[2013] UKPC 6
Privy Council
Appeal No 0033 of 2012
JUDGMENT
Hassen Eid-En
Rummun (Appellant)
v
The State
of Mauritius (Respondent)
From the Supreme
Court of Mauritius
before
Lord Hope
Lord Kerr
Lord Reed
JUDGMENT
DELIVERED BY
LORD KERR ON
7 February 2013
Heard on 12
December 2012
Appellant
S Kailash Trilochun
(Instructed by Roshan Rajroop)
Respondent
Geoffrey Cox QC
(Instructed by Royds Solicitors
LLP)
LORD KERR:
1. Following a trial before a magistrate of the Intermediate
Court of Mauritius, Mrs V Phoolchund-Bhadain, Hassen Eid En Rummun was found
guilty on 9 October 2009 of the offence of larceny while armed with an
offensive weapon. On 5 November 2009 he and three co-accused who had pleaded
guilty earlier received sentences of imprisonment. The three coaccused were Lall Sujore, Beny
Lutchoomun and Deojit Vallacanna Beeharry. They had entered pleas of guilty on
27 November 2008. In the case of
Beeharry the plea was to the offence of aiding and abetting the commission of
larceny. All other accused, including the appellant, were either convicted or
pleaded guilty to the offence of larceny with an offensive weapon.
2. In sentencing the accused, the magistrate said that they had
each taken part in a “well planned plot” to commit the offence. On 30 December 1999, in a car hired for the
purpose, they had followed the victim from his business premises. When he had brought his car to a halt, they
approached it wearing masks. Some of the offenders were carrying sabres. The appellant, Rummun, was one of these.
Threats were made to the victim, including that he would be killed if he did
not hand over the takings from that day’s business. The windscreen of his car was smashed by the
defendant, Lutchoomun, wielding a piece of wood. Some 800,000 Mauritian rupees
(approximately £17,000) were handed over. The proceeds of the crime were
divided up between the defendants. Most of the proceeds were not recovered.
3. The appellant was arrested on 2 February 2000 and cautioned
for the offence. He and his three co-accused confessed to the crime on that
date. Rummun appeared before the
Intermediate Court of Mauritius on 15 July 2002 and his trial was postponed on
many occasions until, finally, it took place in September 2009. It appears that the basis of the defence was
that Rummun had not participated in the offence as a principal but merely as a
secondary participant. On the hearing of the appeal before the Board, Mr
Trilochun, who appeared on his behalf but not in the proceedings below, wisely
accepted that, in light of Rummun’s confession and what was established about
the manner of his participation in the offence, this defence was non-viable.
4. When she came to sentence the defendants in November 2009,
the magistrate said that she took into account that the offence was committed
in 1999. But her sentencing remarks then continued as follows:
“However, the delay in disposing of this matter is
largely attributable to the defence. True it is that since that time, the
accused parties have not been convicted of any offence, this being an
indication that they have stayed away from crime. Nevertheless, being given (sic) the gravity
of the offence, the interests of justice will be served by a custodial
sentence.”
5. The three accused who had pleaded guilty were each sentenced
to three years’ penal servitude. The magistrate referred to that consideration
in sentencing each of them. The appellant was sentenced to four years’ penal
servitude. All four appealed their sentences to the Supreme Court.
6. On 21 September 2011 the Supreme Court (Judges S B Domah and
S Bhaukaurally) substituted a sentence of two years’ imprisonment for the
sentence of three years’ penal servitude in the case of Sujore because his
clear record had not been given sufficient weight as a mitigating factor. In the case of Lutchoomun, the court reduced
the sentence of three years’ penal servitude to one of two years and nine
months, reflecting the fact that, after pleading guilty on 28 November 2008, he
had moved for a separate trial in order to have the matter disposed of. That
application had been refused but the Supreme Court considered that Lutchoomun
deserved credit for this attempt to have the case dealt with at an earlier
stage. The sentences imposed on Beeharry and Rummun were affirmed. The court
rejected the argument that Rummun had received a heavier sentence because he
had pleaded not guilty. It found that
the discrepancy between his sentence and those imposed on the others was the
consequence of their having earned a discount by pleading guilty.
