A. B. v Attorney General of Anguilla

• Jurisdiction: Anguilla
• Court: High Court (Saint Christopher, Nevis And Anguilla)
• Judge: Moise, J.
• Judgment Date: 31 July 2025
• Judgment citation (vLex): [2025] ECSC J0731-1
• Docket Number: CLAIM NO. AXAHCV2025/0022

Between

[A. B.]

Claimant

and

Attorney General of Anguilla

Defendant

[2025] ECSC J0731-1

Before:

His Lordship The Honourable Justice Ermin Moise

CLAIM NO. AXAHCV2025/0022

EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

(CIVIL)

Appearances:

Mr. Dwight Horsford with Mr. Carlyle Rogers of counsel for the claimant.

Mr. Theon Tross of counsel for the defendant.

JUDGMENT (Redacted)

Moise, J.

1 This is a constitutional motion filed pursuant to section 16 of the Anguilla Constitution and Part 56 of the Civil Procedure Rules (Revised Edition) 2023. Essentially, the claimant faces charges before the criminal courts in Anguilla pursuant to section 148(c) and (f) of the Criminal Code 1. He submits that these sections are unconstitutional. I have considered the submissions of counsel for the parties and have determined that the sections under consideration are not inconsistent with the Constitution of Anguilla, and I have therefore dismissed the claim with no order as to costs. These are the reasons for my decision.

The Facts

2 It is not necessary to outline the specific facts upon which the charges have been brought against [the Claimant]. What is under consideration is whether section 148(c) and (f) are unconstitutional. It is important to also note that [the Claimant] faces other charges against him. However, it is the specifics of section 148(c) and (f) which he challenges. The charge sheet states as follows:

• (i) “For that you on a day unknown between the 1st day of February 2024 and the 3rd day of July 2024 … in the island of Anguilla did encourage … a minor to importune for immoral purposes, Contrary to Section 148(c) of the Criminal Code, Revised Statutes of Anguilla Chapter C 140.” And:

• (ii) “For that you between February 2024 to July 2024 … in the island of Anguilla by intimidation, attempt to procure … a minor, to have unlawful sexual intercourse, Contrary to Section 148(f) of the Criminal Code, Revised Statutes of Anguilla Chapter C 140.

3 It is important to note that the Criminal Code describes a minor as a person below the age of 18. The specific provisions in section 148(c) and (f) of the Criminal Code state as follows:

148. Any person who –

…

(c) persuades, aids, encourages or causes any minor to solicit or importune for immoral purposes …

…

(f) by threats or intimidation, procures, or attempts to procure any minor to have unlawful sexual intercourse either in or outside of Anguilla

…

is guilty of an offence and is liable to imprisonment for 8 years .

4 In his affidavit in support of his claim, [the Claimant] states that he has been advised by his attorneys and verily believes that the charges laid against him under sections 148(c) and 148 (f) of the Criminal Code of Anguilla, do not expressly provide for mens rea or any mental element of a guilty mind in their proscription, neither do they expressly provide for him to mount a defence or give him an opportunity to raise certain exculpatory facts on his behalf. [The Claimant] does not go into any detail as to what exculpatory facts are contemplated in light of the nature of the charges. He goes on to state that, in accordance with these sections, once the crown establishes that he has committed a “wrongful act” his condemnation is secured. He states that the crown has no obligation to prove that he had a guilty mind, neither is he afforded any defence, statutory or otherwise, to these offences. [The Claimant] therefore insists that this infringes his right to a fair trial and a right to liberty pursuant to sections 3 and 9 of the Constitution of Anguilla.

