Is the Privy Council still relevant?… just 2 judgments for 2016

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The abolition of the Judicial Committee of the Privy Council remains a hot potato for all Governments of Trinidad and Tobago.

In 2001, an agreement was signed for the establishment of the Caribbean Court of Justice (CCJ) to replace the CCJ. Then Trinidad and Tobago Prime Minister Basdeo Panday agreed for the headquarters of the CCJ to be established in Port-of-Spain. This became a reality in 2005.

The Privy Council building in London

The Privy Council building in London

Just four CARICOM countries have abolished appeals to the Privy Council in London and made the CCJ their final court of appeal. Others are considering it, while Trinidad and Tobago have made no forward moves on this issue. What makes it worse is that Trinidad and Tobago have not abolished appeals to the PC, but the CCJ headquarters are based here.

This country may be divided on whether to abolish the Privy Council or not. There is an argument that the British Law Lords are non-political so they would deliver judgments as they see it, and not on whether it affects the political, economic, or social conditions in the Caribbean.

There is another argument that the Privy Council is anti the death penalty by imposing restrictions in the carrying out of the death penalty in the Caribbean. First, it was Pratt and Morgan in 1993 which gave States a five-year guideline to conclude all appeals before they can execute convicted killers.

Then came the killers’ right to access international human rights organizations before executions can be carried out. Killers were then given a right to apply for judicial review of decisions of the Mercy Committee.

The last executions in Trinidad took place in 1999 when Dole Chadee and his gang of the right were hanged in June and Anthony Briggs in July.

It seems from statistics, fewer and fewer cases are going to the Privy Council from Trinidad and Tobago. Look at the statistics of judgments delivered for the period January to August:

2010 – 5
2011 – 14
2012 – 9
2013 – 2
2014 – 7
2015 – 15
2016 – 2

The only judgments delivered by the Law Lords in 2016 were the United CLICO Policyholders case against the Attorney General on June 28, and the judicial review case brought by Steve Ferguson, Ameer Edoo, and Maritime Insurance Group on January 25.

The last death penalty judgment of the Privy Council was delivered on July 20, 2015, when the Law Lords quashed the death sentence imposed on Stephen Robinson and substituted it with manslaughter. Robinson was sentenced to death by Justice Mark Mohammed on March 13, 2009.

There are two death penalty cases before the Privy Council for decision. But the execution is not on the agenda as the Pratt and Morgan principles have kicked in. Lester Pitman and Neil Hernandez want total acquittal because they claim they have very low IQ and did not know they were carrying out murder.

THE LAST DEATH PENALTY JUDGMENT

Delivered by Lord Hughes

The issue concerned the manner in which the partial defense of diminished responsibility was dealt with in the court of trial. The law of diminished responsibility in Trinidad and Tobago is, so far as material to this case, in the same form that it had in England and Wales from the introduction of the concept in 1957 until alteration by the Coroners and Justice Act 2009. Section 4A(1) of the Offenses Against the Person Act 1925, chapter 11.08 provides: “4A. (1) Where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing.”

By section 4A(2) the onus of establishing diminished responsibility is placed upon the defendant; as in the case of any other burden of legal proof which is laid upon a defendant, this is to be discharged by proof on the balance of probabilities. By section 4A(3) diminished responsibility, if established, reduces the offense from murder to manslaughter. The present defendant was born in September 1962.

On 16 January 2002, in an incident in a pharmacist’s shop in Tacarigua, he killed Mr. John, a security guard. In due course, he was tried for murder. His defense advanced the issues of self-defence, provocation, and diminished responsibility. The Board is concerned only with the last.

The defendant was 39 years old at the time of the offense. He had a history of schizophrenia, which had resulted in his admission to a mental hospital on some five or so occasions, beginning in 1985 at the age of 23.

In January 2002, despite having a High School and Labour College education, he was wandering the streets as a destitute in an unkempt, disheveled and unhygienic condition, and appears to have been living in an abandoned house. It was his habit sometimes to visit the pharmacist’s shop to beg for snacks or soft drinks. The proprietor had known him for some dozen or so years, by the names ‘Tony’ or ‘Psycho’.

On 16 January the defendant returned to the shop for a second time that day at around 5.00 pm. His clothes were ragged and he was barefoot. He was carrying a metal bar about three and a half feet long and about half to one inch thick. He stood tapping the bar on the floor. The proprietor told him that he was not supposed to be there, having already been in that morning.

