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The Judicial Committee of the Privy Council Decisions
You are here: BAILII >> Databases >> The Judicial Committee of the Privy Council Decisions >> Hinds v. Attorney General & Ors (Barbados)  UKPC 56 (5 December 2001)
Cite as:  UKPC 56,  1 AC 854,  AC 854,  2 WLR 470
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Privy Council Appeal No. 28 of 2000
Richard Hinds Appellant
(1) The Attorney General and
(2) The Superintendent of Glendairy Prison Respondents
THE COURT OF APPEAL OF BARBADOS
JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL,
Delivered the 5th December 2001
Present at the hearing:-
Lord Bingham of Cornhill
Lord Hobhouse of Woodborough
Lord Scott of Foscote
Sir Murray Stuart-Smith
Sir Kenneth Keith
[Delivered by Lord Bingham of Cornhill]
"This request was considered by the said Learned Trial Judge within the provisions of the Community Legal Services Act, Cap 112A, which is an Act to provide for a system of free legal services to persons of insufficient means the Learned Trial Judge refused the request on the ground that the case was not, and was not likely to be of difficulty to require the assistance of an Attorney at-Law on behalf of the person charged therewith for its proper determination."
The appellant's recollection is different:
"I say that the Judge did state the offences for which legal aid was provided and told me that arson was not one of those offences. I don't recall the Judge saying that the case was not likely to be of difficulty to require the assistance of an Attorney-at-Law. I also do not recall that the Judge said anything to alert me to the fact that he had power to grant me legal aid for an offence that was not listed."
The Board cannot now, on the evidence available, be sure what passed between the appellant and the judge. It does not however appear that the judge attempted to investigate the appellant's understanding of the crime charged against him or his capacity to defend himself or the nature of any possible defence he might have wished to advance, and it is common ground that legal aid was not granted. In the course of the trial a voir dire was held to determine the admissibility of incriminating statements made by the appellant and there is evidence that he played some part in the trial by questioning witnesses, making a statement from the dock and addressing the jury. On 3 July 1991 he was convicted by the jury, and on 5 July he was sentenced to eight years' imprisonment.
"1. A Declaration that at all times during the Applicant's trial by jury and sentencing in the Supreme Court of Barbados between the 1st day of July 1991 and the 5th day of July 1991 upon indictment for setting fire to a house contrary to section 4 of the Malicious Injury to Property Act Chapter 140 of the Laws of Barbados (the Applicant's trial) the Applicant was entitled to be legally represented by an Attorney-at-Law funded by the Crown (funded Attorney-at-Law) pursuant to the provisions of the Community Legal Services Act Chapter 112A of the Laws of Barbados and the Constitution of Barbados.
2. A Declaration that the failure of the Learned Trial Judge to provide the Applicant with a Legal Aid Certificate and or to certify that his defence was likely to be of difficulty and to require the assistance of an Attorney-at-Law on his behalf and or the case was likely to involve a point of law of public importance and to require the assistance of an Attorney-at-Law on his behalf so that he could have the services of a funded Attorney-at-Law at his said trial was in contravention of the Applicant's right to and or deprived the Applicant of a fair trial and the protection of the law guaranteed under inter alia Section 11(c) of the Constitution of Barbados and protected by the provisions of Section 18 of the Constitution."
His application was rejected by Blackman J (acting) who held that the Court of Appeal had previously considered the appellant's complaints that his constitutional rights had been breached by the denial of legal aid; that the High Court could not sit in an appellate capacity from the Court of Appeal; and that the appellant was precluded from raising these complaints again by the doctrine of res judicata. His decision was affirmed by the Court of Appeal (Sir Denys Williams CJ, Chase and Williams JJA) which held in its judgment that the avenue of appeal against criminal convictions lay from the trial court to the Court of Appeal and from the Court of Appeal to the Judicial Committee of the Privy Council; that the High Court was precluded from granting constitutional relief in this case by the proviso to section 24(2) of the constitution; that the constitution of Barbados provided that there could be a fair trial without representation of the defendant; and that if the appellant had a remedy in respect of the trial judge's failure to adjudicate adequately on a provision of the Community Legal Services Act, it was not one by way of redress under section 24 of the constitution because the provisions of the Act were not a provision or an off-shoot of the relevant sections of the constitution. The appellant now appeals to this Board by leave of the Court of Appeal.
The constitution of Barbados
"18. (1.) If any person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.
