Privy Council Appeal No. 28 of 2000

Richard Hinds	Appellant
	v.
(1) The Attorney General and
(2) The Superintendent of Glendairy Prison	Respondents

	FROM

	THE COURT OF APPEAL OF BARBADOS
	---------------

	JUDGMENT OF THE LORDS OF THE JUDICIAL
	COMMITTEE OF THE PRIVY COUNCIL,
	Delivered the 5th December 2001
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	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]
	------------------

1. 	In this appeal against a decision of the Court of Appeal of Barbados the appellant seeks declaratory relief under section 24 of the constitution of Barbados.  The appeal raises two broad questions.  The first, a question of substance, is whether the denial of free legal representation to the appellant on his criminal trial in 1991 breached a right guaranteed to him under the constitution.  The second is a procedural question: whether, if his constitutional right was breached, the appellant is entitled to declaratory relief under section 24.  

2. 	On the night of 24 December 1988 the house of Viterose Hinds was burned to the ground.  The appellant had had a relationship with the daughter of the owner, Heather Hinds, who was the mother of three of his children.  But there were disputes concerning the two surviving children and the parents lived separately.  After the fire, the appellant was arrested and charged with setting fire to the house contrary to section 4 of the Malicious Injury to Property Act (Cap 140).  The evidence is that before his trial the appellant twice applied to the Community Legal Services Commission, the body responsible for administering the community legal aid scheme in Barbados, for the grant of legal assistance, but he received no answer.  He appeared before Waterman J on 1 July 1991 and applied to the judge for legal aid.  According to him he “was told by that judge that there was no legal aid for arson or words to that effect”. Counsel who prosecuted at the trial gives a somewhat different account.  He deposes:
“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.  

3. 	The appellant appealed to the Court of Appeal against his conviction, and for this hearing he was represented by counsel. One of the points argued was that his constitutional rights had been infringed and that he had been denied legal representation. This argument was rejected by the Court of Appeal which held that the case was not a difficult one nor likely to be difficult, and did not call for legal representation.  The judge had obviously, it was said, addressed his mind to whether the appellant should have legal aid for a simple case, but would have set a very bad precedent had he granted it since “everybody would come in and claim their case falls under (g) of the Schedule”.  

4. 	On 26 July 1993 the appellant issued the notice of motion giving rise to the present proceedings.  He relied on section 24 of the constitution to seek a large number of declarations, of which only two are now sought.  They are:
“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
5. 	The constitution of Barbados, adopted in 1966, is expressed in section 1 to be “the supreme law of Barbados”.  Section 11 declares the entitlement of every person in Barbados to certain rights including rights to life, liberty and security of the person and the protection of the law.  Central to the first and substantial issue in this appeal are the provisions of section 18, which so far as relevant include the following:
“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)
6. 	When the constitution was adopted there was no state-funded legal aid scheme in Barbados.  The Community Legal Services Act 1981 introduced such a scheme.  The purpose of the Act, expressed in section 3(1), was “to provide legal services to persons in respect of civil and criminal matters where those persons are financially unable to secure legal services from their own resources”.  A new body was established, the Community Legal Services Commission, to administer the scheme.  The chief officer of the commission was to be the director, whose responsibility it was under section 21(1) of the Act to issue a legal aid certificate to an applicant or a person referred to under section 20 of the Act when satisfied that such application or person was eligible for legal services.  An “applicant” was defined to mean an applicant for legal services under the Act, a category further described in sections 17 and 18:
“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.”

7. 	“Scheduled offence” is defined to mean an offence specified in Part I of the first schedule to the Act.  “Certified offence” is defined to mean an offence specified in paragraph (g) or paragraph (h) of Part I of the first schedule to the Act.  Part I of the first schedule reads:
“Criminal 
(a)	Any capital offence;
(b)	Manslaughter;
(c)	Infanticide;
(d)	Concealment of birth;
(e)	rape;  
(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.” 

8. 	Part II of the first schedule is concerned with civil matters, which are described as “scheduled matters” and include applications under section 24 of the constitution.  While on a literal interpretation “certified offences” might also be thought to be “scheduled offences”, since they appear in Part I of the first schedule, and the construction of sections 17 and 18 pose some problems, it is plain that scheduled offences, conferring an automatic right to legal aid on those without means, are those in classes (a) to (f) of Part I of the first schedule and “certified offences”, conferring a right to legal aid only where the judge gives the necessary certificate, comprise offences in classes (g) and (h).  

9. 	As section 17 makes plain, the procedure for applying for legal aid is somewhat different, depending on whether the applicant is charged with a scheduled or a certified offence.  It is also provided in section 19 of the Act:
“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.

10. 	The appellant was not charged with a scheduled offence and so had no automatic right, on demonstrating a lack of means, to the grant of legal aid.  When he made application, the trial judge could not have acceded to the application under section 17(c) or section 20(a) but could have done so under section 17(d) had he judged that either paragraph (g) or paragraph (h) was applicable and in either event that the provision of an attorney was required for the proper determination of the case.  

