Wednesday 29 March 2006

Louis Joseph Marie Gérard Tyack v The State

Louis Joseph Marie Gerard Tyack

Appellant

v.

The State

Respondent

FROM

THE SUPREME COURT OF MAURITIUS

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JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL

Delivered the 29th March 2006

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Present at the hearing:-

Lord Hope of Craighead

Lord Walker of Gestingthorpe

Lord Carswell

Lord Brown of Eaton-under-Heywood

Lord Mance

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[Majority judgment delivered by Lord Carswell]

Air Mauritius plays an important part in the economic life of the state of Mauritius. It is a large public limited company, in which members of the public have shareholdings. Its success has been linked with the development of tourism in Mauritius, which is of considerable importance to the island. When it became known that very substantial defalcations had taken place within the company, and it was alleged that very senior members of the management were involved, it gave rise to a large scandal and the public concern was equally great.

The appellant was at the centre of the misfeasance, as general manager in charge of finance and company secretary, playing a part which their Lordships will describe later in more detail. When rumours of irregularities were spreading and an internal inquiry had been commissioned, he admitted his part, provided detailed information to the police and expressed willingness to give evidence against the other participants. He was charged on two counts of conspiracy to defraud, which carried a maximum penalty of five years’ penal servitude. The subject matter of the charges represented only a small fraction of the sums wrongly received by the appellant on his own admission, and an even smaller fraction of the company’s overall loss. He pleaded guilty at the Intermediate Court and the Presiding Magistrate sentenced him to three years’ penal servitude on each count, which are to run concurrently. His appeal to the Supreme Court of Mauritius was dismissed and he has appealed by special leave to the Privy Council, on the ground that the sentence imposed was wrong in principle and manifestly excessive.

Before turning to the facts in more detail their Lordships would observe that although the Board has power to consider appeals against sentence, it is an area in which they are particularly slow to intervene, paying considerable deference to the views of the local court. In Chinien v The State [1993] 1 WLR 329, also an appeal from the Supreme Court of Mauritius, Lord Jauncey of Tullichettle, giving the judgment of the Board, said at p 335:

“It is very unusual for this Board to intervene or even to entertain argument in relation to sentences passed by a court of competent jurisdiction.”

It was prepared to do so in that case because questions of principle were involved. In the present case it is claimed that the Intermediate Court and the Supreme Court made a serious error of principle, in that they regarded it as legitimate that the appellant should be sentenced as if the charges laid represented the whole period and total amount of the fraudulent transactions. This involves consideration of the topic of charges in cases of multiple offending and the way in which they should be dealt with, one which their Lordships consider to be of some consequence.

It was common case, and accepted as correct by the Supreme Court in its judgment, that the Mauritian courts will be guided in sentencing by the principles and guidelines applying in England and Wales, so that the leading English authorities are generally apposite in sentencing matters. In the course of their judgment, however, the Supreme Court remarked (Record, pp 115-6) that while they have been inspired in their sentencing principles by the English decisions, the local social context is very different from that obtaining in the United Kingdom and that they must not blindly follow what obtains there. They also pointed out (Record, p 114) that in view of the local context they have “been less lenient in respect of certain crime”.

The appellant, who is now 65 years of age, joined Air Mauritius in 1977 as General Manager – Finance and Administration, being also appointed Company Secretary in 1985. In or about 1981 a special fund was set up, which on the appellant’s case was done on the instructions of the then Chairman, Mr HK (later Sir Harry) Tirvengadum, to enable payments to be made for the funding of political parties and for other purposes. In his unsworn statement made from the dock in the Intermediate Court the appellant described the Chairman as “un homme d’une forte personalité, qui avait la confiance de tous, a tous les niveaux” – a man of strong personality, who had the trust of everyone at all levels. The money was “laundered” through trusted associates, Rogers & Co Ltd, sales agents to Air Mauritius. They were paid sums by cheque which were described as a special commission, then remitted the amounts by open cheques to the appellant, who cashed them and kept the proceeds in his private safe or in bank accounts other than the Air Mauritius account, paying them over as he was instructed. This practice went on until 1999.

The appellant stated that these sums were initially used to finance political parties, but that “some years later” Sir Harry Tirvengadum asked him to effect various payments from the fund, including additional salaries for Sir Harry himself, for the appellant and for other colleagues, since “il avait la haute main” – he had the upper hand. It was common case that the total sum involved in the fraud was some 85 million rupees, roughly equivalent to £1.5 million sterling, and the amount which the appellant received came to some Rs 27.5 million, equivalent to £513,000 approximately.

About the beginning of September 2001 rumours began to spread about fraud at Air Mauritius and the company’s administration decided at some stage to institute an internal inquiry. The appellant asked for and was granted leave as from 10 September 2001 in order to facilitate the inquiry. He wrote a letter on 13 September to the President of the Republic asking him to institute a commission of inquiry at Air Mauritius, stating that he would tell all the truth about the matter. He then handed to the police a “cash book” in which he had noted all the entries and withdrawals in relation to the special fund. He followed this up by giving a series of statements under caution, commencing on 22 September 2001, in which he described in detail the course of the fraudulent conduct, the methods used and his own part in it. He produced a number of original documents setting out the payment of the special commissions and payments made out of the fund and identified a number of cheques relating to the transactions. From his records he accounted for the total of Rs 27,508,833.08 received by himself and paid this whole sum over to the police in October 2001. The appellant has at all times indicated his willingness to give evidence in proceedings against the other persons involved in the fraud and criminal proceedings are at present in train against them or some of them. The appellant has at various times from the beginning of the inquiry expressed his contrition and presented his apologies to the court.

The appellant was charged on two counts of conspiracy to defraud, contrary to section 109 of the Criminal Code (Supplementary) Act, an offence which carries a maximum penalty of five years’ penal servitude. The charges related to two specific transactions in April and June 1996 and the amounts concerned were Rs 489,718 and Rs 499,539 respectively, the equivalent in total of approximately £18,500. Their Lordships were not informed of the reasons for prosecuting the appellant on two charges only, but in view of the amount of evidence available incriminating him the inference appears clear that it was a deliberate decision by the prosecuting authorities. As no other charges were contained in the indictment or formulated and taken into consideration, one must conclude that restricting the prosecution to them was intended to reflect the very considerable and probably indispensable co-operation afforded to the police by the appellant.

The appellant pleaded guilty to these charges at the Intermediate Court on 9 December 2002. At a hearing on 27 February 2003 the Presiding Magistrate Mrs Mungly-Gulbul heard evidence from four police witnesses to prove the statements made by the appellant. He made an unsworn statement from the dock, his counsel made submissions on his behalf and in a brief reply prosecuting counsel merely stated that the principles of sentencing were to serve justice. There was no suggestion that other charges were being taken into consideration, nor was any mention of specimen or sample counts made at any stage of the proceedings. The course and scale of the whole fraud were, however, evident from the statements and the submissions presented by his counsel, who did not seek any restriction of the factual matters (which would have been wholly artificial and made the matter very difficult to comprehend). It was confirmed that the appellant had no previous criminal record.

The magistrate adjourned sentencing until 6 March 2003, when she gave a written decision setting out her reasons. She recited the course of the fraudulent conduct over 18 years and the appellant’s part in it, stating that notwithstanding his knowledge of the matter he had chosen not to report it to anyone until “the scandal came out in the open”. She said that

“the accused’s involvement in such a fraud, in breach of his position of trust and causing prejudice, not only to his employer, but also the company shareholders, cannot be condoned or viewed lightly.”

She emphasised (Record, p 19) that

“in this context of rampant white collar crime, were the Court were to be unduly lenient to the accused, it would be sending the wrong signals to those professionals in positions similar to the accused, who would have the impression that they can engage into illegal activities and frauds with impunity and get away subsequently merely by refunding the amount due and showing their contrition and regrets over what has taken place.”

She concluded (Record, p 20) as follows:

“Bearing in mind all the mitigating factors in favour of accused and highlighted during the proceedings, I am of the view that the maximum custodial sentence provided under s 109 of the Criminal Code Supplementary Act, namely 5 years penal servitude, is not warranted in the present case. A lesser sentence will meet the ends of justice and I sentence accused to undergo 3 years penal servitude under each count.”

