The high court last week ordered the Saint Lucia government to pay damages in the amounts of $5,031,500 and $3,526,000 to Francis Noel and Anthony Henry. Noel was 36 years old when he was arrested in 1987 on the charge of grievous harm and held on remand until his arraignment on 20 July 1992, at which time he was declared unfit to plead.
Noel was then ordered to be detained at the Royal Gaol “until the governor-general’s pleasure shall be known.” He remains at the Bordelais Correctional Facility. For an offence that carries a maximum sentence of ten years Noel has been incarcerated for 32 years. According to high court documents, the picture that emerged was that Noel has been mentally ill for most of his life and a danger to the community. Since 1973 he has been receiving attention at a mental hospital, on orders from magistrates, because of his antisocial behavior. He was so difficult to control that one psychiatrist requested he be kept in prison and treated there for his mental illness—which tended to suggest why Noel was never transferred to a mental health facility.
Anthony Henry was arrested on 26 September 1995 for double murder and held on remand pending trial for seven and a half years. At his arraignment on 7 February 2000 he too was found unfit to plead and ordered to be detained at the governor-general’s pleasure. He remained in prison until he was unconditionally discharged on 30 May 2019. Total period of incarceration 24 years.
Notes from Bordelais’s medical psychiatric unit indicated to the court that Henry was seen six times in 2003, seven times in 2004, nine times in 2005, eleven times in 2006, eight times in 2007. In 2008 he was seen ten times. In 2009, nine times. And finally twice in 2019. Nothing in the notes suggested Henry and Noel received any psychiatric attention prior to 2003. The evidence was that Henry received treatment periodically from 2003 to 2019 by various consultant psychiatrists and was diagnosed variously with psychosis, schizophrenia, bipolar affective disorder and antisocial personality disorder. It was never in dispute that there were no periodic reviews for the entire time of Noel and Henry’s incarceration to determine whether either had sufficiently recovered so as to stand trial. They therefore remained detained in prison for the entire period of their incarceration, and were never admitted to any mental health facility in Saint Lucia.
Each man claimed damages for “breaches of his constitutional rights to a fair trial within a reasonable time, to personal liberty, and to protection from inhuman treatment.” Henry also sought an order that he be released into a mental institution. At the end of the hearing of this claim, counsel for the parties undertook to attempt a settlement. The court was told at the end of November 2019 that the parties were unable to reach a settlement and it would be necessary for the court to resolve the issues arising in the claim.
Among the relevant laws cited was Section 1019 of the Criminal Code: “If any accused person appears before or upon arraignment to be insane, the court may order a jury to be impanelled to try the sanity of such person, and the jury shall thereupon, after hearing evidence for that purpose, find whether such person is or is not insane and unfit to take his trial.
“If during the trial of any accused person such person appears, after the hearing of evidence to that effect or otherwise to the jury charged with such indictment to be insane, the court shall in such case direct the jury to abstain from finding a verdict upon his indictment, and in lieu thereof, to return a verdict that such a person is insane. But a verdict under this section shall not affect the trial of any person so found to be insane for the offence for which he is indicted in case he subsequently becomes sound of mind.”
From all of the above the judge distilled that “a jury must be empanelled to determine whether an accused person is unfit to take his trial. Where a jury so finds, the judge shall immediately report the finding and detention to the governor general who shall order the person to be dealt with as a person with unsound mind under the laws of Saint Lucia in force at the time for the care and custody of persons of unsound mind.”
The court took into consideration that the Criminal Code does not specify where the place of safe custody shall be and leaves it to the judge to so determine—but only until the governor general’s pleasure is known . . .” Said the high court judge: “If the judge considered the prison to be a fit and proper place for their detention in safe custody this could only have been until the governor general considered the matter and gave directions . . . The governor general is restricted in what he may order by the requirements of the law in force for dealing with the mentally ill.”
