Hilroy Humphreys Claimant v Attorney General of Antigua and Barbuda Defendant. [ECSC]

• Jurisdiction: Antigua and Barbuda
• Judge: Thomas J
• Judgment Date: 21 December 2006
• Judgment citation (vLex): [2006] ECSC J1221-1
• Court: High Court (Antigua)
• Docket Number: CLAIM NO. ANUHCV 2005/0628
• Date: 21 December 2006

[2006] ECSC J1221-1

IN THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

(CIVIL)

CLAIM NO. ANUHCV 2005/0628

In the Matter of the Constitution of Antigua and Barbuda

and

In the Matter of the Contravention of Sections 15 (1), 15 (2) (e) of the Constitution of Antigua and Barbuda

and

In the Matter of the Magistrate's Code of Procedure (Amendment) Act No. 13 of 2004

Between:

Hilroy Humphreys

Claimant

and

The Attorney General of Antigua and Barbuda

Defendant.

Appearances:

Dr. Henry Browne and Mr. Arthur Thomas for the Claimant

Mr. Justin Simon, Q.C. with Mr. Kendrickson Kentish and

Ms. Bridgette Nelson for the Defendant

Judicial review of legislation — whether legislation alters vested rights and rights guaranteed by the constitution to a person charged with a criminal offence — whether a preliminary inquiry is a hearing within the meaning of section 15 (1) of the Constitution-whether amending legislation is inconsistent with section 15 of the constitution — whether legislation respecting retrospective criminal procedure permitted by the Constitution — whether impugned legislation complies with the prescribed procedure for alteration of the Constitution.

JUDGMENT

Thomas J

[1] By way of an amended Fixed Date Claim Form filed on 8^th March, 2006, pursuant to Part 56.7 of CPR 2000 with supporting affidavit of the Applicant sworn to and filed on 14^th December, 2005, the following reliefs are sought:

• 1. A Declaration that the Magistrate's Code of Procedure (Amendment) Act, No. 13 of 2004 is unconstitutional, null, void and of no effect.

• 2. A Declaration that the said Magistrate's Code of Procedure (Amendment) Act, No. 13 of 2004 violates — Sections 15 (1) and 15 (2) (e) of the Constitution of Antigua and Barbuda.

• 3. A Declaration that to apply the said Magistrate's Code of Procedure (Amendment) Act, No. 13 of 2004 to offences allegedly committed before 23^rd September, 2004, impairs the vested rights of the Claimant under the partly repealed Magistrate's Code of Practice Act, Cap. 255 and is thus in violation of his rights under sections 15 (1) and 15 (2) (e) of the said Constitution of Antigua and Barbuda.

• 4. A Declaration that since the offences allegedly committed by the Claimant occurred on or before the 7^th May, 1999, and on or before the 15^th day of October, 1999, the law applicable to Preliminary Inquiry Proceedings now styled "Committal Proceedings" in relation to offences allegedly committed prior to the Magistrate's Code of Procedure (Amendment) Act, No. 13 of 2004 was repealed is the Magistrate's Code of Procedure Act, Cap. 255 of the Laws of Antigua.

• 5. A Declaration that the Magistrate's Code of Procedure (Amendment) Act, No. 13 of 2004 purportedly amends sections 15 (1) and 15 (2) (e) of the Constitution of Antigua and Barbuda in violation of the said Constitution.

• 6. An injunction restraining the conduct of any committal proceedings against the Applicant under the provisions of the Magistrate's Code of Procedure (Amendment) Act, No. 13 of 2004.

• 7. Such further or other … remedies as the Court sees fit.

• 8. Costs to the Claimant.

AFFIDAVIT IN SUPPORT

[2] The Claimant's affidavit in support was sworn to and filed on 14^th December, 2005. In this affidavit the Claimant deposes that on 27^th June, 2001, His Excellency the Governor-General on 27^th June, 2001, appointed a Commission of Inquiry ("the Commission") to enquire into the conduct and management of the Medical Benefits Scheme from the coming into operation of the Medical Benefits Act, Cap. 271 on 1^st October, 1978, and to report and make recommendations no later than 31^st October, 2001. This was later extended to 31^st July 2002.

[3] The deponent says that he received a Witness Summons to appear before the Commission to show cause why the Commission ought not to comment adversely on him in its report with respect to certain criminal allegations. The deponent says that he did appear before the Commission.

[4] According to the deponent, the Commission was critical of him in its Report and one of the recommendations contained therein was that the allegations levelled against him should be further investigated by the Director of Public Prosecutions in order to ascertain whether a basis existed for charging him with fraud or other appropriate offences.

