[2021] CCJ 6 (AJ) BZ

IN THE CARIBBEAN COURT OF JUSTICE

Appellate Jurisdiction

ON APPEAL FROM THE COURT OF APPEAL OF BELIZE

CCJ Appeal No. BZCR2020/001

BZ Criminal Appeal No. 24 of 2011

BETWEEN

SOLOMON MARIN Jr APPELLANT

AND

THE QUEEN RESPONDENT

Before the Honourable: Mr Justice A Saunders, PCCJ

Mr Justice J Wit, JCCJ

Mr Justice W Anderson, JCCJ

Mme Justice M Rajnauth-Lee, JCCJ

Mr Justice D Barrow, JCCJ

Mr Justice A Burgess, JCCJ

Mr Justice P Jamadar, JCCJ

Appearances

Mr Anthony G Sylvestre for the Appellant

Ms Cheryl-Lynn Vidal SC for the Respondent

Constitutional law – Jurisdiction – No originating application – Whether the Court of

Appeal and Caribbean Court of Justice have jurisdiction to determine there has been a

breach of fundamental rights where the issue was not engaged in before – Constitution

of Belize Cap 4, s 20(1), s 100.

Constitutional law – Fundamental rights – Right to a fair hearing within a reasonable

time –Breach – Remedies – Appellant convicted of crimes of kidnapping and robbery

and sentenced to two concurrent ten-year terms – Appellant appealed against

conviction and sentence - Delay of nine years in disposition of appeal – Delay

breaching right to a fair hearing within a reasonable time – Appropriate remedy –

Whether appellant entitled to relief for post-conviction delay – Constitution of Belize

Cap 4, s 6(2).

Solomon Marin Jr (“Marin”) was tried by a jury and convicted of the crimes of

kidnaping and robbery. He was sentenced to two concurrent ten-year terms. Marin

appealed the conviction and sentences imposed. There was a nine-year delay between

his conviction in the Supreme Court and the hearing and determination of his appeal.

Marin subsequently withdrew his appeal against sentence but maintained his appeal

against conviction. On appeal Marin argued that the post-conviction delay breached his

fundamental right to a fair hearing within a reasonable time and asked for his conviction

to be quashed. The State admitted the delay breached Marin’s fundamental right to a

fair hearing within a reasonable time but argued that the conviction did not need to be

quashed as it was otherwise sound. The Court of Appeal proceeded arguendo on the

basis that Marin’s right to a fair hearing within a reasonable time was breached but

refused to quash his conviction, finding that it was otherwise sound. The Court of

Appeal did not grant Marin a remedy for the breach of his fundamental right.

Marin appealed to this Court, arguing that after concluding that his right to a fair hearing

within a reasonable time had been breached, the Court of Appeal should have

considered what remedy was appropriate to vindicate the breach of his fundamental

right. He submitted that the appropriate remedy was an order for a permanent stay of

further enforcement of his sentences.

This Court needed to determine as a preliminary point whether the Court of Appeal and

this Court had jurisdiction to decide the constitutional issue of the breach of Marin’s

fundamental right. The State argued that the Court of Appeal and this Court lacked the

necessary jurisdiction to entertain this issue, as it did not ‘arise out of and’ was not

‘bound up with the (substantive criminal) proceedings' and argued that Marin was

required to file a separate originating application before the Supreme Court. If this Court

determined it had jurisdiction, it had to decide whether Marin was entitled to any relief,

and if so, what were the appropriate remedies.

The Court, in a judgment authored by Jamadar JCCJ explained this Court’s approach to

the interpretation of the Constitution and found that the Court of Appeal can, in certain

circumstances, grant relief and a remedy for a breach of an individual’s fundamental

rights where the breach arises during a case before it, even if not directly related to the

issues that may or do arise from the substantive criminal trial. In such instances there is

no necessity for an aggrieved individual to seek such relief by way of a separate

originating application in the Supreme Court.

Marin was granted relief for the breach of his constitutional right to a fair hearing within

a reasonable time. In a judgment authored by Barrow JCCJ the Court explained why

both a declaration and an order suspending any further execution of the sentences

imposed were the appropriate remedies in this matter.

In a separate judgment, Anderson JCCJ found that the Court of Appeal possessed

jurisdiction to pronounce upon Marin’s claim of constitutional violations because that

claim could properly be said to have arisen in the appellate proceedings before that

court. He agreed that a clear breach had occurred and that a permanent stay of further

enforcement of the sentences was the appropriate redress in all the circumstances of the

case.

The appeal was therefore allowed.

Cases referred to

Ahnee v DPP [1999] UKPC 11, [1999] 2 AC 294; A-G v Joseph and Boyce [2006] CCJ

3 (AJ), (2006) 69 WIR 104 (BB); A-G v Ramanoop [2005] UKPC 15, (2005) 66 WIR

334 (TT); A-G v Whiteman (1990) 39 WIR 397, [1991] 2 AC 240 (PC TT); A-G of

Grenada v Grenada Bar Association (ECSC CA, 21 February 2000) (GD); A-G of

Guyana v Richardson [2018] CCJ 17 (AJ), (2018) 92 WIR 416 (GY); Attorney

General's Reference (No 2 of 2001) [2004] 1 All ER 1049; Aubeeluck v State [2010]

UKPC 13, [2011] 1 LRC 627; August v R [2018] CCJ 7 (AJ), [2018] 3 LRC 552 (BZ);

Belize Bank Ltd v Association of Concerned Belizeans (Belize CA, 15 March 2019);

Belize International Services Ltd v A-G of Belize [2020] CCJ 9 (AJ) BZ, [2021] 1 LRC

36; Boolell v The State [2006] UKPC 46, [2007] 2 LRC 483; Bowe v R [2006] UKPC

10, (2006) 68 WIR 10 (BS); Boyce v A-G [2012] CCJ 1 (AJ) (R) (BZ); Bridgelall v

Hariprashad [2017] CCJ 8 (AJ), (2017) 90 WIR 300 (GY); Chastanet v Hilaire [2020]

4 LRC 12 (ECSC CA) (SLU); Chokolingo v A-G of Trinidad and Tobago [1980] UKPC

27, (1980) 32 WIR 354 (TT); Chung v AIC Battery and Automotive Services Ltd (2013)

82 WIR 357, (2013) CCJ 2 (AJ) (Guyana); Commissioner of Prisons v Seepersad [2021]

UKPC 13 (PC TT), Daley v The Queen (Belize CA, 2 November 2018); Darmalingum

v The State [2000] 1 WLR 2303; de Freitas v Permanent Secretary of Agriculture,

Fisheries, Lands and Housing (1998) 53 WIR 131 (AG); DPP v Nasralla [1967] UKPC

3, [1967] 2 AC 238 (JM); Dumas v A-G of Trinidad and Tobago (Trinidad and Tobago

CA, 22 December 2014); Dyer v Watson [2004] 1 AC 379; Elaheebocus v State of

Mauritius [2009] UKPC 7, [2009] 4 LRC 783; Elliott v Auckland City [1971] NZLR

824; Evans v A-G (Commonwealth of the Bahamas CA, 6 December 2018); Ferguson

v A-G (Trinidad and Tobago CA, 17 December 2010); Flowers v R [2000] UKPC 41,

(2000) 57 WIR 310 (JM); Gibson v A-G [2010] CCJ 3 (AJ), (2010) 76 WIR 137 (BB);

Gohman v City of St Bernard (1924) 111 Ohio St 726; Harrikissoon v A-G [1979]

UKPC 3, [1980] AC 265 (TT); Hepburn v The Commissioner of Police

(Commonwealth of the Bahamas CA, 29 March 2018); Hinds v A-G [2001] UKPC 56,

[2002] 4 LRC 287 (BB); Hinds v R (1975) 24 WIR 326 (JM); Hunte v State [2015]

UKPC 33, [2016] 1 LRC 116 (TT); Huntley v A-G (1994) 46 WIR 218 (JM); Jaroo v

A-G of Trinidad and Tobago [2002] UKPC 5, [2002] 1 AC 871 (TT); Kowalski v Layton

[2006] SASC 28; Lucas v Chief Education Officer [2015] CCJ 6 (AJ), [2016] 1 LRC

384 (BZ); Maharaj v A-G (No 1) [1976] UKPC 22, (1976) 29 WIR 318 (TT); Maharaj

v A-G (No 2) (1978) 30 WIR 310, [1979] AC 385 (PC TT); Marin v The Queen (Belize

CA, 2 November 2020); Maya Leaders Alliance v A-G [2015] CCJ 15 (AJ), (2015) 87

WIR 178 (BZ); Maycock v Commissioner of Police [2015] 3 LRC 183 (BS CA);

McEwan v A-G of Guyana [2018] CCJ 30 (AJ), (2019) 94 WIR 332; Matthew v The

State [2004] UKPC 33 (TT), [2004] 4 LRC 777; Minister of Home Affairs v Fisher

(1979) 44 WIR 107; Nervais v R; Severin v R [2018] CCJ 19 (AJ), (2018) 92 WIR 178

(BB); Observer Publications Ltd v A-G [2001] 1 LRC 37 (ECSC CA) (AB); Observer

Publications Ltd v A-G [2001] UKPC 11, [2001] 4 LRC 288 (AB); Ong Ah Chuan v

Public Prosecutor [1980] UKPC 32, [1981] AC 648; Panday v A-G of Trinidad and

Tobago (Trinidad and Tobago CA, 22 April 2005); Pratt v A-G [1993] UKPC 37,

(1993) 43 WIR 340 (JM); Quazi v Quazi [1979] 3 All ER 424 ; R v Henry [2018] CCJ

21 (AJ), [2018] 5 LRC 546 (BZ); R v Industrial Disputes Tribunal and Half Moon

(1979) 16 JLR 333 (Jamaica SC); R v Pigott (2015) 88 WIR 299 (ECSC CA) (AB);

Ramdeen v State [2014] UKPC 7, (2014) 84 WIR 447 (TT); Reyes v R [2002] UKPC

11, (2002) 60 WIR 42 (BZ); Rummun v State of Mauritius [2013] UKPC 6, [2013] 4

LRC 655; Samuel v A-G of Saint Lucia (ECSC HC, 19 January 2018); Silly Creek Estate

and Marina Co Ltd v A-G of Turks and Caicos Islands [2021] UKPC 9; Singh v

Harrychan [2016] CCJ 12 (AJ), (2016) 88 WIR 362 (GY); Skerrit v Defoe [2021] CCJ

4 (AJ) DM; Tapper v DPP [2012] UKPC 26, [2013] 2 LRC 75; Thornhill v A-G (1979)

31 WIR 498, [1981] AC 61 (PC TT); Tyson v R (2017) 92 WIR 328, [2018] 5 LRC 270

(ECSC CA) (VG); Walker v R [1993] UKPC 38, [1993] 2 LRC 371 (JM); Whitfield v

A-G (1989) 44 WIR 1 (BS).

Legislation referred to

Antigua and Barbuda – Antigua and Barbuda Constitutional Order 1981; Barbados

– Constitution of Barbados, Rev Ed 1971; Belize – Belize Constitution Act, Rev Ed

2011, Cap 4, Caribbean Court of Justice Act Cap 92, Court of Appeal Act Cap 90,

Parole Act 2017, Prison Rules, Supreme Court (Civil Procedure) Rules 2005; British

Virgin Islands – Virgin Islands Constitution Order 2007; Dominica – Constitution of

the Commonwealth of Dominica, Rev Ed 1990, Cap 1:01; Grenada – Grenada

Constitution Order 1973; Guyana – Constitution of the Co-operative Republic of

Guyana, Rev Ed 2010, Cap1:01; Jamaica – Jamaica (Constitution) Order in Council

1962; Mauritius – Constitution of Mauritius 1968; Saint Christopher and Nevis –

Constitution of Saint Christopher and Nevis 1983; Saint Lucia – Constitution of Saint

Lucia 1979; Saint Vincent and the Grenadines – Constitution of Saint Vincent and

the Grenadines 1979; Trinidad and Tobago – Constitution of the Republic of Trinidad

and Tobago 1976, Offences Against the Person Act Chap 11:08; United Kingdom –

Magna Carta 1215.

Other Sources referred to

Albert R, O’Brien D and Wheatle S (eds), The Oxford Handbook of Caribbean

Constitutions (Oxford University Press 2020); Alexis F, Changing Caribbean

Constitutions (2nd edn, Carib Research & Publications Inc, 2015); Ashworth A,

‘Criminal proceedings after the Human Rights Act: the first year’ [2001] Crim LR 855;

Caribbean Court of Justice (Appellate Jurisdiction) Rules, 2019; de Smith S, The New

Commonwealth and its Constitutions (Stevens & Sons 1964); Elliott-Williams G, ‘Who

Belongs?: The Caribbean Court of Justice Reveals Caribbean Identity’s Inclusive

Potentiality’ (2020) 69 Social and Economic Studies 73; Fiadjoe A, Commonwealth

Caribbean Public Law (3rd edn, Routledge-Cavendish 2008); Lehrfreund S,

‘International Legal Trends and the “Mandatory” Death Penalty in the Commonwealth

Caribbean’ (2001) 1 Oxford U Commw LJ 171; McIntosh S, Caribbean Constitutional

Reform (The Caribbean Law Publishing Co Ltd, 2002); McIntosh S, Fundamental

Rights and Democratic Governance (The Caribbean Law Publishing Co Ltd, 2005);

Maitland F, The Forms of Action at Common Law: A Course of Lectures1909 (1936);

O'Brien D, ‘The Death Penalty and the Constitutions of the Commonwealth Caribbean’

2002 Pub L 678; Paton D, ‘Small Charges: Law and the Regulation of Conduct in the

Post-Slavery Caribbean’, The Elsa Goveia Memorial Lecture (Department of History

and Archaeology, The UWI Mona, April 2014); Penn W, Some Fruits of Solitude

(1693); Robinson T, Bulkan A and Saunders A, Fundamentals of Caribbean

Constitutional Law (Sweet & Maxwell 2015); Robinson T, ‘Our Inherent Constitution’

in Berry D and Robinson T (eds), Transitions in Caribbean Law: Law-making,

Constitutionalism and the Convergence of National and International Law (Caribbean

Law Publishing 2013).

JUDGMENT

of

The Honourable Mr Justice Saunders, President and

The Honourable Justices Wit, Rajnauth-Lee, Barrow, Burgess and Jamadar

Delivered by

The Honourable Mr Justice Jamadar and The Honourable Mr Justice Barrow

and

JUDGMENT

of

The Honourable Mr Justice Anderson

Delivered on the 23rd day of June 2021

JUDGMENT OF THE HONOURABLE MR JUSTICE JAMADAR, JCCJ:

Introduction

[1] In the delivery of justice, delay is anathema. Delay has a corrupting effect on

the purity of justice. It renders its delivery increasingly valueless for parties and

all too often even prejudicial. It undermines public trust and confidence in the

justice sector. It corrodes the very fabric of society. Delay denies justice.1 Such

is its toxicity. Indeed, it is constitutionally renounced in Belize.

[2] This appeal is all about delay in the delivery of criminal justice in Belize and its

effects on legitimate sentences imposed on the appellant Marin. Sentenced to

two concurrent ten-year terms, the imposition of those sentences has been called

into question because of a nine-year delay between his conviction in the High

Court and the hearing and determination of his appeal.

[3] The responsibility for this egregious delay lies largely at the doors of the

criminal justice system in Belize. The State admits that the delay breached

Marin’s fundamental right to a fair hearing within a reasonable time.

Nevertheless, this Court is asked to decide whether under the Constitution of

Belize and in this appeal, Marin is entitled to any relief for this post-conviction

delay. This raises issues of jurisdiction and the exercise of judicial discretion,

both before the Court of Appeal and this Court. The interpretation of specific

sections of the Constitution of Belize lies at the centre of this appeal.

1 ‘Justice delayed is justice denied.’ Attributed to British Prime Minister William Gladstone, Louisiana

Law Journal, 1842; who some say was quoting Jean de la Bruyère (1645-96), a French writer who said:

"When it is our duty to do an act of justice, it should be done promptly. To delay is injustice." See also:

‘To delay Justice is Injustice.’ William Penn, Some Fruits of Solitude (1693). And even earlier: ‘To no

one will we sell, to no one will we deny or delay, right or justice.’ Magna Carta, 1215, cl 40. And also

see, Gohman v City of St Bernard (1924) 111 Ohio St 726, 737, which may be one of the earliest usages

of the expression ‘justice delayed is justice denied’ in a case.

Background Information

[4] On Saturday, 26 August 2006 Leon Castillo endured a truly terrifying ordeal in

Belmopan, Belize. The like of which is not uncommon in many Caribbean

States. After withdrawing the modest sum of $50.00 from his bank account he

was pounced upon initially by two villainous individuals. Unmasked, and

menacingly, they brazenly approached him. A ‘short man’ pointed a shotgun at

him, while a ‘tall man’ demanded that he surrender the keys to his mother’s

parked car. Castillo, then only 20 years of age, was relieved of his wallet and

was ordered into the vehicle by the gunman. The gunman kept the shotgun

pointed at Castillo and he was ordered to pull his T-shirt over his head and move

to the rear of the vehicle.

[5] The ‘tall man’ then drove away from Market Square to a parking lot elsewhere

in Belmopan. At a parking lot a third man entered the vehicle and the ‘tall man’

then drove along the Hummingbird Highway in the direction of Dangriga. After

about 20 minutes the ‘tall man’ turned into a dirt road, where Castillo was

ordered out of the vehicle and to get on his knees. The third man told Castillo

that he was going to teach him a lesson. However, the ‘tall man’ intervened,

telling the third man that, since they had the vehicle, they should just tie him up

and leave him there. Castillo was then led into the bushes and his hands were

stretched around a tree and bound together. He was left there, but not before one

of the assailants told him that they would be back to deal with him. Fortunately,

after about ten minutes Castillo was able to free himself and seek assistance.2

These harrowing events are undoubtedly forever embedded in his memory.

[6] Marin was the ‘tall man’. Young Castillo was the victim in this matter, who

suffered through a cruel nightmare inflicted on him by Marin and others.

Acknowledging this is an important first step in this opinion.

[7] Marin was arrested in August 2006 and charged for robbery, kidnapping, and

taking a motor vehicle without the consent of the owner.3 He was subsequently

tried by a jury. The trial began on 13 June 2011. On 29 June 2011, the trial

2 Marin v The Queen (Belize CA, 2 November 2020) at [89]-[91]. 3 ibid at [84].

ended, and he was convicted of the crimes of kidnaping and robbery and on 30

June 2011, he was sentenced to the minimum sentence, a term of imprisonment

of ten years in respect of each offence, the sentences to be served concurrently.4

His sentence would normally have expired on or about 28 June 2021 (without

taking account of the time he spent on bail).

[8] Marin filed an appeal to the Court of Appeal on 5 July 2011. There was

approximately a nine-year delay in the hearing and determination of the appeal,

the hearing taking place on 20 June 2019 and determination on 2 November

2020.5

[9] Before the Court of Appeal Marin argued that he had been denied a right to a

fair hearing in a reasonable time6 by reason of the delay in having his appeal

heard.7 Marin also argued that due to the deprivation of his right to a fair hearing

within a reasonable time he had been precluded from being admitted to parole

and had not been afforded the benefits of and application of the principles of

remission.8 Before that court he withdrew his appeal against sentence but

maintained the appeal against conviction.9 There was therefore a valid and

subsisting appeal (against conviction), even though Marin was not actually

contending on appeal that the substantive conviction was wrong. On 20 June

2019, following the conclusion of the appellate hearing but before sentence

Marin was granted bail.

