REPUBLIC OF TRINIDAD AND TOBAGO:

IN THE COURT OF APPEAL

Cv.A. No. 6 of 2004

BETWEEN

THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO
Appellant

AND

ANGELA RAMDEEN
Respondent

PANEL:
	Sharma C.J.
	Warner J.A.
	Mendonca J.A.

APPEARANCES:

Mr. R. Harnanan, Ms. G. Potts and Ms. K. Fournillier for the Appellant
Dr. F. Ramsahoye, S.C., Mr. P. Carter, Q.C. and Mr. A. Ramlogan for the Respondent

DATE DELIVERED

	Tuesday 7th June 2005
JUDGMENT

Judgment of the Court delivered by Sharma, C.J.

1.	This is an appeal from that part of the Judgment of Jamadar J. dated December 31, 2003 whereby he granted on the hearing of the Respondent’s constitutional motion a declaration in favour of the Respondent that her continued detention on death row awaiting execution under sentence of death subsequent to January 14, 2002 (being the date the sentence ought to have been commuted under the principles in Pratt –v- The Attorney General of Jamaica (1993) 3 W.L.R. 995) constituted cruel and unusual punishment contrary to Section 5 (2) (b) of the Constitution and ordered that she be paid compensation to be assessed by a Master in Chambers.

2.	The main issue arising for determination on this Appeal is whether positive evidence of cruel and unusual punishment should be adduced or whether that was to be inferred from the fact of the Respondent’s detention beyond January 14, 2002.

BACKGROUND
3.	On October 26th, 1993 the Respondent was charged with the murder of 2 children in her care namely Toolsie Dass and Sabrina Dass aged 8 and 7 years respectively.  They were the children of the Respondent’s then common law husband.  The Respondent was tried and on January 14th, 1997 was convicted of murder and the mandatory death sentence was imposed on her by the trial judge.

4.	The Respondent appealed to the Court of Appeal but her appeal was dismissed on October 17th, 1997.  Her subsequent appeal to the Judicial Committee of the Privy Council was dismissed on December 1, 1999.  

5.	At the trial the Respondent did not dispute that she killed the children but she relied on the defence of diminished responsibility based primarily upon an abnormality of mind.  The defence however omitted to call medical evidence on behalf of the Respondent.  However Dr. Hutchinson, a psychiatrist, gave evidence on behalf of the prosecution.  He was of the opinion that the Respondent was not acting under any significant mental disorder at the time of the killings.

6.	On the Respondent’s appeal before the Privy Council, medical evidence was adduced on her behalf.  Their Lordships were however of the opinion that the medical evidence presented did not have that degree of cogency which gave rise to any concern as to the safety of the verdict.  Their Lordships stated:

“Put shortly, the evidence as it now stands is not of such cogency that if put before the jury, it may have yielded a different result.  It does not aver that the appellant was suffering from such abnormality of mind as substantially impaired her mental responsibility for her acts in killing the two children, within the meaning of Section 4A of the Offences against the Person (Amendment) Act 1985.  At best it establishes that further investigations and examinations may (or may not) lend weight to or provide a foundation for that defence.”  (See Privy Council Appeal No. 75 of 1998 Angela Ramdeen –v- The State at page 4).

7.	Shortly after the dismissal of the Respondent’s appeal by the Privy Council, Dr. Bullard, a consultant forensic psychiatrist, on December 3, 1999, visited the Respondent in prison and subsequently prepared a detailed report in which she concluded that at the time of the killings the Respondent was suffering from an abnormality of mind.  Dr. Bullard in her report stated, “it is my opinion that at the time of the killings Ms. Ramdeen was suffering from an abnormality of mind arising from inherent cause (Emotionally Unstable Personality Disorder) that substantially impaired her responsibility for her acts .…the children were “proxy victims” and were used by Ms. Ramdeen to resolve emotional conflicts arising from her position as a “battered women” and a victim of abuse.”

8.	On the basis of this fresh evidence, the Appellant petitioned the Privy Council to set aside their Judgment delivered on December 1, 1999.  