The appellant appealed to the Supreme Court of Mauritius on the grounds that (a) the sentence was wrong in principle and was manifestly excessive in the circumstances of the case (b) the magistrate had erred in taking into consideration extraneous and irrelevant matters which went beyond the charges preferred (c) a non-custodial or suspended sentence should have been imposed.

The appeal was heard on 11 May 2004 by the Supreme Court (Lam Shang Leen and Peeroo JJ) and a reserved written judgment was given on 10 June 2004 dismissing the appeal. In a skeleton argument submitted on behalf of the appellant and in oral argument his counsel contended that the magistrate had taken the wrong starting point. Since the charges were not specimen charges, this should be the figure appropriate for a fraud involving under Rs 1 million, which would be of the order of two to three years. It was wrong for the magistrate to have regard to the whole extent of the fraudulent scheme as it was operated over 18 years and to start from the maximum, as she apparently did. He should then receive substantial credit for his early plea of guilty and the mitigating factor of his very considerable co-operation with the police.

Counsel appearing on behalf of the prosecution, Principal State Counsel Mrs G Manna, submitted that a custodial sentence was correct in principle, but that the sentence imposed by the magistrate was on the high side, in view of the mitigating factors, in particular the assistance which the appellant gave to the police. At the conclusion of its judgment the Supreme Court criticised counsel for the prosecution for making these submissions, but in the light of the matters which they will discuss in this judgment their Lordships consider that the criticism was rather misplaced.

In its judgment the Supreme Court discussed a number of English and Mauritian authorities on sentencing, but it is significant that at no point did it advert to the fact that the appellant had been charged on only two counts and had not asked for any others to be taken into consideration. It had regard to the whole period of the conspiracy to defraud Air Mauritius, and not merely for the purpose of setting the charged offences in context or rebutting any suggestion that those were isolated offences. This appears clearly from a passage at Record p 124-5:

“It was also submitted that the learned magistrate had taken into account 15 matters which were extraneous to the counts of conspiracy. We do not share that view. On the contrary, the learned magistrate was alive to the counts with which the appellant stood charge and only took into consideration the evidence placed before her for the purpose of passing the sentence. Apart from those factors which went towards mitigation which she bore in mind, there were, indeed, facts showing the aggravation of the offences for which the appellant was charged and which the learned magistrate was perfectly entitled to take into account. She rightly considered the fact that (a) the scheme to strip off the public company lasted for some 18 years; (b) the appellant had benefited from that fraud and had remitted apparently what remained of the bounty, the sum of some Rs27m and (c) had actively participated in the scheme despite his allegation that he was acting under the instruction of the then almighty chairman. The learned magistrate, en passant, mentioned that the appellant, also in his capacity as the Company Secretary, failed to report the matter to the Board of Directors. Furthermore, despite the fact that the “almighty” was not in office at some stage, the fraud continued until the scandal was let off the bag by others. In the light of what had been said in R v J. Barrick (supra), we consider that the relevant considerations were taken into account by the learned magistrate before deciding the fate of the appellant.

There remains lastly the qualm of the appellant that he was not given sufficient discount in the light of all the mitigating factors in his favour. True it is that the learned magistrate did not say what would have been the appropriate sentence had the case gone for trial. We consider that in the light of the breach of trust, the ripping of fund during a long period through a scheme designed by those in the top management of a public company and the huge amount involved, a sentence of 5 years would not have been unreasonable. As a cold comfort to the submission of learned counsel for the appellant in a case of extreme seriousness, the trial court would be entitled to order the sentences to run consecutively to reflect the very serious nature of the offence and the disapproval of the society to which the court owes a duty as well.”

Again, at p 127 the court referred to “the huge amount involved as admitted by the appellant”.

The Supreme Court referred to the guidelines laid down by Lord Lane CJ in R v Barrick (1985) 81 Cr App R 78; 7 Cr App R (S) 142 concerning the proper level of sentencing in fraud cases, under which a case involving sums of between about £10,000 and £50,000 would merit a term of about two to three years’ imprisonment, subject to other factors which might operate by way of aggravation or mitigation. It went on to point out quite legitimately, however (Record pp 125-6)

“… we must not forget that the incomes which obtain in England and in Mauritius are incomparable. Furthermore, Rs 489,718 and Rs 499,539 might not appear to be a lot of money in England, but it is equivalent to 20 months’ salary of a magistrate or 10 years’ salary of a factory worker.”

The court expressed the view that a custodial sentence was not wrong in principle and set out its conclusion at Record pp 127-8:

“Considering what had been said in R v Barrick (supra) and Dimsey (supra), the huge amount involved as admitted by the appellant, the more so that this is a very serious fraud by a person in a position of trust which must be checked especially that the State deemed it necessary to pass laws to curb down white-collar crimes which are legion, we have not been shown in what way the learned magistrate had erred in applying the sentencing principles which she had elaborated and which were inspired from the decisions in the United Kingdom. We find that the sentence passed was neither wrong in principle nor manifestly harsh and excessive having regard to all the circumstances of this case.”

In his printed case Mr Thornton QC advanced six submissions on behalf of the appellant in support of his case that the Supreme Court had been in error (1) the appellant was sentenced for offences to which he did not plead guilty (2) it wrongly took the maximum sentence of five years as the appropriate starting point (3) a discount of 40 per cent from the starting figure was insufficient in the circumstances (4) the court reduced the discount because of the nature of the crime (5) the court departed from the English authorities (6) the court wrongly applied the guidelines in R v Barrick. These submissions overlap to some extent and depend essentially on the correctness of the first argument. Mr Dixon for the State did not adopt the same approach as Mrs Manna had before the Supreme Court, but maintained that the Intermediate Court had been correct in law and justified in looking at the entire course of the appellant’s conduct when sentencing him, that it was accordingly reasonable to start from the maximum sentence and that the discount allowed had been sufficient.

Their Lordships are in agreement with the conclusion of the Supreme Court that a custodial sentence was required and that it was not appropriate in a case of this type to suspend it or to restrict it to a short sentence on the “clang of the prison gates” principle. They feel that it is necessary, however, to examine further the question of the basis of sentencing on the two charges, the starting point in determining the length of sentence and the discount or discounts which should be allowed.

There was a good deal of discussion in argument before the Board of the use of specimen or sample counts in criminal prosecutions. Their proper function may not always have been properly understood, but the severe limits upon recourse to them need to be more clearly appreciated than ever. In the words of the Law Commission, the “pragmatic arrangement” thitherto adopted of charging offences which were to be regarded as examples of a wider range of offending was “thrown into disarray” by the decision of the Court of Appeal in R v Canavan [1998] 1 Cr App R 79; sub nom R v Kidd [1998] 1 WLR 604 (Report of the Law Commission “Effective Prosecution of Multiple Offending (2002) Law Com No 277, CM 5609, para 2.3). In that case Lord Bingham of Cornhill CJ stated at page 81:

“For very many years prosecuting authorities have framed indictments including a small number of specimen or sample counts said to be representative of other criminal offences of a like kind committed by the defendant. This may, for example, be done where a defendant is said to have sexually abused a child victim frequently over a period, but the child is unable to particularise any specific occasions on which abuse occurred. Two or three counts, perhaps, may be included in the indictment; the prosecutor will make plain that they are specimen counts; and the victim will give evidence of the frequency with which the abuse occurred. The practice may also be adopted where, for example, a defendant is said to have obtained money by deception on numerous occasions: instead of burdening the indictment with numerous counts charging all the instances relied on, a few counts only may be included, and it will be made plain to the court and the jury that they are relied on as representative of a more extensive course of similar conduct. If, in a situation such as this, the jury convicts the defendant on one or more specimen counts, the practice of the court has been to pass a sentence which takes account not simply of the isolated instances specified in the counts but also of the conduct of which, on the evidence adduced by the prosecution, those counts are representative. This is undoubtedly a convenient and economical way of proceeding in cases of this kind, and when appeals have reached this Court against sentences passed on sample or specimen counts no objection has been raised to the practice. It is, however, submitted for the appellants that the practice is contrary to fundamental principle and inconsistent with recent statutory provisions.