[10] The Court of Appeal subsequently affirmed Marin’s conviction and sentence on

2 November 2020 and he was ordered to present himself to the police by 3

November 2020 for transportation to prison.10 In all, Marin spent 7 years, 11

months and 22 days in custody up to the time of the decision of the Court of

Appeal.

4 Marin (n 2) at [84]-[85]. 5 ibid at [87]-[88]. 6 Which is protected by s 6(2) of the Constitution of Belize. 7 Marin (n 2) at [95]-[98]. 8 ibid at [108]-[109]. 9 ibid at [84]. 10 ibid at [133].

[11] In its decision, the Court of Appeal, accepted that “there was clearly an extreme

delay between conviction and appeal”11 (a period of 7 years 11 months and 22

days from conviction to the hearing of the appeal). In fact, the post-conviction

delay from the filing (5 July 2011) to the disposition of the appeal (2 November

2020) was 9 years 3 months and 27 days. The Court of Appeal proceeded

arguendo on the basis that Marin’s right to a fair hearing within a reasonable

time was breached,12 but refused to quash his conviction, relying on this Court’s

decision in R v Henry.13

[12] Marin was granted special leave to appeal to this Court on 6 January 2021 and

filed his notice of appeal on 19 January 2021. He contends that the Court of

Appeal erred in failing to fashion an appropriate remedy for the breach of his

right to a fair hearing within a reasonable time. On 23 February 2021 Marin

was granted parole.

Issues

[13] Simply put, the issues in this case are:

(a) was Marin entitled to raise this constitutional issue of a breach of his

fundamental right to a fair hearing within a reasonable time before the

Court of Appeal, and as well before this Court? and,

(b) if he was, is he entitled to any relief, and if so, what are the appropriate

remedies?14

[14] Marin does not challenge the Court of Appeal’s finding that without more delay

does not automatically result in the appeal being allowed and the conviction

quashed,15 and does not challenge this Court’s ruling in Fraser v The State.16

11 ibid at [123]. 12 Marin (n 2) at [117]. 13 R v Henry [2018] CCJ 21 (AJ), [2018] 5 LRC 546 (BZ). Marin (n 2) at [121]-[123]. Quashing the

conviction is an exceptional remedy and should only be considered where the delay might cause

substantial injustice. The delay did not justify the quashing Marin’s conviction that was otherwise sound. 14 Before the Court of Appeal Marin only asked for his conviction to be quashed. Before this court, for

the first time, he contended that the Court of Appeal should have fashioned an appropriate remedy. 15 Marin (n 2) at [123]. 16 Fraser v State [2019] CCJ 17 (AJ), [2020] 1 LRC 457 at [16]. It is only in special or exceptional

circumstances that post-conviction delay, will result in setting aside of a conviction properly arrived at.

Marin submits however, that due to the Court of Appeal’s finding in respect of

delay that the Court of Appeal should have considered what remedy was

appropriate to vindicate the breach of his fundamental right. He also submits

that the appropriate remedy was and is an order for a permanent stay of further

enforcement of his sentences. He suggests that by operation of Rule 126(c) of

the Prison Rules he would have been denied the prospects of consideration for

parole.

[15] Before this Court Marin relies essentially on one ground of appeal, that the Court

of Appeal erred in failing to fashion an appropriate remedy for the breach of his

s 6(2) constitutional right, which, given the unique features of his case, ought to

be a permanent stay of further enforcement of the sentences.

[16] The breach of Marin’s s 6(2) rights is not and has never been in dispute. The

Director of Public Prosecutions, appearing for the Respondent accepted and

agreed that the delay in the hearing and determination of the appeal, from the

conviction through filing of the appeal to the hearing of the appeal and to its

eventual disposition by the Court of Appeal, was on the face of it in breach of s

6(2) of the Constitution of Belize – the right to a fair hearing within a reasonable

time.

[17] However, to resolve Marin’s appeal, this Court must first determine whether,

and if so when, the Court of Appeal can grant relief and a remedy for a breach

of an individual’s fundamental rights where the breach arises in a case before it

but is not an issue that was litigated in the substantive trial or one that is directly

connected to any substantive issues arising out of that trial. Alternatively, must

an individual in circumstances such as these (like Marin) seek any such relief

by way of a separate originating application in the High Court? Then secondly,

if the Court of Appeal could and should have granted appropriate relief to Marin,

this Court must determine what that relief should be.

Some Essential Context

[18] In this matter it is reasonably arguable that the first practical opportunity that

Marin had of raising this issue forcefully was before the Court of Appeal, as

only when the Court of Appeal embarked on the appeal could the point have

truly crystallized (delay due to the duration of the post-conviction period from

appeal to hearing and its consequences). Furthermore, all relevant facts were

admitted. And the primary issue was essentially a pure question of law.

Practically and pragmatically, raising the issue in the appeal afforded the most

convenient opportunity to do so, as the matter was at that point properly before

the Court of Appeal (on an appeal against conviction). Whether it was right to

do so is what this present appeal is therefore asked to resolve. Constitutionally,

it is an important jurisdictional question with implications that go beyond the

resolution of this matter.

The DPP’s Admissions and Reservations in Summary

[19] The Director was clear that in relation to the first question, the Court of Appeal

lacked the necessary jurisdiction to entertain this issue, as it did not ‘arise out of

and’ was not ‘bound up with the (substantive criminal) proceedings'. In her

opinion, the issue in this appeal is a collateral issue, and if the Court of Appeal

were to entertain it the court would be acting beyond its jurisdiction as outlined

in the Court of Appeal Act17. The Director’s position is that the substantive

jurisdiction of the Court of Appeal in relation to criminal appeals is limited to

appeals against conviction and/or sentence, and the substantive basis of this

constitutional issue is outwith that jurisdiction. This Court, she contends, is

equally limited as it only has the powers of the Court of Appeal.

[20] In the Director’s words, in oral submissions to this court:

But my position is that neither the Court of Appeal nor this court (CCJ)

has jurisdiction in this matter to deal with this breach; because it is neither

bound/caught up with any grounds of appeal (there is no appeal against

sentence), nor is it within the statutory bases for appealing with respect to

either conviction or sentence as provided for by s 30 of the Court of

Appeal Act.

[21] The Director does however accept that in this matter there was a breach of

Marin’s s 6(2) rights by reason of the post-conviction delay explained above.

17 Court of Appeal Act Cap 90.

Nevertheless, she contends that the vindication of this breach can only be done

by way of independent and new proceedings commenced for that purpose in the

Supreme Court, pursuant to s 20(1) of the Constitution (and not in this appeal).

For the Director, the Court of Appeal lacked jurisdiction to inquire into the

breach, declare it as such, or grant any other relief or remedy in relation to it,

and this court is similarly encumbered.

Undisputed Propositions

[22] One thing is certain, a post-conviction delay of nine years from the filing of an

appeal to disposition by a court of appeal is on the face of it, and without any or

any reasonable justification, an egregious breach of s 6(2), and consequently

also of s 3(a) (protection of the law) of the Belizean Constitution.18 This much

is agreed by all.

[23] In Bridgelall v Hariprashad,19 an appeal from the Court of Appeal of Guyana,

where there was a delay of 8 years and 11 months between conviction and the

disposition of the appeal, this Court found that there was a breach of the

applicant’s constitutional guarantee of a trial within a reasonable time.20 And in

Singh v Harrychan,21 an appeal from the Court of Appeal of Guyana, this Court

found that the reasonable time guarantee encompasses the appellate process.22

Disposition

[24] In my opinion, after duly considering the relevant law and the submissions of

the Parties, the answer to the first question is yes. The Court of Appeal can, in

certain circumstances, grant relief and a remedy for a breach of an individual’s

fundamental rights where the breach arises during and in a case before it, even

if not directly related to the issues that may or do arise from the substantive

criminal trial. In such instances there is no necessity for an aggrieved individual

18 Belize Constitution Act, Cap 4, ss 6(2) and 3(a). 19 [2017] CCJ 8 (AJ), (2017) 90 WIR 300 (GY). 20 ibid at [40]. 21 [2016] CCJ 12 (AJ), (2016) 88 WIR 362 (GY). 22 ibid at [29].

to seek such relief by way of a separate originating application in the Supreme

Court.

[25] In light of this, the answer to the second question is that Marin is entitled to

relief for the breach of his constitutional right to a fair hearing within a

reasonable time. And at the very least, to the specific remedy of a declaration

that his s 6(2) rights were breached in this case by reason of post-conviction

delay in the hearing and determination of his appeal. Barrow JCCJ deals with

this aspect of the matter more fully. He explains why both a declaration and an

order suspending any further execution of the sentences imposed are the

appropriate remedies in this matter. I agree with and support his reasoning and

the remedies he prescribes in this regard.

Analysis

[26] This opinion will take the following approach to the analysis of the first issue –

the matter of jurisdiction. First, it will sketch the contours of what, in my

estimation, is this Court’s current approach to constitutional interpretation

where human rights contraventions are at stake. Second, it will outline the

parameters of the Director’s argument. Third, it will articulate this Court’s

position and interrogate the Director’s argument a) textually, b) through the lens

of intentionality c) precedentially, and d) through the lens of policy. And Fourth,

it will integrate this Court’s approach to constitutional interpretation, to confirm

why Marin was entitled to raise this matter before the Court of Appeal and is

also entitled to do so before this Court.

(i) This Court’s general approach to constitutional interpretation in the

context of human rights

[27] The first independent Anglo-Caribbean constitutions emerged in the 1960s.

Others followed in subsequent years. All contain sovereignty and supremacy

clauses, declaring Caribbean constitutionality as the repository of supreme law,

values, and policy. Their interpretation and application have been a dynamic,

developmental, and evolutionary process, led by jurists throughout the region

and at all levels within regional courts. As with all development, this trajectory

has not always been uniform or consistent, yet some matters are now beyond

dispute.23 However, Caribbean constitutional interpretation remains an

unfolding, forever unfinished process of reflection, discovery, assimilation,

refinement, and application. The Judiciary is constitutionally responsible for this

task, in what are now States that avow a democratic model of organization and

governance based on constitutional supremacy and paramountcy.

[28] In 2005 this Court emerged in the region as an indigenous apex appellate court

with an explicit mandate to play ‘a determinative role in the further development

of Caribbean jurisprudence through the judicial process…’.24 This directive is

thus an expression of sovereign regional will. In no area is this role of greater

salience than with regard to Caribbean constitutionalism, ‘… a goal which

Caribbean courts are best equipped to pursue’.25 In this mandate, the Court’s

role is intended to be transformative of both law and society, conceived as

mutually constitutive. It is a role that is consistent with constitutional edicts

throughout the Region as to the responsibility of the Judiciary.

[29] Fifty plus years on, what has begun to emerge is a sort of chiastic analytical

pattern (emerging out of a resonant chiastic epicentre) to the approaches to

Caribbean constitutional interpretation.26 This approach is to be contrasted with

an ‘either-or’ methodology which promotes pressures towards interpretative

23 Tracy Robinson, Arif Bulkan and Adrian Saunders, Fundamentals of Caribbean Constitutional Law

(Sweet & Maxwell 2015) at Chap 3. 24 Preamble to Agreement Establishing the Caribbean Court of Justice (adopted 14 February 2001,

entered into force on 23 July 2002) 2255 UNTS 319. 25 ‘The main purpose of establishing this court is to promote the development of a Caribbean

jurisprudence, a goal which Caribbean courts are best equipped to pursue.’ A-G v Joseph and Boyce

[2006] CCJ 3 (AJ), (2006) 69 WIR 104 at [18] (de la Bastide PCCJ and Saunders JCCJ). 26 For the purposes of constitutional human rights interpretation, a chiastic analytical pattern is based on

an assumption that the right in issue (‘R’) pre-existed and/or was brought into being through the

constitution as text (‘R1’), exists at the time of the breach (‘R’) ie is current, and will exist in the future

(‘R2’). Thus, the chiastic pattern: R1 to R to R2. The interpretative function is to discover how the right

in issue resonated in the past and/or at the time of the making of the Constitution, should in the present

at the time of the breach, and will likely do so in the future. This interpretation is centred out of a chiastic

epicentre which is both the Constitution (‘C’) as a constitutive instrument including its text, its values,

and principles, and as well the right in issue itself (‘R’). As such, there is a dynamic, dialectical, and

developmental ‘crossing-over’, an ‘in-between’ and ‘backwards-and-forwards’ flow and engagement,

from past to present to future, in which constitutional rights, values, and/or principles (‘C+R’) resonate

through time and in particular circumstances, and in doing so effectively manifest to recognize, uphold,

enable, and vindicate such rights, values, and principles in changing conditions. Thus, the chiastic pattern

or structure: R1+C1 to C+R to C2+R2.

exclusivity. The more inclusive and encompassing method suggested in this

opinion, permits one to see this emerging pattern. It is a pattern in which there

is an evolutionary flow towards greater symmetry and a balancing of parts, of

what is a movement towards a more unified interpretative whole.27 This

inclusive method of constitutional interpretation identifies and prioritizes certain

ideological approaches, while also incorporating more practical tools of

analysis.28 The key to unlocking this interpretative puzzle is to first find and

locate this centre of Caribbean constitutional interpretation.

(a) A sui generis centre

[30] What is the centre point of this Court’s approach to Caribbean constitutional

interpretation? In my opinion, it is that Caribbean constitutions are sui generis.

And as such, have their own interpretative principles that arise from their special

character, status, and origins as constitutions.29 And which, because of the

supremacy clauses, take paramountcy. The consequence is ‘that the

interpretation of Caribbean Constitutions is a legal activity in its own right.’30

Indeed, Wit JCCJ would insist in A-G v Joseph, that this approach is necessary

‘so that a genuine constitutional law will be developed on the basis of the

Caribbean Constitutions themselves as the embodiments of the democratic

societies they endeavour to establish and guard.’31

[31] Having once accepted this centre point, it becomes the primary lens through

which one must view, read, interpret, and apply constitutional provisions,

27 This chiastic ‘seeing’ may be figuratively compared to the optic chiasm, which is an X-shaped structure

formed by the crossing of the optic nerves in the brain. The optic nerve connects the brain to the eye. To

biologists, the optic chiasm is thought to be a turning point in evolution, the underpinning basis for sight

as binocular and stereoscopic vision. 28 For a recent British academic critique of the CCJ’s approach to constitutional interpretation, see Derek

O’Brien, ‘The Interpretation of Commonwealth Caribbean Constitutions: Does Text Matter’ in Richard

Albert, Derek O’Brien and Se-shauna Wheatle (eds), The Oxford Handbook of Caribbean Constitutions

(Oxford University Press 2020) 555-581. Compare, the recent Privy Council decision in Commissioner

of Prisons v Seepersad [2021] UKPC 13 (PC TT), where the approach to constitutional interpretation

aligns substantively with the approaches forged by this Court, and as described in this opinion. See in

this regard, for example, [22], [24], [26], [28], [49] to [53], and [75]. 29 Minister of Home Affairs v Fisher (1979) 44 WIR 107 at 113 (Lord Wilberforce): ‘… it would be to

treat a constitutional instrument such as this as sui generis, calling for principles of interpretation of its

own, suitable to its character as already described, without necessary acceptance of all the presumptions

that are relevant to legislation of private law’. 30 A-G v Joseph and Boyce [2006] CCJ 3 (AJ), (2006) 69 WIR 104 (BB) at [17] (Wit JCCJ). 31 ibid.

values, and principles. However, something more needs to be said about this sui

generis centre point. Ultimately it facilitates, in the sphere of constitutionalism,

the search for meaning. A search that for the process of interpretation a) begins

with ‘a recognition of the character and origin of the instrument’,32 b) is

grounded in a regional and local sitz im leben (the contexts in which

constitutions as text are created and located, including indigenous legal customs,

traditions, conventions, culture, and history), c) reaches simultaneously

backwards-and-forwards temporally into local and incorporated international

intentions and aspirations, and d) is also in-formed by unique ideological

interpretative approaches.

(b) Ideological approaches to interpretation

[32] In the context of human rights provisions, some of these unique ideological and

in-forming approaches, that have their true origins in a constitution’s sui generis

character, include interpretations that: a) are guided by the principle of giving

full recognition and effect to fundamental rights and freedoms;33 b) are open

minded;34 c) are generous, broad, and purposive;35 d) treat a constitution as a

living instrument capable of responding to evolving societal attitudes and

norms;36 e) are present and future facing;37 f) are democratically justifiable;38

and g) are consciously independently developmental.39

32 Minister of Home Affairs (n 29) at 113. 33 Minister of Home Affairs (n 29) at 113; Huntley v A-G (1994) 46 WIR 218 at 227; Nervais v R; Severin

v R [2018] CCJ 19 (AJ), (2018) 92 WIR 178 at [39] and [71] ; A-G of Guyana v Richardson [2018] CCJ

17 (AJ), (2018) 92 WIR 416 at [146]. 34 Minister of Home Affairs (n 29). 35 Minister of Home Affairs (n 29). See also A-G v Whiteman (1990) 39 WIR 397, 412; Whitfield v A-G

(1989) 44 WIR 1 (BS) at 19; A-G of Guyana (n 33); A-G of Grenada v Grenada Bar Association (ECSC

CA, 21 February 2000)) at [7]. See further, Robinson, Bulkan and Saunders (n 23) at [3-022], ‘Generous

interpretation is a concrete methodology that starts with the language used in the constitution in the

context of the constitution as a whole, examining the constitution’s ethos and its underlying values and

norms.’ 36 McEwan v Attorney General of Guyana [2018] CCJ 30 (AJ), (2019) 94 WIR 332 (Saunders PCCJ) at

[41], ‘Law and society are dynamic, not static. A Constitution must be read as a whole. Courts should be

astute to avoid hindrances that would deter them from interpreting the Constitution in a manner faithful

to its essence and its underlying spirit.’ See also Robinson, Bulkan and Saunders (n 23) at [3-021]. 37 R v Industrial Disputes Tribunal and Half Moon (1979) 16 JLR 333 (Jamaica SC; Reyes v R [2002]

UKPC 11, (2002) 60 WIR 42 at [26]. See also Robinson, Bulkan and Saunders (n 23) at [3-021]. 38 de Freitas v Permanent Secretary of Agriculture, Fisheries, Lands and Housing (1998) 53 WIR 131.

And, in the special case of Guyana, approaches that align with its democratic socialist intentions and

aspirations, Constitution of the Co-operative Republic of Guyana, art 1. 39 Ferguson v A-G (Trinidad and Tobago CA, 17 December 2010) at [24]. See also Robinson, Bulkan

and Saunders (n 23) at [3-021]. Applying a consciously anti-colonial interrogative approach to analysis

[33] Conversely, what is to be avoided is what Lord Wilberforce called ‘the austerity

of tabulated legalism’.40 Such legalistic, mechanistic, and strict constructionist

approaches to constitutional interpretation, that tend to be compartmentalizing,

are inappropriate. They can be stumbling blocks to the ideological approaches

described above. They are to be avoided to a) enable a purposive and dynamic

role for courts, and b) in order to achieve the ideals and aspirations inherent in a

Caribbean human rights approach to both constitutional and statutory

interpretation.