(2). Every person who is charged with a criminal offence
(a) shall be presumed to be innocent until he is proved or has pleaded guilty;
(b) shall be informed as soon as reasonably practicable, in a language that he understands and in detail, of the nature of the offence charged;
(c) shall be given adequate time and facilities for the preparation of his defence;
(d) shall be permitted to defend himself before the court in person or by a legal representative of his own choice;
(e) shall be afforded facilities to examine in person or by his legal representative the witnesses called by the prosecution before the court and to obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court on the same conditions as those applying to witnesses called by the prosecution; and
(f) shall be permitted to have without payment the assistance of an interpreter if he cannot understand the language used at the trial of the charge, and, except with his consent, the trial shall not take place in his absence unless he so conducts himself as to render the proceedings in his presence impracticable and the court has ordered the trial to proceed in his absence.
(12). Nothing contained in subsection (2)(d) shall be construed as entitling a person to legal representation at public expense."
Reference should also be made to section 24, which begins:
"24. (1) Subject to the provisions of subsection (6), if any person alleges that any of the provisions of sections 12 to 23, has been, is being or is likely to be contravened in relation to him (or, in the case of a person who is detained, if any other person alleges such a contravention in relation to the detained person), then, without prejudice to any other action with respect to the same matter which is lawfully available, that person (or that other person) may apply to the High Court for redress.
(2) The High Court shall have original jurisdiction
(a) to hear and determine any application made by any person in pursuance of subsection (1); and
(b) to determine any question arising in the case of any person which is referred to it in pursuance of subsection (3),
and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of any of the provisions of sections 12 to 23:
Provided that the High Court shall not exercise its powers under this subsection if it is satisfied that adequate means of redress are or have been available to the person concerned under any other law."
The Community Legal Services Act 1981 (Chapter 112A)
"17. Notwithstanding anything contained in this Act or the regulations, but subject to section 20, an application for a legal aid certificate may be made by or on behalf of a person charged with a scheduled offence to
(a) a magistrate before whom, and at such time as, he is charged or may appear upon remand;
(b) the examining magistrate by whom the preliminary enquiry in relation to that offence is held,
(i) at the commencement of the preliminary inquiry, or
(ii) where the person charged is committed for trial, at the conclusion of the preliminary inquiry;
(c) a Judge at any time between committal for trial and the appearance of the person charged before the High Court to plead to the indictment;
(d) the trial Judge in relation to a certified offence at any time during the hearing.
18. Notwithstanding anything contained in this Act or the regulations, but subject to section 20, an application for a legal aid certificate may be made by or on behalf of a person convicted for a scheduled offence to
(a) a Judge at any time after conviction and before an appeal by the person convicted is set down for hearing before the Court of Appeal;
(b) a Judge in relation to a certified offence at any time during the hearing;
(c) a Judge at any time after the appeal by the person convicted is determined by the Court of Appeal and before the time for applying for leave to appeal to Her Majesty in Council has expired."
Section 20 provides:
"20. Where it appears to the Magistrate or Judge that
(a) the means of a person charged with, or convicted for, a scheduled offence, or appearing as a party to a scheduled matter, as the case may be, are insufficient to enable that person to obtain legal services; or
(b) the person charged or convicted for a scheduled offence appears to be a person of unsound mind and is unrepresented by an attorney-at-law,
the Magistrate or Judge shall adjourn the proceedings for inquiries to be made by the Director into the financial circumstances of that person."
(a) Any capital offence;
(d) Concealment of birth;
(f) all offences where the person charged is a minor;
(g) any indictable offence the trial of which is certified by the trial Judge to be, or as likely to be, of difficulty and to require the assistance of an attorney- at-law on behalf of the person charged therewith for its proper determination;
(h) any indictable offence the trial of which or an appeal from the conviction of which is certified by the trial Judge or the Court of Appeal, as the case may be, to involve, or as likely to involve, a point of law of public importance and require the assistance of an attorney-at-law on behalf of the person charged or convicted, as the case may be, for its proper determination."
"19. Where any person who has not made an application for the provision of legal services appears before a magistrate charged with a scheduled offence or as a party to a scheduled matter, or where any such person is committed for trial, the magistrate shall inform the person so charged, appearing or committed of his right to make such an application."
Thus in the case of a defendant charged with a certified offence (as opposed to a scheduled offence) the Act does not provide for an application for legal aid to be made to the committing magistrate, and there is no statutory requirement that the defendant should be informed of his right to apply for legal aid. If application is made by a person charged with a certified offence to the trial judge at the outset of the trial, as was done in the present case, there is plainly a risk of delay (if the application is granted) while an attorney is instructed and familiarises himself with the case.
Breach of constitutional right
(1) The appellant was a man obviously ill-equipped to conduct his own defence against a very serious charge carrying, as the event showed, a severe sentence on conviction. After leaving school aged 14 the appellant had worked as a gardener. He was a long-term user of marijuana. He had a history of psychiatric illness and there was evidence (available now but not adduced at the criminal trial) that he may well have been in the grip of a delusional disorder when the house was set on fire. He had at that time been living for more than a year in a cave. He had no knowledge or understanding of court procedures. Such a man could not be fairly tried on the criminal charge against him, with the possibility of advancing a defence of insanity and seeking to exclude evidence of his incriminating admissions, without the benefit of professional assistance.
