The State has been ordered to pay compensation to two men, who spent 29 more months in prison than they should have due to an error by the Court of Appeal.
The United Kingdom-based Privy Council made the ruling as they partially upheld a constitutional lawsuit brought by Kelvin Duncan and Ramdath Jokhan yesterday.
In June 1999, Duncan and Jokhan were convicted of housebreaking, larceny and misbehaviour in public office and were sentenced to 15 years in prison. The Court of Appeal partially allowed an appeal from them and agreed to quash their convictions for housebreaking and larceny.
It affirmed their conviction for misbehaviour in public office and maintained the overall sentence. However, in its decision, the Appeal Court failed to consider its discretion under Section 49(1) of the Supreme Court of Judicature Act to rule that the 29 months that they spent on remand before their appeal was determined should go towards their sentence.
The duo eventually brought constitutional lawsuits in 2010, months after their prison terms were expected to end based on remissions for their good behaviour. They were eventually released in 2011, exactly 29 months after they were expected to.
The constitutional claim inclusive of financial compensation was continued but was dismissed by both the High Court and Court of Appeal.
In the judgement, Lord Phillip Sales said that it was clear that the Court of Appeal did not do what it should have when it considered the duo’s appeal against their convictions.
“The appellants’ appeals were not frivolous or vexatious and there was no proper ground on which they should have been penalised for bringing them by a loss of time direction given by the Court of Appeal,” Lord Sales said.
Lord Sales ruled that the duo’s due process constitutional right was not infringed by the Appeal Court’s error.
“As it is, it is true that, as the Attorney General accepts, the Court of Appeal failed to apply the law correctly, but that is simply an example of an error in a particular case rather than an illustration of unfairness in the system as a whole,” Lord Sales said.
Lord Sales still disagreed that the constitutional lawsuit was an inappropriate legal method of challenging their extended sentence.
“To the extent that they could have applied for immediate release at an earlier stage but failed to do so, that is a consequence of them failing to enforce their rights rather than being denied relevant rights under the law or the legal system being unfair,” Lord Sales said.
Lord Sales ruled that they should be entitled to compensation as they had no general right to be granted bail while they were legitimately challenging their extended sentence.
However, he said that the compensation should be calculated from the time they threatened the constitutional motion to when they were eventually freed as opposed to the entire extended period.
“In the Board’s view, therefore, the appellants have established that they have suffered material harm by reason of the absence of the right to apply locally for immediate release (bail) in respect to their continuing detention, in breach of their rights under Section 4(a), and that they be entitled to monetary compensation in respect to that harm,” Lord Sales said, as he remitted the assessment of the compensation for a High Court Judge to do on a later date.
Lord Sales also criticised the Office of the Attorney General for challenging the duo’s constitutional lawsuit instead of assisting them in securing their immediate release.
“The Board wishes to emphasise that the Attorney General was not obliged to accept that appellants were entitled to all parts of the relief sought by them in their letters…However they also clearly asked the Attorney General to agree to their immediate release, and this should have been done,” Lord Sales said.
The duo was represented by Anand Beharrylal, QC, Sian McGibbon, Joshua Hitchins, Kenneth Thompson and Alvin Pariagsingh.
Tom Poole represented the State.