A defendant is not to be convicted of any offence with which he is charged unless and until his guilt is proved. Such guilt may be proved by his own admission or (on indictment) by the verdict of a jury. He may be sentenced only for an offence proved against him (by admission or verdict) or which he has admitted and asked the court to take into consideration when passing sentence: see Director of Public Prosecutions v. Anderson (1978) 67 Cr.App.R. 185, [1978] A.C. 964. If, as we think, these are basic principles underlying the administration of the criminal law, it is not easy to see how a defendant can lawfully be punished for offences for which he has not been indicted and which he has denied or declined to admit. ”

The consequence of this decision, whose logic and correctness in principle the Law Commission said “cannot be faulted”, has been to make the specimen count virtually a dead letter.

It appears to be undeniable that difficulties, greater than the court had foreseen, have arisen out of the decision in Canavan (see R v Tovey and Smith [2005] EWCA Crim 530, [2005] 2 Cr App R (S) 100, para 13, per Lord Woolf CJ; Law Commission Report, paras 2.10 to 2.13) and the problem has been described as “intractable”. The Law Commission made several recommendations in its report of expedients to alleviate these problems, but they have not as yet been the subject of amending legislation. Nor has the suggestion advanced by Dr DA Thomas ([2005] Crim LR 250) been adopted, that the rules about duplicity of indictments should be rethought, so as to allow the prosecution to charge a continuing course of conduct in a single count. In R v Tovey and Smith, supra, the Court of Appeal took the opportunity to review the law and considered whether there were other possible ways of alleviating the problems. It reluctantly came to the conclusion, however, that, subject to what appears to be a fairly limited possibility of issuing a form of indictment approved by the Lord Chief Justice (which would have to comply with the restrictive requirements of section 3 of the Indictments Act 1915), there was no substantive proposal that the court could usefully make.

If the case is contested, accordingly, in the light of Canavan a defendant cannot be sentenced for conduct which has not formed, expressly or by necessary implication, the subject of charges laid against him. It is therefore important that the prosecution should include sufficient counts to reflect the extent of the defendant’s criminal behaviour and the period during which the offending occurred: cf Canavan at page 84; R v Tovey and Smith, para 34; R v M [1999] NI 45 at 56, per McCollum LJ; and see the useful reminder given by Kennedy LJ in R v Twisse [2001] 2 Cr App R (S) 9, para 7. The extent to which this is practicable is, however, limited: see the views expressed by Mantell LJ in R v Evans [2000] 1 Cr App R (S) 144 at 147-8. It cannot be overcome by treating a selection of counts as “stepping stones”: R v Graham and others [2004] EWCA Crim 2755; [2005] 1 Cr App R (S) 115, paras 42,56.

Where the defendant intends to plead guilty to the whole catalogue of offences in a series and they can be sufficiently specified, it is desirable that these other offences should be specified and that he should ask for them to be taken into consideration. This may prove to be impracticable where the other offences are extremely numerous or cannot be precisely specified. In such case there should be clear agreement between the prosecution and defence, which should be stated in open court and preferably recorded in written form, that the judge may sentence on the basis of the whole series of offences: cf Blackstone’s Criminal Practice 2006, para D18.33. Instances may occur from time to time where the practice outlined has not been followed with the proper precision, but the case has been so plainly approached by defence counsel on the basis of accepting the defendant’s guilt of a whole series of offences that it would be wrong to limit sentence to that which would be appropriate in respect of the counts on the indictment: Attorney-General’s Reference (No 82 of 2002) [2003] EWCA Crim 1078; [2003] 2 Cr App R (S) 115 provides an example, approved in Tovey and Smith at para 22. Moreover, the court is not required to blind itself to the obvious. If the defendant claims that the occasion in question was an isolated transaction, that submission can be rejected if the facts and circumstances point with sufficient clarity to the opposite and he can be given the appropriate sentence for a single offence charged without the credit which he would receive if it really were an isolated offence: R v Twisse [2001] 2 Cr App R (S) para 8, per Kennedy LJ. Subject to those qualifications, however, the defendant must be sentenced only for the matters with which he has been charged and in respect of which he has either been convicted or has pleaded guilty.

The extent of the residual life left in specimen counts was not, however, a central issue in the present case when correctly regarded. If one concludes, as their Lordships consider they must, that the intention of the prosecuting authorities in framing the indictment with only two counts was to recognise and reflect the extent of the appellant’s co-operation, then it was inconsistent with that approach and incorrect in principle for the court to go behind that and sentence him on the basis on the entire course of his wrongdoing. By the same token, if his co-operation has been reflected in the prosecutorial decision, it would be double-counting to apply a further discount for that factor at the time of sentencing.

Their Lordships accordingly consider that the Presiding Magistrate and the Supreme Court were in error in approaching the case, as they manifestly did, as one in which the whole course of the appellant’s wrongdoing should be reflected in the sentence. No doubt a feeling that the approach was incorrect lay behind Mrs Manna’s submissions which were criticised by the Supreme Court. In their Lordships’ view the court should have taken as its starting point the sentence which would have been appropriate if the appellant had been convicted after a contest on those two charges alone. It could have had regard to the nature and extent of the entire fraudulent scheme in the manner to which they have referred in paragraph 21 above, but it is plain from the judgments of the Intermediate Court and the Supreme Court that they went further and imposed a sanction which they thought appropriate for the perpetration of the whole of the fraud.

The range of sentencing propounded in R v Barrick for frauds involving £10,000 to £50,000 was two to three years, which would then be subject to any aggravating or mitigating factors. This is the proper starting point, not the maximum sentence, which was quite inappropriate as a potential sanction for the offences charged. Their Lordships consider it right to bear in mind the difference in the cost of living and the level of salaries between England and Mauritius. They also have regard to the factors of breach of trust and the appellant’s pivotal part in operating the fraudulent scheme. They accordingly regard the present case as being at the top end of the range. If this is taken as the starting point, the appellant is then entitled to a suitable discount for his plea of guilty, but not, for the reasons hereinbefore set out, for his co-operation with the police. The appellant has professed considerable remorse for his actions and has made what is accepted as full restitution. Their Lordships are conscious of the factor to which the magistrate referred at Record p 19, quoted in paragraph 10 above, about the limits which may be placed on the factors of restitution and contrition, a factor which always has to be borne in mind when sentencing in fraud cases. Their conclusion, taking account of all the relevant considerations, is that the proper sentence would have been one of two years’ penal servitude.

Their Lordships will accordingly allow the appeal and substitute a term of two years for that of three years ordered by the magistrate. The appellant will have his costs of the appeal to the Board.

Lord Mance

Save in one area, I agree with the advice of the Board prepared by my noble and learned friend, Lord Carswell. I have the misfortune to disagree with the Board’s refusal to allow any discount for the assistance rendered by the appellant to the police and prosecuting authorities.

The appellant was charged with only two limited offences, each couched in terms of conspiracy and carrying a maximum sentence of five years penal servitude. In the event the sentences passed of three years imprisonment on each count were made concurrent. I agree with the Board that the sentencing judge erred in sentencing the appellant as if he had been charged with a much wider fraud, or had asked for other charges going to make up that fraud to be taken into account. The judge was only entitled to sentence the appellant for the two limited offences charged.

I also agree that, on the basis of those two limited offences, the appropriate starting point for sentencing would have been a total of two to three years on conviction. That is before any discounting for mitigating circumstances such as the appellant’s immediate admission of guilt, remorse and guilty plea and the fact that apart from the aberration of his involvement in fraud on Air Mauritius he appears to have had a blameless and hard-working business and family life.

The guidelines in R v. Barrick (1985) 7 CrAppR(S) 142 (as modified in R v. Clark [1998] 2 CrAppR 137 after the maximum sentence for simple theft in England and Wales was reduced from 10 to 7 years) indicate a sentence of that order on conviction for theft involving dishonest breaches of trust in sums between £17,500 and £100,000. Here the maximum sentence for conspiracy was only 5 years penal servitude, and the total amounts involved in the two offences with which the appellant was charged equated to no more than about £18,500. This is in nominal terms at the bottom of the Barrick/Clark scale, but, as the Court of Appeal pointed out, a straight comparison of the value of money in Mauritius and England is unrealistic. A sum of £18,500 in Mauritius may more appropriately be regarded as near the top of the Barrick/Clark scale of £17,500 to £100,000. Hence a starting point of two to three years on conviction. I would be prepared myself to take three years. The slight difference between the maximum possible sentence of seven years in England and Wales and of five years in Mauritius can, I think, be put on one side.