[34] The judges of the CCJ have most recently sought to meld this sui generis centre

and these core ideological in-forming approaches, while at the same time

declaring what was denounced. In McEwan and Others v The Attorney General

of Guyana, Saunders PCCJ explained, ‘Courts should be astute to avoid

hindrances that would deter them from interpreting the Constitution in a manner

faithful to its essence and its underlying spirit.’41 And more recently, in Belize

International Services Ltd v The Attorney General of Belize, Wit JCCJ, by the

use of what I consider to be a more allegorical explanation, noted,‘ … whatever

is in the spirit of the Constitution is within the Constitution, although it is not in

the letter of the Constitution, while that which is within the letter, but not within

the spirit of the Constitution, is not within the Constitution.’42

is part of this developmental approach. It is an approach that considers a law’s colonial antecedents and

purposes and asks whether in light of these it is still constitutionally vires and legitimate. See in this

regard, McEwan (n 36)); and Nervais (n 33). See also Gabrielle Elliott-Williams, ‘Who Belongs?: The

Caribbean Court of Justice Reveals Caribbean Identity’s Inclusive Potentiality’ (2020) 69 Social and

Economic Studies 73-90. Framed in a positive way, it is an approach that encompasses an independent

(and postcolonial) developmental ideology and hermeneutic to Caribbean constitutionalism. One that

recognizes that law and legal structures are historically contingent. 40 Minister of Home Affairs (n 29) at 112; Matthew v The State [2004] UKPC 33 (TT), [2004] 4 LRC 777

at [34] (Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Steyn and Lord Walker of

Gestingthorpe): ‘It is such an approach which Lord Wilberforce stigmatised, in the phrase of Professor

de Smith which he made famous, as “the austerity of tabulated legalism”: de Smith, The New

Commonwealth and its Constitutions (1964) 194 and Minister of Home Affairs v Fisher [1980] AC 319,

328. It is such an approach also which, in our opinion, vitiates the reasoning of the decision of the majority

in this appeal.’ See also A-G of Guyana (n 33) at [146]. 41 McEwan (n 36). 42 [2020] CCJ 9 (AJ), [2021] 1 LRC 36 at [14]. Wit JCCJ clearly did not intend to mean, and is not to be

taken as meaning, that judges are empowered to put the language and text of the Constitution to one side

and divine its spirit, which then somehow becomes an autonomous interpretative lens. This orientation

is by no means novel; see A-G v Whiteman (n 35) at 412 (Lord Keith): ‘The language of the Constitution

falls to be construed, not in a narrow and legalistic way, but broadly and purposively, so as to give effect

to its spirit …’.

[35] None of these two pronouncements, by Saunders PCCJ and Wit JCCJ, is

intended to disavow the language and text of a constitution, taken in its context,

surrounding circumstances, and in light of its in-forming values, as being

integral to the methodology of interpretation.43 Rather they seek to give voice to

a more inclusive and encompassing model of constitutional interpretation. A

model intended to prioritize substance over form, without disregarding the

intimate and integral interconnectedness between legal form and legal essence.

A model that recognizes and places at the centre of the hermeneutical exercise

the sui generis nature of constitutional interpretation. One considered to be

appropriate for post-colonial Anglo-Caribbean constitutionalism. One that is

constitutionally sanctioned.

(c) Practical aids to interpretation

[36] Radiating outwards, from this 'sui generis' centre (a constitution’s special

character, status, and origins), as it were in concentric mutually reciprocating

interpretative circles, are also the following practical (and more traditional) aids

to this singular search for meaning:44 a) closest to the centre in terms of

immediacy, the specific language of the text that is the object of the task of

interpretation,45 b) encircling that, the textual context, often discovered by use

of inter- and intra- textual aids, as well as relevant canons of construction, but

not exclusively so, as the broader surrounding circumstances may be relied

upon,46 c) then informing the text, discoverable intent,47 d) then constitutional

common law,48 e) then core and basic deep structure influences,49 f) then

relevant international values, principles, and conventions, including with

43 See further, Robinson, Bulkan and Saunders (n 23) at [3-022], ‘Generous interpretation is a concrete

methodology that starts with the language used in the constitution in the context of the constitution as a

whole, examining the constitution’s ethos and its underlying values and norms.’ 44 ibid at Chap 3. 45 Including ‘the traditions and usages which have given meaning to that language’ see Minister of Home

Affairs (n 29) at 113 ; A-G v Joseph (n 30) at [45](Wit JCCJ); A-G of Guyana (n 33) at [85]; Robinson,

Bulkan and Saunders (n 23) at [3-022]; eg ‘A generous interpretation must always be concerned with

interpreting the actual language in the constitutions.’ 46 A-G of Grenada (n 35) at [7]; Hinds v R (1975) 24 WIR 326, 330. 47 Robinson, Bulkan and Saunders (n 23) at [3-003]-[3-005]. 48 A-G v Joseph (n 30) at [17] (Wit JCCJ); Robinson, Bulkan and Saunders (n 23) at [3-013]-[3-016]. 49 See A-G v Joseph (n 30) at [20] (Wit JCCJ); Nervais (n 33) at [59] (Byron PCCJ); McEwan (n 36)

[41]-[45], [51] (Saunders JCCJ); Belize International Services Ltd (n 42) at [319]-[321],[350] (Jamadar

JCCJ); Robinson, Bulkan and Saunders (n 23) at [3-028].

particularity those consented and subscribed to by the local jurisdiction,50 g) then

local, regional, and comparative international precedents and relevant judicial

interpretations and applications, bearing in mind the policy of stare decisis and

the hierarchies of precedental persuasiveness,51 and then h) the corpus of

relevant academic and research literature, both legal and otherwise.52

(d) An integral approach to Caribbean constitutionalism

[37] What is described here is an independent and integral approach to Caribbean

constitutionalism. It is an approach that I believe the CCJ has embraced as

necessary for forging a genuinely Caribbean constitutional jurisprudence. In the

specific context of human rights provisions, but not exclusively so, this court

has therefore stressed:

A Constitution must be read as a whole. … If one part of the Constitution

appears to run up against an individual human right, then, in interpretating

the Constitution as a whole, courts should place a premium on affording

the citizen his/her enjoyment of the fundamental right, unless there is some

overriding public interest.53

[38] This is a constitution and rights centric focus. It is anchored in Caribbean

identities. And it is facilitative of access to the courts for the effective

interpretation and application of Caribbean constitutional principles, values, and

policies.54

50 A-G v Joseph (n 30) at [105]-[106] (de la Bastide PCCJ and Saunders JCCJ); Maya Leaders Alliance

v A-G [2015] CCJ 15 (AJ), (2015) 87 WIR 178 (BZ) at [52]; McEwan (n 36) at [54]-[55]; Pratt v A-G

[1993] UKPC 37, (1993) 43 WIR 340 (JM); (JM)Robinson, Bulkan and Saunders (n 23) at [3-023] and

[3-026]. 51 Robinson, Bulkan and Saunders (n 23) at [3-002] and [3-025]. 52 In many CCJ judgments the court has cited academic texts and opinions. See Belize International

Services Ltd (n 42) eg Tracy Robinson, ‘Our Inherent Constitution’ in David Berry and Tracy Robinson

(eds), Transitions in Caribbean Law: Law-making, Constitutionalism and the Convergence of National

and International Law (Caribbean Law Publishing 2013). McEwan (n 36) eg Diana Paton, ‘Small

Charges: Law and the Regulation of Conduct in the Post-Slavery Caribbean’, The Elsa Goveia Memorial

Lecture (Department of History and Archaeology, The UWI Mona, April 2014). Nervais (n 33) egs Saul

Lehrfreund, ‘International Legal Trends and the “Mandatory” Death Penalty in the Commonwealth

Caribbean’ (2001) 1 Oxford U Commw LJ 171, Derek O'Brien, ‘The Death Penalty and the Constitutions

of the Commonwealth Caribbean’ 2002 Pub L 678. 53 McEwan (n 36) at [41]. 54 ibid at [88]: ‘In constitutional proceedings, courts should adopt a liberal approach in affording standing

to individuals and entities.’ An approach adopted ‘to ensure that the Constitution is properly interpreted

and applied, and the rule of law vindicated.’

[39] Indeed, this approach aligns with Professor Simeon McIntosh’s concept of

‘integrity, as an adjudicative principle.’55 It is an approach that recommends

seeing and interpreting the constitution as a coherent text. As McIntosh explains:

‘It expresses an interpretative ideal that the Constitution be interpreted in a way

that makes it as just as it can possibly be …. Therefore, as an adjudicative

principle, integrity requires that the various provisions of the Constitution be

read as expressing a coherent scheme of justice and fairness.’ 56

[40] This then is the analytical approach that this opinion will apply in this appeal.

(e) Radial and Linear lines-of-causation analysis

[41] In applying this analytical approach, I also think that there are two ancillary

conceptual models that are of assistance. These are a) radial lines-of-causation

analysis, and b) linear lines-of-causation analysis.

[42] The former may be imagined as a wheel in which there is a central hub, an outer

circumference, and multiple spokes connecting the two. Each spoke is an

applicable line of argumentation, circumscribed outwardly by the material and

relevant facts and law, and, ideally, intersecting coherently and supportively at

the centre, which is the issue being interrogated. In a well-constructed analytical

wheel this is the prototypical and ideal result. Though, in many analyses not all

spokes will intersect supportively or coherently at the centre.

[43] The latter, linear lines-of-causation analysis, is more straightforward and can be

imagined as a straight line along which key factors or considerations are

expected to align. When they do, the analysis has internal integrity, and when

they do not line-up, it does not.

55 Simeon McIntosh, Fundamental Rights and Democratic Governance (The Caribbean Law Publishing

Co Ltd, 2005) 70. 56 Ibid. See also Simeon McIntosh, Caribbean Constitutional Reform (The Caribbean Law Publishing Co

Ltd, 2002) 259, ‘Constitutional adjudication is unavoidably interpretative. … This is especially so in

cases concerning the interpretation and application of the fundamental rights provisions of the

constitution.’

[44] Radial lines-of-causation analyses are particularly useful as they can assist in

more wholistically determining a) interpretative integrity, and b) consequential

impacts, and therefore present and future appropriateness and usefulness.

Multiple intersecting lines of causation and consequence are considered. For

example, if one were to apply a radial lines-of-causation analysis to any issue,

an inquiry is made as to a) what are the lines of argumentation that converge or

diverge, that intersect or separate, and/or b) how would this contemplated

interpretation and application be influenced if it were to be done in similar

circumstances in other (analagous) areas. Such inquiries could reveal relevant

coherence, as well as expose inconsistencies. The net result is improved

consistency in the development of Caribbean constitutional law.57

[45] Following the complimentary path of linear line-of-causation analysis,

temporally from past to present to future, the focus is somewhat different, and a

distinct inquiry is undertaken. For the issue at hand, important interpretative

markers are chiastic value-based commonalities and their resonances. The

inquiry is to ask, whether in this specific area, this particular value or principle

being interrogated was important in the past, is important now, and it is

foreseeable that it will continue to be important in the future (in the context of

the issues). And if so, how so. This analysis also reveals coherence and exposes

inconsistencies, with a net result of improved consistency along the explored

line-of-causation.58

57 For example, in McEwan (n 36) Saunders PCCJ applied multiple lines of legal analysis in determining

that the court should construe the savings law clause narrowly. Thus, to aid in his interpretation of the

savings law clause: a) he applied textual analysis, reading the constitution as a whole; b) he discovered

intention, using the preamble of the constitution as well as amendments which were made to the

constitution; c) he considered a range of legal precedents; d) he gave thought to the importance of

tradition, surveying the social and historical context at the time of the enactment; and e) he interrogated

several relevant policy considerations.

58 See for example, Thornhill v A-G (1979) 31 WIR 498, [1981] AC 61 (PC TT). Here the analytical

construct was that the constitutional value of the right to counsel was found to pre-date the Constitution

(as a settled practice), to have been incorporated into the Constitution, and to have ongoing value at the

time of the breach, and foreseeably into the future. Significantly, ‘the pre-existence of the right provided

the anchor for the constitutional guarantee …’; Robinson, Bulkan and Saunders (n 23) at [3-015]. See

also Maharaj v A-G (No 2) (1978) 30 WIR 310, [1979] AC 385 (PC TT), where it was declared a pre-

Constitution settled law/practice that a person charged with contempt is entitled to have the specific

offence stated and the opportunity to respond to it before a determination of the issue. This pre-existing

right was used to anchor the fundamental right contravened.

[46] In my opinion, combining both radial and linear line-of-causation analyses

advances a more coherent and inclusive developmental approach to Caribbean

constitutionalism.

(ii) The DPPs Argument

[47] Although I am not convinced by the Director’s arguments, it is nevertheless

useful to outline them. The DPP submits that the Court of Appeal, given its

character as an appellate court and not a court of original jurisdiction, in the

context of the appeal before it, had no jurisdiction to fashion a remedy for the

breach of Marin’s constitutional right.

[48] In the Director’s opinion, the Court of Appeal’s jurisdiction in relation to

appeals against conviction and sentence is established and limited by s 30 of the

Court of Appeal Act. Further, that s 30(1) admits only three bases upon which

an appeal against conviction can be allowed: (i) that the verdict of the jury

should be set aside on the ground that it is unreasonable or cannot be supported

having regard to the evidence, or (ii) that the judgment of the court before which

the appellant was convicted should be set aside on the ground of a wrong

decision on a question of law, or (iii) that there was a miscarriage of justice. The

DPP submits that the issue of delay is potentially encapsulated within the third

basis, ‘miscarriage of justice’, but that the remedy of reducing or staying the

enforcement of the sentences does not flow from any of the three statutory

powers in respect of an appeal against a conviction.

[49] The DPP further submits that the proper regime for seeking redress for a breach

of a constitutional right is set out in s 20 of the Constitution. The procedure

originates in the Supreme Court and the jurisdiction of the Court of Appeal in

relation to the infringement of constitutional rights is appellate only. The DPP

relies on this Court’s decision in R v Henry59, applied by the Court of Appeal in

Daley v The Queen60, and submits that as no claim for constitutional relief was

made in the trial court, no such issue could be entertained on appeal.

59 Henry (n 13). 60 (Belize CA, 2 November 2018).

[50] The DPP however accepts that a constitutional issue can be raised on appeal but

submits that this can only be done if the issue is bound up with a substantive

ground of appeal (whether against conviction or sentence), and the remedy being

sought must be one that is within the jurisdiction of the Court to grant in the

context of the appeal before it.

[51] The DPP also denies both legally and factually that Marin was denied the

prospects of consideration for parole. She admits the breach of a constitutional

right to a fair hearing within a reasonable time, but submits that it did not impact

his parole prospects. Thus, the matter of parole is irrelevant to the issue of

whether there was a breach of the Constitution. The DPP points out that in

relation to parole, upon entry into prison on conviction there is an automatic

process that is followed whether or not a convicted person has lodged an appeal.

And further, that the uncontroverted evidence in this case discloses that this

process was complied with.

(iii) Articulating the Court’s Position; Interrogating the DPPs Arguments

(a) Textualism

[52] The DPP places s 30(1) of the Court of Appeal Act61 front and centre of this

analysis (in so far as Marin’s appeal was limited to an appeal against

conviction).62 In my opinion this is fundamentally and fatally misplaced. While

s 30(1) does describe the statutory bases of a court of appeal’s jurisdiction in

relation to criminal appeals against conviction, it does not purport to do so in

relation to constitutional issues. Indeed, s 30 of the Court of Appeal Act is

entirely silent on the Court of Appeal’s jurisdiction in criminal matters in

relation to constitutional issues. For this jurisdiction one must turn to section

100 of the Constitution.

[53] Section 100 sub-ss (1) and (3) state:63

100. (1) The Court of Appeal shall have such jurisdiction and powers to

hear and determine appeals in civil and criminal matters as may

be conferred on it by this Constitution or any other law.

61 Cap 90. 62 Section 30 appears in pt IV of the Court of Appeal Act, headed ‘Criminal Appeals’. 63 Belize Constitution Act Cap 4, s 100.

…

(3) The Court of Appeal shall be a superior court of record and,

save as otherwise provided by any law, shall have all the powers

of such a court. (emphasis added).

[54] The Constitution thus provides that the jurisdiction of the Court of Appeal can

arise from the Constitution itself, as well as from any other law. Section 30 of

the Court of Appeal Act is such an ‘other law’ and could, maybe, be exclusively

apposite if there was no relevant constitutional warrant. But there is such a

jurisdictional authorisation to be found in the Constitution. It is to be found in s

20 of the Constitution.

[55] This approach is reinforced by reading the Constitution as a whole and

considering that s 2 of the Constitution declares that it ‘is the supreme law of

Belize’, and further that any ‘other law’ that is inconsistent with Belizean

constitutionalism is void ‘to the extent of the inconsistency’. Section 30 of the

Court of Appeal Act is therefore to be read subject to s 100 of the Constitution,

and not the other way around.

[56] Section 20 of the Constitution states:64

20. (1) If any person alleges that any of the provisions of sections 3 to

19 inclusive of this Constitution 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 Supreme Court for redress.

(2) The Supreme Court shall have original jurisdiction,

(a) to hear and determine any application made by any person

in pursuance of subsection (1) of this section; and

(b) to determine any question arising in the case of any person

which is referred to it in pursuance of subsection (3) of this

section, and may make such declarations and 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 3 to 19

inclusive of this Constitution.

64 Belize Constitution Act Cap 4, s 20.

(3) If in any proceedings in any court (other than the Court of

Appeal or the Supreme Court or a court-martial) any question

arises as to the contravention of any of the provisions of

sections 3 to 19 inclusive of this Constitution, the person

presiding in that court may, and shall, if any party to the

proceedings so requests, refer the question to the Supreme

Court unless, in his opinion, the raising of this question is

merely frivolous or vexatious. (emphasis added).

[57] This section grants the Court of Appeal jurisdiction to hear and determine in any

proceedings before that court, any question that arises as to the contravention

of s 6(2) of the Constitution. Subsection (3) does so by necessary implication,

an interpretation that is confirmed when it is read in light of a) sub-s (1) of s 20

of the Constitution, b) s 100(1) of the Constitution, and c) s 2 of the Constitution.

[58] To be more explicit. On a plain and ordinary reading of sub-s 20(1), the

jurisdiction in the Supreme Court in relation to constitutional review is ‘without

prejudice to any other action with respect to the same matter which is lawfully

available’. Subsection (1) expressly provides for this exception. The effect is

that the right to approach the Supreme Court, though prescribed here and in sub-

s (2), ‘is not provided as a unique or exclusive procedure’.65 Intratextually, this

interpretation is supported by and supports the interpretation of the exceptions

provided for in sub-s (3).

[59] Subsection (3), whether or not read together with sub-s (1), prescribes by

necessary implication,66 that where ‘any question arises’ in ‘any proceedings’

before the Court of Appeal as to the contravention of the fundamental rights and

freedoms enshrined in pt II of the Constitution (ss 3 to19), that court can deal

with the issue (and does not have to refer it to the Supreme Court for

consideration). Therefore, on the express language in s 20(3) of the Constitution

and bearing in mind the ordinary rules of grammar and syntax, and reading s

20(3) in context, constitutional questions that arise in any proceedings in the

Court of Appeal can be heard and determined by that court.

65 See Bowe v The Queen, [2006] UKPC 10, (2006) 68 WIR 10 (BB) at [10] (Lord Bingham). 66 See Hinds v R (n 46) at 331 (Lord Diplock), in Constitutions ‘a great deal can be … left to necessary

implication’.