9.	The Petition came before three members of the Board on February 17 2000 and in their judgment delivered on March 23, 2000 they adjourned the petition before a full Board of five members of the Judicial Committee.  Their Lordships however stated thus:

“consider that it would be of considerable benefit if before the matter comes again for hearing before the Board, a decision has been taken by the President whether or not to refer the whole case to the Court of Appeal under Section 64(2)(a) [of the Supreme Court of Judicature Act Chap. 4:01] and they venture to express the hope that such a decision may be taken before the further hearing.”  

10.	On or about April 10, 2000 a firm of solicitors based in England, acting on behalf of the Respondent, made a formal application to the President under Section 64(2)(a) requesting the referral of her case to the Court of Appeal.  

11.	It was not until the following year on October 15, 2001 that the Minister of National Security in response to the Respondent’s application under Section 64 (2) (a) sent to the Respondent’s solicitors his provisional advice.  In his provisional advice the Minister indicated that in his opinion there was nothing new, which could reasonably cause the Court of Appeal to regard the verdict as unsafe. In outlining the reasons for this opinion the Minister placed reliance on a report of Dr. Hutchinson dated March 27, 2000.  

12.	On November 5, 2001 the Respondent’s solicitors requested a copy of the report of Dr. Hutchinson.  This request was followed up on November 8, 16th, 19th and 22nd 2001 and March 26th, 2002.  The report however, was not provided until September 03rd, 2003, after the commencement of these proceedings.

13.	By January 14, 2002 the Respondent had already spent 5 years on death row under sentence of death.  In those circumstances the Respondent’s solicitors wrote to the President on January 24, 2002 requesting that the sentence of death be commuted in accordance with the principles in Pratt.  This request was repeated in March, June, July, August and December 2002 and January and April 2003 but without success.

14.	The constitutional motion in these proceedings was filed on June 17th, 2003 after the Applicant had been on death row for some 6 years and 5 months.  The Judgment on the motion was given in December 2003 in the Respondent’s favour and she was subsequently removed from death row on January 19th, 2004.

15.	A chronology of the events is set out in tabular form at the end of this judgment. 

JUDGMENT OF JAMADAR J
16.	Subsequent to the filing of the constitutional motion and before the judge delivered his judgment, the Privy Council handed down its decision in Roodal –v- The State (2003) UKHL 78 declaring the mandatory death penalty to be unconstitutional. The motion therefore was considered before the Judge under both principles in Pratt and in Roodal.  Under Pratt the Judge made the following declarations and orders:-

1.	a declaration that the execution of the sentence of death imposed on the Respondent on January 14, 1997 for murder may be no longer lawfully carried out as to do so would constitute a breach of the Applicant’s fundamental human rights protected by Sections 4(a) and 5(2)(b) of the Constitution.  

2.	An order that the sentence of death imposed on the Respondent be commuted to life imprisonment.

3.	a declaration that the continued detention of the Respondent on death row awaiting execution under sentence of death subsequent to January 14, 2002 constituted a breach of the fundamental rights protected by Sections 4(a) and 5(2)(b) of the Constitution such as may be compensated in damages.

4.	an order that the assessment of monetary compensation such as may be found to be payable to the Respondent under paragraph 3 be referred to a Master sitting in chambers on a date to be fixed by the Registrar.  

17.	Applying Roodal, the Judge granted a declaration that the mandatory sentence of death imposed on the Respondent on January 14, 1997 was unconstitutional. The Judge further ordered that the Applicant be taken before a judge for re-sentencing on a date to be fixed by the Registrar, on which hearing, the maximum penalty to be considered shall be life imprisonment and that the Respondent be forthwith removed from death row and kept in an appropriate place for convicted murderers awaiting sentence. The Privy Council has since the Judgment of Jamadar J, in Charles Matthew-v- The State Privy Council No. 12 of 2004, reversed Roodal and has upheld the constitutionality of the mandatory death penalty. No discretion as to sentence resides in the sentencing judge following a conviction of murder.  However in Matthews, the Privy Council did not think it fair to deprive anyone under sentence of death of the benefit of the decision in Roodal.  The Privy Council in Matthews, therefore, substituted a sentence of life imprisonment for the death penalty.  It is accepted by the parties that the Respondent is entitled to the benefit of the ruling in Matthews.

