The State has been or­dered to pay com­pen­sa­tion to two men, who spent 29 more months in prison than they should have due to an er­ror by the Court of Ap­peal.

The Unit­ed King­dom-based Privy Coun­cil made the rul­ing as they par­tial­ly up­held a con­sti­tu­tion­al law­suit brought by Kelvin Dun­can and Ram­dath Jokhan yes­ter­day.

In June 1999, Dun­can and Jokhan were con­vict­ed of house­break­ing, lar­ce­ny and mis­be­hav­iour in pub­lic of­fice and were sen­tenced to 15 years in prison. The Court of Ap­peal par­tial­ly al­lowed an ap­peal from them and agreed to quash their con­vic­tions for house­break­ing and lar­ce­ny.

It af­firmed their con­vic­tion for mis­be­hav­iour in pub­lic of­fice and main­tained the over­all sen­tence. How­ev­er, in its de­ci­sion, the Ap­peal Court failed to con­sid­er its dis­cre­tion un­der Sec­tion 49(1) of the Supreme Court of Ju­di­ca­ture Act to rule that the 29 months that they spent on re­mand be­fore their ap­peal was de­ter­mined should go to­wards their sen­tence.

The duo even­tu­al­ly brought con­sti­tu­tion­al law­suits in 2010, months af­ter their prison terms were ex­pect­ed to end based on re­mis­sions for their good be­hav­iour. They were even­tu­al­ly re­leased in 2011, ex­act­ly 29 months af­ter they were ex­pect­ed to.

The con­sti­tu­tion­al claim in­clu­sive of fi­nan­cial com­pen­sa­tion was con­tin­ued but was dis­missed by both the High Court and Court of Ap­peal.

In the judge­ment, Lord Phillip Sales said that it was clear that the Court of Ap­peal did not do what it should have when it con­sid­ered the duo’s ap­peal against their con­vic­tions.

“The ap­pel­lants’ ap­peals were not friv­o­lous or vex­a­tious and there was no prop­er ground on which they should have been pe­nalised for bring­ing them by a loss of time di­rec­tion giv­en by the Court of Ap­peal,” Lord Sales said.

Lord Sales ruled that the duo’s due process con­sti­tu­tion­al right was not in­fringed by the Ap­peal Court’s er­ror.

“As it is, it is true that, as the At­tor­ney Gen­er­al ac­cepts, the Court of Ap­peal failed to ap­ply the law cor­rect­ly, but that is sim­ply an ex­am­ple of an er­ror in a par­tic­u­lar case rather than an il­lus­tra­tion of un­fair­ness in the sys­tem as a whole,” Lord Sales said.

Lord Sales still dis­agreed that the con­sti­tu­tion­al law­suit was an in­ap­pro­pri­ate le­gal method of chal­leng­ing their ex­tend­ed sen­tence.

“To the ex­tent that they could have ap­plied for im­me­di­ate re­lease at an ear­li­er stage but failed to do so, that is a con­se­quence of them fail­ing to en­force their rights rather than be­ing de­nied rel­e­vant rights un­der the law or the le­gal sys­tem be­ing un­fair,” Lord Sales said.

Lord Sales ruled that they should be en­ti­tled to com­pen­sa­tion as they had no gen­er­al right to be grant­ed bail while they were le­git­i­mate­ly chal­leng­ing their ex­tend­ed sen­tence.

How­ev­er, he said that the com­pen­sa­tion should be cal­cu­lat­ed from the time they threat­ened the con­sti­tu­tion­al mo­tion to when they were even­tu­al­ly freed as op­posed to the en­tire ex­tend­ed pe­ri­od.

“In the Board’s view, there­fore, the ap­pel­lants have es­tab­lished that they have suf­fered ma­te­r­i­al harm by rea­son of the ab­sence of the right to ap­ply lo­cal­ly for im­me­di­ate re­lease (bail) in re­spect to their con­tin­u­ing de­ten­tion, in breach of their rights un­der Sec­tion 4(a), and that they be en­ti­tled to mon­e­tary com­pen­sa­tion in re­spect to that harm,” Lord Sales said, as he re­mit­ted the as­sess­ment of the com­pen­sa­tion for a High Court Judge to do on a lat­er date. 

Lord Sales al­so crit­i­cised the Of­fice of the At­tor­ney Gen­er­al for chal­leng­ing the duo’s con­sti­tu­tion­al law­suit in­stead of as­sist­ing them in se­cur­ing their im­me­di­ate re­lease. 

“The Board wish­es to em­pha­sise that the At­tor­ney Gen­er­al was not oblig­ed to ac­cept that ap­pel­lants were en­ti­tled to all parts of the re­lief sought by them in their let­ters...How­ev­er they al­so clear­ly asked the At­tor­ney Gen­er­al to agree to their im­me­di­ate re­lease, and this should have been done,” Lord Sales said. 

The duo was rep­re­sent­ed by Anand Be­har­ry­lal, QC, Sian McGib­bon, Joshua Hitchins, Ken­neth Thomp­son and Alvin Pariags­ingh.

Tom Poole rep­re­sent­ed the State.