[60] However, this s 20(3) jurisdiction is not open-ended and unlimited. Two pre-

conditions apply. They emerge from the language of s 20(3). First, there must

be extant proceedings before a court of appeal. In this case, an appeal against

conviction. Second, the constitutional question must ‘arise’ from those

proceedings. Here, as a direct consequence of the post-conviction delay related

to the hearing, and then the determination, of the appeal.

[61] First, ‘any proceedings’. The Court of Appeal Act does not define ‘proceedings’.

It does however define ‘court’ as meaning the Court of Appeal of Belize.

Likewise, the Constitution does not define ‘proceedings’, but does define

Supreme Court, Court of Appeal, and Caribbean Court of Justice.67

[62] Resorting therefore to first principles and examining the language of the text in

context. In law, ‘proceedings’ generally refers to, collectively or individually,

the form in which legal actions are commenced and conducted, encompassing

all steps taken in a legal action, and includes all steps from filing, through

hearing, judgment, appeal, to final disposition, including steps towards

enforcement and recovery. In short, a reference to ‘proceedings’ encompasses

the totality as well as all parts, processes and procedures, from the first filing to

the final disposition, of a lawsuit or criminal prosecution.68

67 See Belize Constitution, s 131, Interpretation.

68 The ordinary or natural meaning or meanings of the word “proceedings” standing by itself, without

any adjectival description, are general in nature. The following are some judicial pronouncements on its

meaning: (i)‘The phrase “judicial proceedings” implies some form of adjudication and some kind of order

of a court or of some other person or body acting in a judicial capacity’ Quazi v Quazi [1979] 3 All ER

424 at 429–430; (ii) ‘The word “proceedings” is a word which covers not only those steps taken on an

information up to the moment of conviction but also includes steps taken on that information after

conviction to the point where sentence is imposed’ Elliott v Auckland City [1971] NZLR 824 at 828

(McMullin J); (iii) ‘The word “proceeding” is a word of wide import, and there is no reason to read it

down in the context of the orders to exclude an appeal’ Kowalski v Layton [2006] SASC 28 at 22. The

CCJ in a civil action, Chung v AIC Battery and Automotive Services Ltd, (2013) 82 WIR 357, (2013) CCJ

2 (AJ) at [11], opined that, ‘The word “proceeding” is used interchangeably throughout to indicate an

action, cause or matter. It has also been used in the Rules to indicate steps taken within an action.’

[63] In this case the hearing before the Court of Appeal was a part of the proceedings,

and everything that happened from conviction to the hearing and determination

of that appeal also happened during the course of proceedings in this matter.

This is both self-evident and uncontroversial.

[64] Second, lest there be any angst as to what satisfies the requirements of what is

meant by ‘any question arises’. ‘Arising’ used as a verb means ordinarily, to

emerge, or to come to light, or to become apparent, or to make an appearance,

or to appear, or to come into existence and other such meanings. Its roots lie in

Old English, ‘arisan’, meaning to get up (from lying, sitting, kneeling), to have

a beginning, to come into being, to spring forth from. In the context of the sui

generis nature of constitutional interpretation and of fundamental rights, these

words are to be given a broad and generous interpretation and application. Thus,

it becomes plain that the post-conviction delay in this matter directly and

unequivocally emerged out of and came into existence from, or more poetically

‘sprung forth from’, the extant criminal proceedings. A conclusion that is

textually, contextually, and purposively apt in this case.

[65] Both pre-conditions are qualified by ‘any’, which on a literal textual

interpretation is to be taken to mean what is says – one or some of a thing or

number of things, no matter how many. Its usage expresses a lack of restriction

in the class of things, here, ‘proceedings’, or ‘questions arising’. An

interpretation which is also contextually and purposively appropriate in relation

to s 20(3). Thus, clearly, both pre-conditions of s 20(3) are satisfied in this

matter.

[66] Any textual interpretations that construe these provisions otherwise fall into the

constitutionally heretical trap of reliance on ‘the austerity of tabulated

legalisms’. Such interpretations, in their apparent preoccupation with ‘letters’,

end up being unfaithful to the essence and spirit of the Belizean Constitution.

They miss the forest for the trees, or in a more Caribbean flavour, the ocean for

the waves.69

(b) Intentionality

[67] The language used in the text and taken in context is ordinarily indicative of the

intention of Parliament. Here Parliament stated by necessary implication and is

presumed to have intended that in any proceedings before the Court of Appeal,

any questions that may arise from those proceedings as to the contravention of

fundamental rights in Belize could be considered and determined by that court.

If not so intended, why put in parenthesis at that place in s 20(3), the words

‘other than the Court of Appeal …’?

[68] If the intention was, that if an issue as to the contravention of fundamental rights

arises in proceedings before the Court of Appeal, that originating proceedings

before the Supreme Court had to be commenced, and the Court of Appeal lacked

any jurisdiction to entertain any such matters and presumably had to refer them

to the Supreme Court for determination, why place this exception in s 20(3)?

There would simply have been no need! These exceptions in s 20(3) point

unambiguously to the intention of Parliament.

[69] Furthermore, why create the exception in sub-s (1) of s 20 (‘without prejudice

to any other action with respect to the same matter which is lawfully available’)?

Yes, this could mean that a litigant could approach the courts by actions for both

constitutional relief as well as any other relief or remedies. And, therefore,

practically, it could be possible that such a litigant could seek constitutional

relief in actions and proceedings other than through the originating process

prescribed at sub-ss (1) and (2) of s 20. What is clear though, is that in both sub-

ss (1) and (3) of s 20, Parliament intended to create exceptions to the general

rule that constitutional relief must be sought by way of originating process

commenced in the Supreme Court.

69 McEwan (n 36) at [41] and Belize International Services Ltd (n 42) at [14].

[70] Moreover, given a) the supremacy clause in the Constitution70, b) the

constitutional prioritisation and valuation of fundamental rights in Belize,71 and

c) a similar prioritisation and valuation to be found in cl (a) of the Preamble to

the Constitution72, the clear import and intention of Parliament was that s 20,

through sub-ss (1) and (3), is to be facilitative of flexible access to courts for the

fullest vindication of those rights. Section 100(1) read with s 20(3) of the

Constitution confirms this intent and constitutional warrant in relation to the

Court of Appeal.

[71] Finally, section 6 (2) of the Constitution guarantees a right to a fair hearing. A

guarantee that is part of the more general and pervasive right to the protection

of the law (section 3 (a) of the Constitution). In this context, again applying a

generous and purposive interpretation to section 6 (2), ‘hearing’ includes all

aspect of court proceedings. And ‘fairness’ imports the protection of the law in

relation to the entire process. Thus, the right to ‘a fair hearing within a

reasonable time’, textually covers and is intended to cover post-conviction delay

as in this case. Post-conviction delay can be a denial of the protection of the law

to guarantee a fair and timely hearing.

[72] Indeed, an open minded, broad and purposive approach to constitutional

interpretation that seeks to realize the fullest and most practical access to

efficiently and effectively protect, uphold, and vindicate fundamental rights,

supports both the textual interpretation as well as the articulated intent described

above. To adapt the words of Saunders PCCJ in McEwan,73 courts should

always endeavour to place a premium on affording citizens full and effective

access to the courts for the purposes of vindicating contraventions of their

fundamental rights. And, to do so generously and as may be legitimately

permissible under the Constitution and the law.

70 See s 2. 71 Set out as they are in pt II of the Constitution. 72 With a constitutional mandate that these values and principles shall be constitutive of the

Constitution of Belize. 73 McEwan (n 36) at [41] and see also [88].

(c) Precedent

[73] There are judicial precedents of sound repute that support the approach which I

have taken and interpretation I have ascribed to s 20(3). What follows is a

summary of some of those, with emphasis on the more salient aspects. It is to

be noted that whatever these precedents may or may not state, I am of the clear

view on first principles, as explained above, that in this matter the Court of

Appeal, and this Court, had and has the jurisdiction to deal with this issue in the

circumstances of this case. This position is also supported by policy reasons, as

explored further below.

[74] In R v Pigott74 the Court of Appeal of the Eastern Caribbean Supreme Court

considered whether a breach of the constitutional right to a fair hearing was a

proper ground of appeal or whether separate proceedings were required before

the High Court. Section 18 of the Constitution of Antigua and Barbuda is a

similar provision to s 20 of the Constitution of Belize.

[75] Thom JA (Ag) was of the view that:75

[26] Where there is inordinate delay in the trial of an accused person, the

issue of infringement of his/her constitutional right to a fair hearing

within a reasonable time guaranteed under s 15(1) of the

Constitution may be raised at the criminal trial. Similarly, where

there is inordinate delay between conviction and the hearing of the

appeal it may be raised in the Court of Appeal as a ground of appeal

against both conviction and sentence. Indeed s 18(3) embraces this

approach.

[27] The effect of s 18(3) is that the Court of Appeal, the High Court and

also a court-martial can determine issues of contravention of any of

the constitutional rights outlined in ss 3–17 where those issues arise

in proceedings before the court. It is only where the issue arises in

other courts such as the Magistrates' Court then the court is required

to refer the matter to the High Court if a party makes such a request.

…

[34] If the argument of the learned DPP is correct, it would lead to the

consequence that a person such as the appellant, the hearing of

whose appeal has been delayed for several years would be required

to conduct two separate sets of proceedings involving the same

matter, pursue his appeal to the Court of Appeal and possibly an

74 (2015) 88 WIR 299 (ECSC CA) (AB). 75 ibid at [26], [27] and [34].

appeal to the Privy Council and another set of proceedings in the

High Court with a possibility of an appeal to the Court of Appeal

and Privy Council. In my view, that is not a correct interpretation of

s 18. In the words of Lord Diplock in Chokolingo v A-G, to give s

18 of the Constitution of Antigua and Barbuda an interpretation

which would lead to this result would be quite irrational and

subversive of the rule of law which it is a declared purpose of the

Constitution to enshrine.

[76] In coming to this conclusion Thom JA (Ag) cited several decisions in which ‘the

issue of whether delay in the trial of accused persons and/or post-conviction

delay constitute an infringement of the constitutional right provisions of s 15(1)

and similar provisions in the constitutions of other Commonwealth countries has

been considered and determined by the Privy Council on a number of

occasions’. And further, that ‘in these cases the issue was raised either at the

trial, as a ground of appeal, or in some instances for the first time before the

Privy Council.’ Those cases were: Flowers v R76 ; Boolell v The

State77; Elaheebocus v State of Mauritius78; Aubeeluck v State79; Tapper v

DPP80; Rummun v State of Mauritius81;and R v Pigott.82

[77] In Tyson v R83 the appellant was convicted of murder and sentenced to a term of

life imprisonment. The appellant appealed his conviction on the ground that his

right to a fair trial had been contravened. He had not raised this issue in the High

Court and so the preliminary issue arose whether the Court of Appeal had

jurisdiction to entertain a constitutional point that had not been raised in the

High Court. Section 31(7) of the Virgin Islands Constitution Order is similar to

s 20(3) of the Belize Constitution.

[78] In the Court of Appeal, Gonsalves JA (Ag) pointed out:84

76 [2000] UKPC 41, (2000) 57 WIR 310 (JM). 77 [2006] UKPC 46, [2007] 2 LRC 483. 78 [2009] UKPC 7, [2009] 4 LRC 783. 79 [2010] UKPC 13, [2011] 1 LRC 627. 80 [2012] UKPC 26, [2013] 2 LRC 75 (JM). 81 [2013] UKPC 6, [2013] 4 LRC 655, [2013] 1 WLR 598. 82 Pigott (n 74) at [28]. 83 (2017) 92 WIR 328, [2018] 5 LRC 270 (ECSC CA). 84 ibid at [23].

[23] However, under s 31(7), the Constitution Order expressly

contemplates the possibility of questions as to the contravention of

any of the provisions of Ch 2 arising in any proceedings before the

High Court, the Court of Appeal and the Privy Council. The

provision allows for such matters arising in other courts85 to be

referred to the High Court and the High Court is to determine such

matters in accordance with s 31(8). By inference, this must mean

that questions arising as to the contravention of any of the provisions

of Ch 2 in what are substantively non-constitutional proceedings in

the High Court, can be determined within those proceedings without

the necessity of bringing a separate constitutional application before

the High Court. And constitutional questions arising in proceedings

in the Court of Appeal or the Privy Council, can be determined by

the Court of Appeal or the Privy Council as the case may be. On a

purely literal interpretation, one is led to the conclusion that if a

question as to the contravention of any of the provisions of Ch 2

were to properly arise on an appeal before the Court of Appeal, such

question not having been taken previously before the High Court,

the Court of Appeal would have jurisdiction to hear and determine

the question, and s 31(2) would not prevent the Court of Appeal

from so acting.

[79] Sections 31(1), and 31(7) of the Virgin Islands Constitution Order are in pari

materia to ss 20(1), and 20(3) of the Constitution in Belize.

[80] These opinions of Caribbean intermediate appellate courts are of great value and

reflect a regional understanding of how ss 20(1) and (3) of the Belizean

Constitution is to be interpreted and applied. Regrettably, the British Privy

Council has been somewhat less clear on the matter.86

[81] However, three opinions from the Privy Council are useful, stand out for me,

and bear repeating here:

[82] In Bowe v The Queen87 Lord Bingham found that the Court of Appeal erred in

failing to entertain a challenge to the constitutionality of a sentencing provision.

He noted:88

85 Such as subordinate courts, eg the Magistrate's Court or the Industrial Court. 86 Bowe v R [2006] UKPC 10, (2006) 68 WIR 10 (BS); Ramdeen v State [2014] UKPC 7, (2014) 84

WIR 447 (TT); Hunte v State [2015] UKPC 33, [2016] 1 LRC 116 (TT); Silly Creek Estate and Marina

Co Ltd v A-G of Turks and Caicos Islands [2021] UKPC 9. 87 Bowe (n 86). 88 ibid at [10].

The majority of the Court of Appeal read this article as precluding it from

entertaining a challenge to the constitutionality of a sentencing provision

on an appeal against sentence in criminal proceedings. Redress must be

sought in a separate application to the Supreme Court. The Board cannot

accept these conclusions for two main reasons. First, they are inconsistent

with the decision of the Board in Chokolingo v Attorney-General of

Trinidad and Tobago [1980] UKPC 27, (1980) 32 WIR 354. Secondly,

they are inconsistent with art 28. Subsection (1) of the article makes plain

that the right of application to the Supreme Court for redress is “without

prejudice to any other action with respect to the same matter which is

lawfully available”. Thus, the right of application to the Supreme Court is

not provided as a unique or exclusive procedure, an interpretation made

still clearer by the proviso to subsection (2). The provision in subsection

(3) for reference to the Supreme Court applies only where the question

arises in proceedings in any court “other than the Supreme Court or the

Court of Appeal”: the inescapable inference is that if the question arises

in proceedings in one or other of those courts, it shall be resolved in that

court in those proceedings. In concluding otherwise, the Court of Appeal

majority fell into error.

[83] Most recently, in Silly Creek Estate and Marina Company Ltd v Attorney

General of Turks and Caicos Islands,89 Sir Lindblom writing for the Privy

Council found that the Court of Appeal did not err in entertaining an argument

on the breach on constitutional rights to property. The Attorney General had

sought to persuade the court that the Court of Appeal lacked jurisdiction to

decide the question of granting the company relief under the Constitution for an

alleged breach of its right to the peaceful enjoyment of property, in the absence

of any consideration and conclusion by the Chief Justice at first instance. The

Court of Appeal regarded itself as being properly seized of the point. Citing

Bowe v The Queen, Sir Lindblom found that the language used in the

Constitution of the Turks and Caicos Islands was non-exclusionary language,

and the right of application to the Supreme Court is ‘without prejudice to any

other action with respect to the same matter which is lawfully available’.90

[84] This ‘non-exclusionary language’ (in ss 21(1) and (3) of the Constitution, Turks

and Caicos Islands) is in pari materia to the language in sub-ss 20(1) and 20(3)

of the Constitution of Belize.

89 [2021] UKPC 9. 90 Silly Creek Estate (n 86) at [65]-[68].

[85] Finally, the dissenting opinion of Lady Hale in Hunte v State91, in which she

opined that where an appeal was properly before the Board, the Board had

jurisdiction to commute a death sentence on constitutional grounds even though

the matter was before it on a criminal appeal rather than by way of a

constitutional motion. In her opinion, s 14(1) of the Constitution of Trinidad and

Tobago (‘… then without prejudice to any other action with respect to the same

matter which is lawfully available …’), which is in pari materia with s 20(1) of

the Constitution of Belize, clearly contemplated that a violation of constitutional

rights could be remedied when it arose in the course of ordinary proceedings as

well as by constitutional motion; also citing with approval the Board’s earlier

decision in Bowe v The Queen. 92

[86] In relation to this issue, Lady Hale would opine: ‘The Constitution obviously

contemplated that the courts could remedy a breach of the Constitution if the

question arose in ordinary proceedings before them.’93

[87] In my opinion this interpretation is jurisprudentially and interpretatively apt in

relation to the language used by and the intent of the Parliaments of both Belize

and Trinidad and Tobago.

(d) Policy

[88] Courts have consistently applied policy analysis and evaluations in the discharge

of their duty to interpret and apply law. The ‘law’ in the context of Caribbean

written constitutions is ‘the law … as interpreted or declared by the judges in

the exercise of the judicial power of the state.’ 94

91 Hunte (n 86) at [83]-[106]. 92 At [93]; and at [96] “The question in the current appeals is whether, there being a properly constituted

appeal before the Board for other reasons, the Board has power to commute the sentence of death or

whether it has to refuse that relief and leave it to the appellant to bring separate proceedings in the High

Court. … I find that a surprising proposition when s 14 of the Constitution clearly contemplates that the

violation of constitutional rights can be remedied when it arises in the course of ordinary proceedings as

well as by constitutional motion.” Note, s 14(1) of the Constitution of Trinidad and Tobago is in pari

materia with s 20(1) of the Constitution of Belize. 93 ibid. 94 Chokolingo v A-G (1980) 32 WIR 354 at 358 (Lord Diplock).

[89] In McEwan, Saunders PCCJ applied policy considerations and choices

throughout his analysis, typically indicated and telegraphed by using a

prescriptive ‘should’.95 However, the use of policy as an interpretative lens is

not always so explicitly disclosed and is often revealed in other ways.96

[90] In Chokolingo the Board embarked on a consequentialist analysis during their

decision-making process, evaluating the applicant’s arguments by considering

its effects, and making an interpretative choice as a result.97 Policy analysis is a

well-established and legitimate basis for decision making.

[91] In this matter, if the court were to apply the interpretation suggested by the

Director, the consequences would likely be as follows. First, Marin would have

had to initiate fresh proceedings in the Supreme Court to vindicate the accepted

breach of his s 6(2) rights. Second, those proceedings could not have effectively

commenced until the hearing in the Court of Appeal had begun, though he could

have done so prior to that event so as to vindicate a foreseeable breach.98 Third,

in either scenario Marin would have had two parallel sets of proceedings in train

at the same time arising out of the same proceedings – his appeal against

conviction and his constitutional action. Fourth, arguably his appeal may have

had to have been stayed to await the outcome of the constitutional action, as the

relief sought on the constitutional issue included the stay or suspension of any

further execution of his sentence.

[92] Fifth, a consequence of three and four above, given that the constitutional action

could have been appealed to the Court of Appeal and then to this Court, would

likely have been a further delay in the final determination of Marin’s matters.

