the republic of trinidad and tobago in the...

of 24

THE REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

CV 2014-02199

BETWEEN

GARVIN SOOKRAM

Claimant

AND

CONRAD BARROW

COMMISSIONER OF PRISONS

Defendant

Before The Hon. Madam Justice C. Gobin

Appearances:

Mr. G. Ramdeen instructed by Mr. V. Debideen

for the Claimant

Mrs. D. Peake SC and Mr. R. Heffes-Doon instructed by

Ms. D. Katwaroo for the Defendant

JUDGMENT

Introduction

1. This case concerns the legality or constitutionality of Rule 296 (4) of the Prison

Rules, which requires all visits to death row prisoners by legal advisors to be conducted

in the sight and hearing of prison officers. It calls for a determination of the issue of

whether the right to communicate with counsel under the seal of Legal Professional

Privilege (LPP) is a concept fundamental to “a democratic state” such as is envisioned

under S. 1 of the constitution and it requires consideration of the applicability of the

of 24

decision of the Privy Council in the case of State of Mauritius v Khoyratty (PC) [2007]

1 AC 80.

Factual Background

2. The claimant is a condemned inmate who is incarcerated at the Port of Spain

State Prison awaiting execution. He is also a respondent in a civil appeal. He sought a

visit with his attorneys, the purpose of which was to receive advice about his status as a

condemned inmate and about a complaint he was contemplating regarding the

constitutionality of his prolonged incarceration on death row. Further he wanted advice

in relation to a pending matter before the Court of Appeal. He was therefore entitled to

LPP in relation to his intended litigation as well as the advice on the pending appeal. On

the 2nd September 2013 his attorneys Mr. Debideen and Ms. Blackstock attended the

prison for a consultation with him.

3. In accordance with the rule, the visit had to be conducted in the presence, sight

and hearing of prison officers. On this occasion the persons assigned were officers Duntin

and Marcel. The enclosed room in which the visit and consultation took place measured

about 12’ x 12’. In it were some desks, a refrigerator and water cooler. While the

consultation was taking place the officers for the most part, sat at the desks, one of which

was located next to the desk at which he and his lawyers were seated. At some point they

went to the water cooler and the refrigerator and this brought them within even closer

range.

of 24

4. The claimant said that the presence of the officers inhibited his willingness to

communicate with the lawyers. He became hesitant to give information which he

considered extremely confidential. He became even more uncomfortable with their

moving around the room. The upshot of it is that he was unable to give full and complete

instructions and his lawyers in turn could not properly advise him on matters on which

he required their advice.

5. Mr. Debideen filed an affidavit in support of this application. He said that he

asked the officers for the interview to be conducted out of their hearing but they said the

rule required them to be present and to listen to the interview. Mr. Debideen stated that

the claimant indicated he did not wish to continue the interview in the presence of the

prison officers as he did not wish them to hear the instructions. He said there were things

he wanted to say to them, but not in their presence.

6. By a preaction letter dated 10th September, 2013 Mr. Debideen wrote to the

Solicitor General complaining inter alia that the policy behind the rule which was

implemented by the Commissioner of Prison was unlawful. By letter dated 16th January

2014 the office of Chief State Solicitor responded. The following excerpt indicates the

response on this particular aspect of the complaint -

“Secondly with regards to rule 296 (4) please be advised

that we are instructed that the prison authorities have

enforced and will continue to faithfully enforce this rule

in the interest of institutional security and the safety of not

only the inmates in the condemn division but the legal

advisors visiting these inmates and prison staff. We are

further instructed that in the past this rule has proven to

be an essential element in preventing and in some cases

of 24

intercepting that trafficking of unauthorized and/or

prohibited articles between these condemn inmates and

their visiting legal advisers”.

7. The prison officers Duntin and Marcel filed affidavits in response to the

application essentially denying that a request had been made by Mr. Debideen to conduct

the visit in private. They claimed to have been present, to have paid no attention to

anything that was said between the parties nor to have listened to the conversation. They

had not observed any discomfort or reluctance on the part of the claimant to speak or give

instructions to counsel during the visit.