5 [The Claimant] goes on to state that his rights under section 9 of the Constitution are breached because:

• (a) by implication, he bears the burden of exculpating himself by proof wholly upon him, the accused;

• (b) the section precludes or excludes any form of defence to the allegation laid by the charge, so that the allegation is effectively the condemnation, and

• (c) the section creates an offence of strict liability at best, and an offence of absolute liability, at worst, which in any event, contravenes the fundamental protection of the presumption of innocence enshrined in section 9(5) of the Constitution, as his guilt is presumed by its operative effect, that is to say, that his guilt is presumed once the actus reus is established; thus entailing him being in jeopardy of an unfair trial and to self-incrimination; all of which is wholly disproportionate and an intrusion on the fundamental freedoms guaranteed to him by the Constitution of Anguilla and are devoid of any reasonable justification in a democratic society.

6 [The Claimant] states that the section does not fall into the exception to the protection assured to him in the proviso to section 9(5) of the Constitution, since those provisions in sections 148(c) and (f) do not answer the description of a law which imposes on him, a person charged with a criminal offence, the burden of proving a particular or particular facts. He also argues that the charges are based on a law which is vague, unclear and uncertain in its reach and scope in relation to the matters proscribed or made punishable.

7 [The Claimant] goes on to state in his affidavit that Section 140 of the Criminal Code defines a “minor” as a person under 18 years of age. Sexual intercourse is only punishable in respect of sexual connection with a certain class of minors who are between the ages of 14 and 16. So far as is relevant, “sexual offence” is defined in section 140 of the same Act to mean an offence committed against a minor under section 143 (Sexual intercourse with person under 14 years of age), 144 (Sexual intercourse with a person between 14 and 16 years of age).

8 He goes on to state that The Act (the Code) appears not to criminalise sexual connection with a person between the ages of 16 and 18, that is to say, a person of 17 years of age. This is both an incongruity and a lacuna, for had he achieved sexual connection (intercourse) with the Virtual Complainant, there would be no offence, as there is no provision under which a charge could be laid. In other words, the person aged 17 will be a minor only for the inchoate offence of procuration, but will not be a minor for the substantive offence of “unlawful sexual intercourse”. Sexual intercourse with a consenting person of the age of 17 years is not punishable as an offence under the Code. In consequence, only the attempt is criminalised, while the substantive and effective object or effective purpose is not an offence.

The Law

9 [The Claimant]'s claim is that the legislation infringes various rights afforded him under the Constitution. In substance he claims that section 148(c) and (f) infringe his rights under section 3 of the Constitution which states that “no person shall be deprived of his personal liberty save as may be authorised by law” in any of the circumstances outlined in the section. Section 9 of the Constitution states that “whenever any person is charged with a criminal offence he shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.” Of particular importance to the issues raised in this case is subsection (5) which states that:

“Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved or has pleaded guilty:

Provided that nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this subsection to the extent that the law in question imposes upon any person charged as aforesaid the burden of proving particular facts.”

10 It is therefore not inherently unconstitutional for a law to shift the burden of proof of particular facts on the defendant. [The Claimant] also challenges the constitutionality of section 148(c) and (f) on the basis of section 9(10) which preserves his right against self-incrimination.

11 The court's powers to review the constitutionality of legislation passed by the Parliament of Anguilla is contained in section 16. The section states as follows:

• (1) If any person alleges that any of the provisions of sections 2 to 15 (inclusive) of this Constitution has been, or is being, contravened in relation to him (or, in the case of a person who is detained, if any other person alleges such a contravention in relation to the detained person), then, without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the High Court for redress.

• (2) The High Court shall have original jurisdiction to hear and determine any application made by any person in pursuance of subsection (1) of this section and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing, or securing the enforcement of, any of the provisions of the said sections 2 to 15 (inclusive) to the protection of which the person concerned is entitled:

  Provided that the High Court may decline to exercise its powers under this subsection if it is satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned under any other law.

12 Although this court is empowered to determine the constitutionality of legislation, as was noted in the case of The Chief of Police et al v Calvin Nias 2 a person who claims that the provisions of any enactment infringes his constitutional rights “… bears the burden first to show that the right was prima facie contravened by the impugned legislation.” Before considering granting any of the remedies which [the Claimant] seeks, the court must first determine whether the sections under which he was charged are unconstitutional in the first place. The court must therefore embark on a process of...