Randall Theodule et Al v The Attorney General of Saint Lucia

• Jurisdiction: St Lucia
• Judge: ‘Innocent, J.’
• Judgment Date: 29 July 2025
• Judgment citation (vLex): [2025] ECSC J0729-1
• Year: 2025
• Court: High Court (Saint Lucia)
• Docket Number: CLAIM NO. SLUHCV2021/0457

In the matter of Sections 1,3,5,8,10,13 & 16 of the Constitution of Saint Lucia, Cap. 1.01 of the Revised Edition of the Laws of Saint Lucia

And

In the matter of Sections 132(2) and 133 of the Criminal Code, Cap. 3.01 of the Revised Edition of the Laws of Saint Lucia

And

In the matter of Rules 56.1, 56.2, 56.3 & 56.4 of the Eastern Caribbean Supreme Court Civil Procedure Rules 2000 (as amended)

Between:

Randall Theodule

Vernon Bellas

United And Strong Inc.

Claimants

and

The Attorney General of Saint Lucia

Defendant

[2025] ECSC J0729-1

CLAIM NO. SLUHCV2021/0457

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

Appearances:

Mr. Douglas Mendes KC, with Ms. Veronica Cenac of Counsel for the Claimants

Mr. Rene Williams, Senior Crown Counsel, with Rochelle John-Charles, Crown Counsel, Attorney General's Chambers for the Defendant

‘Innocent, J.’

1 Mr. Randall Theodule (Mr. Theodule) and Mr. Vernon Bellas (Mr. Bellas), the first and second claimants in the present proceedings are members of the LGBTQ community in Saint Lucia.

2 The third named claimant, United and Strong Inc. is a not for profit company incorporated under the Laws of Saint Lucia and generally operates as a public interest group with the objects of promoting and safeguarding the interest of members of the homosexual and LGBTQ community in Saint Lucia.

3 At the initial stages of the proceedings the Attorney General had applied to the court to strike out the claimants' claim in its entirety on the basis that they lacked locus standi to bring the constitutional motion substantially on the basis that the claimants had not identified any right guaranteed under the Constitution that had been breached or was being infringed or likely to be infringed in relation to them. The court had the benefit of written legal submissions from the parties on the locus standi point. However, on the hearing of the strike out application, the Attorney General conceded the issue of locus standi and the matter proceeded along its normal course.

4 At the substantive hearing of the Constitutional Motion, the Attorney General informed the court that it did not intend to challenge the claimants' motion for relief under the Constitution. That being the case, the court is nevertheless required as a matter of sound practice and procedure, to give a written decision on the constitutional issues that arise on the claim. The parties are all agreed on this procedural point.

5 The court is also fortified in its approach by the decision in Attorney General and Minister of Home Affairs v Antigua Times Ltd1 which in the court's view clarified a judge's duty as regards agreed propositions. To paraphrase the learned Chief Justice in that case, the agreement by the parties on the propositions of law which they put before the trial judge did not absolve the trial judge from the responsibility of himself coming to a decision on the said propositions.

6 The question before this court in this case is the constitutionality of the provisions of sections 132 and 133 of the Code. This is a legal question and it was not competent for counsel to usurp the function of the court and express any opinion thereon.

7 Therefore, the court in this instance will not regard the Attorney General's concessions as being binding on it. The role of the court under the Constitution where the question of the constitutionality of legislation arises it is incompetent for parties by concession or by agreements to tie the hands of the court because the court is cast in the special role as guardian of the Constitution and is required to determine for itself whether the Constitution has been infringed or not.2 The Privy Council on appeal from the decision of the Court of Appeal in the same case agreed with the sentiments expressed both by the trial judge and the Court of Appeal on this issue.3

Introduction to the constitutional challenge

8 The claimants allege that the provisions of section 133 of the Criminal Code contravenes their constitutional rights and the constitutional rights of other LGBTQ persons guaranteed to them under sections 1, 3, 5, 8, 10 and 13 of the Constitution and that section 133 aforesaid is null, void and of no force and effect to the extent that section 133 applies to consensual activity or sexual intercourse per anum between consenting adults in private, each of whom has attained the age of at least 16 years or more. The claimants sought the following orders, declarations and relief, namely:

• (1) An order that section 133(3) of the Criminal Code be read as if the words “except where it occurs in private and between consenting persons each of whom is 16 years of age or more” were added to the section.

