BS v Ayers-Caesar and Attorney General; SS v Ayers-caesar et Al

• Jurisdiction: Trinidad & Tobago
• Judge: Kokaram, J.
• Judgment Date: 24 May 2016
• Neutral Citation: TT 2016 HC 173
• Docket Number: CV 2015-02799; CV 2015-03725; CV 2015-02944
• Court: High Court (Trinidad and Tobago)
• Date: 24 May 2016

High Court

Kokaram, J.

CV 2015-02799; CV 2015-03725; CV 2015-02944

BS

and

Ayers-Caesar and Attorney General

SS

Ayers-caesar et al

Appearances:

Mr. Anand Ramlogan SC leads Mr. Gerald Ramdeen instructed by Mr. Darryl Heeralal and Ms. Jayanti Lutchmedial Junior Counsel for the claimant

Mr. Douglas Mendes SC leads Mr. Karel Douglas instructed by Ms. Kendra Mark for the first defendant in CV 2015-02799 and CV 2015-02944

Ms. Deborah Peake SC leads Ms. Tamara Maharajh and Mrs. Maria Belmar instructed by Ms. Amrita Ramsook for the second defendant in CV 2015-02799 and CV 2015-03725

Mrs. Deborah Peake SC leads Ms. Josefina Baptiste, Ms. Cherise Nixon and Ms. Elena Da Silva instructed by Ms. Jenna Gajdhar for the second and third defendants in CV 2015-02944

Constitutional Law - Whether the YTC or the Women's Prison fell within the definition of a Community Residence or specifically a rehabilitation centre within the meaning of the Children's Legislation — Whether a Magistrate in exercising the power under section 54(1) of the Children's Act and section 5 of the Bail Act had the jurisdiction, power or authority in law to order that a juvenile who is not released on bail be remanded to the YTC or in the case of a girl at the Women's Prison — Whether such decisions of the Chief Magistrate ordering the claimants to the YTC and Women's Prison were unlawful and illegal — Whether such decision of the Commissioner of Prisons to keep the children at these places of detention was unlawful and illegal — Whether the detention of the claimants amounted to a breach of their constitutional rights and freedoms guaranteed under section 4(a) 4 (b) and 5(2)(f)(i) of the Constitution — Whether the failure of the State to provide a licenced Community Residence upon the coming into force of the Children's Act and the Community Residences Act to which the claimants could be detained pending the hearing and determination of the Preliminary Inquiry into a criminal offence of which they were accused was in breach of the claimants' rights guaranteed under section 4(a) 4(b) and 5(2)(b) of the Constitution — Whether and in what way are these provisions of the constitution were to be interpreted to give life to and recognize the rights of the right of the child in the criminal justice system.

Damages - Constitutional relief — Quantum.

Kokaram, J.

INTRODUCTION

My heart leaps up when I behold / A rainbow in the sky: / So was it when my life began; / So is it now I am a man; / So be it when I shall grow old, /Or let me die! / The Child is the father of the Man / And I could wish my days to be/Bound each to each by natural piety; [“My Heart Leaps Up” William Wordsworth March 26 1802.]

1 There are many themes in Wordsworth's famous poem “My Heart Leaps Up” but one of them resonates with the claims for administrative orders before this Court brought on behalf of children in the prison system. It is Wordsworth's portrayal of the innocence of childhood looking at the world through the eyes of the child. It was a celebration of the child's own sense of wisdom, acknowledging the child's emerging development into adulthood and the importance of the child's nurturing long before the proclamation of the Universal Declaration of Human Rights and the United Nations Convention on the Rights of the Child which recognized the importance of protecting and caring for the child.

2 The claims for administrative orders involve two teenage children, BB and his sister SS, seeking to assert their rights to be treated with humanity and respect for their inherent dignity in the adult world. Their claims challenge our view of emerging human rights as it does of the meaning of “first generation” rights. It refocuses our perception of the child in our society. The care that should be provided for them in the criminal justice system. Their human rights as children, their view of the adult world and giving effect to their voice, recognizing their future as men and women in our society.

3 BS and SS are in trouble with the law. They have been accused of committing murder and are jointly charged with two other adults. At this stage they are presumed innocent. Their charges were laid on 18th January 2014. BS, then aged 12, was remanded at the Youth Training Centre (“YTC”), an Industrial School for young boys within the prison system. SS, then aged 15, was remanded to a woman's prison, an institution outfitted to imprison female adults. They have been denied bail pursuant to the Bail Act Chap 4:60 and remanded pending the hearing of their preliminary enquiry.