The Board would apply to this starting point a discount for the appellant’s plea, bringing the actual sentence down to two years. If one assumes that three years would have been the appropriate sentence on conviction, I agree that a one-third discount would be appropriate to take account of the appellant’s voluntary confession and early plea: see R v. Buffey (1993) 14 CrAppR(S) 511, 515. The Board would however refuse any further discount to take account of the appellant’s very substantial co-operation, past and continuing, in revealing and assisting in the prosecution of the wider fraud. It is said that it would be double counting to allow any further discount, since “one must conclude” that his assistance has already been reflected in a prosecutorial decision only to pursue him on two limited counts. This appears to me a speculative path, not explored in the Courts below or in the prosecution case or submissions before the Board until the Board raised it. I am also concerned that it draws an inappropriate line between the prosecutorial and judicial functions and reduces the incentive to assist.

The only presently relevant point that the prosecution made in its written case to the Board was to draw attention to Kennedy LJ’s observation in R v. Twisse [2001] CrAppR(S) 37, paragraphs 7-8 that, where a limited charge is preferred and there is no request to take any other offences into consideration

“... the court is not required to blind itself to the obvious. If he [the defendant] claims that the occasion in question was an isolated transaction, the submission can be rejected. He can be given the appropriate sentence for that one offence without the credit he would receive if he really were an isolated offender.”

In other words, a defendant cannot be heard to say that he was an isolated offender, if it is obvious that he was party to some wider course of offending. He loses the possibility of such mitigation as would have existed if he had committed no more than an isolated slip.

In the present case, the appellant did not portray himself as an isolated offender. On the contrary he pointed out that he was charged with two limited offences, which he had confessed and to which he had pleaded guilty at as early a stage as possible, that he had disclosed much wider offending, that he had made full recompense and that he had assisted and was continuing to assist in the pursuit of others. These included the person who both sides assert was the initiator of the scheme, Sir Harry Tirvengadum, chairman of Air Mauritius and so the appellant’s superior and described by the appellant as an all-powerful and controlling personality. They also included other major alleged participants in the scheme, namely Joseph Rivalland, Louis Yip Tong and Derek Taylor, executive directors of Rogers Co. Ltd, the company which was used to channel the monies extracted from Air Mauritius. Sir Harry and these other alleged participants are due shortly to stand trial, each on a single charge of conspiracy relating to the wider alleged fraud (and so each exposed to a maximum of only five years penal servitude). Lord Carswell has in paragraph 7 described the active steps that the appellant took to bring to the attention of the authorities the full ambit of the wider fraud, by providing detailed information and his own detailed “cash book” documenting it. The police acknowledged at his trial that his evidence was “crucial for the enquiry into Air Mauritius affairs”. It will be correspondingly central to the forthcoming trial involving Sir Harry and others.

In these circumstances, the question is whether it is right to refuse the appellant any discount for his assistance, past and continuing into the future. The authorities indicate that the combined discount for an early confession and plea coupled with such assistance would commonly be in the range of one-half to two-thirds, although there is no tariff or “hard and fast rule” (R. v. King (1985) 7 CrAppR(S) 227, 230; R v. Sehitoglu and Ozakan [1998] 1 CrAppR(S) 89) and the area has been described as “fraught with difficulties” (R v. Sivan (1988) 10 CrAppR(S) 282, 286). The discount for assistance has been explained on two grounds (R v. X (1994) 15 CrAppR(S) 750), first, as a practical demonstration of acceptance of guilt and remorse, and, second, expediency – to assist in the arrest of others and the prevention of crime. The latter pragmatic consideration has been repeatedly emphasised (cf e.g. R v. Lowe (1978) 66 CrAppR 122, R v. King, above, and R v. Sivan, above). The authorities also stress as one factor that may affect the level of discount the danger that giving such assistance may involve (cf e.g. R v. Sinfield (1981) 3 CrAppR(S) 258, 259-260; R v. King, above at 230). There is no suggestion of any danger as a relevant factor in the present case.

Here, however, the authorities were made aware of the fraud and of its scope by the appellant, and, on the basis on which both sides ask the Board to approach this appeal, his assistance has been and will be crucial to its unveiling and to the pursuit of the alleged ring-leader and other major participants. The two charges laid against the appellant relate to a period prior to Sir Harry’s departure. It is true that the appellant’s assistance relates to a wider fraud involving some Rs. 85 million, equivalent to £1.5 million, which he asserts continued thereafter and out of which the appellant personally received and continued to receive very substantial benefit (totalling Rs. 27.5 million, equivalent to about £513,000). But he also volunteered to return all personal benefit at the same time as he disclosed the fraud and did so within a few days. There is nothing to suggest that he did not do so fully as regards his personal benefit.

It is said that the appellant must already have received a full discount, because the prosecution restricted the charges brought to two involving some £18,500, compared with the total £513,000 which the appellant said that he received and returned as his personal benefit. It is quite possible that the prosecution restricted the charges (laid as early as 29th November 2001) to only two in order to reflect the appellant’s assistance. But the point was never discussed or shown below, and I do not think that it can be regarded as clear. There may have been other reasons. I have already noted that Sir Harry and his co-defendants have only been charged with single offences exposing each of them to a risk of no more than five years penal servitude.

In my view it is not appropriate to refuse the appellant any discount whatever for his assistance on the suggested ground that it would represent a double discount. First, as I have said, this ground is untested speculation that the reason for limiting the charges brought against him was a wish to limit his punishment. Second, even if there had been clear evidence that that was the motivation, I would be unhappy about a process of reasoning which gives effect in the sentencing process to a prosecutorial decision and motivation. Third, I am unhappy about an approach which comes close to sentencing the appellant for a wider course of offending for which he has never been charged and which he has never asked to be taken into account. If the appellant had confined himself to admitting involvement in two charges, and had made no admissions or had put up a defence (e.g. of duress or ignorance of any wrongful purpose) in relation to any wider fraud, he would still have been entitled to a discount for assistance given implicating an alleged ring-leader and any others in relation to that wider fraud. If the prosecuting authorities chose not to pursue him for the wider fraud, and he did not admit it and ask for it to be taken into account, he could not be denied a discount on the basis that he might have been involved in it. Fourth, the practical implications of refusing a discount for assistance in a situation where it is thought that the prosecution have under-charged are unclear. Suppose that someone in the appellant’s position only admitted, and the police only knew about, two offences when they first charged him, there would be no or very little real incentive for him to disclose any wider fraud, if this would lead either to further charges or, if it did not, to a refusal to allow any discount for his assistance.

Although any difference this may make to the length of the sentence may be small, I consider it wrong for these reasons to refuse all discount for the assistance given. I appreciate that this was for Mauritius a sensational and concerning affair. But it is not infrequently the case that remorse, reparation, an early plea and substantial assistance can lead to a sentence which, without knowledge about these important factors, would appear extraordinarily lenient. I bear in mind, however, that this is not a situation where the appellant appears to have run or be running any physical risk in assisting as he has done and continues to do. So it may not be a case for the maximum discount of two-thirds indicated in the authorities for an early plea and substantial assistance. But it is a case for a total discount of at least one-half. Accordingly, I am unable to agree that it could have been appropriate to pass a sentence of more than, at most, one and a half years (half of three years).

Wednesday 22 March 2006

The State v Abdool Rachid Khoyratty

The State

Appellant

v.

Abdool Rachid Khoyratty

Respondent

FROM

THE SUPREME COURT OF MAURITIUS

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JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL

Delivered the 22nd March 2006

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Present at the hearing:-

Lord Rodger of Earlsferry

Lord Steyn

Lord Carswell

Lord Mance

Sir Swinton Thomas

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[Delivered by Lord Steyn]

Bail in Mauritius.

The institution of bail in Mauritius, and the principles which should guide the courts in exercising their discretion to grant or withhold bail, have been explained in earlier cases. In Hurnam v The State [2005] UKPC 49, Lord Bingham of Cornhill summarized the tensions and countervailing arguments which can arise in such cases.


