Ian Seepersad and Roodal Panchoo v Attorney General of Trinidad and Tobago
| Jurisdiction | UK Non-devolved |
| Judge | Lord Hope |
| Judgment Date | 15 February 2012 |
| Neutral Citation | [2012] UKPC 4 |
| Date | 15 February 2012 |
| Docket Number | Appeal No 0017 of 2010 |
| Court | Privy Council |
[2012] UKPC 4
Lord Hope
Lord Walker
Lady Hale
Lord Brown
Lord Wilson
Appeal No 0017 of 2010
Privy Council
Appellant
Alan Newman QC
Mark Seepersad
(Instructed by Herbert Smith LLP)
Respondent
Howard Stevens
(Instructed by Charles Russell LLP)
Heard on 7 December 2011
On 21 July 1986 the appellants Ian Seepersad and Roodal Panchoo were convicted of the murders of Sumintra Seepersad, who was in her sixties, and her 90 year old mother Roopwah Seepersad. The incident took place on 7 and 8 March 1981 at the deceaseds' home in Piparo. Sumintra Seepersad was a market vendor at the San Fernando Market. The appellants sometimes worked for her there by helping her to load and unload her goods. They had gone to her house in search of something of value that they could steal. On finding Roopwah Seepersad in the house they gagged and killed her before searching it. Having found nothing of value, they waited until Sumintra Seepersad came home from the market. As she entered the house she was strangled by Panchoo with a piece of cloth and struck on the head by Seepersad. Panchoo then cut her throat with a knife. They took about $94 in one-dollar notes and coins and two pairs of gold bracelets from her body, and then left the scene. They were arrested on 15 March 1981 and taken into custody.
At the time of the murders the appellants were both under the age of 18 years. Ian Seepersad was born on 19 March 1963. He was just 12 days short of his eighteenth birthday. Roodal Panchoo was born on 24 May 1964. He was 16 years old when the murders took place. In view of their ages the appellants were not subject to the death penalty, which would have been mandatory upon their conviction of murder had they been of full age. On 21 July 1986 they were sentenced by the trial judge, Ibrahim J, under section 79 of the Children Act to be detained at the State's pleasure. Under section 81 of the Children Act the State had a discretionary power at any time to discharge a detainee on licence. But no provision was made by the statute for any period to be laid down by the court which the detainee had to serve before being considered for release by the State or for the periodic review of the detainee's detention. In the case of the appellant Seepersad the warrant of commitment to prison stated that it was the court's wish that he should remain in prison for as long as possible.
The appellants did not appeal against their sentences of detention, and they took no steps to object to their terms or the way in which they were being administered until 2003. They then brought constitutional proceedings in which they challenged the sentences and the manner of their execution on two grounds. The first was that the sentences offended against the constitutional principle of the separation of powers. This was because section 79 provided that they were to be detained at the pleasure of the State, and not for a term to be determined by the High Court. This argument was presented with reference both to the common law and to sections 4 and 5 of the Constitution of Trinidad and Tobago with which they said sections 79 and 81 were incompatible. The second was that the manner of the execution of the sentences was in breach of sections 4 and 5 of the Constitution. This was because, contrary to their nature and character, they were not being reviewed periodically by the court.
When the appellants first raised these objections they were still in custody, where they had been since they were arrested on 15 March 1981. Their main aim at that stage was to secure their release on a date to be determined by the court and not by the State. They also sought constitutional relief by way of damages. As will be clear from the following narrative, they were successful in securing their release from custody. They were released on 26 July 2006 in pursuance of orders made by the High Court on 24 and 26 June 2006. So their main aim now is to obtain an award of damages. To be in a position to obtain such an award they must first establish their second objection, which is that the manner of the execution of their sentences was a breach of their rights under sections 4(a) and (b) and 5(2)(h) of the Constitution. They must also meet the Attorney General's argument that, unless and until the relevant sections of the Children Act were modified to meet the objection that they offended against the doctrine of the separation of powers, they were detained at the pleasure of the State. This, says the Attorney General, was of the very essence of the sentence provided for by the statute regardless of its lawfulness. There was therefore no place for their periodic review by the court until the sections were modified.