8. They also sought to justify the policy behind strict supervision of such visits.

Their contention is that condemned prisoners have nothing to lose, and the usual

punishments such as forfeiture of remission of a sentence are ineffective since these are

inapplicable in their case. Condemned prisoners are likely to be more violent.

Supervision during visits reduces the opportunity to inflict self-harm as well as harm to

others, including attorneys. The rule also prevents visitors, including attorneys, from

assisting the condemned prisoner in unlawful activities.

9. Officer Duntin whose evidence was adopted by Marcel said:

“The officers are not there to maliciously eavesdrop on the

inmates conversation but to maintain order and protect

visitors and members of the public”.

He stated too:

“In practice prison officers including myself do not listen

in or pay attention to conversations between the inmates

and their visitors including attorneys. Prison Officers

of 24

usually sit or stand 9 to 10 feet away from the desk where

the visit is taking place. The prison is a noisy place so

unless you are up next to the inmate and counsel you cannot

hear what is being said”.

10. The officer also explained that consultations between a prisoner on remand and

his legal adviser are conducted in the sight of, but not in the hearing of a prison officer,

because whereas a condemned prisoner has already been found guilty remand prisoners

have not been so found. Thus, the fact of conviction, appeared to be the justification for

the difference regarding security arrangements for interviews with Counsel for remand

and condemned prisoners.

11. None of the deponents was cross-examined but having regard to what is at the

heart of this case, that is the legality of the rule, I do not think that much turned on the

absence of cross-examination. The resolution of such issues of fact as may have appeared

on the affidavits could not materially affect the decision on the legality of the rule, which

the Commissioner and his officers are duty bound to implement.

12. The matters of significance in the affidavits as I see them were -

(1) The evidence of the claimant and his attorney of discomfort

and unwillingness to give instructions and to continue the

interview in the presence of the officers which I believe to

be a subjective matter. (The perception of the officers as to

the state of mind or appearance of the claimant at the time

is of little relevance). Indeed I find the claimant’s inhibition

or reluctance to communicate with his lawyers on

confidential matters is objectively entirely understandable.

of 24

(2) The explanation of the officers that in practice they do not

listen in or pay attention to what is being said during the

meetings. (This begs the question then why is it necessary

for the visit to take place in their hearing).

(3) The explanation and rationale for the difference in the rule

that applies to remand prisoners, which requires visits to be

conducted in the sight of, but not in the hearing of prison

officers.

The claimant’s case/illegality

13. Rule 296 (4) provides:

All visits to prisoners under sentence of death whether by legal

advisors or others, shall take place in the sight and hearing of

a prison officer, notwithstanding that such visit may be in

relation to an appeal.

The claimant challenged the rule on the grounds of illegality under S. 1 of the Constitution

which declares Trinidad and Tobago to be a democratic State. The rule, he contended is

inconsistent with a fundamental tenet of a democratic state such as Trinidad and Tobago

is declared to be, under S. 1. He invoked S. 2 “the supreme law clause” inviting me to

find the rule void because of the inconsistency with S. 1.

Section 2 provides:

This Constitution is the supreme law of Trinidad and Tobago,

and any other law that is inconsistent with this Constitution is

void to the extent of the inconsistency.

14. The prison rules which still govern our prisons were made under the West Indian

Prisons Act of 1838. The Act empowered “the governor and council of such colony to

make rules for the government of the prisons in her Majesty’s Colonies in the West Indies

and for the care and superintendence, and for the duties of the keepers and officers of

of 24

such prisons”. The rules were delegated legislation made under the Act in 1943 and their

status is recognised by the Prisons Act Ch. 13:01, even today.

15. The rule was in force immediately before the commencement of the 1962

Constitution and is existing law under S. 6. Mrs. Peake SC for the defendant says that it

in these circumstances it is trite then, that even if it arguably contravenes the right of a

prisoner guaranteed under S. 5 (2) (c) (ii) of the Constitution to retain and instruct a legal

adviser or to hold communication with him (which it is agreed subsists through the period

of detention including after conviction), or his right under S. 4 (b) to protection of the

law, rule 296 (4) is saved or rendered constitutional by virtue of S. 6. Mrs. Peake argued

and Counsel for the claimant has conceded that a challenge to the rule for a declaration

of unconstitutionality or inconsistency with fundamental rights provisions, under S. 14 of

the Constitution would be doomed to fail. The effect of the savings law clause is well

settled. So too is the advice as to the futility of any attempt on the part of the court to

avoid it.

