The Attorney General v Hall (Bahamas)
| Jurisdiction | UK Non-devolved |
| Judge | Lord Hughes |
| Judgment Date | 17 October 2016 |
| Neutral Citation | [2016] UKPC 28 |
| Date | 17 October 2016 |
| Docket Number | Appeal No 0033 of 2016 |
| Court | Privy Council |
[2016] UKPC 28
Privy Council
From the Court of Appeal of the Commonwealth of the Bahamas
Lady Hale
Lord Wilson
Lord Carnwath
Lord Hughes
Lord Toulson
Appeal No 0033 of 2016
Appellant
James Guthrie QC (Instructed by Charles Russell Speechlys LLP)
Respondent
(Not participating)
The respondent Chevaneese Hall was convicted before the Supreme Court on charges of people trafficking laid under sections 3 and 4 of the Trafficking in Persons (Prevention and Suppression) Act (Chapter 106) ("TIPA"). She had been brought before the court pursuant to a voluntary bill of indictment laid by the Attorney General. No point was then taken upon the validity of that form of process. However, on appeal she contended that there was no power to lay a voluntary bill. The Court of Appeal upheld that contention and quashed her conviction. The Attorney General challenges that decision by further appeal to the Board, for which the Court of Appeal (differently constituted) granted leave by a majority. The respondent has in the meanwhile left the islands and has taken no part in this appeal. The point is nonetheless of some general significance since other cases under this and other statutes are affected by it.
The issue centres upon the provisions for mode of trial. The basis of the Court of Appeal decision that there was no power to lay a voluntary bill of indictment in the present case was its conclusion that the offences with which the respondent was charged were not "indictable offences", and moreover that they were, as a result of the structure of the Criminal Procedure Code, triable only summarily.
As will be seen, in some respects the usage of terms in the criminal procedure of the Bahamas differs from that encountered elsewhere in the Caribbean and in other common law jurisdictions such as England and Wales. One particular difference, on which all appearing before the Court of Appeal and the court itself were agreed, relates to the use of the expression "trial on information." In the particular usage of the Bahamas, at least in modern times, the expression "on information" in relation to trial or conviction refers to proceedings in the Supreme Court before judge and jury. In that, it differs from the use of "information" in most Caribbean countries and in England, where that term relates to the commencement of process before the magistrates, and where trial before judge and jury is normally referred to as trial "on indictment". It will be necessary later in this judgment to examine the implications of this and other differences of usage. "On summary trial" and "on summary conviction", however, refer in the Bahamas, as elsewhere, to trial by a magistrate.
The Act was passed on 9 December 2008 and came into force the following day.
Section 3 provides:
"3.(1) Whoever engages in or conspires to engage in, or attempts to engage in, or assist or otherwise facilitates another person to engage in 'trafficking in persons' shall —
(a) on summary conviction —
(i) be sentenced to not less than three years nor more than five years imprisonment;
(ii) be subject to forfeiture of property under section 7; and
(iii) be ordered to pay full restitution to the victim under section 6;
(b) on conviction on information —
(i) be sentenced to life imprisonment or to a term not less than five years;
(ii) be subject to forfeiture of property under section 7; and
(iii) be ordered to pay full restitution to the victim under section 6."
The ensuing parts of section 3 define the offence of trafficking in persons.
Section 4(1) deals similarly with offences relating to the use of travel or immigration documents for the purpose of trafficking. It provides:
"(1) A person who, for the purpose of committing or facilitating an offence under subsection (1) of section 3 conceals, removes, withholds or destroys any —
(a) travel document that belongs to another person; or
(b) document that establishes or purports to establish another person's identity or immigration status,
is liable on —
(i) summary conviction to imprisonment for a term of three years;
(ii) conviction on information for [sic] imprisonment for a term of ten years."
Section 4(2) is similarly structured for the offence of knowingly benefitting from trafficking:
"(2) Every person who receives a financial or other benefit knowing that it results from the offence of trafficking in persons commits an offence and is liable on —
(a) summary conviction to a fine of ten thousand dollars or to imprisonment for three years or to both such fine and imprisonment;
(b) conviction on information to a fine of 15,000 dollars or to imprisonment for a term of ten years or to both such fine and imprisonment."