4 In May 2015 a suite of Children's legislation was proclaimed; (i) the Children's Act 2012, (ii) the Children's Community Residences Foster Care and Nurseries Act 2000 (“The Community Residences Act”), and (iii) The Children's Authority Act Chap 46:01 (collectively referred to as the “Children's legislation”) [On 23rd October 2000 the Community Residences Act was assented to and by proclamation dated 15th May 2015 specified sections of the Act came into effect. See LN 74 of 2015. On 6th August 2012 the Children's Act 12 of 2012 was assented to by His Excellency and by proclamation dated 15th May 2015 specified sections of this Act were brought into effect. See LN 73 of 2015]. The children both sought the protection of the Court by filing their separate administrative claims: BS on September 1st 2015 and 6th November 2015 and SS on 16th September 2015. They complained firstly that the orders made by the Chief Magistrate remanding them to the YTC and the Women's Prison were unlawful and in the second instance that the failure of the State to provide for Community Residences under the Children's legislation amounted to a breach of their rights to “due process”, protection of the law and not to be exposed to cruel and unusual treatment. They seek declaratory reliefs declaring their detention null and void, orders of certiorari quashing the remand warrants of the Chief Magistrate and declarations of constitutional breaches together with damages for breach of their constitutional rights.

5 In essence, their argument is that the suite of Children's legislation which came into effect in May 2015 ushered in reforms in the juvenile justice system to protect the rights of children. One of those reforms is provided for in section 54 of the Children's Act which expressly provides for children to be remanded at Community Residences if they were denied bail. Accordingly, as the YTC and the Women's Prison are not Community Residences their detention is against the law. It is accepted that at the time of their remand, there were no licensed Community Residences under the Children's Act. The evidence suggests that in remanding the children the best was made of a bad situation: to remand a girl to an adult female prison and a boy to an Industrial Institution which provides for the detention of young offenders aged 16 to 18 sentenced to a period of detention under penal discipline. At the time of his remand, BS was neither convicted of a crime nor at that time between 16 to 18 years of age.

6 At the interlocutory stage interim relief was granted by the Court of Appeal, in the first instance for SS to be removed from the Women's Prison and placed in a suitable Community Residence, and in the case of BS for the Children's Authority to have access to him at the YTC. SS, upon attaining the age of 18, is no longer considered a child under the Children's legislation. She was transferred to the adult prison [However the circumstances of that transfer was not made known to this Court and Community Residences do have a discretion to keep persons above the age of 18 in certain circumstances]. BS as at 14th April 2016, was remanded to the St. Michael's Home for Boys and is no longer at the YTC [The circumstances in which this decision was made was also not disclosed to the Court and was made after the Court reserved judgment in this matter.].

7 At no stage in the criminal proceedings since the passage of the Children's legislation were the Children's Authority notified of the detention of these children. The Children's Authority is charged under the Children's Authority Act to secure the welfare of children. They are the advocate for children's rights. They are the experts in the area of the protection of the welfare and rights of children. [See sections 5, 6, 7 and Part 3, of the Children's Authority Act]

8 However, the detention of these children in an adult prison under the Prison Service Act Chapter 13:02 and at an Industrial Institution under the Youth Offenders Detention Act Chap 13:05 raises fundamental issues of children's rights in the juvenile justice system. Such issues include the following: Parliamentary intent in the treatment of criminal behavior in juveniles which sought to devise ways to end recidivism in our troubled youth. The recognition of the rights of the child universally acknowledged in the United Nations Convention on the Rights of the Child (UNCRC) and the intersection of that corpus of international human rights law, which promoted a grundnorm of “the best interest of the child” with domestic legislative intent. The bundle of rights of the child in our juvenile system of justice and the responsiveness of the Constitution to emerging human rights that postdate it in the context of a living instrument that preserves and protects the needs, security and rights of its otherwise previously forgotten constituent: the Child. The vision of a society which was declared by the framers of our Constitution to be essential to our nationhood recognizing the dignity of man and affirming that the Nation of Trinidad and Tobago is founded upon principles that acknowledge the supremacy of God, faith in fundamental human rights and freedoms, the position of the family in a society of free men and free institutions, the dignity of the human person and the equal and...