Sixth, the effects of any such further delays, on him as well as on the

administration of justice, including on the use of scarce judicial resources,

95 McEwan (n 36) at [41], [44], [54], [79]. 96 See for example the following paragraphs in McEwan, [36] the need to ensure safety and stability,

[39]-[41] the need to uphold the supremacy of the Constitution and the Bill of Rights, and [88] the need

to adopt a liberal approach to affording standing and access to facilitate the interpretation and application

of the Constitution. 97 Chokolingo (n 94) at 359, ‘Acceptance of the applicant's argument would have the consequence that

in every criminal case… there would be parallel remedies available to him; one by appeal to the Court of

Appeal, the other by originating application.’ 98 See s 20(1), Constitution of Belize, ‘… is being or is likely to be contravened in relation to him ...’.

would only have compounded the constitutional complaint – a breach of his s

6(2) right to a fair hearing determined in a reasonable time. That is to say, the

Director’s approach would have likely compounded the very complaint which

is at the heart of this appeal.

[93] Conversely, the consequence of the approach that follows the interpretation I

have arrived at: a) avoids any further compounded delay and most if not all of

the effects of that, b) saves judicial resources and time, and c) finally determines

Marin’s matter in a single set of proceedings in a relatively efficient way. Time

loss, increased costs, replication of human resources, and emotional and

psychological angst are all mitigated. Further, effective access to the courts for

the vindication of the breach of Marin’s s 6(2) rights is facilitated. Finally, the

core prerogative of valuing and prioritising a constitution and rights centric

approach to litigation is upheld.

[94] It is important to note that in this matter all relevant facts were before the Court

of Appeal or could easily have been sought and obtained, and none were likely

to be in issue. As well, it was agreed that Marin’s s 6(2) rights had been

breached. The issues raised for determination were therefore pure questions of

law. Also, the State was adequately represented by the DPP before the Court of

Appeal, who was competent to assist that court (and this one) on any questions

of law, and on any policy considerations, that could arise on the hearing and

determination of this issue.

[95] There was therefore no unfairness in having the issue heard and determined by

the Court of Appeal, no prejudice to any party, and no absolute need for the

Attorney General (as representative of the State) to be in attendance. However,

if the latter was thought necessary, all that was required was for the proceedings

to be served on the Attorney General for consideration and possible intervention.

This is always an option for a Court of Appeal given the interpretation preferred

in this opinion. None of which is to say that the presence of the Attorney General

in proceedings such as these is not helpful and desirable. But only that in this

case the Attorney General’s absence is neither irregular nor fatal.

[96] Thus, there are good policy reasons that support the interpretation that I have

arrived at, and these add further strength and coherence to it.

(iv) Integrating this Court’s Approach to Constitutional Interpretation

[97] The interpretation and application I have arrived at is supported when one

applies the unique ideological and in-forming approaches to constitutional

interpretation that are apposite when human rights provisions are implicated.

This is so from both radial-causal-analysis and linear-causal-analysis

perspectives.

[98] In relation to radial-causal-analysis, the intersection and interweaving of textual,

intentional, precedential, and policy analyses provide strong and coherent

reasons for the interpretation I have posited. Further, such an analysis reveals

constitutionally how section 6 (2) is nestled in section 3 (a), and both within the

rule of law, and within the basic deep structure values of the Constitution, like

interlocking holons. There is therefore robust analytical integrity and legitimacy.

[99] In relation to linear-causal-analysis, in the past regional appellate and final

courts have adopted this approach, in the present case its value is self-evident,

and its significance in the future is predictably valuable, useful and convenient.

Consistency, predictability, and certainty are reinforced.

[100] Most importantly, assessed through a sui generis centre of interpretation, this

declaration of the interpretation of s 20(3) as the meaning of the law, which is

the ultimate hermeneutical goal, is well within the province of this Court. It is

an interpretation and meaning that suits the special character of the Constitution

and especially the constitutional objective of prioritising human rights. In so

doing it rationally and reasonably also avoids interpretations shackled by ‘the

austerity of tabulated legalisms’. Significantly, all practical aids to interpretation

that have been applied cohere in support of this interpretation. It is also an

interpretation that satisfies the ideological approaches and imperatives of

Caribbean constitutional interpretation described in this opinion. It is therefore

a meaning that is apposite.

Conclusion

[101] There are sound and rational analytical bases for interpreting the meaning of s

20 of the Constitution of Belize, as conferring jurisdiction on the Court of

Appeal to hear and determine Marin’s constitutional claim that his s 6(2) rights

have been breached in this case. And, having done so and declared that breach

as unconstitutional, to further inquire into what, if any, other remedies are

appropriate in the circumstances of this case. Constitutional relief is always a

matter of judicial discretion, and that assessment as to remedies has been carried

out by our brother Barrow JCCJ, and I support his analysis and conclusions.

JUDGMENT OF THE HONOURABLE MR JUSTICE BARROW, JCCJ:

[102] The statement of the facts and comprehensive treatment of the issues provided

in the judgment of my brother, Jamadar JCCJ, with which I concur, permit me

to confine my attention to the matter of remedies. As stated in that judgment,

the remedy that Mr Marin seeks for the breach of his constitutional right to a

trial within a reasonable time is a stay of the further enforcement of his sentence.

[103] This Court was informed by the DPP that although Marin was released on parole

on 23 February 2021, the term of his sentence of imprisonment actually expires

on 13 January 2023. While his parole may only be revoked for good reason and

he may be fervently determined to provide none, ‘things happen’, and the reality

is that he is subject to being returned to prison to serve the remainder of his

sentence. Thus, it would be a substantial benefit to him to stay further

enforcement of his sentence and remove altogether the possibility of further

imprisonment.

Rights and remedies

[104] The grant of a remedy for breach of the right to a fair hearing within a reasonable

time is very much a matter of discretion. This is established in the language of

s 20(2) of the Belize Constitution, which provides that the Supreme Court,

among other things, may make such declarations and orders “as it may consider

appropriate” for the purpose of enforcing or securing the enforcement of any of

the fundamental rights provisions of the Constitution. There is no right to any

particular remedy.

[105] The exercise of discretion in making an order in relation to breach of the right

to trial within a reasonable time was considered in depth by Saunders JCCJ and

Wit JCCJ in this Court in Gibson v Attorney General.99 Gibson was an accused

person awaiting trial for murder and after a delay of four years he brought a

constitutional application, asking the High Court to order a permanent stay or

dismissal of the charge and award him damages.100 This Court considered the

specific question whether it was appropriate, both in principle and in relation to

that particular case, to grant such relief.101

[106] The Court recognized that in some instances a remedy as far-reaching as a

permanent stay or dismissal of the charge could be appropriate, as where the

delay has rendered impossible a fair trial.102 The Court also observed that in the

case of a convicted person the remedy could be directed at the sentence, as stated

in the following observation:

[64] Where breach of the reasonable time guarantee is established before

trial the court should consider issuing a suitable declaration

denouncing the breach and making an order that expedites the

hearing. If the accused is in custody then the court must have regard

to section 13(3) of the Constitution which requires the release on

bail of the accused. If at the trial there is a conviction then the trial

judge should always consider a reduction in the severity of the

sentence in light of the delay. …

In that appeal the Court decided that it would not have been appropriate to issue

a permanent stay or dismissal of the charge for the reason only that unreasonable

delay had occurred.103

99 [2010] CCJ 3 (AJ), (2010) 76 WIR 137 (BB). 100 ibid at [2]. The case is also a leading decision on the alleged right of an accused person to be provided

by the state, at public expense, with the requisite facilities for defending himself, in this case with the

assistance of an expert in the field of forensic odontology to assist the accused in defending against an

allegation that a bite mark had been made by him. 101 ibid, beginning at [47]. 102 ibid at [63]. 103 ibid at [65].

[107] It is notable that Gibson was an accused person awaiting trial and the

constitutional motion he brought was a separate proceeding from the criminal

trial that he was yet to undergo. In contrast, in Marin’s case he has been found

guilty and his conviction and sentence have been confirmed so that the remedies

that may be considered by this Court in relation to him are more limited. No

question can arise of possible prejudice or unfairness of a trial, so as to require

dismissing the charges. Neither can his sentence be reduced for failure of the

sentencing court to take account of the delay, which Gibson established was a

relevant consideration for the judge passing sentence.104

[108] In contrast with Gibson, Bridgelall v Hariprashad105 was an appeal by a

convicted person in which this Court considered the remedy for breach of the

right to trial within a reasonable time and made the order which Marin now

seeks. Saunders JCCJ observed that “courts make orders that span an impressive

variety” which “have ranged from the setting aside of a conviction to the

quashing of a death sentence.”106 The Court indicated that its principal concern

is with fashioning a remedy that is effective given the unique features of a

particular case and decided, in that light, that the appropriate remedy in that

appeal would be to stay further action against Bridgelall with respect to the

enforcement of the imposed prison sentence.107

[109] Substantially the same remedy was given more recently in Fraser v The State108

in which this Court upheld the decision of the Court of Appeal of Guyana not to

quash the conviction because of delay but to stay the further imprisonment of

the appellant, as being well within the legitimate range of options open to the

court.109

104 ibid at [64]. 105 Bridgelall (n 19). 106 ibid at [42]. 107 ibid. 108 Fraser (n 16). 109 ibid at [45].

The reason for the remedy

[110] The element of discretion as to what is the appropriate remedy for a breach of

the right to a fair trial within a reasonable time that was discussed in Gibson110

requires courts to consider the matter on a case-by-case basis, taking account of

all the circumstances of the case. This was reflected in the judgment of this Court

delivered by Byron PCCJ and Anderson JCCJ in Singh v Harrychan111 when

they stated:

… In some cases, the consequence of the delay may result in a reduction

of the sentence, whereas this may not be an appropriate remedy in

others.112

[111] The discussion in Gibson provides a helpful indication of relevant

circumstances113 to consider in deciding what is an appropriate remedy. Thus,

an accused person may have contributed substantially to delay114 and there may

have been other factors contributing to delay including lack of legal

representation or access to critical resources, such as a highly specialised

expert115. Wider considerations may also be included in the circumstances a

court must consider, such as the nature of the crime and the impact on the

society’s sense of justice116, when deciding on what is appropriate.

[112] It is clear, therefore, that it is not the normal course that a convicted person

whose constitutional right to a fair hearing has been breached will have their

sentence reduced or suspended. When that happens, it is done on a principled

basis of vindicating the right that has been breached. It is done to uphold the rule

of law; to mark the value of the constitutional right; to meaningfully affirm that

the administration of the legal and judicial system is as much subject to the law

as everyone else. It is done for the good of the community and in the public

110 See (n 99). 111 Singh (n 21) at [29]. 112 See for example Tapper (n 80) and Mills v HM Advocate and another [2002] UKPC D2, [2004] 1 AC

441. 113 [2010] CCJ 3 (AJ), (2010) 76 WIR 137 (BB) at [61] and following. 114 ibid [58]. 115 ibid [65]. 116 ibid [68].

interest. This is shown by a review of some randomly selected judicial decisions

on the remedy for delay.

Instances of staying the sentence

[113] Earlier instances of a reduction in sentence as a remedy for breach of the right

to trial within a reasonable time are provided by the decisions of the Privy

Council in Boolell v The State117 and Elaheebocus v The State118, which were

both appeals from Mauritius. In the former, it was decided that ‘their Lordships

would not regard it as acceptable that the prison sentence imposed … should be

put into operation some 15 years after the commission of the offence unless the

public interest affirmatively required a custodial sentence, even at this stage.’119

In the latter case, after expressing the view that a declaration may well have

been a sufficient remedy, the court went on to state that on balance it was “right

to mark the undoubted constitutional breach in this case by making a modest

reduction in the sentence to be served.”120

[114] Those cases indicate that redress for a convicted person will usually be a matter

of the court deciding whether it is a sufficient remedy to declare the breach or

if, further, the sentence should be reduced or stayed. As noted above, the options

for redress in the case of a convicted person on an appeal in criminal proceedings

are limited and, it bears emphasis, the decision must be taken on a case-by-case

basis. Factors which typically inform that decision are seen in two recent

decisions from regional Courts of Appeal, which state the reasons for reducing

the sentence. In Rambarran v R121 two appellants had their sentences reduced

to ‘time served’ and were ordered to be released immediately from prison after

a delay of about fourteen years. The Court of Appeal of Barbados recognized

the need to balance, on the one hand, the public interest in ensuring that

convicted persons serve their full sentence for crimes they committed and, on

the other hand, the public interest in ensuring that constitutional rights are

117 Boolell (n 77). 118 Elaheebocus (n 78). 119 Boolell (n 77) at [39]. 120 [2009] UKPC 7, [2009] 4 LRC 783 at [23]. 121 [2019] 5 LRC 431 (BB CA) at [199]-[201].

safeguarded by trial and appellate processes that are properly performed by

those entrusted to preserve and uphold those rights.122

[115] In Evans v The Attorney General,123 an appeal against a life sentence for murder,

the Court of Appeal of the Commonwealth of the Bahamas reduced the life

sentence to 40 years imprisonment. One of the reasons for the reduction of

sentence was to compensate the appellant for the breach of his right to a fair trial

within a reasonable time after a delay of more than eight years. In deciding to

‘compensate’ the appellant for the delay, Barnett JA used the expression that

was contained in the following passage he quoted124 from the decision of the

Jamaican Court of Appeal in Tapper v DPP125 that was upheld by the Privy

Council:

“… in the circumstances of this case a reduction in the sentence … would

be sufficient to compensate the appellants for the effects of the delay.”

The public interest

[116] The fact that the remedy for breach that is given to an appellant has been

described as serving to compensate him for the effect upon him of the breach

does not detract from the wider and fundamental considerations -- the public

interest considerations, -- that impel the remedy of a reduction or suspension of

sentence, mentioned at [10], above. As stated by the Court in Gibson, in

recognizing the wide range of remedies available to a court for breach of a

fundamental right contained in the constitution, these remedies have included

reducing a sentence of death to a sentence of life imprisonment, as was done in

Pratt v Attorney General. 126 The simple and profound principle that led to that

decision in Pratt was that the public interest demanded it. This was expressed

in the Privy Council’s declaration that there is an instinctive revulsion against

the prospect of hanging a man after he has been held under sentence of death for

many years. As that court stated, our humanity makes us, the society, regard it

122 ibid at [200]. 123 (The Commonwealth of Bahamas CA, 6 December 2018) [29]-[30]. 124 ibid [31]. 125 Tapper (n 80). 126 Pratt (n 50).

as inhuman to keep a man facing the agony of his execution over a long

extended period of time.127

[117] Of course, there can be no comparison between the agony that the condemned

men in Pratt suffered, including three times being taken to a room next to the

execution room to await their hanging which was to take place in a matter of

hours, and the far lesser grief that Marin suffered from the delay in his case.128

An attempt at such a comparison would be immediately dismissed. But the

principle that it is in the public interest for the courts to vindicate a fundamental

right by granting an appropriate remedy needs no such comparison because the

principle clearly is one of general application.

[118] In Pratt, the agony and inhumanity of the long delay had already occurred so

the remedy that the court gave was not to undo the violation or only to

compensate for that delay; it was to recognize the fact that in all the

circumstances of that case it would have been inhuman to execute the men after

that delay. The remedy was not directed to the proposition that the sentence was

wrong (which may well have been the underlying philosophy); it was directed

to the conclusion that the execution of the sentence after such delay would have

been inhuman, amounting to a form of double punishment. The remedy granted

in Pratt, therefore, was to affirm the public interest in having the administration

of justice act faithfully in accordance with the constitution.

[119] Similarly, in Marin’s case the delay has already occurred and cannot be undone.

But Marin is certainly entitled to consideration of compensation for the breach

of his fundamental right and, more profoundly, to an effective remedy that flows

from the recognition that it would be a further breach of due process and would

compound the delay to leave hanging over his head the threat of imprisonment.

Marin committed his crime in 2006 and could have expected to have served his

127 ibid at 356 and 360. 128 The absence of any evidence from Marin personalizing his suffering hardly matters. Marin’s concern,

apparently shared by his lawyer, that he was denied consideration for parole (now said to be a

misconception) and remission because his appeal remained pending, is enough to bring home to the mind

of any person of normal sensitivity and compassion the suffering that Marin must have experienced as a

result of the delay and uncertainty; cf the Privy Council approach Pratt (n 50) at 343.

sentence of 10 years imprisonment some time ago, with allowance for the

usually expected parole or remission, as he would have done had there not been

a total of 14 years pre-conviction and post-conviction delay. It is the State’s

delay that has him still under sentence of imprisonment. To keep in existence

the prospect of potentially sending him back to prison after that delay, now

judicially pronounced to be unconstitutional, would be to extend the effect of

the breach. To actually send him back to prison after that delay would be, if not

inhuman, at least not “acceptable”, to use the epithet of the Privy Council in

Boolell.129 Since it would be wrong to send him back to prison, it serves no

lawful purpose to leave him subject to that prospect. Therefore, in addition to a

declaration of the breach of his right to a fair hearing within a reasonable time,

I would order a stay of the further enforcement of the sentences.

JUDGMENT OF THE HONOURABLE MR JUSTICE ANDERSON, JCCJ:

Introduction

[120] In August 2006, Mr Solomon Marin Jr, (“the Appellant”) was arrested and

charged, along with one Mr Oliver Rodriguez, with the offences of robbery,

kidnapping and stealing a motor vehicle. The trial commenced before Gonzalez

J and jury on 13 June 2011, and ended on 29 June 2011, with the conviction of

the Appellant for robbery and kidnapping. He was sentenced to imprisonment

for 10 years on each count, the sentences being made to run concurrently. His

co-accused was acquitted. The Appellant filed a Notice of Appeal on 5 July

2011, but the appeal was not heard until June 2019, some eight years later. He

was admitted to bail, at the conclusion of the appellate hearing, on 20 June 2019.

The delay of the roughly eight years in the hearing of the appeal was caused by

the absence of a proper transcript of the proceedings of the trial court. The appeal

was not finally disposed of until 2 November 2020, when the Court of Appeal

dismissed it and ordered the Appellant to present himself to the police for

transportation to prison to serve the remainder of his sentence. He was granted

parole on 23 February 2021, but remains liable to be recalled to prison for “any

129 See text (n 119).

reasonable cause”; 130 a phrase whose meaning was discussed and explained by

this Court in August and Gabb v R.131

[121] The judgment of the Court of Appeal consisted of 133 paragraphs of which 82

paragraphs were devoted to a detailed and spirited discussion of what constitutes

a ‘record of appeal’ and whether, in the absence of a court generated transcript,

the Court of Appeal could properly use the prosecuting counsel’s notes as the

Record of Proceedings. These matters are, happily, not before us in this appeal.

The judgment also recorded that the counsel for the state did not at any stage

seek to rebut the Appellant’s contention that his right, laid down in s 6(2) of the

Constitution of Belize to a fair trial within a reasonable time, had been

violated.132 Elsewhere in the judgment the Court of Appeal found that the state

had “effectively conceded that there was in this case a breach of s 6(2) of the

Belize Constitution” and that it, ie, the Court of Appeal, was “prepared to

proceed, arguendo, on [that] basis.”133

[122] The appeal to this Court from the judgment of the Court of Appeal is premised

on a single argument. The argument is that given the concession of the breach

of his constitutional rights, the Court of Appeal erred in failing to fashion an

appropriate remedy for the breach. It is further argued that the appropriate

remedy, given the unique features of the case, ought to have been a permanent

stay of further enforcement of the sentences. In practical terms the

pronouncement of this remedy on 2 November 2020, would have meant the

completion, on that date, of the Appellant’s sentence of imprisonment. There

would have been no risk that he could thereafter have been recalled to prison in

respect of his sentence for any cause, whether “reasonable” or not.