18.	In granting relief under Pratt, the Judge referred to the target period of 5 years after which, absent delay due to the fault of the accused, there will be strong grounds for believing that the delay is such as to constitute cruel and unusual punishment. He found that there had been unjustifiable delay by the State in moving to execute the Respondent.  

19.	The Judge found on the evidence that the presumptive target period of two years for the completion of domestic appeals had been exceeded and that factor could not be entirely or substantially attributed to the Respondent.  With respect to the period up to and including the first appeal before the Privy Council, which was concluded on December 1, 1999, there was a lapse of close to two years simply between the judgment of the Court of Appeal and that of the Privy Council. The Judge identified the substantial reasons for that delay as follows:

a.	the Respondent had up until February 26th 1998, not received the report of Dr. Hutchinson used at the trial;
b.	it took about 6 months for the record of appeal to be delivered to the Privy Council by the State;
c.	it took a further three months to obtain an appointment to read the record; and
d.	the initial hearing before the Privy Council was adjourned at the request of the Sate and consequentially not listed until about four months later.  

20.	The Judge was also of the view that the Respondent’s petition before the Privy Council was not an abuse of process and so the time taken up with that procedure ought not to affect the Respondent adversely.  He further opined that a reasonable period for completion of a Section 64 application was 18 months, but in this case the application was delayed due to the failure of the State (for over 22 months) to forward a copy of the medical report of Dr. Hutchinson.

21.	On the basis that the delay in the processing of the Section 64 application was the fault of the State, and the 18 month period, which the Judge found to be a reasonable period for completion of the application, expired within the five year period he did not see the need to extend the target periods in Pratt. The Judge therefore concluded that to move now to execute the Respondent would constitute cruel and unusual punishment and an abuse of process.  He consequently commuted the sentence to life imprisonment. In granting the declaration and making the order complained of in this Appeal the Judge stated:

“Clearly, after the five year threshold had elapsed the Applicant was presumed to have been thereafter subjected to cruel and unusual punishment if she remained under sentence of death.  But for this action, indications are that the State did not intend to act in keeping with the Pratt principles.  Yet, from the 14th January, 2002 by reason of the unjustifiable and inordinate delay in executing the Applicant, she has in law been presumed to be undergoing cruel and unusual punishment, a condition under which she has continued to be subjected by the State for over one year and five months at the time of the filing of this action.”  

THE APPEAL
22.	By Notice of Appeal dated January 23, 2004 the Appellant appealed to this Court.  The Notice of Appeal complained about several parts of the judgment, including the order made by the judge setting aside the mandatory death sentence and directing that the Respondent be re-sentenced subject to a maximum of life imprisonment.  However, the Appellant at the hearing of this appeal challenged only one aspect of the judgment and that is, as I have already stated, the decision of the Judge that after January 14, 2002 when the 5 year period since conviction had elapsed and the Respondent was entitled to have the sentence of death imposed upon her commuted that she is presumed since then to be subject to and undergoing cruel and unusual punishment by virtue of her continued detention on death row and is entitled to monetary compensation. 

23.	Mr. Harnanan, Counsel for the Appellant, submitted, that the Judge in coming to his decision relied on Pratt and the cases which followed it, but they did not establish that prolonged detention prior to execution constituted cruel and unusual punishment.  What Pratt and the cases, which followed in its wake, established was that the carrying out of the death penalty after such prolonged detention under the shadow of the death penalty constituted cruel and unusual punishment.  He referred to a number of cases in which passages to support that proposition could be found.  For example Counsel referred to Guerra –v- Baptiste (1999) 3 WLR 891 where Lord Goff stated:

(p 97) “Before the coming into force of the Constitution of Trinidad and Tobago of 1976 (and indeed the Constitution of 1962) capital punishment was accepted as a punishment which could lawfully be imposed, so that execution pursuant to a lawful sentence of death could amount to depriving of a person of his life by due process of law, and could not of itself amount to cruel and unusual punishment contrary to section 5(2)(b).  However as was recognized by the Privy Council in Pratt –v- The Attorney General for Jamaica … , applying the common law the judges of Jamaica would have had power to stay a long delayed execution as not being in accordance with the due process of law.  Their Lordships have no doubt that the same is true of the judges of Trinidad and Tobago, and that such execution, if not stayed, would constitute cruel and unusual punishment … such execution would not be in accordance with the due process of law under section 4(a) of the Constitution which recognizes the right of the individual to life and the right not to be deprived thereof except by the due process of law.  For these reasons, their Lordships conclude that the principles stated in Pratt –v- the Attorney General for Jamaica … are applicable in Trinidad and Tobago as they are in Jamaica, the only difference (which is of no importance) being that in Jamaica such execution would constitute inhuman punishment whereas in Trinidad and Tobago it would constitute cruel and unusual punishment … (and at page 903) Bearing in mind that the unjustified period of delay runs into period of years, and has led to a lapse of time since sentence of death was imposed far in excess of the target period of 12 months and 2 years and indeed close to the period (5 years) from which it may be inferred, without detailed examination of the particular case, that there has been such delay as will render the condemned man’s execution thereafter unlawful, their Lordships have no doubt that to execute the applicant after such a lapse of time would constitute cruel and unusual punishment contrary to his rights under sections 4(a) and 5(2)(b) of the Constitution.”

24.	Another example may be found in Thomas –v- Baptiste (1998) 54 WIR 387, where Lord Millett stated (at p. 427):-

“Pratt did not establish the principle that prolonged detention prior to execution constitutes cruel and unusual treatment.  It is the carrying out of the death sentence after such detention, which constitutes cruel and unusual punishment. This is because of the additional cruelty, over and above that inherent in the death penalty itself, involved in carrying it out after having exposed the condemned to a long alternating period of hope and despair. It is the circumstances in which it is proposed to carry out the sentence, not the fact that it has been preceded by a long period of imprisonment, which renders it cruel and unusual.”  

25.	Counsel therefore contended that the Judge misunderstood the principles in Pratt when he granted the declaration and made the order complained of.  Counsel however conceded that although in his submission the Pratt line of cases did not establish that prolonged detention prior to execution constituted cruel and unusual punishment, such detention could amount to cruel and unusual punishment.  But he argued there had to be proper evidence on the point.  He did not dispute that someone under sentence of death is likely to suffer some agony from the threat of execution itself.  But before a Court could conclude that detention under sentence of death constituted cruel and unusual punishment the applicant had to go beyond this and there had to be evidence of the actual effect of the death penalty on the applicant or of prison conditions as was the approach in Thomas –v- Baptiste supra.  There is however no such evidence here.  There is also no room for any inference in this case.  This is because when the period elapsed, the Respondent’s Section 64 application was still pending and under consideration.  Under that application the whole case might be referred to the Court of Appeal.  The Court cannot therefore in those circumstances, when the conviction itself may be reconsidered, presume that the Respondent considered herself under threat of execution.

26.	Mr. Carter Q.C., Counsel for the Respondent, submitted that the mandatory death penalty as was imposed on the Respondent in this case is itself a cruel and unusual punishment from the moment it is imposed.  It is however protected from constitutional redress by the savings clause in Section 6 of the Constitution.  The savings clause however ceases to have effect at the time when it becomes independently cruel and unusual or contrary to due process to carry out the execution as in Pratt.  So that, he submitted, at the time when Pratt bites and as a matter of law commutation becomes appropriate then the savings clause ceases to have effect with the result that the death penalty is no longer lawful.  From that moment the sentence of death is simply a cruel and unusual penalty inflicted upon the person subjected to it for which constitutional redress in the form of compensation as ordered by the Judge must be available.

27.	Counsel for the Respondent further submitted that in any event in this case there was evidence from which the Judge could have come to the conclusion, which he did.