Although he was asked for something like seven occasions to leave, the defendant did not. He eventually went to the door, opened it, flipped it to and fro, and invited the proprietor to put him out. The latter asked his security guard to deal with the defendant. When the guard went up to him, the defendant first laughed at him and said he could not put him out if the proprietor could not, and then swung the metal bar at the guard in a way which brushed him lightly about three times.

At that, the guard took out his sidearm, placing his other hand on the defendant’s neck or upper chest. He said to the defendant “See what I have here; I am a firearm security officer; kindly leave”. At that, the defendant swung the bar, this time forcefully from behind his back, and struck the guard on the back of the head. Within a second or two, the guard’s gun was fired, whether in reflex or by deliberate action was unclear. Both men fell to the floor. The guard had sustained fatal injuries.

The defendant had been shot under the left arm. He ran from the shop but was seen to return to stand on the opposite side of the road watching for two to three minutes, before walking away. He was found shortly afterward sitting on the curb two streets away, barebacked, trembling and rocking back and forth in an agitated manner.

When approached by two uniformed policemen, he repeated “You is Carl; you is Carl” (not the name of either officer) and then told the sergeant “I want a smoke to take out a bullet and a pain from my chest”. He was cooperative and was arrested. He was himself taken to hospital where his wound was treated. He made no further comment about the events which had occurred. Nor did he give evidence at the trial.

The defendant was not tried until seven years after the killing. The reasons for the delay were part of his medical history. This history was not placed chronologically before the jury and was not properly deployed in support of the assertion of diminished responsibility, as it ought to have been, although it emerged, almost incidentally, in the evidence of the two forensic psychiatrists called for the defense, Dr. Othello, and Dr. Ghany.

Some of it emerged in chief and other snippets in cross-examination. Putting it into order, the picture was this. Prior to the killing, there had been some five previous admissions to hospital beginning in 1985; the consistent diagnosis had been schizophrenia. After that, there had been some outpatient treatment, but the last had been in December 2000.

That was a little more than a year before the offense. There was no record of his having had, during that year, any drug treatment (essential so often in cases of schizophrenia and frequently very effective whilst maintained). The offense was then in January 2002. Some three or four months after the killing he had been admitted to hospital on 30 April 2002 with florid symptoms of schizophrenia. At that stage, Dr. Ghany noted that he was experiencing delusions and hallucinations, he was exhibiting grandiose ideas and religious incoherence and he was generally functioning at a low level. He was agitated, irrational and incoherent.

He claimed to have had 91 wives and a career as an inventor of lasers, computers and generators. At one stage he said that the man he had been charged with killing had, in fact, himself murdered the shopkeeper. At a later stage during this hospital admission, he gave an account of events at the shop which was not far from accurate save that he said that he had been shot by the guard and had then stood bleeding for some three minutes before responding by striking the guard with the metal bar.

In May 2006 he was admitted to hospital for assessment of fitness to plead; where exactly he had been between June 2002 and then was not in evidence. He was seen by, no doubt amongst others, Dr. Othello. He was assessed to be unfit to plead and in February 2007 was found by the court to be so; an order was made for his detention in the hospital during the court’s pleasure.

Under treatment, he recovered considerably and became fit to plead. Reports detailing his recovery were not before the jury, but in fact showed that by February 2008 he was well groomed and coherent and lacked most of the previous psychotic symptoms, save that he was still asserting that the security guard was still alive. Counsel for the State did elicit that this last assertion was made, and also that it had disappeared within a matter of days, or at most weeks, of one of the reports, at a time when the defendant may have believed that recovery might lead to his release, rather than to his trial.

In June of 2008, he was discharged from hospital to prison, by now fit for trial. His trial followed in February 2009. At that trial, the initial stance of the State was that it would accept a plea of guilty to manslaughter on the basis of diminished responsibility (if it were tendered). The Deputy Director of Public Prosecutions had herself authorized this position. Whether such a plea was actually tendered or not is not clear, but it may not have been, since self-defense (as well as provocation) was being relied upon, and seems to have been defense counsel’s primary case throughout, including in his closing speech.

At all events, counsel for the State formed the view, clearly conscientiously, that he ought not to accept diminished responsibility and should challenge the evidence of it. The Board will return to this conclusion later.

The defense was proposing to rely, on the issue of diminished responsibility, only upon the evidence of Dr. Othello. She had not seen the defendant until May 2006, after his admission that year to the hospital, thus four years and more after the offense. She had examined him on three occasions, but all had been brief owing to his irritable and illogical responses. She had written a very short one and a half page report. It described his condition at that time, which was floridly schizophrenic. It referred in a sentence or two to the fact that he had had several previous admissions to hospital and had been diagnosed as schizophrenic.