16. The position of the Privy Council on the matter was clearly enunciated in

Matthew v The State of Trinidad and Tobago [2004] UK PC 33 by Lord Hoffman that

the effect of savings law clause could not be sidestepped by the court in the following

excerpt:

“2 The language and purpose of section 6 (1) are so clear

that whatever may be their Lordships’ views about the

morality or efficacy of the death penalty, they are bound as a

court of law to give effect to it. As Lord Bingham of Cornhill

said in Reyes v The Queen [2002] 2 AC 235, 246, “The court

has no licence to read its own predilections and moral values

into the Constitution”. And their Lordships do not

of 24

understand the appellant to dispute that if one simply reads

the Constitution, there is no basis for holding the mandatory

death penalty invalid for lack of consistency with sections 4

and 5.

3 This is a very important point. It is not suggested that there

is any ambiguity about the Constitution itself. It is accepted

that it is simply not susceptible to a construction, however

enlightened or forward-looking, which would enable one to

say that section 6 (1) was merely a transitional provision

which somehow and at some point in time had become spent.

It stands there protecting the validity of existing laws until

such time as Parliament decides to change them.”

17. More recently in Barry Francis, Roger Hinds v The State Crim. App. Nos. 5

& 6 of 2010, with reference to the conjoint effect of the supreme law and the savings law

clauses Justice of Appeal Jamadar in the minority decision stated:

(d) We note that “the object of these provisions is to

ensure that no future enactment shall in any

matter…….. derogate from the rights which at the

coming into force of the Constitution the

individual enjoyed”.

(f) We also note with agreement, that the purpose of

the savings law clause in the context of the

supreme law clause and the declaration of rights

in absolute and unfettered terms, is to not only

protect existing laws from constitutional challenge

on the basis of inconsistency with the human rights

provisions in the Constitution; but equally

importantly, “to define the scope and limits of the

rights”.

In this regard, we say that no question arises as to

whether, because the rights and freedoms stated

were stated in absolute terms, the intention was to

confer unfettered rights as declared.

of 24

18. With the above in mind, Mr. Ramdeen for the claimant carefully and deliberately

mounted this challenge on the illegality principle in Judicial Review under S. 2 of the

Constitution. Essentially he claimed that the rule which mandates that visits are to be

conducted in the hearing of prison officers, interferes with the right to communicate and

instruct or seek advice from counsel under the seal of LPP. That right is inherent and

fundamental in a democratic civilised society which is governed by the rule of law. Rule

296 (4) unlawfully breaches the right to LPP. It has the effect of impeding access to the

court, and should be declared void for inconsistency with S. 1 of the Constitution.

Appropriateness of Judicial Review

19. Since very early on in the proceedings, the defendant objected to the procedure

adopted by the claimant in bringing this action. Indeed the defendant made a striking out

application which I refused. Mrs. Peake submitted that judicial review proceedings were

inappropriate in the circumstances of what is clearly a challenge to the “constitutionality”

of the rule. She asked me to view the proceedings in this form as a device to sidestep the

effect of the savings law clause. The attempt was both impermissible and futile. Her

argument was that the matter is essentially a constitutional claim which should have been

brought under S. 14 of the Constitution in respect of what is an allegation of a breach of

the right to retain and instruct without delay a legal adviser and to hold communication

within S. 5 (2) (c) (ii) and the right of the individual to protection of the law S. 4 (b) which

are expressly provided for. Counsel asked me to hold the proceedings to be an abuse of

process.

of 24

20. While I remained mindful of the court’s duty to recognise abuse of the process

and to discourage frivolous and unmeritorious claims I did not find this to be such. I did

not consider it impermissible for the claimant to attempt an alternative route to the relief

he claimed. Mr. Ramdeen was at all times completely open as to why he framed the

matter in the way that he did, and I found no travesty.

21. While the effect of the savings law clause is well settled, the decisions in Hinds

Cr. App. Nos. 5 & 6 of 2010, and more recently Mollison [2003] 2 AC 411 have firmly

established the availability of challenge on the basis of unconstitutionality outside of Ss.