Section 79 of the Children Act provides as follows:
"Sentence of death shall not be pronounced on or recorded against a person convicted of an offence if it appears to the Court that at the time when the offence was committed he was under the age of eighteen years; but in lieu thereof the Court shall sentence him to be detained during the State's pleasure, and, if so sentenced, he shall be liable to be detained in such place and under such conditions as the Minister may direct, and whilst so detained shall be deemed to be in legal custody."
Section 80 made provision for a sentence of detention in the case of children or young persons convicted on indictment of an attempt to murder, of manslaughter or of wounding with intent to do grievous bodily harm. Section 81 is in these terms:
"(1) A person in detention pursuant to the directions of the Minister under sections 79 and 80 may, at any time, be discharged by the Minister on licence.
(2) A licence may be in such form and may contain such conditions as the Minister may direct.
(3) A licence may at any time be revoked or varied by the Minister, and, where a licence has been revoked, the person to whom the licence related shall return to such place as the Minister may direct, and if he fails to do so may be apprehended without warrant and taken to that place."
This case has a complicated history. The proceedings themselves have been long drawn out. And they have taken place against a backcloth of a series of contemporary decisions by the Board, not all of which were at first sight entirely consistent with each other. In order to set the scene for the issues that the Board has to decide in this case it is necessary to set the history out in some detail.
On 1 October 2003 the appellants instituted separate but identical proceedings under section 14 of the Constitution of Trinidad and Tobago 1976 in which, in a conspicuously over-elaborate presentation of their case, they sought no fewer than 52 items of relief. Reduced to its essentials, it could have been presented more clearly and simply under a few distinct headings encapsulating the issues referred to above: see para 3. In summary, the propositions that were relied on were as follows: (1) that the appellants' sentences of detention at the pleasure of the State were inconsistent with the common law doctrine of the separation of powers; (2) that for this reason their sentences were also inconsistent with their rights under sections 4(a) and (b) and 5(2)(h) of the Constitution; (3) that sections 79 and 81 of the Children Act required modification under section 5(1) of the Constitution of the Republic of Trinidad and Tobago Act 1976 to bring them into conformity with the Constitution, to ensure that the lawfulness of their detention was determined by an appropriate judicial authority; (4) that it was an essential characteristic of a sentence of detention under sections 79 and 81 that the detention should be kept under periodic review by the court; and (5) that they had been deprived of their constitutional rights in that respect too, as there had been no review of their sentences of detention by the court during the entire period while they remained in custody. The appellants also sought an order for their immediate discharge and an award of damages.
Shortly after the proceedings were instituted the issues as to whether the sentences provided for by sections 79 and 81 of the Children Act were inconsistent with the separation of powers and whether persons detained under those provisions were entitled to a review of their detention by the judiciary came before Mendonca J on a constitutional motion presented by another applicant: Chuck Attin v Attorney General of Trinidad and Tobago (unreported) HCA No 2175 of 2003. The applicant in that case was 16 years old at the time of the murder of which he was convicted. In a judgment delivered on 11 November 2003 Mendonca J held that the applicant's sentence of detention at the State's pleasure was illegal as it offended against the principle of the separation of powers which was enshrined in the Constitution. He ordered that for the words "the State's pleasure" in section 79 there should be substituted the words "the court's pleasure", and that for the word "Minister" wherever it appeared in sections 79 and 81 there should be substituted the word "court". He varied the sentence passed by the trial judge so that it read and had the effect that the applicant be detained during the court's pleasure. He declared that the applicant was entitled to have his sentence reviewed by the court periodically and that he be brought before the court for that purpose on a date to be fixed by the Registrar.
The judge made it clear in his judgment that, in reaching that decision, he was following and applying the decision of the House of Lords in R v Secretary of State for the Home Department, Ex p Venables [1998] AC 407 and those of the Board in ...
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