He stated [para 1]:

“In Mauritius, as else where, the courts are routinely called upon to consider whether an unconvicted suspect or defendant should be released on bail, subject to conditions, pending his trial. Such decisions very often raise questions of importance both to the individual suspect or defendant and to the community as a whole. The interest of the individual is of course to remain at liberty, unless or until he is convicted of a crime sufficiently serious to justify depriving him of his liberty. Any loss of liberty before that time, particularly if he is acquitted or never tried, will inevitably prejudice him and, in many cases, his livelihood and family. But the community has a countervailing interest, in seeking to ensure that the course of justice is not thwarted by the flight of the suspect or defendant or perverted by his interference with witnesses or evidence, and that he does not take advantage of the inevitable delay before trial to commit further offences.”

Historically, in Mauritius, granting or withholding of bail was treated as a classic judicial power and duty. This is demonstrated by the functions and processes of the courts of law.

An attempt to curtail bail.

In 1986 by ordinary legislation Parliament passed the Dangerous Drugs Act (Act No 32 of 1986) which contained a prohibition on the grant of bail in respect of specific offences. In Nordally v Attorney General [1986] MR 204 the Supreme Court held that this statute was inconsistent with the Constitution. The court observed that the trial of persons charged with criminal offences and all incidental or preliminary matters pertaining thereto are to be dealt with by an independent judiciary. Addressing the matter of bail, the court concluded (at p 208) that it was not in accord with the letter or spirit of the Constitution, as it then stood, to legislate so as to enable the executive to overstep or bypass the judiciary in its essential roles. This judgement left open the possibility of removing from the courts the jurisdiction to withhold bail by constitutional amendment in specific classes of cases. It is a possibility which was not overlooked.


Restricting bail by constitutional amendment.

Subsequently an attempt was made to curtail the jurisdiction of the court to grant or withhold bail. It was sought to be accomplished by a two-fold legislative method viz an amendment to the Constitution made in 1994 and a re-anactment of the Dangerous Drugs Act in 2000.

The constitutional amendment was contained in section 5(3A) of the Constitution, as inserted by section 2 of the Constitution of Mauritius (Amendment) Act 1994 (Act No 26 of 1994). The setting of section 5(3A) was the existing section 5(3) which reads:

“(3) Any person who is arrested or detained

(a) for the purpose of bringing him before a court in execution of the order of a court;

(b) upon reasonable suspicion of his having committed, or being about to commit a criminal offence; or

(c) upon reasonable suspicion of his being likely to commit breaches of the peace,

and who is not released, shall be afforded reasonable facilities to consult a legal representative of his own choice and shall be brought without undue delay before a court; and if any person arrested or detained as mentioned in paragraph (b) is not tried within a reasonable time, then, without prejudice to any further proceedings that may be brought against him, he shall be released either unconditionally or upon reasonable conditions, including, in particular, such conditions as are reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to trial; and if any person arrested or detained as mentioned in paragraph (c) is not brought before a court within a reasonable time in order that the court may decide whether to order him to give security for his good behaviour, then, without prejudice to any further proceedings that may be brought against him, he shall be released unconditionally.”

The new section 5(3A)(a) and (b) as amended by section 2 of the Constitution of Mauritius (Amendment) Act 2002 (Act No 4 of 2002) reads:

“(3A)(a) Notwithstanding subsection (3), where a person is arrested or detained for an offence related to terrorism or a drug offence, he shall not, in relation to such offences related to terrorism or drug offences as may be prescribed by an Act of Parliament, be admitted to bail until the final determination of the proceedings brought against him, where-

(i) he has already been convicted of an offence related to terrorism or a drug offence; or

(ii) he is arrested or detained for an offence relating to terrorism or a drug offence during the period that he has been released on bail after he has been charged with having committed an offence relating to terrorism or a drug offence.

(b) A Bill for an Act of Parliament to prescribe the offences relating to terrorism or drug offences under paragraph (a) or to amend or repeal such an Act shall not be passed by the Assembly unless it is supported at the final voting in the Assembly by the votes of not less than three quarters of all the members of the Assembly.”

Section 32 of the Dangerous Drugs Act 2000 (Act No 41 of 2000) contains a restriction of bail in certain classes of cases. It provides:

“(1) Notwithstanding any other enactment, where a person is arrested or detained for an offence under sections 30, 33, 35, 36 or 39 of this Act, he shall not be admitted to bail until the final determination of the proceedings brought against him where-

(a) he has already been convicted of any drug offence; or

(b) he is arrested or detained whilst on bail in relation to a drug offence.

(2) For the purposes of this section, ‘drug offences’ includes an offence under the Dangerous Drugs Act.”

The offences incorporated by reference are as follows: section 30 (drug dealing offences), section 33 (offences regarding production), section 35 (offering or selling for personal consumption), section 36 (facilitating or permitting drug offences), section 38 (inciting to drugs offences or unlawful use) and section 39 (money laundering).

The attempted enforcement of the new regime.

On 27 October 2003 a provisional information was lodged against the respondent charging him with possession of 3 grams of heroin for the purpose of selling, contrary to sections 30(1)(f)(ii), 45(1) and 47(5) of the Dangerous Drugs Act 2000 as amended by the Dangerous Drugs Act (Amendment) Act 2003 (Act No 29 of 2003). On the same day, a motion for bail was lodged with the District Court. The police objected to bail on the ground that under the new dispensation the court had no power to grant bail. It was common ground that the respondent was caught by the relevant restrictions on bail if they were constitutionally valid. A District Magistrate in October, November and December 2003 took the view that questions of constitutional interpretation under section 84 of the Constitution had been raised and he therefore referred the following questions to the Supreme Court on 5 January 2004:

“(a) whether by amending section 5 of the Constitution through the addition of the new sub-section 5(3A) Parliament in its constituent capacity has not altered the fundamental tenet of the Constitution; the Separation of Powers, to wit: the check and balance aspect?

(b) by what majority can Parliament in its constituent capacity alter the separation of powers; the argument being that if a Constitutional (Amendment) Act is not supported at the final voting by the prescribed majority of votes, then it cannot be read as one with the Constitution; the alteration it purports to make cannot become part of the Supreme Law and that Act is void to all intents and purposes;

(c) is it constitutional to allow the Executive to detain a citizen indefinitely on a provisional charge of ‘drug dealing’ for instance without the judiciary being in a position to control the Executive and afford protection to the citizen as regards his personal liberty and his fundamental human right of being protected from inhuman or degrading or other such treatment as prohibited by section 7 of the Constitution?”

The principal questions posed were whether the new regime was consistent with section 1 and section 7 of the Constitution.

Section 1 provides:

Mauritius shall be a sovereign democratic State which shall be known as the Republic of Mauritius.”

Since 1991 section 1 has been deeply entrenched in the sense that it could only be amended in accordance with section 47(3) of the Constitution (see para 16 below). Section 7(1) provides:

“No person shall be subjected to torture or to inhuman or degrading punishment or other such treatment.”

Section 47(2) provides that section 7 may not be altered by less than three quarters of the members of the Assembly.

After a careful review the Supreme Court (Y K J Yeung Sik Yuen SPJ and P Lam Shang Leen J) came to the following conclusions:

“In the particular context of our Constitution, more specially in the light of our notion of democracy as is contained in section 1, we are of the opinion that section 5(3A), although it is compliant with section 47(2), [having admittedly been voted with three-quarters majority] is in breach of section 1 since the imperative prohibition imposed on the judiciary to refuse bail in the circumstances outlined therein amounts to interference by the legislature into functions which are intrinsically within the domain of the judiciary. In Dlamini v The State [2000] 2 LRC 239, at para 74, the Constitutional Court very aptly observed:

‘what is of importance is that the grant or refusal of bail is under judicial control, and judicial officers have the ultimate decision as to whether or not, in the circumstances of a particular case, bail should be granted.’

There is also an added reason why section 5(3A) in relation to its provisions dealing with drug offences should be struck down. This is in relation to section 7 of the Constitution which, as we have seen, provides for a fundamental human right to be protected from inhuman or degrading or other such treatment…

Again the exercise of granting bail is a judicial one which is duly recognized by section 5(3) of the Constitution. It is a judicial act in the same way as passing sentence and must be left to the judiciary to adjudicate when and in what circumstances it must be granted or refused. If there is any need to recomfort the legislature, we may aptly state that the higher judiciary in Mauritius has the necessary mechanism to check any unreasonable decision of any errant Magistrate when bail is either refused or granted where it should not have been. . .