28.	With respect to Mr. Carter’s first submission I do not think that it is tenable.  It proceeds on the basis that the sentence of death itself becomes unlawful when Pratt, takes effect.   When commutation under Pratt becomes appropriate it is not the death penalty itself, which has become unlawful.  The death sentence remains a lawful judicial sentence, which has been imposed.  Such a sentence itself although recognized to be cruel and unusual punishment is not open to attack under Sections 4 and 5 of the Constitution.  It is therefore not open to objection on the basis that it is a cruel and unusual punishment.  It is protected from attack on this basis by the savings clause.  Pratt does not remove this protection.  The savings clause does not apply, as it were, for a limited period of time.  What becomes unlawful is the executive act of carrying out the death penalty; it is the act of executing the condemned prisoner following a prolonged period of detention.  This is because the additional cruelty over and above that inherent in the death penalty itself renders the carrying out of the death penalty repugnant to basic standards of humaneness and so offends Section 5(2)(b) of the Constitution.  

29.	With respect to Mr. Carter’s second submission the evidence to which he referred is contained in two reports; one of Dr. Hutchinson dated March 27, 2000 and the other of Dr. Bullard dated September 15, 2000.  

30.	In the report of Dr. Bullard the Respondent is described as “miserable and distraught”.  Dr. Hutchinson in his report expressed his opinion that the Respondent had episodes of  “low mood”.  He further stated that “it is surprising that someone who has a tendency to low mood to be ‘not depressed but miserable and distraught’ in the aftermath of her conviction and the ‘deplorable’ conditions under which she is imprisoned”.

31.	If evidence is required, I do not think this evidence is sufficiently probative.  This is hardly surprising as the reports were prepared in relation to the question whether at the time of the killings the Respondent was suffering from an abnormality of mind.  They were not intended to address the consequences of the death penalty on the Respondent.  The reports for example do not say that the reason for mental suffering is the fact that she is under sentence of death.  Even if that is what is meant by “the aftermath of her conviction,” the reports were made in the year 2000 and there is no evidence whether that mental condition of the Respondent continued beyond that.

32.	But having said that, it is, in my judgment, not necessary for the Respondent to have produced evidence of effect of the death penalty on her.  The conclusion that the Respondent has been subjected to cruel and unusual punishment is to be drawn from the likely effect of the death penalty on a condemned person.  

33.	While it is true, that Pratt did not establish that prolonged detention prior to execution constituted cruel and unusual punishment, it accepted that to be so and proceeded on that assumed basis. 

34.	It is accepted that the likely effect of the death penalty on a condemned person is that he is exposed to alternating periods of hope and despair.  However where he is exposed to a prolonged period of alternating hope and despair the likely effect is that it becomes inhuman treatment.  In Pratt Lord Griffith stated (at p. 1010).

“There is an instinctive revulsion against the prospect of hanging a man after he has been held under sentence of death for many years.  What gives rise to this instinctive revulsion?  The answer can only be our humanity; we regard it as an inhuman act to keep a man facing the agony of execution over a long extended period of time.” 

35.	Of course for “inhuman” can be read “cruel and unusual” (See Guerra –v- Baptiste supra).  

36.	Implied in that passage from Pratt is that someone facing the death penalty is likely to be in agony or as has been said to alternate between periods of hope and despair.  The passage expressly states that to keep someone over a prolonged period in that state is inhuman or in our context cruel and unusual treatment.  That was taken as the likely effect of the prolonged imprisonment while awaiting execution.  The likely effect is all that is necessary.  This was the opinion of the minority expressed in Riley –v- The A.G of Jamaica  [1983] A.C.719 which was obviously accepted by their Lordships in Pratt.  The Law Lords in Pratt stipulated a presumptive five-year period from the date of conviction from which period it may be inferred that there has been such delay as to render the condemned man’s execution unlawful.  What was necessary in Pratt and the cases, which followed it, was to determine the length and cause of the delay in executing the condemned person.  It was not necessary to ascertain the effect of the delay on the individual person sentenced to suffer death.  It was no doubt inappropriate to distinguish between persons of different make up and enquire how a sentence of death may affect them.  So that in Pratt their Lordships cited without disapproval and in fact adopted the jurisprudence in Soering –v- The U.K. (1989) 11 E.H.R.R. 439 where it was held that the risk that the person who was requested to be extradited may face the so called death row phenomenon was sufficient to bring into play Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms which provided that no one shall be subjected to inhuman or degrading treatment or punishment.  The Privy Council also cited with approval the following passage from the minority Judgment in Riley –v- The A.G. supra (at p.735):

“It is, of course, true that a period of anguish and suffering is an inevitable consequence of the sentence of death.  But a prolongation of it beyond the time necessary for appeal and consideration of reprieve is not.  And it is no answer to say that the man will struggle to stay alive.  In truth, it is this ineradicable human desire which makes prolongation inhuman and degrading.”  

