Delano Smith Cuthwin Davis Alexis Connor v R
| Jurisdiction | Anguilla |
| Judge | Moise, J |
| Judgment Date | 13 December 2023 |
| Judgment citation (vLex) | [2023] ECSC J0202-1 |
| Docket Number | AXAHCR 2008/0001 and 2009/0008 |
| Court | High Court (Saint Christopher, Nevis And Anguilla) |
His Lordship The Honourable Justice Ermin Moise
AXAHCR 2008/0001 and 2009/0008
EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
(CRIMINAL)
Mr. Darshan Ramdhani K.C. with Mr. Carlyle Rogers of counsel for the applicants
The Honourable Dwight Horsford, Attorney General of Anguilla of counsel for the respondent
The applicants were defendants in criminal cases which came to an end in Anguilla in 2008 and 2009. At the end of the various trials, they were all convicted of murder and sentenced to life in prison. At the time of the crimes which they were accused of committing, they were all under the age of 18. By the time of sentencing however, each of the applicants was over 18 years old. They have now filed applications to review their sentences in light of the recent passage of the Child Justice Act 2021 and the significant changes contained therein regarding sentencing of juveniles in the criminal justice system here in Anguilla. As a preliminary issue, the court is called upon to determine its jurisdiction to entertain a review of the sentences on the grounds outlined in the applications. It is agreed that if the court has no such jurisdiction, then the applications for review must necessarily be dismissed.
On 10 th November, 2006, Delano Smith was only seventeen (17) years old. He was however accused of committing murder on that date. He was tried before the court in Anguilla and found guilty by a jury. On 18 th February, 2008, he was sentenced to life imprisonment. At the time of his sentencing he was 18 years, 4 months and 8 days old. No minimum tariff had been set for a review of his sentence in the future. In effect, he is to remain in prison for the rest of his life.
Cuthwin Davis and Alexis Conner were jointly accused of a murder which took place on 4 th March, 2006. At the time they were both sixteen (16) years old. They were convicted by a jury of the offences for which they were charged. On 12 th June 2009, they were both sentenced to life in prison. A tariff was set for the two at thirty (30) and twenty (20) year's respectively.
At the time of the offences for which all three (3) applicants were convicted, the legislation in force regarding the rights and interests of juveniles and children in the criminal justice system was the now repealed Juvenile Act. In that legislation a juvenile was considered to be someone below the age of sixteen (16) and a child was defined as a person below the age of fourteen (14). As such, all three (3) applicants were tried, convicted and sentenced as adults for the offence of murder in accordance with section 186(1) of the Criminal Code of Anguilla.
It is accepted that at the time of the offences, Anguilla was a signatory to the International Convention on the Rights of the Child. This convention was signed by the United Kingdom on 29 th November, 1989 and ratified for its overseas territories, including Anguilla on 7 th September, 1994. Signatories to that legislation agreed by way of treaty to recognize various rights relating to children. In that treaty, a child is defined as a person below the age of 18. There is no dispute that the Juvenile Act in force in Anguilla at the time of the offences and the subsequent trials of the applicants was not in keeping with the treaty obligations which the country had been a signatory to by virtue of its ratification of 7 th September, 1994.
Quite apart from the definition of a child, the treaty also contained various provisions regarding the manner in which children ought to be treated in a criminal justice system for all of its signatories. Counsel for the applicants therefore referred to Article 37 of the Convention which states as follows:
“(a) No child shall be subject to torture or inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below 18 years of age. (b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time.”
On 27 th April, 2021, the Legislature of Anguilla passed the Child Justice Act. In its pre-amble, the legislation is defined as:
“AN ACT to establish a criminal justice process for children accused of committing offences based on restorative justice and which aims at protecting the rights of children as provided for in international conventions; to provide for the minimum age of criminal capacity of such children; to institute diversion of cases away from formal court procedures; to establish assessment of children and an initial inquiry as compulsory procedures; to extend the sentencing options available in respect of children; to consolidate the laws on the administration of justice for children; and for connected purposes.”
There is no doubt that the International Convention on the Rights of the Child was one of those treaties which the legislation sought to honour insofar as it relates to the obligations agreed to. In fact, that was expressly stated to be the case in the explanatory notes attached to the bill. In light of that a child under the new regime is defined as a person under the age of eighteen (18) years. The legislation came into force in July, 2021.
It is important to note that counsel for the parties are not at odds with the general thrust of the new legislation. No one doubts that this was a welcome and necessary change in the manner in which children were made to navigate the criminal justice system. The issues before the court are not designed to place blame or fault on any one. However, it is worth noting that had Anguilla been in compliance with its treaty obligations at the time of the trial of the applicants, they would have no doubt been treated rather differently. In Mr. Smith's case, he was tried at seventeen (17) years old as an adult and subsequently sentenced to life in prison with no minimum period of review added to his sentence. In the case of the other two applicants, they were both sentenced to life in prison for a crime which was committed at the age of sixteen (16). In their cases a minimum tariff was set at thirty (30) and twenty (20) years respectively. I have no doubt that the sentences handed down in each case were designed to take into account the seriousness of the crimes which these young men were convicted for. However, notwithstanding that, under the new regime, the maximum sentence which each defendant would have been handed had the same circumstances exist today would be ten (10) years in prison. They would have also been subject to the rather different procedure of diversionary justice for offenders of that age. That is a striking change from what obtained at the time of their trials.
Where the parties are at variance however, is on the question of whether the Child Justice Act can provide any retroactive relief to the applicants by creating an avenue for a review of their sentences to bring them into conformity with the new procedures. In order to address that issue the court must give consideration to section 83 of the Child Justice Act. The section states as follows:
The following transitional provisions shall have effect—
(a) where an order has been made in respect of a child pursuant to a prior Act before this Act comes into force, this Act applies where the order is brought before the court for review; and
(b) an application for an order made pursuant to the prior Act is continued pursuant to and in conformity with this Act; unless the court orders, a hearing adjournment under the prior Act is continued pursuant to and in conformity with this Act .
Therefore, the preliminary issue which has to be determined is whether the court is empowered to now apply the provisions of the Act to the applicants in light of the transitional provisions contained in section 83? On what basis are those powers to be retroactively applied?
Counsel for the applicants argue that there would be no basis for including section 83 into the legislation other than to recognize that there had in fact been a prior breach of the intended rights of children under the provisions of the Convention and to make provision for those who had been sentenced prior to the passage of the Act. The purpose of the section, according to counsel, was to provide an avenue for prior sentences of those currently in the criminal justice system to be reviewed and brought into conformity with the new regime. In fact, counsel goes on to argue that the legislation may very well have placed an obligation on the Government of Anguilla to take proactive steps in bringing persons such as the applicants before the court for a review of the sentences which had been imposed on them.
It is also argued that no timeline has been set by the section as to when such sentences are to be reviewed. Counsel argues further that section 83 does not place any limits to the definition of the term ‘order’ contained therein. This must therefore mean that a sentence imposed on the applicants can be viewed as an order which can appropriately be reviewed within the meaning of the section.
Counsel argues that in light of the express provisions of section 83, the court is not barred from reviewing the sentences of the applicants on the basis of the common law doctrine of functus officio. There is, according to counsel, adequate authority for the proposition that statute can in fact empower the court to review sentences even though the appellate process has neither been engaged nor expired. One such...
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