[123] In the appeal before us the Director of Public Prosecutions (“DPP”) concedes

that the post-conviction delay in the hearing and disposition of the appeal

breached the Appellant’s constitutional right under s 6(2) to a fair hearing within

130 Parole Act 2017, s 9(1). 131 [2018] CCJ 7 (AJ), [2018] 3 LRC 552 (BZ). 132 ibid at [103]. 133 ibid at [117].

a reasonable time.134 This concession was properly made. For the reasons fully

explained by this Court in Gibson v Attorney-General,135 whilst a finding of

unreasonable delay cannot be based simply on a mathematical formula, the fact

there was passage of inordinate time in conducting the trial would raise a

presumption, rebuttable by the state, that there had been undue delay. In this

case there is no attempt to rebut the presumption of breach to which the delay

of eight years pointed. Indeed, as indicated earlier, the breach is conceded.

However, the DPP contends that the Court of Appeal had no jurisdiction to

fashion a remedy for the breach as it was an appellate court and not a court of

original jurisdiction.136 It is further argued that the regime for seeking redress

for a breach of a constitutional right is set out in s 20 of the Constitution which

requires that the procedure originates in the Supreme Court whereas the

jurisdiction of the Court of Appeal in relation to the infringement of

constitutional rights is appellate only.137

[124] For the reasons which follow, I am of the view that, in this case, the Court of

Appeal possessed jurisdiction to pronounce upon the claim of constitutional

violations and to fashion an appropriate redress for the clear breach which had

occurred. I am also satisfied that the remedy sought by the Appellant of a

permanent stay of further enforcement of his sentence, is entirely appropriate in

all the circumstances and should be granted by this Court.

Jurisdiction of the Court of Appeal

[125] Section 94 of the Constitution of Belize138 provides that there shall be for Belize

a Supreme Court of Judicature and a Court of Appeal. Section 3(1) of the Court

of Appeal Act139 similarly provides that there shall be in and for Belize a Court

of Appeal having such powers and jurisdiction as provided for in that Act. As

such, the jurisdiction of the Court of Appeal is provided for in the Constitution

and in statute.

134 Marin v The Queen (Belize CA, 2 November 2020) at [5]. 135 Gibson (n 99). 136 Marin v The Queen (Belize CA, 2 November 2020) at [7]. 137 ibid at [13]-[14]. 138 Rev Ed 2011, Cap 4 (BZ). 139 Rev Ed 2011, Cap 90 (BZ).

[126] Section 100(1) and (3) of the Constitution is in the following terms:

“100. (1) The Court of Appeal shall have such jurisdiction and powers

to hear and determine appeals in civil and criminal matters as

may be conferred on it by this Constitution or any other law.

(3) The Court of Appeal shall be a superior court of record and,

save as otherwise provided by any law, shall have all the

powers of such a court.” (Emphasis added).

[127] In respect of civil appeals s13(1) and (2) of the Court of Appeal Act provides:

“13. (1) Subject to this Part and to rules of court, the Court shall have

jurisdiction to hear and determine appeals from judgments and

orders of the Supreme Court given or made in civil proceedings

and for all purposes of and incidental to the hearing and

determination of any such appeal.

(2) The Court shall have jurisdiction to hear and determine any

matter arising in any civil proceedings upon a case stated or upon

a question of law reserved by the Supreme Court or a judge

thereof pursuant to any power conferred in that behalf by any

law.”

[128] The jurisdiction of the Court of Appeal in respect of criminal appeals is set out

in pt. IV of the Court of Appeal Act. Pursuant to pt. 23, persons are given a right

of appeal against conviction and sentence. The powers of the Court of Appeal

in criminal appeals are provided for primarily in s 30 which states:

“30. (1) The Court on any such appeal against conviction shall allow the

appeal if it thinks that the verdict of the jury should be set aside

on the ground that it is unreasonable or cannot be supported

having regard to the evidence, or that the judgment of the court

before which the appellant was convicted should be set aside on

the ground of a wrong decision of any question of law or that

on any ground there was a miscarriage of justice, and in any

other case shall dismiss the appeal: Provided that the Court may,

notwithstanding that it is of the opinion that the point raised in

the appeal might be decided in favour of the appellant, dismiss

the appeal if it considers that no substantial miscarriage of

justice has actually occurred.

(2) Subject to the special provisions of this Part, the Court shall, if

it allows an appeal against conviction, quash the conviction and

direct a judgment and verdict of acquittal to be entered, or if the

interests of justice so require, order a new trial.

(3) On an appeal against sentence the Court shall, if it thinks that a

different sentence should have been passed, quash the sentence

passed at the trial and pass such other sentence warranted in law

by the verdict (whether more or less severe) in substitution

therefor as it thinks ought to have been passed, and in any other

case shall dismiss the appeal.

(4) The power of the Court to pass a sentence includes a power to

make any such order or recommendation as the convicting court

might have made and a recommendation so made by the Court

shall have the same effect as the certificate and recommendation

of the convicting court.”

[129] In sum, s 100 of the Constitution confers upon the Court of Appeal appellate

functions in respect of criminal and civil appeals with all the powers of a

superior court. Section 13 of the Court of Appeal Act confers jurisdiction and

powers in respect of civil appeals. Section 30 of the same Act elaborates wide

powers available in criminal appeals against conviction and sentence. An appeal

lies from final decisions of the Court of Appeal to the Caribbean Court of

Justice140 which has, in relation to any appeal to it in any case, all the jurisdiction

and powers possessed in relation to the case by the Court of Appeal.141

[130] However, these express constitutional and legislative provisions are not

necessarily exhaustive of the provisions on the jurisdiction of the Court of

Appeal; it will be recalled that s 100(1) of the Constitution specifically provides

that the Court of Appeal shall have such jurisdiction and powers, “as may be

conferred on it by this Constitution or any other law.” I consider that it is evident

from what follows that there are other constitutional provisions which clearly

provide a role for the Court of Appeal in the enforcement of constitutional rights.

Jurisdiction to enforce constitutional rights.

[131] Sections 3 to 19 of the Constitution set forth the fundamental rights and

freedoms to which every person in Belize is entitled. The procedure for

enforcement of these rights and freedoms is outlined in s 20 which is entitled,

“Enforcement of protective provisions”. Section 20(1) designates the Supreme

140 Belize Constitution Act, Rev Ed 2011, Cap 4 s 104(1). 141 ibid s 104(5); Caribbean Court of Justice Act 2010, s 6 (BZ).

Court as the judicial body to give redress for violation of constitutional rights.

This scheme, of enumerating the constitutional rights and freedoms followed by

an enforcement provision, is common to all Caribbean constitutions based on

the Westminster model, although the numbering and wording of the provisions

vary. Most noticeably, the ‘Supreme Court’ in Belize is styled the ‘High Court’

in some other Caribbean jurisdictions. Further, in some jurisdictions the

equivalent of the provision in s 20(1) is conditioned by a proviso; the Supreme

Court (or the High Court), shall not exercise its powers of redress if it is satisfied

that “adequate means of redress are or have been available to the person

concerned under any other law.”142

[132] The nub of the issue for decision in this appeal by this Court concerns the nature

and extent of the jurisdiction to enforce constitutional rights that is possessed by

the Court of Appeal, and by extension, this Court. Notwithstanding the

differences of wording in the various constitutional provisions, I consider that

the following general principles on the jurisdiction to enforce constitutional

rights are basically common to all Caribbean constitutions which stand in the

tradition of Westminster.

First. Original jurisdiction to hear and determine constitutional claims and

referrals for breaches of fundamental rights and freedoms and to fashion an

appropriate remedy is vested in and is ordinarily exercised by the Supreme

Court.

[133] This first principle is evident from the first two sub-ss of s 20, which are worth

quoting in full. Section 20(1) states:

“20. (1) If any person alleges that any of the provisions of ss 3 to 19

inclusive of this Constitution 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 Supreme Court for redress.”

142 Eg, Constitution of Barbados 1966 s 24(2).

Section 20(2) reinforces the foregoing by providing that:

“20. (2) The Supreme Court shall have original jurisdiction, (a) to hear

and determine any application made by any person in pursuance

of subsection (1) of this section; and (b) to determine any

question arising in the case of any person which is referred to it

in pursuance of subsection (3) of this section, and may make

such declarations and 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 ss 3 to 19 inclusive of this Constitution.”

[134] I am grateful to my brother Burgess JCCJ, for articulating the view that

commencement of constitutional rights litigation in the Supreme Court/High

Court permits the exploration of legal arguments by the claimant as well as by

the state before the full panoply of superior courts. Arguments may be refined

and focused at each successive level of adjudication thus leading to a more

perfect finding of the contested constitutional provisions. Most notably, an

appellate court is, by virtue of the evolution of the litigation, able to build the

constitutional jurisprudence on the foundation laid by the lower court. The

statement of the rights and obligations of the state to its citizens is hammered

out on the anvil of adjudication.

[135] The primacy of the Supreme Court/High Court to entertain claims and referrals

regarding breaches of fundamental rights is trite law. That primacy has been

affirmed since the dawn of Caribbean constitutionalism. DPP v Nasralla,143

came to the Supreme Court of Jamaica just one year after Jamaica gained

independence. The respondents could have appealed Small J’s ruling which

denied them the benefit of the autrefois acquit doctrine. Instead, they sought

relief from the Supreme Court under the constitutional rights enforcement

provision. Another judge of the Supreme Court decided that there had been no

breach of constitutional rights; this ruling was overturned by the Court of Appeal

but restored by the Privy Council.

143 [1967] UKPC 3, [1967] 2 AC 238 (JM).

[136] The seeming incongruity of a judge of coordinate jurisdiction sitting in

judgment on the decisions of another was addressed in Maharaj v Attorney-

General of Trinidad and Tobago (No 2).144 There a judge of the High Court of

Trinidad and Tobago found the appellant guilty of contempt and sentenced him

to seven days imprisonment. The judge failed to inform the appellant of the

particulars of the offence and the appellant successfully challenged the contempt

verdict before the Privy Council.145 Subsequently, the appellant instituted

proceedings in the High Court pursuant to s 6(1) of the Constitution of Trinidad

and Tobago 1962 (now s 14 of the 1976 Constitution), which is like s 20 of the

Belize Constitution. The issue was whether the failure of the learned judge to

observe the rules of natural justice amounted to a deprivation of the appellant’s

liberty otherwise than by due process of law in contravention of s 1(a) of the

Constitution and whether the High Court in its original jurisdiction under s 6(2)

could grant a remedy for such breach. The Privy Council found that the

appellant’s claim fell within the original jurisdiction of the High Court under s

6(2), stating that, “[d]istasteful though the task may well appear to a fellow judge

of equal rank, the Constitution places the responsibility for undertaking the

enquiry fairly and squarely on the High Court.”

[137] The responsibility is that of the judge of the Supreme Court/High Court because

no other court is vested with original jurisdiction to enforce constitutional rights

and freedoms. As Blackman JA would remark in Maycock v Commissioner of

Police146 in respect of the Court of Appeal of the Bahamas, “The Constitution

clearly does not provide any original jurisdiction to this court to consider any

questions arising in relation to the contravention of any of the provisions of arts

16 to 27 (inclusive); neither does the Court of Appeal Act or Court of Appeal

Rules contemplate or provide for the same…”. It therefore followed that as the

constitutional question before him did not involve a decision of the Supreme

Court or arose in an extant appeal, “the appellant’s originating motion must fail

as the jurisdiction does not exist for this court to hear the same.”147

144 Maharaj No 2 (n 58). 145 Maharaj v A-G of Trinidad and Tobago (No 1) [1976] UKPC 22, (1976) 29 WIR 318 (TT). 146 [2015] 3 LRC 183 (BS CA). See also Chastanet v Hilaire [2020] 4 LRC 12 (ECSC CA) (SLU) at

[10]-[12]. 147 Chastanet at [21]-[22].

Second. Courts which are subordinate to the Supreme Court are obliged to

refer questions arising before them that concern breaches of fundamental

rights and freedoms to the Supreme Court where a party so requests unless

the raising of those questions is frivolous or vexatious.

[138] The obligation on subordinate courts to refer constitutional questions regarding

breaches of fundamental rights and freedoms was foreshadowed in s 20(2),

where referrals are an express basis for the jurisdiction of the Supreme

Court/High Court. There is significant amplification of this obligation in s 20(3),

however, which provides that:

“(3) If in any proceedings in any court (other than the Court of Appeal or

the Supreme Court or a court-martial) any question arises as to the

contravention of any of the provisions of sections 3 to 19 inclusive

of this Constitution, the person presiding in that court may, and

shall, if any party to the proceedings so requests, refer the question

to the Supreme Court unless, in his opinion, the raising of this

question is merely frivolous or vexatious.”

[139] The referral obligation is thus subject to express limitations. The obligation is

discretionary unless a party requests the referral, in which case the referral

becomes mandatory; but even if there is a request, there is no requirement to

refer if the raising of the constitutional question was merely frivolous or

vexatious. Beyond these express limitations the Supreme Court/High Court will

be astute to ensure that the referral process is not abused to unnecessarily raise

constitutional issues. It may not be permissible to have recourse to referrals as a

substitute for normal causes of actions or for other procedures for invoking

judicial control of administrative action. Some constitutions (though not the

Constitution of Belize) expressly provide that the Supreme Court (or the High

Court), shall not exercise its powers to enforce constitutional rights, “if it is

satisfied that adequate means of redress are or have been available to the person

concerned under any other law.”148

148 Eg, Constitution of Barbados 1966 s 24(2).

[140] Where parallel remedies are available the referral will normally be dismissed:

Harrikissoon v Attorney General;149 Chokolingo v Attorney General of Trinidad

and Tobago;150 Panday v Attorney-General of Trinidad and Tobago.151 Further,

the Supreme Court will otherwise be shrewd to ensure that its jurisdiction to

grant constitutional relief is not abused by use of the referral procedure: Attorney

General v Ramanoop;152 Jaroo v Attorney General of Trinidad and Tobago;153

Hinds v The Attorney General.154

Third. Courts of coordinate jurisdiction and appellate courts are never obliged

to refer questions of fundamental rights that arise in the proceedings before

them and may, themselves, determine such rights and fashion an appropriate

remedy.

[141] This principle follows by clear and inescapable implication from s 20(3). That

subsection exempts the Court of Appeal, Supreme Court, and Court-Martial

from the obligation of having to refer to the Supreme Court constitutional

questions of fundamental rights and freedoms that arise in proceedings before

them. An appellate court, then, may remit questions of constitutional rights as

where, for example, the view of the relevant lower court on the question is

considered desirable, but it is not obliged to do so. The jurisdiction of the

appellate court pertaining to a violation of constitutional rights may be exercised

both (a) on appeal from a final decision of the Supreme Court, where such issues

were raised for determination; and (b) where such questions arise in extant

appellate proceedings; a basic point which was illustrated in Maycock v

Commissioner of Police.155 Accordingly, the right of application to the Supreme

Court for constitutional redress is the predominant but by no means the unique

or exclusive procedure for litigating the protection of constitutional rights and

freedoms.

149 [1979] UKPC 3, [1980] - AC 265 (TT). 150 [1980] UKPC 27, [1981], (1980) 32 WIR 354 (TT). 151 (Trinidad and Tobago CA, 22 April 2005). 152 [2005] UKPC 15, (2005) 66 WIR 334 (TT). 153 [2002] UKPC 5, [2002] 1 AC 871 (TT). 154 [2001] UKPC 56, [2002] 4 LRC 287 (BB). 155 [2015] 3 LRC 183 (BS CA) (Blackman JA). See also Chastanet v Hilaire [2020] 4 LRC 12 (ECSC

CA) (SLU) at [10]-[12].

[142] The competence of an appellate court to hear and decide constitutional points

not taken at trial and without referral to the Supreme Court was made

painstakingly clear in two recent decisions of the Eastern Caribbean Court of

Appeal. In R v Pigott156 Thom JA (Ag) noted, in respect of s 15 of the

Constitution of Antigua and Barbuda (which is like s 20 of the Constitution of

Belize), that inordinate delay in the trial of an accused person meant that the

issue of infringement of the constitutional right to a fair hearing within a

reasonable time may be raised at the criminal trial. Where there was inordinate

delay between conviction and the hearing of the appeal the constitutional right

to a fair trial within a reasonable time may be raised in the Court of Appeal as a

ground of appeal against both conviction and sentence. The learned Justice of

Appeal further noted that the issue of whether delay in the trial of accused

persons and/or post-conviction delay in the hearing of an appeal constitute an

infringement of the constitutional rights provisions had been considered and

determined by the Privy Council on a number of occasions including in the cases

of Flowers v R157; Boolell v The State;158 Elaheebocus v State of Mauritius;159

Aubeeluck v State;160 Tapper v DPP;161 and Rummun v State of Mauritius;162 in

these cases, “the issue was raised either at the trial, as a ground of appeal, or in

some instances for the first time before the Privy Council.”

[143] In Tyson v R163 Gonsalves JA (Ag) began by affirming that s 31(2) of the Virgin

Islands Constitution (equivalent to s 20(2) of the Constitution of Belize) clearly

stated that it was the High Court that had original jurisdiction and consequently

that neither the Court of Appeal nor the Privy Council was vested with original

jurisdiction. The latter courts were vested with appellate jurisdiction. He then

continued:

“[23] However, under s 31 (7), [equivalent to s 20(3) of the Constitution

of Belize] the Constitution Order expressly contemplates the

156 Pigott (n 74) at [29]-[34]. 157 Flowers (n 76). 158 Boolell (n 77). 159 Elaheebocus (n 78). 160 Aubeeluck (n 79). 161 Tapper (n 80). 162 [2013] UKPC 6, [2013] 4 LRC 655. 163 Tyson (n 83).

possibility of questions as to the contravention of any of the

provisions of Ch 2 arising in any proceedings before the High

Court, the Court of Appeal and the Privy Council. The provision

allows for such matters arising in other courts to be referred to the

High Court and the High Court is to determine such matters in

accordance with s 31(8). By inference, this must mean that

questions arising as to the contravention of any of the provisions

of Ch 2 in what are, substantively, non-constitutional proceedings

in the High Court, can be determined within those proceedings

without the necessity of bringing a separate constitutional

application before the High Court. And constitutional questions

arising in proceedings in the Court of Appeal or the Privy Council,

can be determined by the Court of Appeal or the Privy Council as

the case may be. On a purely literal interpretation, one is led to the

conclusion that if a question as to the contravention of any of the

provisions of Ch 2 were to properly arise on an appeal before the

Court of Appeal, such question not having been taken previously

before the High Court, the Court of Appeal would have jurisdiction

to hear and determine the question, and s 31(2) would not prevent

the Court of Appeal from so acting.” (Emphasis added).

[144] There are several Privy Council cases where their Lordships remitted

constitutional matters to the Court of Appeal to benefit from the views of the

local judges. Among the most celebrated of these is the case of Bowe v R,164

discussed below [146]. Similarly, in Boyce v Attorney General et al165 a majority

in this Court considered that it would be imprudent to adjudicate upon

legislation that had been enacted after the decision of the Court of Appeal but

before the hearing of the appeal before the CCJ; adjudication on the new

legislation was therefore stayed until the matter had been considered by the

Court of Appeal, to which the case was remitted. In August and Gabb,166 we

were satisfied that the application for special leave to appeal the mandatory life

sentence for murder raised issues of great general and public importance.