It referred to Dr. Ghany’s report of summer 2002, to its description of his then florid schizophrenia, and to its stated conclusion that he had been suffering from an abnormality of mind at the time of the offense, and it endorsed that last conclusion. After the cross-examination of Dr. Othello had put diminished responsibility in issue and had elicited the period between the offense and her contact with the defendant, the defense also called Dr. Ghany, relying not on any recent assessment or indeed any recent report, but simply on what he had said in June 2002.

That report does not have the appearance of being prepared for use at a murder trial on the issue of diminished responsibility. It was of a similar length to Dr. Othello’s report. It was however able to record the history of previous admissions from 1985 onwards and the diagnosis of schizophrenia then made, it set out his condition at the time of his 2002 admission and it stated the conclusion in a single sentence that at the time of the offence his condition amounted to an abnormality of mind which seriously affected his mental responsibility.

In the event, both Dr. Othello and Dr. Ghany gave evidence to the jury that in their expert view the defendant had been affected at the time of the offense by an abnormality of mind, namely schizophrenia. Both, when asked, expressed the view that that abnormality of mind substantially impaired his mental responsibility for his acts. It has to be said that the manner in which their evidence in chief was elicited did not make it easy for the jury to follow.

The history was not elicited in a way which showed the recurrent appearance of symptoms either side of the offense. Whilst the apparent absence of drug treatment for a year was elicited together with a general proposition that such might lead to relapse, the significance of the destitute lifestyle was not clearly elicited nor was there any direct focus on the likely medical condition of the defendant on the day of the killing.

The doctors were not asked about the significance of the defendant’s arguably strange behavior at the time off, and immediately after, the offense. Counsel for the prosecution adduced no medical or other evidence to contradict those conclusions but challenged them through cross-examination on a number of grounds. There is nothing necessarily wrong with taking this course if there is a proper basis for it.

It is more difficult if cross-examining counsel has no psychiatric report of his own from which to derive possible flaws in, or valid criticisms of, the evidence adduced for the defendant, but even then it is not impossible nor is it wrong. Some little care is, however, required from counsel lest the jury be left with the impression that an exploratory or speculative line of questioning has a valid basis, in psychiatry or otherwise, when it has not. And if this process is adopted, it imposes a particular duty on the judge to avert any risk of such impression if it would be unfounded and to make sure that the jury grasps the real issue(s) which it has to determine.

In the present case, the cross-examination of the experts included the following topics. (a) Both were cross-examined with a view to showing that there was nothing in the behavior of the defendant at the time of the killing to suggest frank delusions or hallucinations at that time. Whilst Dr. Ghany had spoken of delusions existing at the time of his May 2002 examination (for example the 91 wives and the career as an inventor), and appeared at one stage to suggest that the defendant would not have understood the consequences of hitting the guard with the metal bar, Dr Othello said frankly that she could not say whether the defendant was delusional at the time or not.

Both agreed that there was no outward manifestation of delusion at the time. This was plainly so, and in that respect, the case differed from some instances of offenses where schizophrenics kill under hallucinatory or delusional beliefs about the victim which have no basis whatever. It was perfectly legitimate for counsel to establish that this was so. But delusions are only one form of a schizophrenic symptom. Severely disordered thinking, the inability to make sound judgments about what is going on around one and loss of care for oneself are among others.

The true issue in the present case was whether the defendant’s mental responsibility for the killing was substantially impaired by these effects of schizophrenia at the time of the events. Dr. Othello did refer to this form of schizophrenic disability, but it needed to be made clear to the jury that the exclusion of frank delusions did not bring the issue of diminished responsibility to a close.

(b) This investigation of delusions was linked in cross-examination to the proposition that a schizophrenic may at different times be symptom-free or, as was put to the experts, enjoy a “lucid interval”. The doctors both agreed that this may occur, as plainly it may. They both expressed the firm opinion that it was not likely to have applied to the defendant at the time of the offense, but the cross-examination was likely to leave the jury with the impression that the absence of delusion meant a “lucid interval”, in the sense of freedom from illness.

Indeed, once Dr. Othello had agreed with the proposition that lucid intervals were possible, the next question reminded her that the defendant was now fit to plead, as if that were the same as being free from his illness; in any event by the time of the trial he is likely to have been on medication. The significance of the “lucid interval” evidence needed to be made clear to the jury.