Breach of constitutional right
11. 	Mr Shepherd QC for the appellant based his attractive argument on five main propositions: 

(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.

12. 	Mr Guthrie QC, representing the Attorney General, gave three main answers to this argument.  First, he submitted that the denial of legal representation to a defendant facing a criminal charge does not necessarily amount to a breach of constitutional right or render a hearing necessarily unfair.  He relied on decisions of this Board in Robinson v The Queen [1985] AC 956 at 965-966 and Dunkley v The Queen [1995] 1 AC 419 at 429 and to similar rulings in other jurisdictions: Re Ewing and The Queen (1974)49 DLR (3d) 619;  R v Rowbotham 41 (1988) CCC (3d) 1 (Ontario Court of Appeal);  Dietrich v Queen (1992) 177 CLR 292;  R v Wood (2001) 49 WCB (2d) 160 (Nova Scotia Court of Appeal);  Queen v Magda (2001) 50 WCB (2d) 112 (Ontario Superior Court).

13. 	Mr Guthrie submitted, secondly, that those framing the constitution of Barbados had made plain that it was not intended to confer a right to publicly-funded legal representation on indigent criminal defendants.  No such representation had been available when the constitution was adopted.  Section 18(2)(d) meant what it said, that a criminal defendant was to be permitted to defend himself in person or to defend himself by a legal representative of his choosing. Section 18(12) made plain that this subsection did not confer a right to publicly-funded legal representation.  The guarantee of a fair hearing in section 18(1) was to be read subject to those provisions.  Whatever the position might be in other jurisdictions, the right to a fair hearing under this constitution did not import a right to free legal representation.  
14. 	Thirdly, Mr Guthrie submitted that if, at the criminal trial, the judge misapplied the Community Legal Services Act and wrongly denied legal aid to the appellant, that was a breach of the statute but not a breach of the constitution.  It was a defect in the trial process which could be rectified by the ordinary process of appeal and did not render the trial process, taken as a whole, unfair.  

15. 	In the opinion of the Board, these conflicting submissions raise issues of considerable importance.  The constitution is to be read not as an immutable historical document but as a living instrument, reflecting the values of the people of Barbados as they gradually change over time.  But the courts, including this Board as the final court of appeal of Barbados, must give effect to its terms.  Section 18(2)(d) protects the rights of a criminal defendant to defend himself before the court either in person or by a legal representative whom he has chosen.  But this right is to be interpreted in the light of section 18(12): such a defendant has no entitlement to be professionally represented at the expense of the public.  This subsection is not directed to the choice of representative but to the responsibility for paying for the representative chosen under section 18(2)(d).  It is a provision included to avoid doubt.  If sections 18(1), 18(2)(a), 18(2)(b), 18(2)(c), 18(2)(e) and 18(2)(f) are compared with articles 6.1, 6.2, 6.3(a), 6.3(b), 6.3(d) and 6.3(e) respectively of the European Convention on Human Rights, a close correspondence will be found, often extending to the use of identical language.  But there is a striking contrast between section 18(2)(d) and article 6.3(c).  Section 18(2)(d), already quoted, provides:
“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.”

16. 	This is a democratic choice which it was open to the people of Barbados to make, and it is a choice made by many other countries.  In Dietrich v Queen (1992) 177 CLR 292 Mason CJ and McHugh J, giving judgment in the High Court of Australia, said at page 311:
“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 …”

17. 	These citations highlight two important points directly applicable in Barbados.  First, and most importantly, while the constitution does not entitle every indigent criminal defendant to free legal aid in every case, it does guarantee a fair hearing to every such defendant and there is nothing in section 18(2)(d) or section 18(12) which qualifies or undermines that right.  It is indeed one of the fundamental human rights and freedoms to which the people of Barbados have pledged allegiance in the preamble to the constitution.  There will be very many cases, in Barbados as elsewhere, which may be fairly heard without representation of the defendant.  The less serious the charge, the more straightforward the facts and the more modest the potential penalty, the likelier this is to be true.  But the contrary is true also: the more serious the charge, the more complex the case and the greater the potential penalty the more likely it is that legal representation of the defendant (if he wishes it) will be needed if the hearing is to be fair to him.  This reality is recognised by the Community Legal Services Act.  It automatically provides free legal aid for indigent defendants accused of the most serious offences.  The provision of automatic legal aid to indigent minors, whatever the offence charged against them, recognises that minors are likely, because of their immaturity, to be at a greater disadvantage in defending themselves than an adult would ordinarily be expected to be.  Thus, in the case of minors the risk that a hearing may not be fair is greater, and the statute guards against that risk.  In cases which are for any reason difficult, or which raise important points of law, the trial judge may (subject to the defendant’s means) procure the grant of legal aid where this is judged to be necessary for the proper determination of the case, and where these conditions are met he should.  The Board is of opinion that the Act, interpreted and applied in the light of section 18(1) of the constitution, enables effect to be given to the guarantee of a fair hearing. 

18. 	Secondly, the Board would reiterate what it said in Mohammed v The State [1999] 2 AC 111 at 124, that
“… 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 [2001] 2 WLR 817 at 836; R v Forbes [2001] 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.  