Proportionality is therefore relevant equally to the issue of refusal to grant bail as well as that of sentencing.”

The court made the following order:

“We declare that section 32 of the DDA and section 5(3A) of the Constitution, insofar as regards drug offences, are void since they infringe sections 1 and 7 of the Constitution.

Our answers to the questions posed are as follows:

(a) yes;

(b) the majority set out in section 47(3) of the Constitution

(c) no.”

The State now challenges the decision of the Supreme Court.

The Issues.

The shape of the case can be stated shortly. The Privy Council must consider whether section 5(3A) of the Constitution and section 32 of the Dangerous Drugs Act 2000 are consistent with sections 1 and/or 7 of the Constitution. The Board designedly uses the inelegant expression “and/or”. The reason is that it must not be assumed in advance of analysis, that the two questions can be treated entirely separately. In addition counsel for the respondent relied on other provisions of the Constitution. The Board proposes in the first place to examine the impact of section 1 of the Constitution, interpreted in context.

The State’s argument on section 1.

In a powerful argument Mr Ian Burnett QC, on behalf of the State, submitted that a measure such as section 5(3A) which amends the Constitution cannot be condemned as undemocratic, because the Constitution itself allows that amendment and provides the democratic mechanism by which it may be achieved. The separation of powers doctrine must be applied subject to the specific principles of the constitution, which allows power between branches of government to be redistributed. Accordingly, so the argument runs, the Supreme Court erred in its expansive interpretation of section 1. This argument must be carefully considered.

The context.

Before the issue can be directly addressed it is necessary to set out the constitutional background in more detail. That can conveniently be done by citing a passage from the decision of the Privy Council in Ahnee v Director of Public Prosecutions [1999] 2 AC 294, 302-303, where the Board observed:

“The structure of the Constitution of Mauritius 1968 is important. Chapter I provides that Mauritius shall be a sovereign democratic state: section 1. Mauritius is a parliamentary democracy on the Westminster model: Hinds v The Queen [1977] AC 195, 212B-H; Duport Steels Ltd v Sirs [1980] 1 WLR 142, 157. The Constitution is the supreme law of Mauritius: any law inconsistent with the Constitution is invalid: section 2. Chapter II spells out various provisions for the protection of fundamental rights and freedoms of the individual. Sections 5 and 12 to which their Lordships have referred are part of this chapter. Chapter V deals with Parliament. Subject to the provisions of the Constitution, Parliament may make laws for the peace, order and good government of Mauritius: section 45(1). Parliament may only amend the Constitution in accordance with the manner and form prescribed: section 47. Subject to the Constitution, the sole legislative power vests in Parliament. Having dealt with the special position of the Governor-General in Chapter IV, the Constitution makes general provision for the powers of the executive in Chapter VI. This chapter provides for the exercise of executive authority. Under the Constitution Chapter VI is the exclusive foundation of executive authority. Chapter VII deals with the third department of the government – the judicature. The Constitution entrusts the Supreme Court with unlimited jurisdiction to hear and determine any civil or criminal proceedings under any law other than a disciplinary law: section 76. It provides the Supreme Court with a supervisory jurisdiction over all inferior courts for the purpose of ensuring that justice is duly administered by any interpretation of the Constitution and the enforcement of fundamental rights including the right to the protection of the law: sections 3, 17, 83 and 84. It provides for a power of constitutional and judicial review over all persons and authorities exercising functions under the Constitution: section 119. The independence of the court is protected by provisions relating to the appointment and tenure of the judges: sections 76 to 78. In addition, the court is given appellate jurisdiction from subordinate courts where there is no other mode of appeal: section 82(2). The Courts of Civil and Criminal Appeal are made divisions of the Supreme Court: section 80.

From these provisions the following propositions can be deduced. First, Mauritius is a democratic state constitutionally based on the rule of law. Secondly, subject to its specific provisions, the Constitution entrenches the principle of the separation of powers between the legislature, the executive, and the judiciary. Under the Constitution one branch of government may not trespass upon the province of any other. Thirdly, the Constitution gave to each arm of government such powers as were deemed to be necessary in order to discharge the functions of a legislature, an executive and a judiciary.’

While the judgment in Ahnee does not afford the answer to the question under consideration it is relevant in emphasising (a) that Mauritius is a democratic state based on the rule of law; (b) that the principle of separation of powers is entrenched; and (c) that one branch of government may not trespass on the province of any other in conflict with the principle of separation of power.

Analysis.

The Board proposes to analyse the question in a number of steps.

The idea of a democracy involves a number of different concepts. The first is that the people must decide who should govern them. Secondly, there is the principle that fundamental rights should be protected by an impartial and independent judiciary. Thirdly, in order to achieve a reconciliation between the inevitable tensions between these ideas, a separation of powers between the legislature, the executive, and the judiciary is necessary.

In Director of Public Prosecutions of Jamaica v Mollinson [2003] 2 AC 411 Lord Bingham of Cornhill examined the separation of powers under a Westminster constitution, viz the Jamaican Constitution. In a unanimous judgement of the Board Lord Bingham observed [at para 13]:

“Whatever overlap there may be under constitutions on the Westminster model between the exercise of executive and legislative powers, the separation between the exercise of judicial powers on the one hand and legislative and executive powers on the other is total or effectively so. Such separation, based on the rule of law, was recently described by Lord Steyn as ‘a characteristic feature of democracies’: R (Anderson) v Secretary of State for the Home Department [2003] 1 AC 837, 890-891, para 50.”

The observation cited from Anderson was expanded in my judgement in that decision. I observed [at para 50]:

“In R v Trade Practices Tribunal, Ex p Tasmanian Breweries Pty Ltd (1970) 123 CLR 361, 394 Windeyer J explained the difficulty of defining the judicial function as follows:

‘The concept seems to me to defy, perhaps it were better to say transcend, purely abstract conceptual analysis. It inevitably attracts consideration of predominant characteristics and also invites comparison with the historic functions and processes of courts of law.’

Nevertheless it has long been settled in Australia that the power to determine responsibility for a crime, and punishment for its commission, is a function which belongs exclusively to the courts: G F K Santow, ‘Mandatory Sentencing: A Matter For The High Court?’ (2000) 74 ALJ 298, 300 and footnotes 17 and 18. It has been said that ‘the selection of punishment is an integral part of the administration of justice and, as such, cannot be committed to the hands of the executive’: Deaton v Attorney General and Revenue Comrs [1963] IR 170, 183: see also In re Tracey; Ex p Ryan (1989) 166 CLR 518, 580; Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, 27; Nicholas v The Queen (1998) 193 CLR 173, 186-187, per Brennan CJ. The underlying idea, based on the rule of law, is a characteristic feature of democracies.”

Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Scott of Foscote and Lord Rodger of Earlsferry expressly agreed with this judgement. It may well be that Lord Hutton and Lord Hobhouse of Woodborough did not take a different view on this point. In any event, it can be treated as settled law in the United Kingdom. The third case on the general approach to be adopted is even more important. In A v Secretary of State for the Home Department [2005] 2 AC 68 Lord Bingham gave the leading judgement. He stated at para 42:

“. . . It is also of course true . . . that Parliament, the executive and the courts have different functions. But the function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic state, a cornerstone of the rule of law itself. The Attorney General is fully entitled to insist on the proper limits of judicial authority, but he is wrong to stigmatise judicial decision-making as in some way undemocratic.”

While not conclusive of the issue presently before the Board, these decisions give important colour to the words of section 1 of the Constitution, viz that Mauritius shall be a democratic state.

There is another aspect to take into account. The Supreme Court observed that decisions on bail are intrinsically within the domain of the judiciary. At the very least that means that historically decisions on bail were regarded as judicial. The importance of the historical perspective was emphasised in the Australian jurisprudence cited in Anderson. This factor too gives colour to the words of section 1.

