the case was not a difficult one nor likely to be difficult, and did not call for legal representation. The judge had obviously, it was said, addressed his mind to whether the appellant should have legal aid for a simple case, but would have set a very bad precedent had he granted it since "everybody would come in and claim their case falls under (g) of the Schedule".
On 26 July 1993 the appellant issued the notice of motion giving rise to the present proceedings. He relied on section 24 of the constitution to seek a large number of declarations, of which only two are now sought. They are:
"1. A Declaration that at all times during the Applicant's trial by jury and sentencing in the Supreme Court of Barbados between the 1st day of July 1991 and the 5th day of July 1991 upon indictment for setting fire to a house contrary to section 4 of the Malicious Injury to Property Act Chapter 140 of the Laws of Barbados (the Applicant's trial) the Applicant was entitled to be legally represented by an Attorney-at-Law funded by the Crown (funded Attorney-at-Law) pursuant to the provisions of the Community Legal Services Act Chapter 112A of the Laws of Barbados and the Constitution of Barbados.
2. A Declaration that the failure of the Learned Trial Judge to provide the Applicant with a Legal Aid Certificate and or to certify that his defence was likely to be of difficulty and to require the assistance of an Attorney-at-Law on his behalf and or the case was likely to involve a point of law of public importance and to require the assistance of an Attorney-at-Law on his behalf so that he could have the services of a funded Attorney-at-Law at his said trial was in contravention of the Applicant's right to and or deprived the Applicant of a fair trial and the protection of the law guaranteed under inter alia Section 11(c) of the Constitution of Barbados and protected by the provisions of Section 18 of the Constitution."
His application was rejected by Blackman J (acting) who held that the Court of Appeal had previously considered the appellant's complaints that his constitutional rights had been breached by the denial of legal aid; that the High Court could not sit in an appellate capacity from the Court of Appeal; and that the appellant was precluded from raising these complaints again by the doctrine of res judicata. His decision was affirmed by the Court of Appeal (Sir Denys Williams CJ, Chase and Williams JJA) which held in its judgment that the avenue of appeal against criminal convictions lay from the trial court to the Court of Appeal and from the Court of Appeal to the Judicial Committee of the Privy Council; that the High Court was precluded from granting constitutional relief in this case by the proviso to section 24(2) of the constitution; that the constitution of Barbados provided that there could be a fair trial without representation of the defendant; and that if the appellant had a remedy in respect of the trial judge's failure to adjudicate adequately on a provision of the Community Legal Services Act, it was not one by way of redress under section 24 of the constitution because the provisions of the Act were not a provision or an off-shoot of the relevant sections of the constitution. The appellant now appeals to this Board by leave of the Court of Appeal.
The constitution of Barbados
The constitution of Barbados, adopted in 1966, is expressed in section 1 to be "the supreme law of Barbados". Section 11 declares the entitlement of every person in Barbados to certain rights including rights to life, liberty and security of the person and the protection of the law. Central to the first and substantial issue in this appeal are the provisions of section 18, which so far as relevant include the following:
"18. (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.
(2). Every person who is charged with a criminal offence –
(a) shall be presumed to be innocent until he is proved or has pleaded guilty;
(b) shall be informed as soon as reasonably practicable, in a language that he understands and in detail, of the nature of the offence charged;
(c) shall be given adequate time and facilities for the preparation of his defence;
(d) shall be permitted to defend himself before the court in person or by a legal representative of his own choice;
(e) shall be afforded facilities to examine in person or by his legal representative the witnesses called by the prosecution before the court and to obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court on the same conditions as those applying to witnesses called by the prosecution; and
(f) shall be permitted to have without payment the assistance of an interpreter if he cannot understand the language used at the trial of the charge, and, except with his consent, the trial shall not take place in his absence unless he so conducts himself as to render the proceedings in his presence impracticable and the court has ordered the trial to proceed in his absence.
…
(12). Nothing contained in subsection (2)(d) shall be construed as entitling a person to legal representation at public expense."
Reference should also be made to section 24, which begins:
"24. (1) Subject to the provisions of subsection (6), if any person alleges that any of the provisions of sections 12 to 23, has been, is being or is likely to be contravened in relation to him (or, in the case of a person who is detained, if any other person alleges such a contravention in relation to the detained person), then, without prejudice to any other action with respect to the same matter which is lawfully available, that person (or that other person) may apply to the High Court for redress.
(2) The High Court shall have original jurisdiction –
(a)...
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