4 and 5. The statement of Lord Roger in the judgment of the Board in Johnson &

Balwant v The Attorney General [2009] UK PC 53 @ para. 22 puts the matter beyond

doubt:

“But if an existing law were inconsistent with some other

provision of the Constitution, then by virtue of S. 2 of the

Constitution it would be void to the extent of inconsistency”

Lord Rodger’s words clearly sanction the claimant’s case as framed.

22. As to the appropriateness of Judicial Review in the circumstances of this case,

S. 5 (2) of the Judicial Review Act Ch. 7:08 empowers the court to grant relief to a person

whose interests are adversely affected by a decision. The claimant says his were. The

ground specified under S. 3 (a) of the Act was that the action of the Commissioner of

Prisons was unauthorised or contrary to law. The law referred to is the constitution. The

fact that the action or decision is “authorised” by a rule which was made by the Governor

in Council and that the Commissioner or his officers have no choice but to implement it

of 24

was not a sufficient reason for the court to yield its authority or to refuse to discharge its

responsibility. As I understand it, a rule, though validly made, which is inconsistent with

S. 1 of the Constitution is made void to the extent that it is inconsistent with it by S. 2.

23. The availability under the constitution of judicial review of legislation including

delegated legislation has long been recognised. Acute legal minds in our region including

the late esteemed Professor of Law, Andrew Carnegie (Public Law 1971: Judicial

Review of Legislation in the West Indian Constitution @ pg. 276) and Professor

Albert Fiadjoe (Commonwealth Public Law) have argued that S. 2 when read together

with provisions of the Constitution which restrict the Parliament’s legislative authority,

were suggestive of what is in effect judicial review of legislation including subsidiary

legislation.

24. In Collymore v The Attorney General of Trinidad and Tobago CA Civ.

3/1966, which was a case under S. 4 the fundamental rights provision, Phillips J.A.

articulated the point:

However, whatever may be the true interpretation to be placed

upon the requirement of section 2 shall be “so construed and

applied” as not to derogate from the constitutional guarantees

to which it refers, it seems to me that the imperative provisions

of S. 2 of the Constitution are so clear and explicit as not to

admit of the possibility of their being construed otherwise than

as rendering invalid any law which offends against the

prohibitions therein contained. When once this proposition is

accepted, it appears to me to be obvious that even without

express provision a power of judicial review of Parliamentary

legislation must reside in the Supreme Court of this country.

This conclusion is only in consonance with the view expressed

more than half a century ago by Griffith, C.J., Barton and

O’Connor, JJ. of the High Court of Australia in Baxter v

of 24

Commissioners of Taxation (N.S.W) (28) (1907), 4 C.L.R. 1087,

at p. 1125 that:

“English jurisprudence has always recognized that

the Acts of a legislature of limited jurisdiction

(whether the limits be as to territory or subject

matter) may be examined by any tribunal before

whom the point is properly raised. The term

'unconstitutional’, used in this connection, means

no more than ultra vires.”

The claimant’s case on the rule is that it is “unconstitutional,” or “ultra vires” S. 1 of

the Constitution. In the context they are one and the same thing. The source of the

Court’s power of review is to be found in S. 2 of the Constitution as well as under the

Judicial Review Act.

The Commissioner of Prisons a Party

25. The Commissioner of Prisons is named as the defendant to the proceedings. He

is charged with the overall responsibility for the administration of the prisons and his duty

is to enforce the Prison Rules. He had no dealings or interaction with the claimant

personally, but applying the Carltona principle argument which has been adopted by our

courts in Ansarie Mohammed v The Commissioner of Prisons HCA S 2089 of 2003

and Alladin Mohammed v The Commissioner of Prisons HCA 2044 of 2005, I find

that the Commissioner of Prisons is in fact the proper party to this application.

26. The matter does however concern the legality of subsidiary legislation, albeit it

a rule which operates in a very limited sphere of activity which falls under the

administration of the prisons, and which affects a limited number of persons who are on

death row. I therefore considered it necessary to ensure that the Attorney General was

of 24

served with notice of the proceedings. I am satisfied that the Attorney General was served

when the Fixed Date Claim form was first filed and more recently when I ordered service

after I had concluded hearing submissions in or about April 2016. There has been no

intervention by the Attorney General.