However, as the issue had not been argued before the court below, we felt that

it, “ought ideally first to be adjudicated upon by the Court of Appeal of Belize.”

Accordingly, we remitted the matter so that we could receive the views of the

Court of Appeal.

164 Bowe (n 86). 165 [2012] CCJ 1 (AJ) (R) (BZ). 166 [2018] CCJ 7 (AJ), [2018] 3 LRC 552 (BZ).

[145] However, the appellate court will, where it considers it appropriate, proceed

itself to decide the constitutional issue. This will normally occur in

circumstances of urgency, or where for other reason, the justice of the case so

requires. In Anthony Evans v Attorney General167 the Court of Appeal of the

Bahamas found that the failure of the legal system to hear the appeal for more

than eight years was a breach of the appellant’s constitutional right to a fair trial

within a reasonable time for which he should be compensated. That court went

further in Hepburn v The Commissioner of Police168 to find that a year’s delay

was a breach of the appellant’s constitutional right. The court expressed itself

as, “aware that the appellant did not raise the constitutional issue, but an

appellate court on a criminal trial is obliged to consider all material matters,

whether raised by the appellant or not”.169

[146] A special case arises where the court below deliberately refuses to decide the

constitutional issue, despite a clear opportunity to do so. In such instances the

appellate court might well express regret at not being able to enjoy the benefit

of the opinion of the court below but then proceed to decide the point itself. In

Bowe v R170 special leave was granted to the appellants to appeal against a

judgment of the Bahamas Court of Appeal dated 10 April 2003. The two

appellants petitioned the Board seeking leave to challenge the constitutionality,

not of the sentence of death passed upon them, (the death penalty being

explicitly recognized and preserved in successive constitutions of the Bahamas),

but of the mandatory requirement that sentence of death be passed on adults

(other than pregnant women) convicted of murder. The Board directed that the

hearing of the petitions be treated as the hearing of the appeals; that the order of

the Court of Appeal affirming the appellant’s sentences (but not the sentences

themselves) be set aside, and that the cases be remitted to the Court of Appeal

for reconsideration of the matter of sentence on the basis that the case raised

important constitutional questions which had not been raised in the Bahamas

before and which ought first to be considered by the Court of Appeal. The issues

167 (Commonwealth of the Bahamas CA, 6 December 2018). 168 (Commonwealth of the Bahamas CA, 29 March 2018). 169 ibid at 6. 170 Bowe (n 86).

were not however considered by the Court of Appeal which held, by a majority,

that it had no jurisdiction to entertain the appeals. The Board, expressing regret

at not having had the benefit of the views of the Court of Appeal, proceeded to

decide the point on its own.

[147] Where jurisdiction to determine fundamental rights questions is assumed by a

court of coordinate or appellate jurisdiction, the remedies available are the same

as those which may be pronounced by the Supreme Court/High Court. As was

stated by Byron PCCJ and Anderson JCCJ, speaking for this Court in relation

to its own jurisdiction in Maya Leaders Alliance v Attorney General of Belize,171

“the power … granted to the courts to provide redress for constitutional

infractions confers a broad discretion to fashion effective remedies to secure the

enforcement of constitutional rights.”

Fourth. A constitutional question of fundamental rights and freedoms is

properly said to ‘arise’ in appellate proceedings if the determination of that

question affects or could affect the issue of whether the conduct of the trial

accorded with the protection of the law guarantees.

[148] The Supreme Court/High Court has exclusive original jurisdiction to enforce

constitutional rights and freedoms. It is therefore of paramount importance to

the operation of the arrangements for enforcement of constitutional rights that it

be clear when a constitutional question can properly be said to ‘arise’ in

proceedings on appeal. A carte blanche to an appellant to raise any

constitutional point at any level of adjudication, notwithstanding that the point

had not been raised in the court below, would require the appellate court to

exercise an original, not an appellate, function. That license would completely

undermine the primacy of the original jurisdiction of the High Court/ Supreme

Court to hear and give redress for breaches of constitutional rights.

[149] Accordingly, a very important and very useful point made by the Privy Council

in a series of cases is that a constitutional point can only be said to ‘arise’ in

appellate proceedings if its determination could have affected the validity or

171 Maya Leaders (n 50).

lawfulness of the appealed decision. This criterion permits the appellate court to

exercise an appellate jurisdiction, and not an original jurisdiction, function. And,

I may add, this criterion secures the primacy of the original jurisdiction of the

Supreme Court/High Court in respect of constitutional rights redress, with its

attendant advantages for the evolutionary development of constitutional

jurisprudence. However, for reasons that will appear (see below, [160] – [162])

I consider that some slight tweaking of the Privy Council’s formulation is

required.

[150] Pratt and Morgan v Attorney General for Jamaica172 came to the Privy Council

via the route of a constitutional motion filed in the Supreme Court. The Board

allowed the appeal from the judgment of the Court of Appeal of Jamaica which

concerned a motion under s 25 of the Constitution for redress for infringement

of the appellants’ constitutional rights. Given the conditions and circumstances

attending death row, and the stay there by the Appellants there for more than

five years, the Board held that justice required that the sentences of the

Appellants be commuted to life imprisonment.

[151] There can be no caviling regarding the assumption of jurisdiction by the Privy

Council, given the way the case arrived at the Board. However, the decision by

their Lordships raises the altogether separate though related issue of what

properly comes within the ambit on an ‘appropriate’ remedy for a constitutional

breach. This appears to me to be a wholly different matter from the matter of

jurisdiction to hear constitutional claims and touches on the very nature and

scope of the powers of a court to grant redress.

[152] To be more precise. A different approach to granting redress from that adopted

by the Privy Council in Pratt and Morgan would have been for the Board to

have left undisturbed the convictions and sentences since the constitutional

breach it found did not affect the validity or lawfulness of the conviction or of

the sentence when passed; the Board crafting other appropriate remedies. The

most obvious ‘other remedy’ in the case before their Lordships would have been

172 Pratt (n 50).

to mandate and require the appropriate improvements of the conditions on death

row. On this approach, any issue of the commutation of the death sentence

(having been lawfully and validly passed) would be left to the exercise of the

prerogative of mercy or the powers of pardon exercisable by the Governor

General on the advice of the Jamaican Privy Council.173

[153] However, the Board clearly had jurisdiction to craft an appropriate remedy for

the constitutional breach that it had found, and evidently considered that such a

remedy could properly interfere with a sentence which had been lawfully and

validly passed. In Attorney General v Joseph and Boyce,174 several members of

this Court asserted (some with qualifications) the correctness of the decision in

Pratt and Morgan,175 albeit their acceptance of the commutation of the sentence

(again, sometimes nuanced)176 did not confront the issue of the proper scope of

the redress jurisdiction. I therefore consider that the correctness or otherwise of

this aspect of the decision is yet to be fully considered by this Court.

Specifically, I do not consider that the matter was decided in the subsequent case

of Gibson v Attorney General177 which concerned allegations of breach of the

right to a fair trial; any relevant dicta from that case must be understood

considering that crucial fact and circumstance (see further, below at [184]). This,

of course, is not to say that the answer on any comprehensive review and

consideration would necessarily be different from that reached by the Board in

Pratt and Morgan; it is to say that the matter requires independent and mature

reflection.

[154] Walker v R178 was heard immediately after Pratt and Morgan and the judgments

were given on the same day. However, Walker reached the Privy Council by a

different route. There had been no constitutional motion. There was no

substantive appeal against the judgment of the Court of Appeal. The defendants

173 Jamaica (Constitution) Order in Council ss 90, 91. 174 A-G v Joseph (n 30). 175 ibid at [45]-[50], [138] (de la Bastide PCCJ and Saunders JCCJ); at [33]-[37] (Nelson JCCJ); at [12]-

[14], [26] (Wit JCCJ). 176ibid at [64]-[66] (de la Bastide PCCJ and Saunders JCCJ); at [33] (Nelson JCCJ); at [24] (Wit JCCJ);

at [1], [7], [10], [11] (Hayton JCCJ). 177 Gibson (n 99). 178 [1993] UKPC 38, [1993] 2 LRC 371 (JM).

had been convicted of murder and given the mandatory death sentence. Their

applications for leave to appeal against the convictions were dismissed by the

Court of Appeal in Jamaica. Ten years after conviction, they were granted

special leave to appeal to the Judicial Committee on the ground that their

execution after such a long delay would contravene their constitutional rights.

[155] Upholding the objection of the Crown, the Judicial Committee dismissed the

appeal for want of jurisdiction. The Privy Council was an appellate court, and

the proposed proceedings were not genuine appeals against judgments of the

Court of Appeal. The lawfulness of the original convictions and sentences was

not disputed, and the Judicial Committee could not decide as a court of first

instance whether execution of the defendants would now infringe their

constitutional rights. Lord Griffiths would distinguish Ong Ah Chuan v Public

Prosecutor179 by explaining that if the two constitutional arguments in that case

had been successful, they would have shown that the trial court ought not to

have convicted and that the sentence of death was unlawful. This would suggest

that the constitutional points taken in that case on appeal went to both the

validity of the conviction and the lawfulness of the sentence when passed, unlike

the situation in Walker.

[156] In Bowe180 the Privy Council made the existential distinction between a situation

where a sentence was valid when passed but was rendered unconstitutional by

the passage of time; versus the situation where the validity of the sentence and

hence its constitutionality is impugned from the time it was passed. Raising the

issue of the constitutionality of the mandatory death penalty was inherent in an

appeal against sentence as it raised the question of the validity of the sentence

which (necessarily) includes the lawfulness of the sentence when it was passed.

It was therefore subsumed and properly arose within the appeal of sentence. But

an argument that the passage of time after sentence rendered the carrying of the

sentence into effect unconstitutional does not affect the validity of the sentence

when passed and was not available on an appeal against an otherwise lawful

179 [1980] UKPC 32, [1981] AC 648. 180 [2006] UKPC 10, [2006] 1 WLR 1623 (BS).

sentence. That was a separate and freestanding constitutional charge that require

a separate constitutional application to the High Court.

[157] The admirably clear law as established in Walker and Bowe, appears to have

taken a unfortunate turn in Matthew v State of Trinidad and Tobago181 and

Ramdeen v State of Trinidad and Tobago.182 In the latter cases the Privy Council

assumed jurisdiction to commute a sentence of death to life imprisonment

although the cases had not arrived at the Privy Council consequent upon a

constitutional motion and even though the grounds of appeal could not have

affected the lawfulness of the sentence when passed. In Matthew, despite

dismissing the appeal against a mandatory sentence of death, the Board decided

to commute the death sentence, because, owing to a previous decision of the

Board, the appellant had been led to believe that he would not be executed on

the ground that the sentence was unconstitutional. In Ramdeen, the appellant

was granted permission to appeal to the Board against conviction and while the

appeal was pending, she applied for permission to also appeal against sentence

on the ground that her execution more than five-years after conviction would

constitute inhuman punishment under the ruling in Pratt and Morgan. The

Board commuted the death sentence to life imprisonment apparently on the basis

that once it was seised of a matter, whether by way of an appeal against

conviction or an appeal against sentence, it had, “jurisdiction to deal with

commutation of sentence, at least where the ground for commutation arises out

of court procedures or decisions.”183

[158] In Hunte v State184 the Board (by a majority of 4 to 1) returned the law to the

pre-Matthew and Ramdeen principles. Lord Toulson, who had written the

majority judgment in Ramdeen, and Lord Neuberger who had agreed with him,

both admitted that that decision was wrong, and that Matthew and Ramdeen

should not be followed. In delivering the judgment of the majority, Lord

Toulson recognized that as the mandatory sentence of death passed on the

181 Matthew (n 40). 182 Ramdeen (n 86). 183 ibid at [63] (Lord Neuberger). See also [48] (Lord Toulson) (with whom Lords Neuberger and Kerr

agreed). 184 Hunte (n 86).

appellants was fixed by law (Offences Against the Person Act 1925, s 4) and its

validity had not been challenged, the Board had no jurisdiction to consider

commutation. Unfortunately, their Lordships did not comment on the Board’s

ruling in Pratt and Morgan. Lady Hale dissented on the ground that where an

appeal against sentence was properly before the Board for some other reason,

the Board should not close its ears to the argument that it would be

unconstitutional to carry out the sentence.

[159] The dissenting view holds an obvious attraction but, with great respect, it does

not tackle the underlying concern of preserving the primacy given by the

Constitution to the original jurisdiction of the Supreme Court/High Court. That

concern is vindicated from two perspectives. First, it cannot be morally or

juristically unacceptable for the Constitution to provide different avenues for

appealing against a sentence which was wrongly passed, on the one hand, and

for claiming constitutional redress from the execution of a lawfully imposed

sentence, on the other. Second, there remains a question of whether there are

any limits to the power of the court to craft a remedy for redress of a

constitutional wrong. Specifically, the question identified earlier [at 152] as one

to which Pratt and Morgan gives rise, namely, whether it is permissible to

provide as a remedy, the quashing of a conviction or sentence for a breach in

circumstances where that breach did not affect the lawfulness of the conviction

or sentence when passed. A definitive answer to this question would seem to

require further judicial thought supported by the assistance of the views of

counsel. Admittedly, these two are separate and distinct questions but they are

apt to be conflated in the understandable concern to ensure ‘justice’ for an

appellant.

[160] On the other hand, crafting the jurisdictional formulation in terms of whether

the determination of the issue in appellate proceedings could have affected the

validity or lawfulness of the appealed decision may be problematic. First, that

formulation is quite narrow and may not include, for example, issues that could

have been taken at trial but were not, whether because of inadvertence, or

misguided strategy, or for some other reason. There should still be the possibility

of raising those issues on appeal if they could have had an impact on the trial

commenced in the Supreme Court/High Court. A good example here is that of

pre-conviction delays. Even if the matter is not raised at trial, such delays affect,

or could affect, the issue of whether the conduct of the trial accorded with the

constitutional guarantees to protection of the law and ought to be within the

jurisdiction of the appellate court, subject to the considerations mentioned in the

Seventh Principle.

[161] Second, the Privy Council’s formulation would appear to render possible a

finding that the appealed decision was invalid or unlawful in circumstances

where the remedy fashioned by the appellate court may not be the automatic

quashing of a conviction or the annulment or variation of sentence. It is widely

accepted that a breach of fundamental rights (for example, of the constitutional

right to a fair trial within a reasonable time) does not necessarily result in the

vacating of the conviction or sentence. But it would be a hard thing to accept

that a conviction was invalid, or that a sentence was unlawful, and yet adjudicate

that it must nonetheless stand, and that other remedies should be awarded. The

jurisprudential support for such an approach would be opaque at best, and in

cases of conviction for serious crimes followed by the imposition of lengthy

periods of incarceration or of the death penalty, would entirely evaporate.

[162] Accordingly, I consider it more jurisprudentially defensible to formulate the

jurisdictional principle in terms of the conduct of the trial process (including

appellate proceedings). It is if, and only if, the issue raised in the appellate

proceedings affected, or could have affected, the question of whether the

conduct of the trial (including appellate proceedings) accorded with the

constitutional protection of law guarantees that the matter could properly be said

to ‘arise’ in the appellate proceedings. There is thus the possibility of upholding

the validity of the conviction and lawfulness of the sentence when passed whilst

nonetheless finding that the protection of the law guarantees was not fully met.

This approach would appear to accord with the analysis of the composite and

separable nature of the right to a fair trial within a reasonable time (see below,

[186]).

Fifth. A court will be astute to prevent abuse of its processes by a person

unsuccessfully appealing or neglecting to appeal a judgment and instead

embarking on a collateral attack on that judgment via the enforcement

provisions.

[163] A court will not permit the abuse of its processes. A person may lodge an appeal

but if unsuccessful that person is not likely to be permitted to then seek

constitutional redress under the enforcement provisions in respect of the same

complaint. Where a judgment could have been appealed but was not, the launch

of a collateral attack through the enforcement procedures after an inordinate

passage of time may render this use of the enforcement procedures abusive. In

these circumstances, the court may employ relevant tools, including the issuing

of stays of proceedings, to prevent the abuse. In Maharaj v Attorney-General of

Trinidad and Tobago (No 2)185 the Privy Council stated that:

“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 s 6(1), with a

further right of appeal to the Court of Appeal under s 6(4). The High Court,

however, has ample powers, both inherent and under s 6(2), to prevent its

process being misused in this way; for example, it could stay the

proceedings under s 6(1) until an appeal against the judgment or order

complained of had been disposed of.”

[164] In Chokolingo v Attorney General186 the appellant conceded at his trial that his

actions amounted to contempt of court. He was sentenced to 21 days in prison.

There was no appeal to the Court of Appeal from the committal by the High

Court and the appellant did not, as he could have done, seek leave of the Privy

Council to appeal the decision of the judge. Rather, approximately two-and-a-

half years later, he instituted proceedings in the High Court under s 6(1) of the

Constitution of Trinidad and Tobago in which he sought a declaration that the

committal order was in breach of s 1(a) since at the time of his trial, scandalising

the court was no longer capable of amounting to criminal contempt of court in

Trinidad and Tobago. Both the Court of Appeal and the Privy Council found

185 Maharaj (No 2) (n 58). 186 Chokolingo (n 150).

that the appellant should not be allowed to proceed in this way. In the words of

the Privy Council:

“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 s 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 s 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 s 6(1) to a court of

co-ordinate jurisdiction, the High Court. To give 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.”

[165] This line of reasoning was accepted in Pigott and Tyson. As Thom JA (Ag)

reasoned in Pigott,187 the argument that a person, the hearing of whose appeal

has been delayed for several years, could conduct two separate sets of

proceedings involving the same matter: pursue his appeal to the Court of Appeal

and possibly an appeal to the Privy Council; and then embark on another set of

proceedings in the High Court with a possibility of an appeal to the Court of

Appeal and Privy Council, was unacceptable. In the view of the learned Justice

of Appeal this was not a correct interpretation of enforcement provisions in the

Constitution. She accepted, “the words of Lord Diplock in Chokolingo v A-G,

[that] to give s 18 of the Constitution of Antigua and Barbuda an interpretation

which would lead to this result would be quite irrational and subversive of

the rule of law which it is a declared purpose of the Constitution to enshrine.”

Sixth. Constitutional questions that arise in proceedings, other than those

concerning fundamental rights and freedoms, are not subject to the

enforcement of rights regime. The litigation of such questions may, however,

187 Pigott (n 74) at [34].

be governed by other regimes such as the general constitutional redress

regime or the regime of judicial review.

[166] Not all allegations of constitutional violations necessarily involve infringements

of the guaranteed constitutional rights and freedoms. For example, an allegation

that an enactment is unconstitutional for inconsistency with provisions of the

constitution can arise independently of fundamental rights and freedoms and its

adjudication will not be governed by the strictures of the enforcement of rights

provisions. The Belize Constitution appears not to include reference to an

explicit jurisdiction being given to the Supreme Court to determine whether

there has been a contravention of a non-bill of rights provision. However, such

explicit grant of jurisdiction is found in several other Caribbean constitutions,188

and is to the effect that: “Any person who alleges that any provision of this

Constitution (other than a provision of Chapter II) has been or is being

contravened may, if he has a relevant interest, apply to the High Court for a

declaration and for relief under this section.” It is the case that the Constitution

of Belize bestows a broad power on the courts to interpret the Constitution;189

in this way, the Court of Appeal in Belize has jurisdiction to answer questions

involving the interpretation of the Constitution.