(c) It was suggested to both doctors in cross-examination that because they had no first-hand information about exactly what the defendant had done in the pharmacist’s shop, their conclusions were vulnerable because they depended on what he himself had said. There are certainly cases where this is a legitimate concern. In some cases, the medical opinion as to diminished responsibility depends heavily on what happened and the defendant may be the only person present who survives to advance an account. Other cases may depend on what he knew or thought at the time. Indeed, yet others may depend on the reliability of what he has said about past symptoms.

In all these cases, the medical opinion may depend heavily on the accuracy of what he says, and his reliability accordingly needs careful investigation. R v Terry [1961] 2 QB 314, R v Ahmed Din [1962] 1 WLR 680 and R v Bradshaw (1985) 82 Cr App R 79 are just three of many examples of one or other of these types of case. But each case requires consideration according to the issue raised. This was not one of any of these cases. The defendant had given no account whatsoever of the killing to Dr. Othello. He had given two inconsistent accounts to Dr. Ghany.

One was transparently fanciful. The other, with its suggestion of standing still for three minutes after being shot, was inconsistent with the uncontradicted evidence of the shopkeeper which the jury had heard. But, critically, neither formed any part of the reasoning of either doctor, except to the extent that the subsequent giving of fanciful or inaccurate accounts of events was capable of being consistent with schizophrenia.

The jury needed to understand that this was not a case in which the experts’ conclusions depended to any extent at all on the truth of what the defendant had said about the killing.

(d) It was similarly suggested to the doctors that the information which they had had from social workers about the events in the shop was second-hand hearsay. So it was, and if there had been any dispute about what the events of the killing had been, or if the conclusions of the doctors depended on what they had learned from social workers, this might have been relevant, but neither applied. The shopkeeper’s evidence was uncontradicted. The jury needed to understand that these questions were simply irrelevant.

(e) Both doctors were cross-examined on the basis that they had wrongly omitted to identify the “etiology” of the schizophrenia. This line of questioning was based on the language of the statute, which does of course state that the abnormality of mind in question may be the product of arrested/retarded development of mind, inherent cause or disease. This cross-examination was entirely misconceived.

First, the purpose of the statute in naming these three possible sources of abnormality of mind is to extend rather than to restrict the scope of the expression. More fundamentally, schizophrenia is a plain abnormality of mind. It may derive at least in part from inherent causes, but if it does not it is properly described as a disease of the mind; indeed it may be that it can be both.

Where, as here, an underlying condition of chronic schizophrenia is common ground, there is no point whatever in spending time on discussing which of those two is its technical classification, and no psychiatrist can properly be criticized for not adverting to the question. The cross-examination left in the air the suggestion that the doctors did not know their business sufficiently well and that this omission demonstrated the fact. That was simply wrong.

(f) Both doctors were asked whether they had performed psychological tests upon the defendant. Specific tests were identified by questions in the cross-examination, such as the Minnesota multiphasic personality inventory test (MMPI), the ink blot test, the Benda Gestalt test, and an IQ test. Dr. Othello simply said that she had not administered them. Dr. Ghany said more than once that they were not necessary. He was invited by counsel simply to answer the question whether the tests had been done. That was unfair. He was not reexamined to explain that they would have been wholly inappropriate in a case where personality disorder or learning disability was not in issue, and where there was the plainest possible history of chronic schizophrenia, which such tests would not address. It was not put to either doctor what use such tests might have served in a case of schizophrenia, and there was, in fact, no basis for the unspoken suggestion that they would have had any purpose. The questions left in the air the suggestion that there was some lack of professionalism in not conducting such tests, or at least that the experts’ conclusions were in some way weakened by their absence.

In all these respects the jury stood in plain need of guidance from the judge. That was the more so because counsel for the prosecution made explicit in his closing speech the assertion that the experts’ conclusions were vitiated by lack of sufficient expertise, or at least by stubborn refusal to budge from them. The jury was invited to ask whether Dr. Othello had been “evasive”.

It was told that Dr. Ghany had been “very deficient” in the matter of psychological tests. It is likely that the description “bent” which appears in the transcript of counsel’s speech is either a mistranscription or carries a meaning other than “dishonest” in the place and context in which it was used, but certain it is that the jury was invited to conclude that the doctors’ professional pride inhibited them from recognising the possibility that they were wrong.

Inside the Privy Council

Inside the Privy Council

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