Applicability of Khoyratty

27. I turn now to the substance of the case which involves two questions which are

not discrete. One requires a construction of S. 1 of the Constitution and a consideration

of the applicability of the decision of the Board in Khoyratty. The other requires me, to

construe and give substance to the term “a democratic state” as it is used in S. 1, to

consider whether the right to communicate confidentially with a lawyer under the seal of

LPP is indeed a right inherent and fundamental to a democratic state. If it is, and if

Khoyratty applies, then S. 294 which clearly disallows confidentiality would be held to

violate S. 1 of the Constitution.

28. The facts of Khoyratty are succinctly set out in the headnote and I find it

convenient to reproduce it here:

The respondent was charged with an offence of drug dealing.

On his application for bail, the police objected on the ground

that by virtue of section 5 (3A) of the Constitution, as

inser6ted by section 2 of the Constitution of Mauritius

(Amendment) Act 1994, and section 32 of the Dangerous

Drugs Act 2000, the court had no power to grant bail pending

trial in such a case. By section 5 (3) of the Constitution a

person arrested or detained on suspicion of having

committed a criminal offence was entitled to a determination

of the court as to whether he should be remanded in custody

or granted bail pending trial. But by section 5 (3A), where

the offence was one of a number related to terrorism or

of 24

drugs, including those specified in the Dangerous Drugs Act,

and the suspect had already been charged with or convicted

of a similar offence, he could not be granted bail pending

trial. On a constitutional reference by the district magistrate,

the Supreme Court held, inter alia, that section 5 (3A)

represented an interference by the legislature into functions

which were intrinsically within the domain of the judiciary

and that it therefore infringed the provision in section 1 of

the Constitution that “Mauritius shall be a democratic state”.

29. On the State’s appeal to the Privy Council, in construing S. 1 which mirrors our

S. 1, Lord Steyn pronounced that the declaration

“was not a mere preamble nor was it simply a guide to

interpretation. It is an operative and binding provision, a

separate and substantial guarantee. Its very subject matter

and place at the beginning of the constitution underlies its

importance.”

His Lordship further observed at Pg. 2 para. 12:

“The idea of a democracy invokes a number of different

concepts. The first is that people must decide who should

govern them. Secondly there is the principle that

fundamental rights should be protected by an impartial and

independent judiciary. Thirdly, in order to achieve a

reconciliation between these ideas a separation of powers

between the legislature, the executive and the judiciary”.

30. Lord Steyn’s definition is obviously silent on any specific right to LPP. The

claimant urged me to apply Khoyratty, but to go further to add to the concepts identified,

an additional one, the rule of law, which includes and recognises the right of access to a

lawyer’s advice under the seal of LPP.

31. In response, Counsel for the Commissioner submitted that Khoyratty is not

applicable because the decision in that case turned not on interpretation the words of S.

of 24

1, but on the specially entrenched status of S 1 of the Mauritius Constitution and that the

decision was made against the background of Constitutional amendments which

permitted alteration to S. 1 of the Constitution of Mauritius only if a proposed bill had

first been approved by three-quarters of the electorate in a referendum, as well as

unanimous support at a final vote in the assembly by all members. Counsel referred to

the judgments in Khoyratty in which their lordships referred to the specially entrenched

status of S 1. Lord Roger began at paragraph 29 with such a reference:

Having regard, in particular, to the specially

entrenched status of S. 1, in my view it would be wrong

to say that the concept of the democratic state to be

found there means nothing more than the sum of the

provisions in the rest of the constitution, whatever they

may be at any given moment.

By comparison, her argument continued, S. 1 is the least entrenched provision of our

own constitution.

