Seepersad (A Minor) v Ayers-Caesar and Others
| Jurisdiction | UK Non-devolved |
| Judge | Lady Hale |
| Judgment Date | 18 February 2019 |
| Neutral Citation | [2019] UKPC 7 |
| Court | Privy Council |
| Docket Number | Privy Council Appeal No 0097 of 2016 |
| Date | 18 February 2019 |
[2019] UKPC 7
Privy Council
Hilary Term
From the Court of Appeal of the Republic of Trinidad and Tobago
Lady Hale
Lord Kerr
Lord Wilson
Lord Hodge
Lady Black
Privy Council Appeal No 0097 of 2016
Appellant
Richard Clayton QC
Anand Ramlogan SC
Christopher Forsyth
Jamie Burton
(Instructed by Alvin Shiva Pariagsingh)
Respondents
Howard Stevens QC
(Instructed by Charles Russell Speechlys LLP)
Respondents
(1) Her Worship Magistraite Marcia Ayres-Caesar
(2) Sterling Stewart, The Commissioner of Prisons
(3) The Attorney General of Trinidad and Tobago
Heard on 31 October 2018
Astonishingly, this is an appeal, brought as of right, against an interim order made by the Court of Appeal in constitutional and judicial review proceedings as long ago as November 2015, with judgment delivered in April 2016. The proceedings themselves were heard in February 2016 and judgment delivered in May 2016. Even by then, the acute dilemma to which the unusual facts of the case gave rise had passed. In such circumstances, the Board asks itself whether it was appropriate for this appeal to be pursued, as it serves no useful purpose other than to draw attention to the dilemma in question.
The dilemma was this. The appellant was born on 24 January 1998. She is therefore now 21 years old. On 29 January 2014, when she was 16 years old, she was charged, along with her younger brother and another man, with the murder of Dulraj Deodath. Under section 5(2) and the First Schedule to the Bail Act (No 18 of 1994), a person charged with murder cannot be granted bail. Thus when she first appeared before the Chief Magistrate, the first respondent to this appeal, in January 2014 she was remanded to the Adult Women's Prison, Golden Grove Road, Arouca.
However, on 18 May 2015, when the appellant was aged 17, section 54(1) of the Children Act 2012 was brought into force. This provided that a court remanding or committing for trial a child who is not released on bail must order that the child be placed in the custody of a Community Residence. Section 3 of the Act defines a “child” as a person under the age of 18. Also on 18 May 2015, the Children's Community Residences, Foster Care and Nurseries Act 2000 was brought into force. Section 2 of that Act defined a “community residence” as “a children's home or rehabilitation centre …”. A “rehabilitation centre” was defined as “a residence for the rehabilitation of youthful offenders, in which youthful offenders are lodged, clothed, and fed as well as taught …” and a “children's home” as “a residence for the care and rehabilitation of children …”. The Adult Women's Prison was not a Community Residence within the meaning of the Children Act. Furthermore, under section 60(1) of the Children Act, a court shall not order a child to be detained in an adult prison.
These mixed constitutional and judicial review proceedings were begun on 1 September 2015. The application included a claim for interim relief in the shape of a conservatory order either that (1) the Attorney General, the third respondent to the proceedings, undertake that the Commissioner of Prisons, the second respondent, do forthwith release the appellant into the custody of her mother; alternatively that (2) the Attorney General undertake that a suitable Community Residence approved by the Children's Authority be established immediately in order to provide a place of safety for the appellant. It was argued that her imprisonment in an adult prison was in breach of her constitutional rights, as well as illegal on conventional public law grounds.
The matter was dealt with promptly by the courts in Trinidad and Tobago. On 2 September 2015, Rampersad J granted leave to apply for judicial review and gave various directions for the grant of emergency legal aid and the production of evidence, including an order that the Children's Authority conduct an evaluation and report in respect of St Jude's School for Girls (then an industrial school) or such other facility which might qualify as a Community Residence with a view to identifying a suitable Community Residence. On 9 September evidence was filed from the Children's Authority reporting that the Authority was of the view that there was no suitable centre for accommodating the appellant in accordance with the Children Act. On 28 September, Rampersad J refused the applications for conservatory orders because (1) would put the court in breach of both the Bail Act and the Children Act; and (2) was not pursued by the appellant; furthermore both (1) and (2) were mandatory rather than conservatory in nature.
The distinction between mandatory and conservatory orders in constitutional proceedings stems from the Court of Appeal decision in Attorney General v Bansraj (1985) 38 WIR 286. Section 14(2)(b) of the 1976 Constitution is in very wide terms:
“The High Court … may, subject to subsection (3), 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.”
However, section 14(3) provides that “The State Liability and Proceedings Act shall have effect for the purpose of any proceedings under this section”. Section 22(2) of that Act (the SLPA) provides that “Where in any proceedings against the State any relief is sought as might in proceedings between subjects be granted by way of injunction or specific performance the Court shall not grant an injunction or make an order for specific performance, but may in lieu thereof make an order declaratory of the rights of the parties.” Section 22(3) makes similar provision in proceedings against the State for recovery of land. In Bansraj, the Court took the view that it could not grant an interim interlocutory order restraining the State from entering the lands of Mr Bansraj and others. However, they could make what was termed a “conservatory order”, directing the parties to undertake to maintain the status quo until the determination of the matter.
The Court of Appeal heard this appellant's appeal on 12 November 2015 and made an interim order to the effect (1) that the Attorney General provide a suitable Community Residence, as provided for in the Children Act and the Children's Community Residences, Foster Care and Nurseries Act, for the placement of the appellant on or before 8 December 2015 (that being the date on which it was contemplated that the main action would be heard); and (2) on the provision of such a Residence, the Commissioner of Prisons transfer the appellant into the custody of that residence. The Court made no order for costs. It also agreed to give full reasons in the event of an appeal to the Privy Council.
On 28 April 2016, the Court gave its reasons, in the judgment of Jamadar JA, with whom Mendonca and Bereaux JJA agreed. The principal issue, of considerable public importance, was whether the only interim order available in constitutional proceedings is a “conservatory order” as explained by the Court of Appeal in Bansraj. The Court in this case was unanimously of the opinion that it was not. Briefly, its reasoning was as follows:
(1) Bansraj was a case decided 30 years ago on its particular facts: the state was threatening to compulsorily acquire and bulldoze private land for the purpose of building a highway. The Court in Bansraj recognised that a court was entitled to be creative and innovative in finding a formula which would provide effective interim relief; but the consensus was that section 22 applied strictly to final orders.
(2) Because of this, the Court in Bansraj did not consider how the words “in any proceedings against the state...
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