(2) It has been recognised by courts all over the world that in many cases a hearing may not be fair to the defendant if he does not have the benefit of legal representation. The Board was referred to the famous judgment of Sutherland J in Powell v Alabama 287 US 45 (1932) at 68-69:
"The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect. If in any case, civil or criminal, a state or federal court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and therefore, of due process in the constitutional sense".
(3) Section 18(1) of the constitution guarantees a right to a fair hearing. Section 18(12) was intended to make clear that section 18(2)(d) does not entitle a person who has the benefit of legal representation at the public expense to choose his representative; it was not intended to derogate from the right to a fair hearing guaranteed by section 18.
(4) The Community Legal Services Act provides machinery by which legal aid may be granted to defendants facing serious charges in Barbados where legal representation of the defendant is required for a fair hearing.
(5) The judge at the criminal trial in 1991 erred in denying legal aid to the appellant, because he made (at most) an objective judgment of the difficulty of the case and did not consider the difficulty of the case for this particular appellant. The judge thereby deprived the appellant of his constitutional right to a fair hearing guaranteed by section 18(1) of the constitution.
"Every person who is charged with a criminal offence shall be permitted to defend himself before the court in person or by a legal representative of his own choice."
This is indistinguishable in effect from the opening words of article 6.3(c):
"Everyone charged with a criminal offence has the following minimum rights ... to defend himself in person or through legal assistance of his own choosing".
But article 6.3(c) continues "or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require". These words were omitted, plainly deliberately, from section 18(2)(d), and section 18(12) leaves no room for doubt about the reason for the omission. Barbados has adhered to this position when acceding to international human rights instruments. On its accession to the International Covenant on Civil and Political Rights on 21 December 1972 the government of Barbados expressly reserved
"the right not to apply in full, the guarantee of free legal assistance in accordance with paragraph 3(d) of Article 14 of the Covenant, since, while accepting the principles contained in the same paragraph, the problems of implementation are such that full application cannot be guaranteed at present."
Similarly, when ratifying the American Convention on Human Rights, the government of Barbados with effect from 27 November 1982 made a reservation that
"Barbadian law does not provide, as a minimum guarantee in criminal proceedings, any inalienable right to be assisted by counsel provided by the state. Legal aid is provided for certain scheduled offences such as homicide and rape."
"For the foregoing reasons, it should be accepted that Australian law does not recognise that an indigent accused on trial for a serious criminal offence has a right to the provision of counsel at public expense. Instead, Australian law acknowledges that an accused has the right to a fair trial and that, depending on all the circumstances of the particular case, lack of representation may mean that an accused is unable to receive, or did not receive, a fair trial. Such a finding is, however, inextricably linked to the facts of the case and the background of the accused."
The Court of Appeal of Nova Scotia in 1997 spoke to similar effect in R v Wilson (KD) (1997) 163 NSR (2nd) 206, paragraph 6 (references omitted):
"Although in certain circumstances, the assistance of counsel may be found to be necessary to ensure a fair trial, clearly an accused does not have a constitutional right to a state funded counsel at trial. Before ordering a stay, the trial judge must first determine whether because of the seriousness and complexity of the case, the accused is incapable of representing herself That determination must include at the minimum, an inquiry into: (a) the personal abilities of the accused such as her educational and employment background and whether she is able to read, understand the language, and make herself understood; (b) the complexities of the evidence and the law on which the Crown proposes to rely and; (c) whether there are likely to be any complicated trial procedures such as a voir dire. The assessment should be undertaken in the knowledge that it is the duty of the Crown to disclose its case to the accused and the duty of the trial judge to assist an unrepresented accused "
" breach of a defendant's constitutional right to a fair trial must inevitably result in the conviction being quashed."
The Board and the House of Lords, construing the European Convention, have observed that "the overall fairness of a criminal trial cannot be compromised" and have described the right to a fair trial as "absolute": Brown v Stott  2 WLR 817 at 836; R v Forbes  1 AC, 473 at 487. This does not mean that every legal error, every irregularity, every deviation from good practice, every departure from procedural propriety in the course of a trial must deprive a defendant of a fair hearing. Most of the constituent rights comprised within article 6 of the European Convention have been held not, in themselves, to be absolute: Brown v Stott, above, at page 836. Thus questions of degree are relevant, as are the facts of a particular case and the circumstances of a particular defendant. A case cannot properly be assessed objectively, without taking account of the particular defendant and the difficulties which he or she may face in cross-examining prosecution witnesses, seeking to exclude evidence, giving evidence, obtaining and calling any necessary evidence and advancing any available defence. A defendant in custody is likely to be at a disadvantage when preparing for trial, particularly if his educational attainments are limited. In one case the lack of legal assistance may not deprive a defendant of a fair hearing even if it would have been desirable that he be represented; in another lack of legal representation may properly be held to deprive the hearing of its essential quality of fairness to the defendant. The matters listed by the Court of Appeal of Nova Scotia in R v Wilson (1997) 163 NSR (2nd) 206, quoted above, are very relevant for the trial judge to consider when deciding whether the case is one in which, for its proper determination, legal aid should be granted to an indigent defendant. They are also matters which an appeal court should consider when deciding whether, in a case where legal aid has been denied to an indigent defendant, such denial has deprived the defendant of his constitutional right to a fair hearing.