32. I have considered the submissions and find that on the facts in Khoyratty

references to the degree of entrenchment were necessary and particularly relevant to the

issue then before that court. The case dealt with the validity of legislation which was not

passed in accordance with the terms of a previously enacted Constitution Amendment

Act. That Constitution Amendment Act had introduced the requirement for the

referendum etc. In my opinion those observations in the judgment do not detract from

the critical pronouncement of the effect of S. 1 in providing the people of Mauritius with

a substantial guarantee. The references to entrenchment were more relevant to the

question of whether the amendment took effect in the light of the very stringent statutory

of 24

provisions. However insofar as it relates to the construction of S. 1, that there is nothing

which causes me to doubt its applicability. Our S. 1 contains the same subject matter and

it is similarly to be found at the beginning of the constitution. These were also matters

which led Lord Steyn to pronounce that the words were not a mere preamble but a

substantial guarantee.

33. Indeed, in the absence of a similar declaration in the Jamaican constitution, the

decisions in Hinds and Mollison as Mrs. Peake conceded, are explained by the doctrine

inherent in the Constitution of the separation of powers. This has been described as a

“characteristic feature of democracies” by Lord Steyn in R (Anderson) v Secretary of

State for the Home Department. In this passage Lord Bingham in Mollison at para. 13

pg. 424 stated:

It does indeed appear that the sentencing provisions under

challenge in the Hinds case were held to be unconstitutional not

because of their repugnancy to any of the rights guaranteed by

sections in Chapter III of the Constitution but because of their

incompatibility with a principle on which the Constitution itself was

held to be founded. There appears to be no reason why (subject to

the other arguments considered below) the reasoning in the Hinds

case does not apply to the present case. It would no doubt be open

to the Board to reject that reasoning, but it would be reluctant to

depart from a decision which has stood unchallenged for 25 years,

the more so since the decision gives effect to a very important and

salutary principle. Whatever overlap there may be under

constitutions on the Westminister model between the exercise of

executive and legislative powers, the separation between the

exercise of judicial powers on the one hand and legislative and

executive powers on the other is total or effectively so. Such

separation, based on the rule of law, was recently described by Lord

Steyn as “a characteristic feature of democracies”: R (Anderson) v

Secretary of State for the Home Department [2003] 1 AC 837, 890-

891, para. 50.

of 24

34. There can be little difference between what Lord Steyn described to as

“characteristic features of democracies” in Anderson and what he subsequently referred

to as “the concepts invoked by the idea of a democratic state” in Khoyratty. The concepts

identified by Lord Steyn, free elections, fundamental rights protected by an impartial and

independent judiciary, the separation of powers are clearly characteristic features of

democracies. I therefore hold applying the judgment of the Privy Council that the

declaration that Trinidad and Tobago shall be a democratic state is not a mere preamble,

that it is an operative and binding provision and constitutes a separate and substantial

guarantee to the citizens of this country. The declaration at S. 1 of our constitution

fortifies our position by providing an express guarantee.

Legal Professional Privilege/The Rule of Law

35. What I am to decide is whether LPP, given what is referred to as its rule of law

rationale is a characteristic feature of democracies or put another way whether its place

within the concept of the rule of law makes it essential under a democratic state

guaranteed under S. 1.

36. I have noted before that Lord Steyn’s definition does not specifically include a

reference to LPP. Mrs. Peake submitted that even if I considered Khoyratty applicable

I should limit myself to the concepts identified by Lord Steyn. She cautioned against

expanding his Lordship’s list to include the right of LPP as part of a general concept under

S 1. By doing so I would effectively be elevating the right to counsel under S. 5, to a

status much higher than other fundamental rights contained in S 4 and 5. This is both

of 24

unwarranted and unreasonable. To illustrate her point, Mrs. Peake compared it with the

right to life and to freedom from cruel and unusual punishment by the imposition of the

death penalty, breaches of which lead to far more devastating consequences. She argued

that if all that was necessary to avoid the effect of the savings law clause was to remove

it from S. 4 or to elevate its status by additionally including as an essential component of

a democratic state, then surely the Board in Matthew, and Roodal would have done so

to avoid the harsh consequences of the mandatory death penalty.

37. I am unable to accept that in giving substance to the term “a democratic state” I

should limit myself. I do not think that Lord Steyn’s definition was intended to be

exhaustive. In my opinion no definition of concepts that are fundamental to a democratic

state would be complete without reference to adherence to the rule of law. In his book

“The Rule of Law” Lord Bingham defined the subject of the work in these words -

“The core of the existing principle is, I suggest that all

persons and authorities within the state, whether public or

private should be bound by and entitled to the benefit of laws

publicly made, taking effect (generally) in the future and

publicly administered courts.”

