Attorney General v Anthony Henry

• Jurisdiction: St Lucia
• Judge: Pereira CJ
• Judgment Date: 10 November 2021
• Judgment citation (vLex): [2021] ECSC J1110-4
• Court: Court of Appeal (Saint Lucia)
• Docket Number: SLUHCVAP2020/0004

[2021] ECSC J1110-4

THE EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Before:

The Hon. Dame Janice M. Pereira, DBE Chief Justice

The Hon. Mr. Paul Webster Justice of Appeal [Ag.]

The Hon. Mr. Brian Cottle Justice of Appeal [Ag.]

SLUHCVAP2020/0004

Between:

Attorney General

Appellant

and

[1] Anthony Henry

[2] Francis Noel

Respondents

Appearances:

Mr. Garth Patterson, QC with him, Mrs. Tina Louison and Mrs. Rochelle John-Charles for the Appellant

Ms. Lydia Faisal for the Respondents

Civil appeal — Constitutional law — Detention of persons found unfit to plead — Limitations to right to liberty — Doctrine of implied repeal — Whether Criminal Code impliedly repealed conflicting provisions in Mental Hospitals Act — Section 1021 of the Criminal Code — Section 31 of the Mental Hospitals Act of Saint Lucia — Whether there is a statutory requirement that a person found unfit to plead is to be detained in a mental hospital — Obligation of state to conduct periodic reviews of fitness to plead — Whether failure of state to conduct periodic reviews on detainees amounted to a breach of liberty — Protection from inhuman and degrading treatment — Assessment of evidence — Whether detention of a person found unfit to plead in prison can amount to inhuman and degrading treatment — Applicability of European Court of Human Rights jurisprudence in interpreting Commonwealth Constitutions — Whether constitutional right to protection from inhuman and degrading treatment breached by failure of state to conduct periodic reviews on detainees — Whether respondents rights to personal liberty breached in circumstances where detention was for periods which undermined their rights to protection of the law — Redress for breaches of constitutional rights — Damages — Whether learned judge erred in the assessment of damages — Permanent stay of criminal proceedings — Principles applicable to grant of permanent stay of criminal proceedings

The first respondent, Anthony Henry (“Henry”), was arrested and charged for double murder on 26 ^th September 1995. Henry was found unfit to plead by a judge of the court below on 7 ^th February 2000 and ordered to be detained in custody at Her Majesty's Prison ‘until the Governor General's pleasure shall be known’. He was detained at the Bordelais Correctional Facility (“Bordelais”) until he was discharged unconditionally on 30 ^th May 2019, having been detained for 24 years. The second respondent, Francis Noel (“Noel”), was arrested and charged on 13 ^th December 1987 with causing grievous bodily harm. Noel was found unfit to plead and ordered to ‘be detained at the Royal Gaol until the Governor General's pleasure be known’. He remained detained at Bordelais at least up until the date of the judgment of the court below. Noel has therefore been detained for at least 32 years. From 2003 onwards, during the course of their detention, the respondents were examined by psychiatrists and diagnosed with serious mental illnesses. They were both administered medication but were never admitted to any mental health facility and remained in prison for the entire period of their detention pending recovery of their fitness to plead.

The respondents brought claims in the court below seeking declaratory relief and compensation for breaches of their constitutional rights to personal liberty, protection from inhuman treatment and protection of law arising from the circumstances of their detention. The learned judge granted the respondents' claims and made declarations that: (1) the State's detention of the respondents in prison as opposed to a mental health facility after being found unfit to plead was in breach of their right to personal liberty; (2) the State's failure to provide periodic reviews of the respondents' fitness to plead after their detention in prison was in breach of their constitutional right to protection against inhuman and degrading punishment; and (3) the State's detention of the respondents in prison after being found unfit to plead due to mental illness, without any periodic review of their fitness to plead for the duration of their detention was in breach of their right to personal liberty. The judge essentially considered that the respondents, having been found unfit to plead, ought to have been detained in a mental hospital and detaining them in a prison instead, amounted to a breach of their constitutional rights. The judge awarded damages to Noel and Henry in the sums of $5,031,500.00 and $3,526,000.00 respectively for the breaches of their rights to personal liberty, calculated at a rate of $500.00 per day.

