IpsofactoJ.com: International Cases [2005A] Part 6 Case 9 [PC]


THE PRIVY COUNCIL

(on appeal from the Court of Appeal of Trinidad & Tobago)

Coram

Rajesh Ramsarran

- vs -

Attorney General of

Trinidad & Tobaga

LORD BINGHAM OF CORNHILL

LORD HOFFMANN

LORD SCOTT OF FOSCOTE

LORD RODGER OF EARLSFERRY

LORD CARSWELL

28 FEBRUARY 2005


Judgment

Lord Carswell

(delivered the opinion of the Board)

  1. The appellant Mr Rajesh Ramsarran had a very unhappy experience at the hands of the authorities in Trinidad. In August 1997 he was arrested by police officers for non-payment of a fine, which had in fact been paid some eighteen months before. Although he repeatedly protested that the fine had been paid, he was detained in custody for three days before a check on the records was carried out and revealed that that was correct. In the proceedings which he subsequently brought the court made a declaration that he had been wrongfully deprived of his liberty, contrary to the provisions of the Constitution of Trinidad and Tobago, and awarded him damages, to be assessed by a Master. The judge held, however, that he was not entitled to the declarations which he sought, that there had been a breach of his right to retain and instruct a legal adviser on his arrest and to be informed of his right to do so. The Court of Appeal dismissed his appeal against this ruling and the appellant has brought the present appeal to the Privy Council, by leave of the Court of Appeal.

  2. On 30 April 1986 the appellant, having opted for summary trial, pleaded guilty to a charge of possession of cocaine. The magistrate imposed a fine of $2500.00 and ordered that on non-payment he was to serve nine months’ imprisonment with hard labour. He appealed against the sentence, but on 27 February 1996 his appeal was dismissed and the sentence was affirmed by the Court of Appeal. The court directed the fine to be paid forthwith, and as the appellant did not have sufficient money with him he was committed immediately to prison, to serve a term of nine months unless the fine was paid. He remained in prison until the following day, when the fine was paid on his behalf, less a small discount for the time served in prison.

  3. On 20 August 1997 police officers arrested the appellant on a warrant of commitment for non-payment of the fine and took him to Chaguanas police station. He was placed in a cell about 9 pm and kept there overnight, and on the following day he was transferred to Golden Grove Prison. On 22 August he was taken to Port-of-Spain Prison. He was released at 3.30 pm on 23 August 1997. The appellant complained in his grounding affidavit of the extremely unpleasant and crowded conditions in which he was detained, and stated that no notice was taken by police or prison officers of his repeated assertions that the fine had been paid, nor was any check of the records carried out until he was able to see the Superintendent of Prisons on 23 August 1997, following which payment of the fine was confirmed and he was released. He had repeatedly requested the use of a telephone, but his requests were denied.

  4. The appellant instituted proceedings for constitutional redress by originating motion dated 27 July 1998, claiming declarations and damages for deprivation of his liberty without due process of law and of his right to retain and instruct a legal adviser and to be informed of his right to do so. The claim for wrongful deprivation of his liberty was not resisted by the respondent, and Stollmeyer J made a declaration accordingly and ordered the payment of damages, to be assessed by a Master in Chambers. He dismissed the claim in respect of legal advice.

  5. The material provisions of the Constitution of Trinidad and Tobago adopted in 1976 are as follows:

    4.

    It is hereby recognised and declared that in Trinidad and Tobago there have existed and shall continue to exist, without discrimination by reason of race, origin, colour, religion or sex, the following fundamental human rights and freedoms, namely –

    (a)

    the right of the individual to life, liberty, security of the person and enjoyment of property and the right not to be deprived thereof except by due process of law;

    (b)

    the right of the individual to equality before the law and the protection of the law;

    5.

    (1)

    Except as is otherwise expressly provided in this Chapter and in section 54, no law may abrogate, abridge or infringe or authorise the abrogation, abridgement or infringement of any of the rights and freedoms hereinbefore recognised and declared.