[167] An important distinction between actions for breach of constitutional rights and

actions for other contraventions is the requirement in the latter class of actions

that the applicant has “a relevant interest”. This is the standing requirement and

is also present in relation to litigating constitutional issues that arise in judicial

review proceedings.

[168] Dr Albert Fiadjoe190 considers that Caribbean courts have power in proceedings

for judicial review to declare any law or government action to be

188 See eg, Antigua and Barbuda Constitutional Order 1981 s 119; Constitution of the Commonwealth of

Dominica s 103(1); Grenada Constitution Order 1973 s 101; Constitution of Saint Lucia s 105;

Constitution of Saint Christopher and Nevis s 96; St. Vincent and the Grenadines Constitution Order s

96. See further, Francis Alexis, Changing Caribbean Constitutions (2nd edn, Carib Research &

Publications Inc, 2015) [17.86]- [17.87]. See also Samuel v A-G of Saint Lucia (ECSC HC, 19 January

2018) at [10] and Dumas v A-G of Trinidad and Tobago (Trinidad and Tobago CA, 22 December 2014)

at [75]-[87]. 189 Section 96. See further, Alexis (n 188) at [17.89]. 190 Albert Fiadjoe, Commonwealth Caribbean Public Law (3rd edn , Routledge-Cavendish 2008) at 22.

unconstitutional and thereby ensure the supremacy of the Constitution.191 Thus,

in addition to the traditional grounds of procedural impropriety, irrationality,

and illegality, he considers that the presence of written constitutions in the

Caribbean permits challenge on the ground of unconstitutionality. So that it is

permissible to frame a challenge to administrative action or law in terms of both

the common law and the Constitution.192 There is overlap between appeals and

judicial review but in judicial review proceedings the court exercises a

supervisory, not an appellate, jurisdiction. Where both appeal and judicial

review are available, the court will normally permit judicial review unless the

appeal provides a remedy that is equally convenient.193

[169] In Lucas and others v The Chief Education Officer and others194 this Court

considered a preliminary objection that the Appellants, having filed a mixed

constitutional and judicial review claim, were not entitled to proceed on both at

first instance or on appeal. The objection suggested that as the action was

predominantly a judicial review action with only ancillary constitutional issues,

it was an abuse of process to pursue both simultaneously in the same claim. This

Court noted that the Supreme Court (Civil Procedure) Rules 2005 expressly

permitted a claimant to file mixed claims for judicial review and constitutional

relief and that it was now “far too late” in the proceedings to entertain the

question of whether it was inappropriate to pursue both claims together. The

matter was therefore allowed to proceed with the majority finding that the

Appellants had not established a breach of any constitutional rights.

[170] A more recent example of the consideration of constitutional issues in the

context of judicial review is provided by the case of Skerrit v Defoe.195 The issue

in this case was whether a Magistrate in Dominica had jurisdiction to hear and

determine a charge of treating against sitting members of the House of

Assembly. The matter originated with the filing of criminal complaints in the

Magistrates’ court. Before trial could commence the defendants sought judicial

191 ibid at 15. 192 ibid at 28. 193 ibid at 24. 194 [2015] CCJ 6 (AJ), [2016] 1 LRC 384 (BZ). 195 [2021] CCJ 4 (AJ) DM.

review of the Magistrate’s decision to assume jurisdiction over the complaints.

A critical issue for decision by the High Court, Court of Appeal, and this Court

was whether the Magistrate had acted inconsistently with the Constitution

inasmuch as a conviction for treating had the inevitable consequence that the

Member would be unable to retain his seat in the House whereas s 40(1)(a) of

the Constitution conferred exclusive jurisdiction on the High Court to hear

questions of membership of the House and of the validity of an election to the

House. In the deciding the matter this Court considered the constitutionality of

the Elections Act which gave the Magistrate his jurisdiction and decided that the

Act was entirely consistent with the Constitution.

[171] There are procedural rules governing judicial review proceedings. For example,

pt. 56 of the Supreme Court Rules of Belize contains the requirement for, among

other things, the making of application for an administrative order by way of a

fixed date claim. There may be other specific requirements for the application

to be made by originating motion and for the claimant to file evidence on

affidavit with the claim form, among others. These procedural conditionalities

are to be understood in the broad context of being important guides, rather that

absolute guards, of process. Maitland’s clever turn of phrase, that ‘the forms of

action we have buried, but they still rule us from their graves’,196 has had a

lasting effect on judicial attitude towards rules which dictate the procedure for

bringing actions before the courts (as distinct from the substantive requirements

of the actions themselves). Since the turn of the previous Century, courts have

shown an increasing willingness to disregard the strictures of purely procedural

rules where the interest of justice so requires. Contemporary Rules of Court

normally state as their overriding objective the goal, “that the Court is

accessible, fair and efficient and that unnecessary disputes over procedural

matters are discouraged” and that nothing in the Rules “shall limit or otherwise

affect the inherent power of the Court to actively manage cases and make such

orders as may be necessary to meet the ends of justice or to prevent abuse of the

process of the Court.”197

196 Frederic William Maitland, The Forms of Action at Common Law: A Course of Lectures, 1909

(1936). 197 Caribbean Court of Justice (Appellate Jurisdiction) Rules, 2019, r 1.3.

[172] I am indebted to President Saunders for bringing to my attention the case of

Observer Publications v Attorney General198 which has some indirect relevance

to understanding the contemporary judicial mindset. In that case Redhead JA in

the Court of Appeal expressed himself as having great difficulty in agreeing,

“that by just merely shrieking breach of a fundamental right one can knock on

and disturb the sanctity of the constitutional door.” When the matter got to the

Privy Council, Lord Cooke responded as follows:

“With respect, the image of the Constitution as secluded behind closed

doors is not one which their Lordships adopt. Nor would it be right to think

of the Constitution as if it were aloof or, in the famous phrase of Holmes

J., ‘a brooding omnipresence in the sky.’ On the contrary human rights

guaranteed in the Constitution of Antigua and Barbuda are intended to be

a major influence upon the practical administration of the law. Their

enforcement cannot be reserved for cases in which it is not even arguable

that an alternative remedy is available. As Lord Steyn said, delivering the

judgment of the Privy Council in Ahnee v Director of Public Prosecutions

[1999] 2 AC 294, 307 ‘... bona fide resort to rights under the Constitution

ought not to be discouraged.’. Frivolous, vexatious or contrived

invocations of the facility of constitutional redress are certainly to be

repelled”.

[173] In Belize Bank Ltd v Association of Concerned Belizeans199 an action was

commenced by a Claim Form and Statement of Case. A question arose about

whether a contract was unconstitutional and the High Court and the Court of

Appeal both considered the issue and found that it was. The decisions were

affirmed by this Court in Belize International Services Ltd v The Attorney

General of Belize,200 thereby confirming that the requirement for initiating

proceedings by way of fixed date claim form is not strictly adhered to. The case

of Dumas v The Attorney General of Trinidad and Tobago201 may be read to a

similar effect.

Seventh. Subject to the paramount objective of protecting constitutional

rights, the normal rules that require the pleading and arguing of legal points

198 [2001] 1 LRC 37 (ECSC CA) (AB); [2001] UKPC 11, [2001] 4 LRC 288 (AB). 199 (Belize CA, 15 March 2019). 200 Belize International (n 42). 201 Dumas (n 188) esp at [23] and [137].

at the earliest opportunity and which prevent the taking of the other party by

surprise apply to the raising of constitutional issues.

[174] This principle follows from the basic rules of litigation. Depending on the

circumstances, even eleventh-hour arguments on constitutional rights issues

may be entertained particularly where the death penalty or other severe sanction

is in issue: Ong Ah Chuan v Public Prosecutor.202 However, where there was

ample opportunity to raise the point in the court below, and there is no risk of

continuing or further contravention, an appellate court may decide not to

entertain the allegation of breach of constitutional rights.

[175] In Queen v Gilbert Henry203 there were significant irregularities before, during,

and following the trial. There was some four years delay between charge and

trial and a further delay of five years in the hearing of the appeal. There were

problems with the transcript. A significant issue on appeal concerned the

consequences of the post-conviction delay and the lack of a proper transcript on

the constitutional right to a fair trial within a reasonable time.

[176] By the time of the appeal the appellant had fully completed his sentence. There

was no further risk to his liberty. This Court agreed with the DPP that the Court

of Appeal erred in rendering an opinion on the issue of delay when it expressly

told the parties that no oral submissions on that issue were necessary. The Court

also noted that parties should be given an opportunity to address the court on

issues which would be the subject of a decision or comment by the court. In the

circumstances, this Court held that the claim for constitutional relief should have

been made at the trial and not entertained at the Court of Appeal for the first

time.

Application of principles to present case

[177] The conclusion which I have reached in the present case, namely, that the appeal

ought to be allowed, (see: [124], above), may be illustrated and particularized

by the application of the preceding Principles. The First and Second Principles

202 Ong (n 179). 203 R v Henry (n 13).

are not directly relevant to the present case; there was no constitutional motion

for redress before, and no referral for interpretation of constitutional rights

questions to, the Supreme Court. Under the Third Principle, the Court of Appeal

would have possessed jurisdiction to consider the Appellant’s allegation that his

s 6(2) right had been infringed if, and only if, that question could properly be

said to have arisen in the appellate proceedings. For reasons that will shortly

appear, I am of the view that the question of breach of the Appellant’s s 6(2)

right did, in fact, properly arise in the appellate proceedings before the Court of

Appeal. There is no question here of abuse of process or the involvement of non-

constitutional rights provisions. The Appellant took the constitutional issue of

the delay in the hearing of his appeal at the first reasonable opportunity, namely

at the hearing of the appeal. Thus, the Sixth and Seventh Principles do not

foreclose on the jurisdiction to consider the claim for constitutional breach.

Can it be said that the s 6(2) issue ‘properly arises’ in the appellate proceedings?

[178] It may be useful to expand on my reasons for finding that the s 6(2) issue

properly arose in the appellate proceedings. Following on from the Fourth

Principle, the primary question for decision by the Court of Appeal ought to

have been whether the determination of the s 6(2) issue affected, or could have

affected, the matter of whether the conduct of the trial accorded with the

protection of the law guarantees spelt out in the Constitution.

[179] The wording of the provision is instructive. The sidenote to s 6 of the

Constitution of Belize is titled, ‘Protection of law’. Section 6(1) affirms the

equality of all persons and their entitlement without any discrimination to the

equal protection of the law. Section 6(2) then provides as follows:

“(2) 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.”

[180] It is evident from this wording that the s 6(2) right is really a bundle of three

separate and distinct rights. The right to (i) a fair hearing; (ii) within a reasonable

time; (iii) by an independent and impartial court. There is clearly an “overlap”

between these components of the right as used in common juridical parlance. A

‘fair hearing’ ordinarily entails the elements of reasonable time and the

objectivity of the tribunal. However, the wording of the Constitution requires

the three components be kept separate even at the risk of ‘major conceptual

difficulty’, as the matter was delicately put by Sir Manuel Sosa P., in the court

below.204 As used in the constitutional provision, ‘Fair hearing’ is mainly

concerned with whether the parties were afforded a fair or reasonable

opportunity to be heard. ‘Reasonable time’ is principally concerned with the

period within which the hearing occurred and, particularly, whether there was

inordinate and inexcusable delay. The ‘independence and impartiality’ of the

tribunal is primarily concerned with questions to do with objectivity and

inoculation from improper influence, whether from the state or some other

source.

[181] The separate, free-standing requirements of the s 6(2) right was recognized at

the turn of the present century by the Privy Council in Darmalingum v The

State.205 Lord Steyn pointed out that the s 10(1) right in the Mauritius

Constitution (which is similar to s 6(2) of the Belize Constitution) contains three

separate guarantees, namely (1) a right to a fair hearing (2) within a reasonable

time (3) by an independent and impartial court established by law. His Lordship

emphasized the separate nature of the rights by noting that if a defendant was

convicted after a fair hearing by a proper court, this would be no answer to a

complaint that there was a breach of the guarantee of a disposal within a

reasonable time. He continued:

“And, even if his guilt is manifest, this factor cannot justify or excuse a

breach of the guarantee of a disposal within a reasonable time. Moreover,

the independence of the “reasonable time” guarantee is relevant to its

reach. It may, of course, be applicable where, by reason of inordinate delay

a defendant is prejudiced in the deployment of his defence. But its reach

is wider. It may be applicable in any case where the delay has been

inordinate and oppressive.”206

204 Delivering the judgment of the court, at [112], [114]. 205 [2000] 1 WLR 2303 at 2307. 206 ibid.

[182] In Attorney General's Reference (No 2 of 2001)207 the House of Lords

considered the effect of delay in the criminal proceedings against the backdrop

of the ‘reasonable time’ requirement in Article 6(1) of the European Convention

of Human Rights. The House recognized that the conventional right

encompassed the right to a fair and public hearing; a right to a hearing within a

reasonable time; a right to a hearing by an independent and impartial tribunal

established by law; and (less often referred to) a right to the public

pronouncement of judgment. However, it did not follow that the consequences

of a breach, or a threatened or prospective breach, of each of these rights was

necessarily the same, or would result in the same consequences.

[183] Boolell v The State208 was another case from Mauritius which was decided by

the Privy Council. Having quoted with approval the dictum of Lord Steyn in

Darmalingum, the Board went on to observe that the application of the

requirements for respect of the three components of the s 10(1) right had not

been always consistent in the decided cases. The Board then recounted the

observation made by Lord Bingham in Dyer v Watson,209 that it may be

questioned whether the reasoning of the preceding decisions could be fully

reconciled, and that the academic commentators had been more forthright in

pointing to an inconsistency between the decisions.210

[184] This Court treated with the reasonable time guarantee as a separate requirement

in Gibson v Attorney General of Barbados.211 Speaking for the Court, Saunders,

and Wit JCCJ said, of s 18(1) of the Constitution of Barbados (which is like s

6(2) of the Constitution of Belize), that:

[54] Section 18(1) gives three different and free-standing rights to any

person who is charged with a criminal offence.29 These rights

correspond to separate obligations imposed by the Constitution on

the state. For every accused person whose charge has not been

withdrawn the state is obliged to afford a hearing that is: (a) fair; (b)

207 [2004] 1 All ER 1049 at [14]. 208 Boolell (n 77) at [21]. 209 [2004] 1 AC 379, 394 at [29]. 210 Citing Andrew Ashworth, ‘Criminal proceedings after the Human Rights Act: the first year’ [2001]

Crim LR 855, 860. 211 Gibson (n 99) at [54]-[56].

before an independent and impartial tribunal established by law, and

(c) held within a reasonable time.

[55] The fulfillment by the state of each of these obligations is

fundamental to the criminal justice system and the obligations

referred to at (a) and (b) are irreducible. Thus, if a trial is not likely

to be or has not been fair, then, as stated earlier, the breach vitiates

the trial process. Similarly, a court will not sanction a trial before a

tribunal whose characteristics threaten to or actually fall short of

basic requirements of independence and impartiality. Redress for an

infringement of either of these rights cannot be limited by any

overriding public interest in part because, unless the charge is

altogether withdrawn or dismissed, it will normally be possible to

convene a new trial on conditions that are fair or to hold one before

a proper tribunal as the case may be. It is possible, so to speak, to

reset the clock so as to grant the accused the full measure of the right

in question.

[56] This is not the case when the reasonable time guarantee has been

breached. Once there has been excessive delay in trying an accused,

a court may issue orders aimed at expediting the trial or provide

some form of relief to the accused but there is nothing that the court

can do to remedy the breach that has occurred in a way that will

undo the past delay and its effects on the accused and the society. It

is not possible to wipe the slate clean and revert to the status quo

ante.” (Emphasis added).

[185] An infringement of the right to ‘a fair trial within a reasonable time’ (in this

context ‘trial’ includes the original hearing as well as subsequent appellate

hearings: Queen v Gilbert Henry212) necessarily impacts the protection of the

law guarantees. There would have been a breach of the specific and separable

constitutional right of the ‘reasonable time’ component of the s 6(2) right. As

Lord Steyn said in Darmalingum, even the manifest guilt of the accused cannot

justify or excuse a breach of the reasonable time guarantee. As Saunders, and

Wit JCCJ said in Gibson, there is nothing that can be done to undo past

unreasonable delay and its effects on the accused and the society.

[186] To my mind it follows that a breach of the ‘reasonable time’ component of the

s 6(2) right necessarily infringes the protection of law guarantees in respect of

that trial. In the instance case, the fact that the Appellant chose not to pursue an

appeal against sentence before the Court of Appeal and instead relied on oral

212 R v Henry (n 13) at [41].

submissions of breach of his constitutional rights to overturn the conviction,

cannot take away from the fact that his trial breached the composite obligation

in s 6(2) in respect of that component (the reasonable time guarantee) which

cannot be remedied.

[187] Of course, the mere fact that there is a breach of the protection of the law

guarantees does not necessarily mean that the appropriate remedy will be the

quashing of the conviction or the award of a lesser sentence. The conviction and

sentence remain valid and lawful unless and until set aside. To the purist this

might not appear to be entirely satisfactory. However, far from always being

logical, the law can be a messy affair. It is apposite to recall the provision in the

Court of Appeal Act, quoted at [128] above, regarding the power to set aside a

conviction on the ground of a miscarriage of justice. Specifically, it will be

recalled that even in the face of an apparent miscarriage of justice, the well-

known proviso permits the appellate court to dismiss the appeal and thereby

uphold the conviction, “if it considers that no substantial miscarriage of justice

has actually occurred.” (Emphasis added). Depending on the circumstances, the

validity and lawfulness of the conviction and sentence may be maintained if the

infractions of the protection of the law guarantees are not so egregious as to

bring that validity and lawfulness into question.

Appropriate Remedy

[188] Accordingly, with jurisdiction having been established, and with the concession

by the DPP representing the state, that there was breach of s 6(2) rights (see,

above [121]), the only issue that remains concerns the remedy that may be

appropriately awarded. The fact that the Appellant’s trial did not achieve the

protection of law guarantees set by the Constitution is not of itself sufficient to

quash the conviction or decrease the sentences imposed. The remedies available

for breach have been enunciated by this Court as including, a declaration, an

award of damages, stay of prosecution, the quashing of conviction or a

combination of these or some other or others: Vishnu Bridgelall v Hardat

Harisprashad;213 Queen v Gilbert Henry.214 In the present case, the Appellant

213 Bridgelall (n 19) at [41]-[42]. 214 R v Henry (n 13) at [41].

seeks the order of a permanent stay of further enforcement of his sentence. For

the reasons advanced by my brother, Barrow JCCJ in his judgment, I agree that

this is the appropriate order to make in this case.

Orders of the Court

[189] The Court makes the following Orders –

1 The appeal is allowed.

2 It is declared that the right of the Appellant under section 6 of the Belize

Constitution to a fair hearing within a reasonable time was breached by

the excessive delay in the hearing and decision of his appeal to the Court

of Appeal.

3 The further enforcement of the sentences of imprisonment imposed on the

Appellant is permanently stayed.

/s/ A Saunders

____________________________________

The Hon Mr Justice A Saunders, President

/s/ J Wit /s/ W Anderson

________________________________ _____________________________

The Hon Mr Justice J Wit The Hon Mr Justice W Anderson

/s/ M Rajnauth-Lee /s/ D Barrow

__________________________________ ______________________________

The Hon Mme Justice M Rajnauth-Lee The Hon Mr D Justice Barrow

/s/ A Burgess /s/ P Jamadar

________________________________ ______________________________

The Hon Mr Justice A Burgess The Hon Mr Justice P Jamadar