Thornhill v The Attorney General of Trinidad and Tobago

JurisdictionUK Non-devolved
JudgeLord Diplock
Judgment Date27 November 1979
CourtPrivy Council
Docket NumberPCA No. 32 of 1978
Date27 November 1979
Thornhill
and
The Attorney General of Trinidad and Tobago

Lord Diplock

PCA No. 32 of 1978

Privy Council (Court of Appeal)

Constitutional law - Fundamental rights and freedoms — Right to consult a lawyer.

Lord Diplock
1

This appeal raises important constitutional questions as to the true construction of those provisions dealing with “The Recognition and Protection of Human Rights and Fundamental Freedoms” that were contained in Chapter I, sections 1, 2, 3 and G of the Constitution of Trinidad and Tobago which came into operation on 31st August, 1962, and was in force at the time of the events that are the subject of these proceedings. They are reproduced in similar terms in the current Republican Constitution where they are numbered respectively sections 4, 5, G and 14. Their Lordships will refer to these sections by the numbers that they bore in the 1962 Constitution.

2

The relevant facts arc set out with clarity and in detail in the judgment of Georges J. in the High Court and repeated, though in less detailed form, in that of Rees J.A. who delivered the leading judgment in the Court of Appeal. To identify the issues of constitutional law that are involved in this appeal it is not necessary for their Lordships to do more than summarise the facts very briefly.

3

In the early afternoon of 17th October, 1973, after what has been described as a “shoot-out” with the police, the appellant was arrested by a police officer and taken to a police station where lie was detained and charged with offences arising out of the shooting incident. He was suspected by the police of many other crimes about which they wanted to interrogate him. He was not brought before a judicial authority until these interrogations had been completed and an identity parade had been held. In the meantime he remained in custody in one or other of two police stations. A legal adviser retained on his behalf came to the police station where he was detained at 5.30 p.m. on 17th October for the purpose of seeing him but was denied an opportunity of doing so; requests to the police for an opportunity for the appellant to communicate with his legal adviser were repeated in both morning and afternoon of 18th October but were also refused and it was not until after the conclusion of the identity parade at 2.45 p.m. on 20th October, 1973, that the appellant was granted his first opportunity of communicating wish his lawyer. At the times when these requests were made oft 18th October, the appellant was not being interviewed by the police and, as the judge found, there was nothing in connection with the investigation that would have made it inconvenient for him to be allowed to consult his legal advisers. The only reason why he was not allowed to do so was that the police officers concerned were of opinion that if the appellant were advised as to his legal right to decline to reply to questions the answers to which might incriminate him, they would be less likely to obtain front him extra-judicial confessions that he had committed the earlier offences of which he was suspected and with which he had not yet been charged.

4

On 1st November, 1973, the appellant applied to the High Court for redress under section 6 of the Constitution. By his notice of motion he claimed three kinds of redress, of which their Lordships are concerned only with the first. This is a declaration that the refusal by the police to allow him to instruct and communicate with his legal adviser between 5.30 p.m. on 17th October and 12.45 p.m. on 20th October, 1973, while he was under arrest and in their custody amounted to a contravention of his constitutional right to do so. The second form of redress was a declaration that all statements taken from him during that period were unconstitutional, null and void; and the third consisted of orders designed to prevent the use of any of those statements in any prosecution of the appellant or other proceedings in which he might be concerned.

5

Georges J., by whom the application was dealt with in the High Court, made the first declaration prayed. He refused to grant the two other forms of relief. He held, in their Lordships' view quite rightly, that they involve questions that cannot appropriately be decided by anyone except the judge who will preside over the trial of the appellant for the offences to which the statements relate, and before whom full oral evidence as to the circumstances in which the statements came to be made can be called on the voir dire. The claims to these two forms of relief were not further pursued by the appellant after their rejection by the High Court; so their Lordships need say no more about them.

6

Much of the judgment of Georges J., to whose lucidity and cogency their Lordships would desire to pay respectful tribute, deals with the facts and his findings upon disputed factual issues. Two questions of law were argued before him: one was of substantive law; the other was procedural. The question of substance was whether the combined effect of sections 1, 2 and 3 of the Constitution was to give to the appellant when he had been arrested and detained a constitutional right in the terms set out in section 2(c) (ii), viz. “the right to retain and instruct without delay a legal adviser of his own choice and to hold communication with him”. The procedural question was whether the first declaration prayed for was a form of redress which the judge in the proper exercise of his discretion ought to grant.

7

On the first question it was argued on behalf of the Attorney General and the police officers who had made respondents to the application that the effect of section 3 of the Constitution was to reduce the ambit of sections 1 and 2 to rights of the individual which can be shown to have been legally enforceable by him in Trinidad and Tobago, prior to the coming into effect of the 1962 Constitution, under a written law or an unwritten rule of common law that was in force in Trinidad and Tobago on 31st August, 1962. At that date, it is common ground that no written law in force conferred on any person who had been lawfully arrested art detained by the police any right while in their custody to consult a lawyer for the purpose of obtaining advice as to his legal rights and as to what should be done to protect his interest; and, it was submitted for the respondents, there is no authority to be found in the decided cases which shows that at common law such a right would have been enforceable by the prisoner against the police in a court of justice, in the event of their refusal to allow him to do so. So, the argument concluded, there had been no contravention of any of the provisions of sections 1 or 2 upon which the appellant could base a claim to redress under section 6.

8

The learned High Court judge, whose judgment was delivered on 31st May, 1974, rejected this argument. He held that since the right on the part of a person in the situation in which the appellant had found himself on 17th to 20th October, 1973, to consult a lawyer, of his choice hat been spelt out specifically in section 2(c)(ii) of the Constitution and proclaimed by section 1 to be one that hat existed at the time of the coming into force of the Constitution and was to continue to exist, the burden lay on the respondents to establish that on 31st August, 1962, there was a law in force in Trinidad ant Tobago, whether written or as part of the unwritten common law, which empowered a police officer to prevent a person in the situation of the appellant front exercising that right. This the respondents in the arguments they had addressed to him had never attempted to do. The judge held also, in the alternative, that the right described in section 3(c) (ii) already existed at common law in Trinidad and Tobago at the time the 1962 Constitution came into force.

9

On the procedural question Georges J. held that a declaration was an appropriate form of redress in all the...

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