    (2)

    Without prejudice to subsection (1), but subject to this Chapter and to section 54, Parliament may not –

    (c)

    deprive a person who has been arrested or detained –

    (i)

    of the right to be informed promptly and with sufficient particularity of the reason for his arrest or detention;

    (ii)

    of the right to retain and instruct without delay a legal adviser of his own choice and to hold communication with him;

    (iii)

    of the right to be brought promptly before an appropriate judicial authority;

    (iv)

    of the remedy by way of habeas corpus for the determination of the validity of his detention and for his release if the detention is not lawful;

    (h)

    deprive a person of the right to such procedural provisions as are necessary for the purpose of giving effect and protection to the aforesaid rights and freedoms.

  6. By a written judgment dated 29 March 2000 the trial judge rejected the appellant’s claims for constitutional redress relating to legal representation. He accepted as settled law that the right to retain and instruct a legal adviser and to be informed of that right arose at the time when a person is arrested or detained in the course of a police investigation, the purpose being to ensure a fair trial. It was not, however, required under the provisions of the Constitution that he be so informed once again after his arrest on a warrant of commitment. Nor was there any settled practice to that effect. Section 5(2)(c)(ii) was not for the protection of persons arrested on warrants of commitment, but was designed only for those arrested or detained during an investigation.

  7. The Court of Appeal (Sharma, Permanand and Jones JJA) on 26 November 2001 dismissed the appellant’s appeal on this part of the case. In the written judgment of Sharma JA, with which the other members of the court agreed, he stated that the purpose of the principle that the Constitution must be generously and purposively interpreted was to enhance the right under consideration (page 186 of the record). The courts were bound, however, to ensure that this approach was neither conducive to nor productive of farcical results, which would not only bring the Constitution itself into disrepute, but also significantly debase or diminish the value of the right in question. He expressed his conclusion at page 187:

    In my opinion, the rights under consideration are to be confined to the pretrial stage when a person is in jeopardy, and needs to have a legal adviser to assist him in advising him of his rights and assisting him generally so as to ensure that he does not answer questions or make statements in which he may incriminate himself. Indeed the common law right against self-incrimination at the investigatory stage can be of little use unless the person in custody has a right to retain and instruct a lawyer without delay.

  8. The effect of the provisions now contained in sections 4, 5 and 14 of the Constitution of Trinidad and Tobago was settled authoritatively by a trilogy of decisions of the Judicial Committee of the Privy Council, Maharaj v Attorney-General of Trinidad and Tobago (No 2) [1979] AC 385, Thornhill v Attorney-General of Trinidad and Tobago [1981] AC 61 and Attorney-General of Trinidad and Tobago v Whiteman [1991] 2 AC 240. The result of these decisions may be stated in the following propositions:

    1. Section 4 enshrines within the Constitution certain rights and freedoms specified in broad and general terms in that section. Section 5 prohibits the enactment of any law abrogating, abridging or infringing those rights and section 14 gives a constitutional remedy for their breach by a state or public authority. The effect of these provisions is to make the rights enforceable de jure where they may thitherto have been mere de facto rights not protected against abrogation, abridgement or infringement.

    2. The provisions proceed upon the assumption that the fundamental human rights and freedoms which they cover were already secured to the people of Trinidad and Tobago by the law which was in force before the adoption of the Constitution in 1976. It may accordingly be necessary in some cases to examine the extent to which, in the exercise and enjoyment of rights and freedoms capable of falling within the broad descriptions in section 4, the individual was entitled to protection or non-interference under the law as it existed immediately before the Constitution came into effect.

    3. This external aid to construction is not, however, either necessary or permissible where the treatment complained of is of any of the kinds specifically described in paragraphs (a) to (h) of section 5(2).

    4. The right of a person arrested on suspicion of having committed a criminal offence to retain and instruct a legal adviser and to hold communication with him is protected by the Constitution, both on the proper construction of section 5(2)(c) and on the basis of settled practice embodied in the Judges’ Rules.

    5. A person so arrested has the ancillary right to be informed of the existence of his right to legal advice, without which the latter right would be of little value.

  9. The issue in the present appeal is whether the same rights are enjoyed by a person arrested for non-payment of a fine. On its face the apparent meaning of section 5(2)(c) is that it covers the case of any person arrested or detained, whether on suspicion of having committed a criminal offence or for non-payment of a fine or in any other circumstances. If it does, then it is unnecessary to inquire whether there was before 1976 any right recognised at common law or as a matter of settled practice of allowing those rights to persons arrested for non-payment of fines.