37.	Towards the end of their judgment in Pratt, their Lordships stated (at p. 1015):

“In this way it should be possible to complete the entire domestic appeal process within approximately two years.  Their Lordships do not purport to set down any rigid time table but to indicate what appeared to be realistic targets which, if achieved, would entail very much shorter delay than has occurred in recent cases and could not be considered to involve inhuman or degrading punishment or other treatment.”

38	In my Judgment therefore, there is no requirement for the Respondent to have produced evidence of the actual effect of delay after the imposition of the death sentence and while awaiting execution.  What is regarded as the likely effect of the death penalty and prolonged delay awaiting execution is sufficient. The likely effect of someone under sentence of death is that he would go through periods of agony alternating with periods of hope.  To keep someone in that state over a prolonged period is to inflict upon him cruel and unusual punishment.  In cases therefore where the applicant is entitled to commutation under the principles in Pratt, the Court is entitled to find, where appropriate relief is sought, that the applicant was subjected to cruel and unusual treatment by virtue of his continued detention on death row beyond the date that his sentence ought to have been commuted and order that compensation be paid.  The extent of the applicant’s actual physical or emotional suffering is relevant to the quantum of damages and not whether the relief ought to have been granted.

39	There is one further submission of Mr. Harnanan which I have not yet mentioned and to which I now turn.  He submitted that the Pratt principle is now well known and gives rise to certainty.  The result therefore is that anyone sentenced to death would now know that he would not be executed after the five-year period since his conviction and sentence has expired.  I do not however think that this submission takes the case any further.  Under Pratt the condemned prisoner is entitled to commutation but not if the delay is his fault.  In those circumstances the failure to give effect to Pratt and grant the commutation of sentence when it may thought to be due may further aggravate the mental anguish on the part of the condemned man.  In any event, on the facts of this case that submission cannot be advanced with any real hope of success. In this case the Respondent’s sentence was not commuted despite the requests of her solicitors to do so. By the time the constitutional motion was filed the Respondent had been under sentence of death for six years and five months.  She however continued on death row without any communication that her sentence would be commuted and that she would not be executed.  Not only was no such communication given, but the Appellant resisted the constitutional motion.  The Appellant argued that the delay was attributable to the Respondent and that the time before Pratt “kicks in” should therefore be extended.  On this appeal, as mentioned earlier in this judgment, the Appellant challenged the setting aside of the death penalty.  It was not known until the Appellant’s skeleton arguments were filed 2 days before the hearing of the appeal that that ground was not being pursued.  As far as the Respondent was concerned therefore, the State, up to two days before the hearing of the appeal was still intending to execute her, if this Court could be persuaded that the Judge was wrong to set aside the death penalty.  If any signal was sent to the Respondent it was not that she could rest in the belief that she would not be executed.

40.	This appeal is therefore dismissed with costs, fit for Senior and Junior Counsel.  The question of sentence is remitted to a Judge of the High Court (Criminal Division) in accordance with ‘Matthews’.

A FOOTNOTE
41.	It is important that the relevant authorities keep a track of cases where the death sentence has been handed down, so that where commutation under the Pratt principles is required, it be put in place without delay.  Of course it is not reasonable to expect that the death penalty be commuted the very day that Pratt takes effect.  The distress of the condemned person would however be allayed if he is assured that steps are being taken to commute his sentence and that he would not be executed.  As Mr. Carter said, a simple letter would suffice.  That may deter the making of applications with, in the appropriate cases, the consequence of incurring of costs and liability to pay compensation.

S. Sharma
Chief Justice

I agree.

M. Warner
Justice of Appeal

I also agree.

A. Mendonca
Justice of Appeal