19. 	In the absence of any material relating to the appellant’s criminal trial other than the judgment of the Court of Appeal and the conflicting affidavits of the appellant and counsel who prosecuted at the trial, the Board cannot now make a reliable judgment whether the trial judge erred in denying legal aid to the appellant or whether such denial, if erroneous, deprived the appellant of his right to a fair hearing.  The case against the appellant was clearly a strong one if the evidence of eye witnesses was reliable and his incriminating admissions were accepted as true.  On the other hand, he contended that his admissions were made as a result of police pressure, and the possibility has been raised that he was not fully responsible at the time of the fire.  He had been in prison since his arrest and was not well placed, on his own, to mount a substantial defence;  he appears to have been a man of limited educational attainments.  The lack of enquiry by the trial judge when refusing legal aid would suggest that he failed to take account of the appellant’s personal circumstances and any difficulties he might face, and this impression is reinforced by the Court of Appeal’s treatment of the case as simple and devoid of difficulty.  The prosecution case may well have been simple and devoid of difficulty;  the same is not necessarily true of the appellant’s task in resisting it, and even if there was no real answer to the charge itself there may well have been points to be made in mitigation of sentence.  But the Board is not hearing an appeal against the Court of Appeal’s dismissal on 14 October 1992 of the appellant’s appeal against conviction. It is concerned only with his claim that his constitutional right to a fair hearing was infringed by the denial of legal aid at trial.  For purposes of that determination, account must be taken not only of the trial but of the appeal.  At the hearing of his appeal the appellant was represented by counsel, through whom he had the opportunity to argue any points reasonably open to him.  The Court of Appeal had power under section 4 of the Criminal Appeal Act (Cap 113A) to allow an appeal, and under section 15 to order a retrial if it appeared to the court that the interests of justice so required.  If dissatisfied with the Court of Appeal, the appellant’s right to appeal to Her Majesty in Council was preserved by section 37 of the Act, however great in practice the difficulty of exercising that right. The ordinary processes of appeal offered the appellant an adequate opportunity to vindicate his constitutional right. 

The appellant’s entitlement to relief in these proceedings
20. 	The conclusion already expressed relieves the Board of the need to consider at length the objection raised by the Attorney General to the form of these proceedings.  But since detailed argument was addressed to this issue it should briefly express its conclusions.

21. 	In seeking declaratory relief under section 24 of the constitution, Mr Shepherd relied in particular on subsections (1) and (2) of that section, conferring as they do a wide-ranging power to grant constitutional relief where the need for it is shown.  He further relied on cases such as Maharaj v Attorney General of Trinidad and Tobago (No 2) [1979] AC 385 and Observer Publications Ltd v Matthew [2001] UKPC 11, in which this Board had exercised its powers to grant constitutional relief. In Gairy v Attorney General of Grenada [2001] 3 WLR 779 the Board sought to ensure that a party who had established a claim to constitutional relief obtained substantial legal redress. 

22. 	Mr Guthrie took strong issue with this approach.  He submitted that the appellant was making what amounted to a collateral attack on his criminal conviction on constitutional grounds.  If he had wanted to attack his conviction on constitutional grounds the proper route was by appeal against his conviction when all such grounds were open to him.  In fact, he had exercised his right of appeal and had relied on constitutional grounds, but had done so unsuccessfully.  If he wanted to pursue that appeal the only proper route was by further appeal to this Board.  If, for whatever reason, he did not or could not pursue that further appeal, it was not open to him to return to the High Court of Barbados and advance arguments which had been advanced (as the appellant’s complaint of denial of legal aid had been) or could and should properly have been advanced at an earlier stage.  The proviso to section 24(2) of the constitution applied to just such a case.  

23. 	In support of his contention Mr Guthrie relied on an impressive line of authority.  In Maharaj, above, Lord Diplock, giving the judgment of the majority of the Board, had expounded the governing principle at pages 399-400:
“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 [1981] 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 [1984] 1 WLR 522 at 530;  Boodram v Attorney General of Trinidad and Tobago [1996] AC 842 at 854; and Director of Public Prosecutions v Tokai [1996] 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 [1961] 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.”

24. 	On the facts of this case there is, in the opinion of the Board, no answer to Mr Guthrie’s submissions.  It would be undesirable to stifle or inhibit the grant of constitutional relief in cases where a claim to such relief is established and such relief is unavailable or not readily available through the ordinary avenue of appeal. As it is a living, so must the constitution be an effective, instrument. But Lord Diplock’s salutary warning remains pertinent: a claim for constitutional relief does not ordinarily offer an alternative means of challenging a conviction or a judicial decision, nor an additional means where such a challenge, based on constitutional grounds, has been made and rejected.  The appellant’s complaint was one to be pursued by way of appeal against conviction, as it was;  his appeal having failed, the Barbadian courts were right to hold that he could not try again in fresh proceedings based on section 24. 

25. 	For all these reasons the Board will humbly advise Her Majesty that this appeal should be dismissed.

1.