The appellant's entitlement to relief in these proceedings
"In the first place, no human right or fundamental freedom recognised by Chapter I of the Constitution is contravened by a judgment or order that is wrong and liable to be set aside on appeal for an error of fact or substantive law, even where the error has resulted in a person's serving a sentence of imprisonment. The remedy for errors of these kinds is to appeal to a higher court. Where there is no higher court to appeal to then none can say that there was error. The fundamental human right is not to a legal system that is infallible but to one that is fair. It is only errors in procedure that are capable of constituting infringements of the rights protected by section 1(a); and no mere irregularity in procedure is enough, even though it goes to jurisdiction; the error must amount to a failure to observe one of the fundamental rules of natural justice. Their Lordships do not believe that this can be anything but a very rare event. In the third place, even a failure by a judge to observe one of the fundamental rules of natural justice does not bring the case within section 6 unless it has resulted, is resulting or is likely to result, in a person being deprived of life, liberty, security of the person or enjoyment of property. It is only in the case of imprisonment or corporal punishment already undergone before an appeal can be heard that the consequences of the judgment or order cannot be put right on appeal to an appellate court. It is true that instead of, or even as well as, pursuing the ordinary course of appealing directly to an appellate court, a party to legal proceedings who alleges that a fundamental rule of natural justice has been infringed in the course of the determination of his case, could in theory seek collateral relief in an application to the High Court under section 6(1) with a further right of appeal to the Court of Appeal under section 6(4). The High Court, however, has ample powers, both inherent and under section 6(2), to prevent its process being misused in this way; for example, it could stay proceedings under section 6(1) until an appeal against the judgment or order complained of had been disposed of."
Section 6(1) and (2) of the constitution of Trinidad and Tobago to which Lord Diplock was there referring are in terms similar although not identical to those of section 24(1) and (2) of the constitution of Barbados, the principal difference being that there is in the Trinidad and Tobago section no term equivalent to the proviso to section 24(2). In Chokolingo v Attorney General of Trinidad and Tobago  1 WLR 106 Lord Diplock repeated and amplified his earlier statement in Maharaj at pages 111-112:
"Acceptance of the applicant's argument would have the consequence that in every criminal case, in which a person who had been convicted alleged that the judge had made any error of substantive law as to the necessary characteristics of the offence, there would be parallel remedies available to him: one by appeal to the Court of Appeal, the other by originating application under section 6 (1) of the Constitution to the High Court with further rights of appeal to the Court of Appeal and to the Judicial Committee. These parallel remedies would be also cumulative since the right to apply for redress under section 6(1) is stated to be 'without prejudice to any other action with respect to the same matter which is lawfully available'. The convicted person having exercised unsuccessfully his right of appeal to a higher court, the Court of Appeal, he could nevertheless launch a collateral attack (it may be years later) upon a judgment that the Court of Appeal had upheld, by making an application for redress under section 6(1) to a court of co-ordinate jurisdiction, the High Court. To give to Chapter I of the Constitution an interpretation which would lead to this result would, in their Lordships' view, be quite irrational and subversive of the rule of law which it is a declared purpose of the Constitution to enshrine."
Reliance was also placed on Attorney General of Trinidad and Tobago v McLeod  1 WLR 522 at 530; Boodram v Attorney General of Trinidad and Tobago  AC 842 at 854; and Director of Public Prosecutions v Tokai  AC 856 at 870. In support of his contention that res judicata applies in principle to claims for constitutional relief as to other claims Mr Guthrie cited the decision of the Board in Thomas v Attorney General (No 2) (1988) 39 WIR 372 at 387-388:
"Their Lordships are satisfied that the existence of a constitutional remedy such as that upon which the appellant relies does not affect the application of the principle of res judicata. Although no decision of this Board could be found in which this matter had been considered, the researches of counsel revealed a decision of the Supreme Court of India, Daryao v The State of Uttar Pradesh  1 SCR 574 in which the court rejected a submission that the principle of res judicata could not apply to a petition for redress in respect of an infringement of fundamental rights under the Constitution. Their Lordships therefore have no doubt that no special circumstances exist in this case for not giving effect to the plea of res judicata."