  10. Mr Knox for the respondent submitted that on the true construction of section 5(2)(c) the right claimed by the appellant should not be admitted. He pointed first to the absence of any recognition by the common law or by settled practice of such a right. This only assists him in so far as itMaharaj v Attorney-General of Trinidad and Tobago (No 2) [1979] AC 385, Thornhill v Attorney-General of Trinidad and Tobago [1981] AC 61 and Attorney-General of Trinidad and Tobago v Whiteman [1991] 2 AC 240 may be said to show that the framers of the Constitution did not contemplate that it would be covered by the wording. Secondly, he submitted that the provision of such a right was unnecessary to fulfil the objective of sections 4 and 5, namely the provision of legal advice to an accused person to ensure fairness by preventing the abuse of power and protecting him against such risks as self-incrimination. He argued that a person arrested for non-payment of a fine does not need the same degree of protection, since he will know if he has paid the fine and can at once so inform the police, who can ascertain whether or not he has in fact paid it. He also submitted that Rule 263 of the Prisons Rules conferred the necessary safeguard of entitlement to make a telephone call, but as this right is limited on the terms of the rule to “any week-day at any reasonable hour” its usefulness is to that extent limited. Nor does Rule 264 avail the respondent, since it operates only when the legal adviser is “conducting any legal proceedings .... to which the prisoner is a party”.

  11. In their Lordships’ view the fundamental reason why section 5(2)(c) covers cases of non-payment of fines is that it is necessary to ensure that persons incorrectly arrested or detained for reasons other than suspicion of having committed a criminal offence have an effective and practical means of securing their release as soon as possible. That may be illustrated by the case before the Board. If the appellant had been informed of his right to legal advice and had been given the necessary facility to contact a lawyer, the lawyer could have lent his weight to a demand that the records be checked forthwith for payment of the fine, and could have made a speedy habeas corpus application if this did not secure the appellant’s early release. One would have expected that a lawyer’s intervention would have effected the appellant’s release long before three days had elapsed. One may readily envisage other cases in which access to legal advice would be of material assistance to a person arrested and detained. In a case of mistaken identity he may be arrested for non-payment of a fine imposed upon another person. It is possible to envisage other occasions apart from pretrial situations on which unjustified arrests might take place. In none of them could it be said that the requirement of access to legal advice would be unnecessary, let alone “farcical”, as Sharma JA suggested. On the contrary, it seems to their Lordships that it would constitute a very real help in time of trouble.

  12. Mr Knox suggested, as a fallback position in case his main argument was not accepted, that the right to legal advice should be limited to cases where there was a real challenge to the legality of the arrest. Whether or not this would be sufficient in principle to satisfy the requirements of due process of law, as he submitted, it does not appear to their Lordships that such a provision would be workable in practice. In their opinion a simple and straightforward rule is required, which can be operated in the case of all arrests, a rule that does not demand that police officers draw distinctions between real challenges and others and would not give rise to avoidable litigation. This can only be effectively achieved if there is a comprehensive rule that on any occasion when persons are arrested or detained they are entitled to the constitutional protection specified in section 5(2)(c). They accordingly conclude that the apparent meaning of that provision is correct, and there is no good reason to cut it down or dilute it. On its true construction it is not limited in the way accepted by the Court of Appeal.

  13. Their Lordships will accordingly allow the appellant’s appeal and make the declarations sought in paragraphs 3 and 4 of the appellant’s originating notice of motion. It will be for the Master to determine whether the infringement of the appellant’s right under section 5(2)(c) of the Constitution should attract an award of damages and, if so, how much should be awarded. The respondent must pay the appellant’s costs of the proceedings before the Board and in the Court of Appeal.


Cases

Maharaj v Attorney-General of Trinidad and Tobago (No 2) [1979] AC 385

Thornhill v Attorney-General of Trinidad and Tobago [1981] AC 61

Attorney-General of Trinidad and Tobago v Whiteman [1991] 2 AC 240

Legislations

Constitution of Trinidad and Tobago: s.4, s.5


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