38. Whether this is considered an overarching principle or whether it is a distinct

concept, I believe its inclusion in the definition to be imperative. It is more relevant here,

because it recognises as essential to the rule of law, a legal system of publicly

administered courts and justice and here the connection with and relevance of LPP

becomes more readily apparent. Lord Steyn’s definition of what is fundamental to a

democracy includes a strong and independent judiciary, and this is beyond question. But

a strong and independent judiciary is not an end in itself. The courts are the guardians of

of 24

the constitution, they can only fulfil that role of guardianship if there is unimpeded access

to the justice system.

LPP and access to the Courts

39. The learned author Zuckerman (CPR 2003) explains the history and rationale of

LPP. Communication between lawyers and clients are protected because it is an essential

condition of meaningful access to legal advice that the client should be able to put all the

facts before a legal adviser without fear that this information may afterwards be disclosed

to others. He cites R v Derby Magistrates Court [1996] 1 A.C 487 @ pg. 501 Lord

Taylor C.J. observed -

“The principle which runs through….. is that a man must be

able to consult his lawyer in confidence, since otherwise he

might hold back half the truth. The client must be sure that

what he tells his lawyer in confidence will never be revealed

without his consent. Legal professional privilege is thus

much more than an ordinary rule of evidence, limited in its

application to the facts of a particular case. It is a

fundamental condition on which the administration of

justice as a whole rests”. (emphasis added)

40. The learned author explains the relationship between advice privilege or LPP

and the rule of law in these words:

“The legal advice privilege is based on the concept of the

rule of law. The law accords rights and imposes obligations

which in turn can be enjoyed and enforced only if persons

are aware of them and understand their implications. A

system of rights and obligations must therefore allow

adequate facilities for gaining an appreciation of the law,

otherwise people would not be able to arrange their affairs

according to the law or to pursue their rights in the courts.

Since the advice of well qualified lawyers is one of the

principal means by which to gain necessary knowledge of the

of 24

law, access to legal advice must be encouraged and

protected”.

41. He continues to make the point which is more germane to this case:

“Notwithstanding that the two limbs of privilege have

somewhat different rationale and different scope, they both

share a core rationale that people are entitled to a private and

secure sphere in which to conduct their communications

with their lawyers. Without a private and secure sphere for

taking legal advice there can be no meaningful access to

legal advice or a fair trial. For this reason it is regarded as

a fundamental constitutional right designed to promote the

rule of law and fair trial”.

In the context of prison visits I daresay the obligation to provide proper amenities to

assure privacy and confidentiality must surely be more crucial.

42. The evidence of the claimant and his attorney established that the presence of

the officers, within hearing, inhibited his giving instructions and receiving advice.

Whether the particular officers paid attention or heard what was being said is immaterial.

Their mere presence within hearing was a chilling factor. The amenities and the

conditions under which the meeting was required to take place clearly denied the private

and secure space to which he was entitled. In the circumstances he was effectively

deprived access to the courts.

43. While this claimant is on death row, it is well established that prisoners retain

all civil rights which are not taken away expressly or by necessary implication. In R v

Secretary of State for the Home Department ex parte Anderson [1984] QB 778

@790 Robert Goff LJ, citing Raymond v Honey [1983] 1 A.C 1, 10 per Lord

of 24

Wilberforce reiterating the point on the retention of civil rights emphasised: “At the

forefront of those civil rights is the right of unimpeded access to the courts; and the right

of access to a solicitor to obtain advice and assistance with regard to the initiation of civil

proceedings is inseparable from the right of access to the courts themselves. In Raymond

v Honey rules limiting a prisoner’s right of access to the courts were held to be ultra vires.