These factors are however, transcended in importance by two special features. First, section 1 of the Constitution is not a mere preamble. It is not simply a guide to interpretation. In this respect it is to be distinguished from many other constitutional provisions. It is of the first importance that the provision that Mauritius “shall be . . . a democratic State” is an operative and binding provision. Its very subject matter and place at the very beginning of the Constitution underlies its importance. And the Constitution provides that any law inconsistent with the Constitution is pro tanto void: section 2.

Secondly, as already pointed out, in 1991 section 47(3) of the Constitution was amended (by Act No 48 of 1991) to make provision for a deep entrenchment of sections 1 and 57(2). It reads as follows:

“A Bill for an Act of Parliament to alter the provisions of section 1 or 57(2) shall not be passed by the Assembly unless-

“(a) the proposed Bill has before its introduction in the Assembly been submitted, by referendum, to the electorate of Mauritius and has been approved by the votes of not less than three quarters of the electorate;

(b) it is supported at the final voting in the Assembly by the votes of all the members of the Assembly.”

These are two of the most fundamental provisions of the Constitution, respectively making provision that Mauritius shall be a democratic state and for quinquennial Parliaments. This is an exceptional degree of entrenchment. By its clear intendment it militates against a right to bail, qualified as it is, being abolished by ordinary legislation or by a constitutional provision which does not comply with the requirement of deep entrenchment of section 1.

It may also be permissible to have regard to the mischief to which the deeply entrenched section 1 was directed. The overriding purpose was made crystal clear in the Parliamentary debates as reported in Hansard on 9 December 1991. The Prime Minister, Sir Anerood Jugnauth stated [Col 1363]:

Mr Speaker, Sir, the opportunity has also been taken to make some other amendments to the Constitution. Members of the House will recall that a number of legislative measures have been introduced over the past twelve months in order to consolidate the democratic foundations of our society. Today, we are taking that exercise a little further. . . the present Government also wants to establish firmly the democratic basis of our Constitution by making it practically impossible to amend Section 1 of the Constitution. Let it not therefore be said that this Government does not cherish democratic principles.”

In the same debates the Attorney General and Minister of Justice, Mr Alan Ganoo stated [Cols 1487-1488]:

Mr Speaker, Sir, I will now come to a last point of my intervention. It concerns the first section of the Constitution, Sir. If the prospect of acceding to the status of Republic arouses, as I just said, a feeling of pride and dignity in all of us today. I think the thought of amending section 1 of our Constitution to render this clause practically unamendable should rejoice all of us who are true democrats in this House. On a philosophical level, Sir, and globally, if you look at all the proposed amendments, you will see that the common feature, the thread which ties most of those principal amendments to our Constitution today is the consolidation of the democratic foundation of our country.

. . .

Now, as regards section 1 of our Constitution, Sir, it will mean that to amend that section, it will necessitate a referendum and it will mean that there should be no dissentient voice in the Assembly. I should perhaps congratulate the Prime Minister for that very bold decision, Sir. I think that there are very few countries in the Third World with a written Constitution like ours which have achieved what we are achieving, Sir. We are deciding that to amend the democratic nature of the State, you will need a referendum and you will need the approval of all the Members of the House. I do not know of any other country which has done this!”

If necessary the objective mischief as spelt out in the debates reinforces the fundamental nature of the entrenchment of section 1.

Cumulatively, all these factors compel the conclusion that the Constitution could only have been amended in the manner provided by section 47(3). The failure to comply with this deeply entrenched provision renders section 5(3A) and section 32 of the Dangerous Drugs Act void.

The outcome.

The Board has been impressed with the analysis of the decision of the Supreme Court on section 1 in the instant case as well as in the earlier decision of the Supreme Court in Vallet v Ramgoolam [1973] MR 29, at 39-41, and respectfully agree with these decisions. The Board respectfully endorses the decision of the Supreme Court on section 1 in the present case.

In these circumstances it is unnecessary to examine the arguments based on section 7 and other provisions of the Constitution.

Disposal.

The Privy Council dismisses the appeal.

Lord Rodger of Earlsferry

Lord Steyn has given the judgment of the Board. Because of the importance of the constitutional issue, however, I wish to spell out the reasoning which has led me to the same conclusion.

On 12 March 1968 Mauritius became an independent constitutional monarchy. The independence Constitution, which was on the familiar Westminster-style model, was set out in the Schedule to the Mauritius Independence Order 1968. At that time section 1 of the Constitution provided that “Mauritius shall be a sovereign democratic State.” Section 3 recognised and declared certain fundamental rights and freedoms, including the right of the individual to life, liberty and security of the person and to the protection of the law. Section 5(3) was in the form set out in Lord Steyn’s judgment. Section 47 prescribed the way in which provisions of the Constitution could be amended. In 1982 Parliament passed, in due form, the Constitution of Mauritius (Amendment) Act 1982, section 3 of which amended section 47 in several respects. These included the insertion of a new subsection (3) which provided that an Act of Parliament for the amendment of section 57(2) (providing for quinquennial Parliaments) was not to be passed unless the proposed Bill had first been approved by three-quarters of the electorate in a referendum and had then been supported at the final voting in the Assembly by all the members of the Assembly. In terms of subsection (4) of section 47 as then amended, section 1 of the Constitution could be altered by a vote of two-thirds of the members of the Assembly but, by virtue of section 47(2)(c), amendment of section 5 required a vote of not less than three-quarters of all the members of the Assembly.

In 1991 the Assembly passed the Constitution of Mauritius (Amendment No 3) Act 1991 (“the 1991 Act”) which made extensive changes to the Constitution. There is no challenge to the validity of any of these changes which took effect from 12 March 1992. Prominent among them was the change from a constitutional monarchy to a republic. In consequence, section 1 was altered. As amended by section 3 of the 1991 Act, section 1 of the Constitution now provides:

“The State of Mauritius shall be a sovereign democratic State which shall be known as the Republic of Mauritius.”

At the same time, by section 9 of the 1991 Act, the Assembly amended section 47(3) of the Constitution by inserting a reference to section 1. Thus amended, section 47(3) now provides that section 1 can be amended only if the proposed Bill has first been approved by three-quarters of the electorate in a referendum and has been supported at the final voting in the Assembly by all the members of the Assembly. The effect is to entrench section 1 very deeply indeed.

Historically, the grant or withholding of bail has been a matter for the judges of Mauritius, but from 1986 onwards the legislature has sought to exclude the grant of bail in relation to certain offences. The first attempt, in section 46(2) of the Dangerous Drugs Act 1986, failed when the Supreme Court held that the provision was void because it was inconsistent with section 5(3) of the Constitution: Nordally v Attorney General [1986] MR 204. The legislature sought to meet this objection by passing the Constitution of Mauritius (Amendment) Act 1994 (“the 1994 Act”). Section 2 purported to amend section 5 of the Constitution by inserting a new subsection (3A) in the terms quoted by Lord Steyn. The effect is to provide that certain people charged with particular drugs offences prescribed by an Act of Parliament, which has been passed by a three-quarters majority, shall not be admitted to bail until the final determination of the proceedings against them. It is common ground that the 1994 Act was passed by a vote of at least three-quarters of all the members of the Assembly, which would be sufficient for an amendment to any section of the Constitution except sections 1 and 57(2). Section 2 of the Constitution of Mauritius (Amendment) Act 2002 purported to extend section 5(3A) to cover offences related to terrorism, but nothing turns on that for present purposes.

After the 1994 Act was passed, no immediate steps were taken to pass an Act of Parliament prescribing drugs offences in relation to which bail would be excluded, as had been envisaged in the new section 5(3A). In 2000, however, the Assembly unanimously enacted the Dangerous Drugs Act 2000. Section 32 does indeed specify a number of offences where bail is to be excluded. The respondent was charged with one of those offences.

The respondent has raised a constitutional challenge. In the written and oral submissions before the Board, both sides addressed an argument to the effect that section 5(3A) of the Constitution was itself unconstitutional. In my view, however, more precisely, the issue is whether section 2 of the 1994 Act, which purported to insert subsection (3A) into section 5 of the Constitution, was constitutional. If that provision was constitutional, then subsection (3A) was duly inserted into the Constitution and so came to form part of the Constitution. If, on the contrary, section 2 of the 1994 Act was unconstitutional, then the Constitution remains unamended and subsection (3A) of section 5 forms no part of it. In that event also, section 32 of the Dangerous Drugs Act 2000 would be inconsistent with section 5(3) of the Constitution and, accordingly, void to that extent.

