Naresh Boodram v Attorney General of Trinidad and Tobago

JurisdictionUK Non-devolved
JudgeLord Lloyd-Jones,Sir Tim Holroyde,Lord Sales,Lord Hamblen,Lord Stephens
Judgment Date16 May 2022
Neutral Citation[2022] UKPC 20
CourtPrivy Council
Docket NumberPrivy Council Appeal No 0106 of 2018
Naresh Boodram
(Respondent/Cross-Appellant)
and
Attorney General of Trinidad and Tobago
(Appellant/Cross-Respondent) (Trinidad and Tobago)

[2022] UKPC 20

before

Lord Lloyd-Jones

Lord Sales

Lord Hamblen

Lord Stephens

Sir Tim Holroyde

Privy Council Appeal No 0106 of 2018

Privy Council

Appellant

Howard Stevens QC

Tom Poole QC

(Instructed by Charles Russell Speechlys LLP (London))

Respondent

Mark Seepersad

Joe Middleton

Vishala Seepersad

(Instructed by Herbert Smith Freehills LLP (London))

Sir Tim Holroyde

Lord Lloyd-Jones and(with whom Lord Sales, Lord Hamblen and Lord Stephens agree)

1

Section 4 of Trinidad and Tobago's Offences against the Person Act provides that every person convicted of murder “shall suffer death”. Long delay in carrying out a sentence of death may, however, make it unlawful to implement that sentence. The High Court, acting pursuant to section 14 of the Constitution of Trinidad and Tobago, may then commute the sentence. The principal issue in this appeal is whether in such circumstances the High Court can lawfully impose a sentence other than life imprisonment.

2

On 27 November 1996, at the Chaguaramas assizes in the Republic of Trinidad and Tobago, Naresh Boodram (“Mr Boodram”) was convicted of two offences of murder. He was sentenced to death. The death sentence was not carried out, and was subsequently commuted by the High Court to one of life imprisonment. Mr Boodram appealed to the Court of Appeal of the Republic of Trinidad and Tobago, where he successfully argued that his case should be remitted to the High Court for resentencing on the basis that the court should not be restricted to commuting the sentence to life imprisonment, and should instead have the power to impose any lawful penalty other than sentence of death. The Court of Appeal allowed his appeal and remitted his case to the High Court, making no order as to costs. The Attorney General of the Republic of Trinidad and Tobago (“the Attorney General”) now appeals against that decision. Mr Boodram cross-appeals on the issue of costs.

3

For the purposes of this appeal, it is unnecessary to refer to the facts of the case in any detail. It suffices to note that, against a background of drug-dealing activity, Mr Boodram and another man murdered their two victims by shooting. The bodies were subsequently mutilated and buried in a field. Their appeals against conviction were dismissed by the Court of Appeal. No one can doubt the seriousness of the crimes.

4

It is also unnecessary, in order to resolve the issues raised by the appeal and cross-appeal, to examine in detail all that has happened in Mr Boodram's case, and in the cases of other prisoners sentenced to death in Trinidad and Tobago, during the 25 years which have elapsed since Mr Boodram was sentenced. It is however appropriate to outline some features of the history, and to refer to relevant provisions of the Constitution.

5

Following his conviction, Mr Boodram was placed on death row in prison, where he remained for a number of years: well beyond the period of five years which was held in Pratt and Morgan v Attorney General for Jamaica [1994] 2 AC 1 to provide strong grounds for believing that the delay in execution was such as to constitute inhuman or degrading punishment or other treatment.

6

The President of the Republic of Trinidad and Tobago has not, in Mr Boodram's case, exercised the power of pardon vested in him by section 87 of the Constitution of Trinidad and Tobago, which (so far as material for present purposes) provides -

“(2) The President may -

(a) grant to any person convicted of any offence against the law of Trinidad and Tobago a pardon, either free or subject to lawful conditions;

(b) grant to any person a respite, either indefinite or for a specified period, from the execution of any punishment imposed on that person for such an offence;

(c) substitute a less severe form of punishment for that imposed by any sentence for such an offence; or

(d) remit the whole or any part of any sentence passed for such an offence or any penalty or forfeiture otherwise due to the State on account of such an offence.

(3) The power of the President under subsection (2) may be exercised by him in accordance with the advice of a Minister designated by him, acting in accordance with the advice of the Prime Minister.”