44. The statements in the cases above as well as those in several others cited by the

claimant including R (Daly) v Secretary of State for the Home Department [2001] 2

A.C 532, Campbell v UK (1992) 15 EHRR 137 underscore the importance of the place

LPP in the broader context of the right of access to justice and the rule of law. So

fundamental is it, that a broader construction to include it as a characteristic feature of

democracies is in my opinion is entirely justifiable. This finding is susceptible to

criticism that it creates a hierarchy of constitutional rights. As undesirable as that may

be, I have come to the conclusion that the right of access to court to vindicate all other

rights including constitutional rights must of necessity be considered more basic. Indeed

the several challenges to the mandatory death penalty with the harsh and irreversible

consequences, though unsuccessful, have been made possible because prisoners under

sentence of death such as the claimant, have had access to the courts. This case seeks to

affirm that right and to preserve unimpeded access. I therefore hold that to the extent that

it requires death row prisoners visits with their lawyers to be conducted in the hearing of

prison officers, rule 296 (4) is inconsistent with S. 1 of the Constitution which declares

Trinidad and Tobago to be a sovereign democratic state.

of 24

45. The parties addressed me on the issue of proportionality but I have found that it

did not arise in this case. The authorities cited including Suratt v AG and Public Service

Appeal Board v Omar Maraj introduced the concept in relation to the test for

determining the constitutionality of ordinary legislation passed by our Parliament which

impinge on S. 4 and 5, the fundamental rights provisions of the Constitution. The words

of Baroness Hale in Suratt 2007 UK PC 55 at para. 58 indicate the context in which the

concept was discussed.

“It cannot be the case that every Act of Parliament which

impinges in any way upon the rights protected in sections

4 and 5 of the Constitution is for that reason alone

unconstitutional. Legislation frequently affects rights

such as freedom of thought and expression and the

enjoyment of property. These are both qualified rights

which may be limited, either by general legislation or in

the particular case, provided that the limitation pursues a

legitimate aim and is proportionate to it. It is for

Parliament in the first instance to strike the balance

between individual rights and the general interest. The

courts may on occasion have to decide whether

Parliament has achieved the right balance. But there can

be little doubt that the balance which Parliament has

struck in the EOA is justifiable and consistent with the

Constitution”.

The rule predated the constitution. In the circumstances I considered it to be irrelevant.

Modification

46. The court having found that the rule which was saved by S. 6 is inconsistent

with S. 1 was obligated to consider the question of modification. The power to modify

saved law is found under S. 5 (1) of the Constitution (1976 Act).

of 24

Subject to the provisions of this section, the operation of the

existing law on and after the appointed day shall not be

affected by the revocation of the Order-in-Council of 1962

but the existing laws shall be construed with such

modifications, adaptations, qualifications and exceptions as

may be necessary to bring them into conformity with this Act.

47. The breadth of the power to modify was defined in the following statement of

De La Bastide CJ, as he then was, in the Court of Appeal in Roodal v The State Crim.

App. No. 64 of 99 @ pg. 16. The Learned Chief Justice affirmed in it that the court is

mandated to carry out the function under the S. 5 (1) above.

“Having made this review of the authorities, we are now in a

position to assess the purport and effect of section 5 (1) of the

1976 Act. The first thing we can say about that section is that

though it speaks of existing laws being ‘construed’ which is

involved is not the examination of the language of existing

laws for the purpose of abstracting from it their true meaning

and intent, nor is it attributing to existing laws a meaning

which, though not their primary or natural meaning, is one

that they are capable of bearing. In fact, the function which

the court is mandated to carry out in relation to existing laws

under this section, goes far beyond what is normally meant

by ‘construing’. It may involve the substantial amendment

of laws, either by deleting parts of them or making additions

to them or substituting new provisions for old. It may extend

even to the repeal of some provision in a statute or a rule of

common law.

48. Rule 296 (4) can very easily be modified by removing the offending words “and

hearing” so as to restore consistency with the Constitution and I shall so remove them.

49. Disposition

(1) The court declares Rule 296 (4) of the Prison Rules to be

inconsistent with S. 1 of the Constitution of Trinidad and

Tobago.

of 24

(2) Pursuant to S. 5 (1) of the Constitution Act, Rule 296 (4) is

modified to delete the words “and hearing” so as to remove

the requirement that visits between death row prisoners and

their lawyers be conducted in the hearing of prison officers.

(3) The defendant will pay the claimant’s costs to be assessed

in default of agreement.

Dated this 22nd day of July 2016

CAROL GOBIN

JUDGE

the republic of trinidad and tobago in the...

Documents