When the respective submissions are teased out, the critical question is whether, by purporting to insert section 5(3A) into the Constitution, section 2 of the 1994 Act had in substance sought not only to amend section 5, as counsel for the State contended, but also to alter the form of democratic state guaranteed by section 1 of the Constitution. Admittedly, the 1994 Act had been passed in a manner which would allow the amendment of section 5. But section 1 can be amended only after the proposed Bill has been approved by three-quarters of the voters in a referendum and supported by a unanimous vote of the members of the Assembly. The case for the respondent was that, by removing from the judges the power and duty to decide on matters of bail in relation to offences prescribed by an Act of Parliament, section 2 of the 1994 Act really purported to amend section 1 of the Constitution. More particularly, it was designed to alter one of the well-understood components of a democratic state as envisaged in section 1, viz the separation of executive and judicial powers. Since, however, section 2 of the 1994 Act had not been passed by the necessary special mechanism, the guarantee in section 1 stood unamended. Section 2 of the 1994 Act sought to introduce a provision which was inconsistent with the concept of a democratic society as guaranteed in section 1 of the Constitution. Section 2 was accordingly void, by reason of section 2 of the Constitution, and so section 5 of the Constitution also remained unamended.

Giving content to the term “democratic state” in section 1 is part of the task of judges who are called upon to interpret the Constitution. Garrioch SPJ, giving the judgment of the Supreme Court recognised this, for instance, in Vallet v Ramgoolam [1973] MR 29, 40. Having regard, in particular, to the specially entrenched status of section 1, in my view it would be wrong to say that the concept of the democratic state to be found there means nothing more than the sum of the provisions in the rest of the Constitution, whatever they may be at any given moment. Rather, section 1 contains a separate, substantial, guarantee. On the other hand, what matters is the content of the concept of a democratic state as that term as used in section 1 and not just generally. That said, the Constitution is not to be interpreted in a vacuum, without any regard to thinking in other countries sharing similar values. Equally, experience in Mauritius is likely to prove of value to courts elsewhere. Therefore, the decisions cited by Lord Steyn do indeed “help to give important colour” to the guarantee that Mauritius is to be a democratic state. In particular, it is a hallmark of the modern idea of a democratic state that there should be a separation of powers between the legislature and the executive, on the one hand, and the judiciary, on the other.

I have come to the view that section 2 of the 1994 Act did indeed purport to make a fundamental, albeit limited, change to this component of the democratic state envisaged by section 1 of the Constitution. The crucial problem lies in the absolute nature of section 5(3A). Where applicable, it would completely remove any power of the judges to consider the question of bail, however compelling the circumstances of any particular case might be. By contrast, a provision, for example, that persons of the type envisaged in the subsection should not be admitted to bail unless in exceptional circumstances would not create the same problems because the judges would still have a significant, even if more restricted, role in deciding questions of bail and of the freedom of the individual. Unfortunately, however, as Mr Guthrie QC stressed on behalf of the respondent, precisely because it is absolute in form and effect, subsection 5(3A) is liable to operate arbitrarily and so, it may well be, to create potential difficulties in relation to section 3(a) of the Constitution. Moreover, there is a risk that, by choosing to charge an offence which falls within section 32 of the Dangerous Drugs Act, the relevant agent of the executive, rather than a judge, would really be deciding that a suspect should be deprived of his liberty pending the final determination of the proceedings. In these respects, the executive would be trespassing upon the province of the judiciary: Ahnee v DPP [1999] 2 AC 294, 303. In my view a state whose constitution permitted accused persons to be locked up until the termination of the proceedings against them without any right to apply to the court for bail would be, in this essential respect, different from the kind of democratic state which section 1 declares that Mauritius is to be. To that extent, section 2 of the 1994 Act purported to water down the guarantee in section 1.

Of course, it is open to the people and legislature of Mauritius to change the nature of the democratic state which is to prevail in Mauritius. But under the Constitution that can be done only by legislation passed in accordance with the (intentionally) ultra-strict requirements of section 47(3), involving a referendum and a unanimous vote of all the members of the Assembly. Section 2 of the 1994 Act was not enacted in accordance with those requirements. Therefore, section 1 of the Constitution and the idea of a democratic state which it contains remain unamended. Section 2 of the 1994 purported to introduce a provision for bypassing the courts which violated the separation of powers guarantee that is one of the hallmarks of that concept of a democratic state. To that extent section 2 of the 1994 Act was inconsistent with section 1 of the Constitution and, accordingly, void. It follows that section 5 of the Constitution remains unamended. Section 32 of the Dangerous Drugs Act 2000 is inconsistent with section 5(3) of the Constitution. There being no section 5(3A) to save it, section 32 is also therefore void.

For these reasons, which supplement those given by Lord Steyn, I too would dismiss the appeal.

Lord Mance

I agree with the judgment of the Board prepared by Lord Steyn and with Lord Rodger of Earlsferry’s supplementary observations. It is apparent from the full record of the remarks of the Attorney General and Minister of Justice in the debate on 9th December 2001, from which Lord Steyn has already quoted part, that the deep entrenchment of article 1 of the Constitution achieved by the amendment in 1994 of section 47(3) was introduced with circumstances in mind in which basic democratic principles were put in issue. The present issue concerns the nature of such principles and the extent of the inroad which must occur to infringe the entrenched provision that Mauritius shall be a “democratic” State.

On the one hand, the Attorney General and Minister of Justice made clear that chapter 2 (sections 3 to 19) of the Constitution was not in the same situation as chapter 1 (articles 1 and 2). This is evident from the confined nature of the entrenchment achieved by section 47(3). So, many amendments of the “fundamental rights and freedoms” of the individual spelled out in detail in chapter 2 of the Constitution are possible with a two-thirds majority of the Assembly. On the other hand, the Attorney General and Minister of Justice also made clear that article 1 was not envisaged as an empty general statement, but as a real bastion to “protect and perpetuate” among other things “the rule of law” and “the existence of an independent judiciary”, that is independent of the executive and legislature.

These are basic principles themselves not expressly spelled out elsewhere in the Constitution, for reasons explained by Lord Diplock in Hinds v. The Queen [1977] AC 195 (a decision followed in Director of Public Prosecutions of Jamaica v. Mollison [2003] 1 AC 41 to which Lord Steyn has referred). Lord Diplock giving the majority judgment said that new constitutions on the Westminster model were, particularly in the case of unitary states, evolutionary not revolutionary and that:

“Because of this a great deal can be, and in drafting practice often is, left to necessary implication from the adoption in the new constitution of a governmental structure which makes provision for a legislature, an executive and judicature. It is taken for granted that the basic principle of separation of powers will apply to the exercise of their respective functions by these three organs of government. Thus the constitution does not normally contain any express prohibition upon the exercise of legislative powers by the executive or of judicial powers by either the executive or the legislature. …. Nonetheless, it is well established as a rule of construction applicable to constitutional instruments under which this governmental structure is adopted that the absence of express words to that effect does not prevent the legislative, the executive and the judicial powers of the new state being exercisable exclusively by the legislature, by the executive and by the judicature respectively.”

These basic principles were in my opinion infringed, even though only in a limited sphere, by the purported constitutional amendment in 1994 of section 5 to insert subsection (3A)(a). The effect of the amendment was to remove from the judiciary any responsibility for and power in respect of the liberty of any individual, prior to any trial for a prescribed drug offence upon reasonable suspicion of which the prosecuting authorities might arrest and detain him. The scheme of section 5 prior to such amendment permitted a person to be arrested upon reasonable suspicion, and then required him or her to be brought without delay before a court, for remand in custody or on bail pending trial as the court determined. To remove the court’s role - and in the process to prescribe automatic detention in custody pending trial whenever prosecuting authorities have reasonable grounds to arrest for a prescribed drug offence - is not merely to amend section 5, it would be to introduce an entirely different scheme. The new scheme would contradict the basic democratic principles of the rule of law and the separation of judicial and executive powers which serve as a primary protection of individual liberty and are entrenched by the combination of sections 1 and 47(3).