7. On the hearing of the appeal before the Supreme Court
counsel for Rummun had raised the issue of delay in bringing his case to
trial. It does not appear from the
record of the proceedings with which the Board has been provided that any
submission was made about the impact which the delay had on the appellant’s
rights under section 10(1) of the Constitution which, among other things,
guarantees a fair trial within a reasonable time to all those charged with
criminal offences. The Supreme Court, perhaps understandably in light of the
absence of any submission to the effect, did not address the question of the
possible breach of the appellant’s constitutional rights. In the Board’s view, this is unfortunate. In
cases such as the present involving substantial delay, the Board considers that
it is the duty of the sentencing court, whether or not the matter has been
raised on behalf of a defendant or appellant, to examine the possibility of a
breach of that person’s constitutional rights in order to decide whether any
such breach should have an effect on the disposal of the case.
8. Section 10(1) of the Constitution 1968 provides:
“(1) Where any person is charged with a criminal
offence, then, unless the charge is withdrawn, the case shall be afforded a
fair hearing within a reasonable time by an independent and impartial court
established by law.”
9. This is a fundamentally important constitutional
guarantee. The Board has had to
consider, in a series of cases of which Celine v State of Mauritius [2012] UKPC
32, [2012] 1 WLR 3707 is but the most recent, the effect of failure to adhere
to this provision. The Board notes with approval the reference in the judgment
of the Supreme Court to reforms that the legal profession are advocating to
deal with delay in the conduct of trials.
But the duty of the courts is also clear. Magistrates and judges should
be astute to detect delay in the conduct of criminal trials and should be
pro-active in seeking to eliminate it.
10. It appears from the Supreme Court judgment that much of the
delay in this appeal was attributable to the conduct of Beeharry’s case. Apart from the fact that Rummun advanced a
defence that proved in the event to be unmeritorious, there is no suggestion
that he was actively responsible for any significant delay. He was absent from
court hearings twice on medical grounds. On the first of these occasions, 7
April 2009, three of the total of five prosecution witnesses were also absent,
so that the trial could not have proceeded in any event. He was again absent on
19 October 2009, having been admitted to hospital. This caused sentencing to be
postponed for 15 days until 5 November 2009.
In the overall period of delay in bringing this case to trial, such a
short period is not of significance.
11. The Board considers that the magistrate ought to have addressed
the question of delay in the context of the constitutional guarantee to a fair
trial within a reasonable time. She
should also have examined the individual responsibility of each of the
defendants for that delay. Instead she
summarily dismissed the relevance of this factor on the basis that the delay
was “largely attributable to the defence”.
12. Likewise, the matter should have been directly addressed by the
Supreme Court. It should have been
considered whether a declaration ought to be made that the appellant’s section
10(1) rights had been breached. Instead
the Supreme Court also dismissed this factor, saying:
“As rightly pointed out by learned counsel for the
respondent, public interest demanded that the delay in disposal of the case
should not be a factor for the reduction of sentence on account of the nature
and gravity of the case.”
13. In the event, the respondent has now accepted that the delay in
this case constitutes a breach of the appellant’s constitutional right. A breach of that right will always be a
factor to be considered in deciding upon the appropriate disposal. In some instances
it may not be a factor of great weight and there may even be some cases in
which, because of the strength of countervailing factors such as the gravity of
the offence, it will be accorded no weight at all. But it will always be a factor to be considered.
14. In Dyer
v Watson [2004] 1 AC 379, paras 52-55, Lord Bingham of Cornhill set out a
number of propositions by which the reasonableness of the period taken to
complete the hearing of a criminal case was to be judged. These propositions were endorsed by the Board
in Boolell v State of Mauritius [2006]
UKPC 46, [2012] 1 WLR 3718. It is not
necessary to refer to all of the passages from Dyer v Watson which were cited
in Boolell. It is sufficient for present purposes to quote from paras 53-55:
“53. The court has identified three areas as calling
for particular inquiry. The first of these is the complexity of the case. It is
recognised, realistically enough, that the more complex a case, the greater the
number of witnesses, the heavier the burden of documentation, the longer the
time which must necessarily be taken to prepare it adequately for trial and for
any appellate hearing. But with any case, however complex, there comes a time
when the passage of time becomes excessive and unacceptable.
54. The
second matter to which the court has routinely paid regard is the conduct of
the defendant. In almost any fair and developed legal system it is possible for
a recalcitrant defendant to cause delay by making spurious applications and
challenges, changing legal advisers, absenting himself, exploiting procedural
technicalities, and so on. A defendant cannot properly complain of delay of
which he is the author. But procedural time-wasting on his part does not
entitle the prosecuting authorities themselves to waste time unnecessarily and
excessively.