[5] The Claimant further deposes that on or about 19^th June, 2003, in keeping with the recommendations contained in the Report, the Commissioner of Police laid a number of complaints1 against him before the Magistrate's Court. That with other persons named in the complaints he appeared before the Magistrate on or about 26^th May, 2005.

[6] At paragraphs 9, 10, and 11 of his affidavit the Claimant says that:

"9. At that sitting of the Magistrate's Court my counsel along with counsel for others named in the said Complaints submitted to the Magistrate that the Magistrate Code of Procedure (Amendment) Act, No. 13 of 2004 under which the purported Committal Proceedings would be governed is unconstitutional, null, void, and of no effect and in particular contravenes

my constitutional rights provided for under sections 15 (1), (15 (2) (e) of the Constitution of Antigua and Barbuda and requested of the Magistrate that this question be referred to the High Court within the terms of the said Constitution.

10. On 30^th June, 2005, in a written ruling the Magistrate determined that the question raised was 'vexatious and frivolous' and refused to refer same to the High Court for determination.

11. I respectfully state and contend that the said Magistrate Code of Procedure (Amendment) Act, No. 13 of 2004 offends the Constitution of Antigua and Barbuda 1981 and was not passed in compliance with section 47 of the said Constitution."

AFFIDAVIT IN RESPONSE

[7] The Defendant's affidavit in response was sworn to and filed by Jo-Anne Walsh on 3^rd January, 2006. In the affidavit the deponent says that she is attached to the Chambers of the Director of Public Prosecutions and that she acted as counsel for the prosecution in the matter of COMMISSIONER OF POLICE v HILROY HUMPHREYS.

[8] The deponent denies that the Report referred to by the Claimant accused him of wrongdoing but accepts that the Commissioners recommended that their findings should be passed to the Director of Public Prosecutions for further action, including investigation and prosecution. She says further that she is aware that the Report was passed to the Director of Public Prosecution who in turn passed it to the Commissioner of Police. According to the deponent a team of police officers to investigate the several matters raised and after consultations with the office of the Director of Public Prosecutions it was determined that there was sufficient evidence to initiate criminal proceedings against the Claimant, being complaints 522, 504, and 535 of 2003.

[9] The deponent also says that on 24^th March, 2004, a new Attorney General, in the person of Justin Simon, Q.C., was appointed and that at a later date he began a programme of reform in respect of criminal procedure. One such area being with respect to criminal proceedings and preliminary inquiries.

[10] At paragraphs 11, 12, 13, and 15 the deponent deposes as follows:

"11. Act number 13 of 2004 was enacted to give effect to some of these reforms. This legislation provided for, inter alia, the creation of 'paper committals'. Essentially, the prosecution was obliged to file witness statements together with exhibits. The Defence was at liberty to adopt the same procedure. While neither party could cross-examine witnesses the Defence could nonetheless make a no-case submission at the conclusion of the case for the prosecution.

12. Before the enactment of Act No. 13 of 2004, the pace of preliminary inquiries in the Magistrate's Court in this jurisdiction was laborious and time-consuming. The Magistrate [was] obliged to take longhand notes of the proceedings and the proceedings were not recorded electronically. In cases such as those involving the Claimant which involve several accused and counsel together with several documentary exhibits, the hearing would be protracted. This protraction would typically put a strain on the resources of the police and the courts.

13. Such problems caused a backlog of cases in the Magistrate's Court especially when there were adjournments and aborted hearings.

15. If the accused is indicted, he will enjoy a right to cross-examine all witnesses for the prosecution at his trial in the criminal assizes. It is this fact which ensures that the accused enjoys a fair trial before a judge and jury."

[11] The reliefs sought raise issues in relation to provisions of the Constitution of Antigua and Barbuda ("the Constitution") the Magistrate's Code of Procedure Act, Cap. 255 ("the Act") and the Magistrate's Code of Procedure (Amendment) Act, No. 13 of 2004 ("the Amending Act"). These must be outlined in some detail or summarized, as the case may require.

CONSTITUTIONAL AND STATUTORY BACKGROUND

THE CONSTITUTION

[12] The Constitution is the supreme law of Antigua and Barbuda. This is enshrined in section 2 of the instrument in these terms: "This Constitution is the supreme law of Antigua and Barbuda and, subject to the provisions of this Constitution, this Constitution shall prevail and the other law shall, to the extent of its inconsistency, be void."

[13] Sections 3 to 17 of the Constitution guarantee certain rights and freedoms. These rights are entrenched and as such cannot be altered except in accordance with the manner and from prescriptions of the Constitution.

[14] These rights are not new. What the Constitution has done is to give them protection. Therefore, in some instances the right is granted and there is nothing more to be done to give effect to the right for the time being. On the other hand, in some instances although the right speaks to or "is co-extensive with existing law" the Constitution...