The Attorney General, being dissatisfied with the decision of the judge, appealed. The issues for this Court's consideration are: (i) whether the judge erred in finding that the respondents' constitutional rights to protection against inhuman and degrading treatment were breached in circumstances where they were detained in a prison without periodic reviews of their fitness to plead; (ii) whether the respondents ought to have been detained at a mental hospital pending their fitness to plead so as to render their detention in a prison in breach of their constitutional right to personal liberty; (iii) whether the judge erred in finding that the respondents' constitutional right to personal liberty had been breached by the State's failure to conduct periodic reviews with a view to ascertaining their fitness to plead; and (iv) if the respondents' rights to personal liberty were breached, whether the judge erred in his assessment of the damages to be awarded.

Held: allowing the appeal in part and making the orders set out at paragraph 142 of the judgment:

• 1. An appellate court ought only to interfere with a trial judge's exercise of discretion if satisfied that the exercise of discretion or evaluations of the evidence on the basis of which he exercised his discretion were plainly wrong or the exercise of discretion was based on findings which were not open to him or her on the evidence.

  Edy Gay Addari v Enzo Addari [2005] ECSCJ No. 125 (delivered 27 ^th June 2005) followed; Ming Siu Hung and others v J F Ming Inc. and another [2021] UKPC 1 applied.

• 2. Detention of a person found unfit to plead in a prison as opposed to a mental hospital will not of itself result in a breach of their constitutional right to protection from inhuman and degrading treatment. A claim which invokes this right must be supported by evidence, on the basis of which a finding of breach may be founded. In this case, there was no direct evidence before the court or inferences drawn by the judge from which a breach of the right to protection from inhuman and degrading treatment could reasonably have been found.

  Section 5 of the Constitution of Saint Lucia, Cap 1.01 of the Revised Laws of Saint Lucia 2015 considered; Thomas v Baptiste [1999] 3 WLR 249 applied; Higgs and another v Minister of National Security and Others [1999] UKPC 55 applied; Ireland v United Kingdom (1980) 2 EHRR 25 considered; Mayeka v Belgium (2008) 46 EHRR 23 considered; ZH v Hungary ECHR 1891 (2012), application no. 28973/11 distinguished; Cable and Wireless v Marpin Telecoms and Broadcasting Company Limited [2000] UKPC 42 applied; Observer Publications Limited v Matthew and Others [2001] UKPC 11 considered; Strazimiri v Albania ECHR 028 (2020), application no. 34602/16 distinguished; WD v Belgium ECHR 277 (2016), application no. 73548/13 distinguished; Raffray Taddei v France ECHR 989 (2010), application no. 36435/07 distinguished; Novak v Croatia ECHR 483 (2007), application no. 8883/04 distinguished.

• 3. A breach of the right to the protection from inhuman and degrading treatment does not automatically follow from the fact that a detention has not been reviewed. The court must be satisfied that, had the periodic reviews taken place as required, the result would more likely than not have been that the detained person would have been permitted to stand trial or have been otherwise released from detention. In this case, the uncontroverted evidence before the judge was that both respondents continued to suffer from serious mental illness up until the date on which the matter was heard in the court below. The right to protection from inhuman and degrading treatment could therefore not have been breached by the fact of their unreviewed detention. Accordingly, it was not open to the judge to find that the respondents' constitutional rights to protection from inhuman and degrading treatment were breached.

  Ian Seepersad and Roodal Panchoo v The Attorney General of Trinidad and Tobago [2012] UKPC 4 applied; Bissessar v The Attorney General of Trinidad and Tobago Civil Appeal No. P 136 of 2010 (delivered 31st January 2017, unreported) applied.

• 4. A breach of the right to personal liberty may be found where a person is detained in a place other than that which is specified by an authorising law. Both the Criminal Code and the Mental Hospitals Act authorise the detention of a person found unfit to plead. Section 31 of the Mental Hospitals Act provides for the mandatory detention of a person found to be insane prior to conviction in a mental hospital. However, section 1021(1) of the Criminal Code vests in the trial judge a broad discretion to determine the place of detention following a finding of unfitness to plead. Where there is a conflict such as this between the provisions of an earlier and a later enactment, the court may find that the earlier enactment has been impliedly repealed to the extent of the conflicting provision, where such conflict gives rise to an inescapable logical contradiction.

• 5. It is clear that section 31 of the Mental Hospitals Act and section 1021(1) of the Criminal Code give rise to an inescapable logical contradiction. The mandate and discretion under the respective enactments are incompatible and cannot peaceably coexist. It follows that the mandatory requirement...