7

The Constitution is the supreme law of Trinidad and Tobago, and by section 2 any other law which is inconsistent with the Constitution is void to the extent of the inconsistency. Chapter 1 of the Constitution recognises and protects fundamental human rights and freedoms. The rights enshrined in that Chapter include, by section 4(a), the right to life. By section 5(2)(b) the Parliament of Trinidad and Tobago may not impose or authorise the imposition of cruel and unusual treatment or punishment. Section 5 is, however, subject to certain qualifications, including (by section 6(1)) an exception for existing law.

8

Section 14 of the Constitution, so far as material for present purposes, provides:

“(1) For the removal of doubts it is hereby declared that if any person alleges that any of the provisions of this Chapter has been, is being, or is likely to be contravened in relation to him, then without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the High Court for redress by way of originating motion.

(2) The High Court shall have original jurisdiction -

(a) to hear and determine any application made by any person in pursuance of subsection (1); and

(b) …

and may … make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing, or securing the enforcement of, any of the provisions of this Chapter to the protection of which the person concerned is entitled.

(5) Any person aggrieved by any determination of the High Court under this section may appeal therefrom to the Court of Appeal and shall be entitled as of right to a stay of execution of the order and may in the discretion of the Court be granted bail.”

9

In 2004 the constitutionality of the mandatory death penalty was considered by the Judicial Committee of the Privy Council in Matthew v State of Trinidad and Tobago [2005] 1 AC 433. The Board held that section 4 of the Offences against the Person Act was an existing law for the purposes of section 6(1) of the Constitution and thus preserved from constitutional challenge. Although the mandatory death penalty provided for by that section infringed the right to life, and was a cruel and unusual punishment, it could not be invalidated or rendered void under section 2 of the Constitution. The Board, departing from its decision in the earlier case of Roodal v State of Trinidad and Tobago [2005] 1 AC 328, accordingly held that the mandatory death penalty was lawful, a decision which has now been approved by the Judicial Committee of the Privy Council in Jay Chandler v The State (No 2) [2022] UKPC 19.

10

However, the decision in Roodal's case had given the appellant Mr Matthew an expectation of a judicial review of his sentence, additional to the possibility of presidential commutation. The Board held that in those circumstances, it would be unfair simply to leave the death sentence to be carried out, subject to the decision of the President. It accordingly exercised the power provided by section 14(2) of the Constitution by allowing the appeal, setting aside the sentence of death and imposing a sentence of life imprisonment: see the judgment of the majority, delivered by Lord Hoffmann, at para 32. Lord Hoffmann added, at para 33 -

“In their Lordships' opinion, the same considerations apply to anyone else sentenced to death and awaiting execution at the date of this judgment.”

11

In proceedings in the High Court referred to for convenience as “the Dottin proceedings” ( Andrew Dottin v John Rougier, Evelyn Patterson and the Attorney General HCA No 1412 of 2005) an interim order was made on 13 June 2005 protecting from execution all those prisoners in Trinidad and Tobago who had been sentenced to death before the judgment in Matthew was given on 7 July 2004. By a further interim order of 19 August 2008, the High Court commuted to life imprisonment the death sentences of the Dottin applicants, and more than 50 other prisoners on death row (including Mr Boodram), and ordered that they be removed from death row.

12

Mr Boodram had by that time issued his own proceedings against the Attorney General. On 3 December 2007, some 11 years after sentence of death had been pronounced, he commenced a claim in the High Court, seeking an order pursuant to section 14(1) of the Constitution that his death sentence be vacated, by reason of the long delay in carrying it out, and that he be brought before the High Court for resentencing to any lawful penalty other than the death sentence.

13

On 23 July 2010 the High Court (Rajkumar J) dismissed Mr Boodram's claim. Mr Boodram appealed.

14

On 8 March 2018 the Court of Appeal (Archie CJ, Yorke-Soo-Hon and Mohammed JJA) allowed his appeal. Archie CJ, with whom the other judges agreed, noted in his judgment that since the decision in Pratt and Morgan the courts of Trinidad and Tobago had routinely commuted death sentences to sentences of life imprisonment without any tariff or minimum term to be served. The court then considered the nature of the exercise in which the High Court was engaged when asked to grant relief under section 14 of the Constitution. It concluded, at para 23, that the court in exercising its original jurisdiction under that section had a discretion to take into account normal sentencing factors on the vacating of the death sentence. The Chief Justice went on to say:

“23. … To be clear, although the expression ‘judicial commutation’ has been used, the Court, in fashioning a remedy...

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