• (2) A declaration that section 132 of the Criminal Code contravenes the claimants' constitutional rights, as well as the rights of LGBTQ persons

  whose interest is represented herein by the third named claimant enshrined in sections 1, 3, 5, 10 and 13 of the Constitution, and is accordingly unconstitutional, null and void and of no effect to the extent that section 132 applies to consensual sexual activity, committed in private, by a person, or between persons each of whom has attained a least 16 years of age or more.

• (3) An order that section 132(2) be read as if the words “an adult male person and an adult female person” were deleted and replaced with the word “persons”.

• (4) A declaration that the offence of gross indecency under section 132 is null and void and of no effect on account of its vagueness, to the extent that it does not sufficiently define the offence which it purports to create.

The statutory provisions

9 Section 132 of the Criminal Code deals with the offence of gross indecency. Section 132(4) of the Criminal Code describes gross indecency in the following manner:

“In this section “gross indecency” is an act other than sexual intercourse (whether natural or unnatural) by a person involving the use of the genital organs for the purpose of arousing or gratifying sexual desire.”

Section 132(1) of the Criminal Code creates the offence of gross indecency and provides the penalty therefore. The section reads:

“A person who commits an act of gross indecency with another person commits an offence and is liable on conviction on indictment to imprisonment for 10 years or on summary conviction to 5 years.”

10 The section sought to be impugned in the present proceedings is section 132(2) which provides what may aptly be described as a qualification or exemption to the substantive offence created by section 132(1) and reads:

“Subsection (1) does not apply to an act of gross indecency committed in private between an adult male person and an adult female person, both of whom consent.”

11 Section 133 of the Criminal Code prohibits and provides a sanction for the offence of buggery and provides:

• (1) A person who commits buggery commits an offence and is liable on conviction on indictment to imprisonment for—

  • (a) life, if committed with force and without the consent of the other person;

  • (b) ten years, in any other case.

• (2) Any person who attempts to commit buggery, or commits an assault with intent to commit buggery, commits an offence and is liable to imprisonment for 5 years.

• (3) In this section “buggery” means sexual intercourse per anus by a male person with another male person.”

The constitutional provisions

12 Section 1 of the Saint Lucia Constitution Order (the ‘Constitution’) under the chapeau “Fundamental rights and freedoms” provides that:

“Whereas every person in Saint Lucia is entitled to the fundamental rights and freedoms, that is to say, the right, whatever his or her race, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, to each and all of the following, namely—

• (a) life, liberty, security of the person, equality before the law and the protection of the law;

• (b) freedom of conscience, of expression and of assembly and association; and

• (c) protection for his or her family life, his or her personal privacy, the privacy of his or her home and other property and from deprivation of property without compensation,

the provisions of this Chapter shall have effect for the purpose of affording protection to those rights and freedoms subject to such limitations of that protection as are contained in those provisions, being limitations designed to ensure that the enjoyment of the said rights and freedoms by any person does not prejudice the rights and freedoms of others or the public interest.”

13 Section 10 of the Constitution guarantees the right to the protection of freedom of expression and provides:

“(1) Except with his or her own consent, a person shall not be hindered in the enjoyment of his or her freedom of expression, including freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to communicate ideas and information without interference (whether the communication be to the public generally or to any person or class of persons) and freedom from interference with his or her correspondence.

(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision—

• (a) that is reasonably required in the interests of defence, public safety, public order, public morality or public health; that is reasonably required for the purpose of protecting the reputations, rights and freedoms of other persons or the private lives of persons concerned in legal proceedings, preventing the disclosure of information received in confidence, maintaining the authority and independence of the courts or regulating the technical administration or the technical operation of telephony, telegraphy, posts,...