By contrast, section 5 provides as follows for the different offence of providing transport:
"5.(1) Whoever knowingly transports or conspires to transport, or attempts to transport or assists another person engaged in transporting any person in the Bahamas or across an international border for the purpose of that person engaging in prostitution commits an offence and shall be liable on summary conviction to be punished in accordance with subsections (2) and (3)."
Section 8 of the Act sets out sentencing guidelines for proceedings on information:
"8.(1) Where a person is convicted on information of the crime of trafficking in persons the following provisions as regards his sentence, other than a life sentence, may apply —
(a) if the convicted person used, threatened use, or caused another to use or threaten use of a dangerous weapon, two years may be added to the sentence;
(b) if the victim suffers a serious bodily injury due to any act or omission of the defendant, or if the defendant commits a sexual assault against the victim, five years may be added to the sentence;
(c) if the victim had not attained the age of 18 years, five years may be added to the sentence;
(d) if, in the course of trafficking or subsequent exploitation, the defendant recklessly caused the victim to be exposed to a life threatening illness, or if the defendant intentionally caused a victim to become addicted to any drug or medication, five years may be added to the sentence;
(e) if a victim suffers a permanent life threatening injury, ten years may be added to the sentence;
(f) if the trafficking was part of the activity of an organized criminal group, three years may be added to the sentence; or
(g) if trafficking was part of the activity of an organized criminal group and the defendant organized the group or directed its activities, five years may be added to the sentence;
(h) if the trafficking occurred as the result of abuse of power or position of authority, including but not limited to a parent or guardian, teacher, children's club leader, or any other person who has been entrusted with the care or supervision of the child, four years may be added to the sentence." [emphasis supplied]
There can be no doubt that the plain wording of sections 3(1), 4(1) and 4(2) creates offences which are intended to be triable either summarily before the magistrate or before judge and jury in the Supreme Court. That is what all those sections explicitly say. They provide for differing maxima sentences according to the mode of trial. Offences of people trafficking can plainly be of a gravity which calls for trial in the Supreme Court by judge and jury. The allegation in the present case was of deceptive recruiting of women off the Bahamas, transporting them to the islands and obliging them to engage in prostitution, inter alia by confining them in flats provided for the purpose and threatening them that they would be in trouble with the immigration authorities if they did not comply. The section 3 offence, in particular, may involve, inter alia, abduction of persons, fraud, deception or the abuse of power. As can be seen from section 3(1)(b)(i), it may carry, on trial before the Supreme Court, a maximum of life imprisonment.
If there were any room for doubt about the Parliamentary intention to create by these sections offences triable either by judge and jury or summarily, that intention is confirmed by:
(i) the contrasting provisions of section 5 which explicitly create only summary offences;
(ii) the fact that a sentence of life imprisonment is open to the court upon conviction of the principal offences contrary to section 3(1); and
(iii) the sentencing guidelines in section 8; these are in terms confined to trials on information, that is to say before judge and jury; they can be seen to apply to the more serious examples of the offences.
In the present case the voluntary bill preferred originally charged not only offences contrary to sections 3 and 4 but also two offences contrary to section 5. The error was spotted at some stage during the trial and in due course the judge correctly discharged the jury from returning verdicts on those two counts, which were triable only summarily.
The difficulty, and the basis for the Court of Appeal's decision, lies in the general statutory provisions for mode of trial which are to be found in the Criminal Procedure Code (Chapter 91). This was passed originally in December 1968, but has been amended frequently since.
The Code provides for trial both in the Supreme Court and summarily in the Magistrate's Court: see sections 4 and 5, discussed below. In the case of the former, the general rule is contained in section 36 and is that trial can take place only where there has been a preliminary inquiry before the magistrate and committal by him to the Supreme Court for trial. As will be seen, there are two exceptions to the necessity for a preliminary inquiry, contained in sections 256 and 258. Those apart, however, section 141 provides:
"141.(1) Every person...
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