55. The
third matter routinely and carefully considered by the court is the manner in
which the case has been dealt with by the administrative and judicial
authorities. It is plain that contracting states cannot blame unacceptable
delays on a general want of prosecutors or judges or courthouses or on chronic
under-funding of the legal system. It is, generally speaking, incumbent on
contracting states so to organise their legal systems as to ensure that the
reasonable time requirement is honoured …”
15. Three matters fall to be considered, therefore, in deciding
whether the delay constitutes a breach of the right to a trial within a
reasonable time: (i) the complexity of the case; (ii) the conduct of the
appellant; and (iii) the conduct of the administrative and judicial
authorities. The Board considers that
these factors are also relevant to the question whether, when a breach of the
constitutional right has been established, there should be any effect on the
sentence that would have been passed if there had been no delay.
16. It has
not been suggested that this case was unduly complex. Most of the witnesses were police officers
and the defendants had all confessed to the crime. This is therefore not a
factor which can excuse or explain the delay.
The conduct of the appellant is criticised in two respects. First because he advanced a spurious defence
and secondly because he acquiesced in the delay that had been engineered by one
of his co-accused and was complacent about the delays for which the prosecuting
authorities were responsible. On the
latter aspect the Board has recently said in the Celine case [2012] 1 WLR 3707
that this may affect the choice of appropriate sentence. At para 8 of that case the Board said this:
“[The Board] observes, however, that a defendant who
seeks to challenge the propriety of a sentence passed on the ground that there
has been delay in the prosecution of offences must expect to have his attitude
to the postponement of proceedings closely examined. Even if success in opposing
applications for adjournment is unlikely, one would expect to see evidence of
representations on a defendant’s behalf protesting about delay before accepting
that he was truly anxious for the case to be completed.” and at para 23:
“All the indications are that the defendant was
content to postpone the day of judgment and while this cannot excuse the
failure to adhere to the reasonable time guarantee (see Boolell’s case [2012] 1
WLR 3718, para 32 and Elaheebocus v The State [2009] MR 323, para 20), it is
relevant to the selection of the proper sentence.”
17. In this case the appellant does not appear to have pressed to
have his case tried expeditiously. This must therefore be taken into account in
deciding whether any reduction in his sentence is appropriate. The Board observes, however, that while he
may have been passively acquiescent in the continued postponement of the case
there is no evidence that he was actively complicit in the manoeuvrings of
others in delaying the trial of the case.
18. On the question of the appellant’s decision to contest the case
on grounds that proved to be unfeasible, the Board considers that this factor
should be treated with some caution. A
defendant to any criminal charge is entitled to put the prosecuting authorities
to proof of his guilt. The Board considers that the circumstances in which, by
reason of a not guilty plea, a trial is delayed call for anxious scrutiny
before he is penalised for such delay.
19. In relation to the third factor identified by Lord Bingham in
Dyer v Watson it seems clear that much of the responsibility for the delay in
this case lies with the prosecuting authorities. A crucial witness for the
prosecution, the officer who had recorded many of the defendants’ statements,
was absent on no fewer than 13 occasions, although his absence seems only to
have been solely responsible for postponements twice, presumably because other
witnesses were also absent. An officer who had recorded the appellant’s
statement was absent on 11 occasions but it is not, at present, clear how often
his absence was alone responsible for the trial being adjourned.
20. The Board has decided that the necessary close examination of
the reasons for the plainly inordinate delay in this case is best conducted by
the Supreme Court of Mauritius. That court is also better placed to evaluate
how the seriousness of the offence of which the appellant has been convicted
should rank as a factor against the now admitted breach of the appellant’s
section 10(1) right. It will also be familiar with such sentencing guidelines
as exist to point to the range of sentence that would have appropriate if there
had not been delay and how much, if at all, that range should be adjusted to
reflect the violation of the appellant’s constitutional right to a trial within
a reasonable time.
21. The Board will therefore remit this case to the Supreme Court
of Mauritius to consider the sentence to be passed on the appellant in light of
the guidance provided by this judgment and its examination of the factors which
the Board has outlined should now be considered. It is to be hoped that this reconsideration
of the appellant’s case can be conducted with all due expedition.
22. The parties will have 21 days within which to make submissions
on costs.