There was no evidence that the judge in this matter immediately reported the finding and determination to the governor general. Neither that the governor general ever made any order that Noel or Henry be dealt with under the laws of Saint Lucia for the care and custody of the mentally ill.
Noted the court: The law in force at the time for dealing with the care and custody of persons of unsound mind in Saint Lucia was, and is, the Mental Hospitals Act. But before dealing with that the court turned its attention to the expression “the governor general’s pleasure.” At face value the phrase suggested the claimants be detained “until the governor general orders otherwise.” But the governor general’s discretion is not absolute.
“The essence in the rule of law and modern constitutionalism is that there is no unfettered discretion,” the court observed. “The notion of unfettered discretion was debunked since the matter of Attorney General v Reynolds.” In any event, the court held, the Mental Hospitals Act “contemplates detention until mentally ill persons recover their mental health, which implies they will receive appropriate treatment and that there will be an on-going process to evaluate whether they are able to stand trial. The governor general’s pleasure is an archaic, unhelpful, colonial-era phrase that should now pass into desuetude.”
Moreover: “It is properly the function of the executive to ensure that the mentally ill who are unfit to plead get the appropriate treatment until they are fit to plead. There is therefore no need to substitute ‘governor general’s pleasure’ with ‘the court’s pleasure . . .’ It appears to me that once the claimants were found unfit to plead and take their trial, and the judge made a provisional order for their safe custody and immediately reported it to the governor general as required by the code, the provisions of the act were then engaged . . . In the situation where the governor general makes no order, the default position under the act is that the judge would have ordered the person to be detained in a mental hospital, not in a prison, until he becomes of sound mind.”
Additionally: “Both the Mental Hospitals Act and the Correctional Services Act envision that persons of unsound mind should be committed to, or transferred to and detained at a mental hospital. That is the minimum that can be expected of a modern, civilized society . . . I appreciate that a prison may be set up and equipped with a psychiatric ward or unit. But there is no evidence that was the case here. Mr. Leonard Terrance, the deputy director Bordelais, deposed that presently Mr. Noel is housed at the Delta Unit, which is the maximum-security unit and the only block of cells which has one-man facilities. He further stated that Bordelais’s medical unit is under the supervision of a nurse, that prison officers are also assigned to the medical unit and that the unit is not designed to house inmates permanently. He further deposed that Mr. Noel was housed between 2006-2007 at the Foxtrot which is designed for inmates with mental health conditions but gave no further details.”
The court emphasized that “prisons are not designed as facilities for the mentally ill, yet it is the case that throughout the Commonwealth Caribbean many mentally ill persons who cannot access psychiatric treatment are simply swept into the criminal justice system after they commit a crime, and even when they have not been adjudged as having committed any crime . . . The detention of the claimants, being mentally ill persons, in prison for 20 years and 27.5 years, respectively, without periodic reviews of their fitness to plead amounts to inhuman and degrading treatment. Further, when no regular reviews are held, not only the mentally disabled accused suffer but the public at large, since there is less and less chance of a fair trial and accountability for the crime.
“The claimants were both charged with criminal offences. Neither claimant could have been tried because each was found unfit to plead due to mental illness. If there had been periodic reviews, which concluded that they remained unfit to stand trial, they could not have been brought to trial, no matter how long they remained incarcerated. The right to trial within a reasonable time is not triggered until they are fit to plead. There having been no periodic reviews, we shall never know whether they were ever fit to stand trial . . . I think the approach in the circumstances of this case should be to award damages based on my finding that they were deprived of their personal liberty in a manner not authorized by law. Where a claimant seeks damages for breach of the right to trial within a reasonable time, what he is seeking to vindicate is his or her right to personal liberty, to not be kept in prison awaiting trial longer than can reasonably be expected. Similarly the award of damages for failure to conduct periodic reviews of a person’s fitness to stand trial is ultimately directed at vindicating personal liberty.”
Ms Lydia Faisal and Mr. Alvin St. Clair represented the claimants. Justice Godfrey Smith SC presided.
