Williams v Superintendent of Prisons
| Jurisdiction | Bahamas |
| Judge | Hogan, P.,Georges, J.A.,Inniss, J.A. |
| Judgment Date | 21 September 1975 |
| Neutral Citation | BS 1975 CA 5 |
| Docket Number | No. 5 of 1975 |
| Court | Court of Appeal (Bahamas) |
| Date | 21 September 1975 |
Court of Appeal
Hogan, P.; Georges, J.A.; Inniss, J.A.
No. 5 of 1975
Constitutional law - Civil rights — Right to legal representation
The appellant sought in the court below an Order prohibiting the Superintendent of Prisons his servants agents subordinate officers or otherwise from hearing the complaints and charges filed at Her Majesty's Prison, Fox Hill, against the applicant unless the applicant be allowed to be represented by a Counsel of his choice AND that all proceedings on the said complaints and charges be stayed until after the hearing of the Writ of Summons or further Order.
The request was refused by the learned Chief Justice in the court below and against that refusal the appellant has appealed. Mr. Wells and Mr. Russell, who appeared for the appellant, put forward a carefully prepared case and argued it with skill but on 26th June, 1975 the appeal was dismissed and I now give my reasons for joining in that decision.
Before us the appellant based his claim to legal representation on two grounds: that it is conferred by the Bahamas Constitution or failing that by the common law and the requirements of common justice. Additional grounds mentioned in the court below, including a contention that a rule on which the respondent had relied, Rule 6 of the Code of Discipline for Subordinate Prison Officers (hereinafter called Rule 6(2)) was ultra vires of the Prisons Act (Cap.12) but these have not been pursued before us.
The argument on the other side is that no such right is conferred by the constitution or by the common law or by natural justice and that, even if it might have been found in any of these, the right has been curtailed by Rule 6(2) (Revised Edition Subsidiary Legislation, Vol. 1 P.305) which confers a right to be represented by a brother officer and impliedly excludes any other representation.
The appellant's reliance on the constitution involved two lines of argument which can conveniently be considered together.
The first is brief and simple. Art.20(2)(d) of the Independence Constitution, counsel said, confers a right to legal representation when charged with a criminal offence, which is extended by Art. 31 (2) to an offence against disciplinary law, including the law that regulates the Prison Service.
So far as relevant Art. 20(2)(d) reads as follows:–
“(2) Every person who is charged with a criminal offence …………………..
(d) shall be permitted to defend himself before the court in person or, at his own expense, by a legal representative of his own choice…….”
The second line of argument is more complex. It takes as a starting point Rule 6(1) and the Crown's argument that this impliedly excludes any other form of representation but continues by saying that would have been contrary to the Bahamas Constitution of 1964 and was consequently modified by it.
S.6(2)(d) of the Bahamas Constitution of 1964 said:–
“(2) Every person who is charged with a criminal offence ………………….
(d) shall be permitted to defend himself before the court in person or, at his own expense, by a legal representative of his own choice or by a legal representative at the public expense where so provided by or under a law in force in the Bahamas.”
S.16(1) of the same Constitution said in part:–
“court” means any court of law in the Bahama Islands other than a court constituted by or under disciplinary law;
Provided that
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(a) in sections 2,4,5 sub-sections (2)(3)(4) (5)(9) and (10) of section 6 and sections 12 and 14(3) “court” includes in relation to an offence against disciplinary law, a court constituted by or under disciplinary law; and,
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(b) in sections 5 and 6 “court” in relation to an offence against disciplinary laws includes an officer of a disciplinary force.
Disciplinary law was defined in the same sub-section as the law regulating the discipline of any disciplined force and disciplined force includes the Prison Service of the Bahamas.
Section 16(2) further provided that any reference in sub-sections (2) to (7) of section 6 to a criminal offence shall, in relation to proceedings before a court constituted by or under disciplinary law, be construed as including an offence against disciplinary law.
Under these provisions, counsel said, anyone charged, as the appellant was, before the Prison Service Disciplinary Committee, with a breach of the Prison Code set out in the regulations made under the Prisons Ordinance Cap.12 would have to be permitted to defend himself before the court at his own expense by a legal representative of his choice.
Section 4(1) of the Order in Council which enacted the 1964 Constitution states:–
“Subject to the provisions of this section the existing laws shall continue in force after the commencement of this order as if they had been made in pursuance thereof and notwithstanding the revocation of the existing letters patent, but the existing laws shall be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with the Constitution.”
Consequently, according to this argument Rule 6(2) must be read as meaning that, in addition to his right to have a prison officer to assist him, the appellant could, if he so wished, have a legal representative and, in this extended form the rule has been preserved as part of the existing laws by the Bahamas Independence Order 1973 and the Independence Constitution. See more particularly Sections 2 and 4 of the Order and Article 30 of the Constitution.
At first sight, the weakest link in this argument appears to be the ingenious suggestion that Rule 6(2) should be read as modified by the 1964 Constitution and in such modified form should survive the revocation and replacement of that Constitution but counsel for the Crown sought to break an earlier link. He conceded that Art. 6(2)(d) of the 1964 Constitution gave to a person charged with a criminal offence the right to legal representation before a court; and court, in this section, was, by S.16(1) extended to include, in relation to a disciplinary offence, a court constituted under disciplinary law, which would include the Prisons Act (Cap.12) but, counsel said, the applicant is not charged with a “criminal offence” within the meaning of the Article, because that expression, when extended by Art.16(2), was only so extended when the proceedings were before a court properly so called and not when the proceedings were before another entity such as the officer mentioned in proviso (b) to Article 16(1).
There appears to be merit in this argument. Art 16(1) contemplated that to include “an officer of a disciplined force” as such within the already extended meaning of “court” special provision was necessary. It seems reasonable to suppose that when the expression “court constituted by or under disciplinary law” was used in extenso in Article 16(2) without such special provision it was not intended to have this wider meaning.
Had I thought otherwise I would, in any event, have found it difficult to support the contention that, notwithstanding the revocation of the 1964 Constitution, the right which the applicant claimed to find in that constitution had, by virtue of the implied modification of Rule 6(2), been preserved under the Independence Constitution.
When one comes to that constitution the position is more readily apparent. As the learned Chief Justice pointed out in the court below, the more widely extended meaning of court, now expressed in Article 31(1) of the Independence Constitution to include “any person or authority empowered to exercise jurisdiction in respect of a disciplinary offence” is not extended to paragraph (2) of Article 20 which is the paragraph corresponding to paragraph (2) of Article 6 in the earlier Constitution.
Consequently, it seems to me, the claim that by virtue of either constitution the applicant is entitled to have a legal representative cannot be sustained.
I turn then to the argument based on common law and the requirements of natural justice. Counsel's argument on this began with The Queen v. Assessment Committee of St. Mary Abbotts [1891] 1 Q.B.D.378, where the Court of Appeal held that persons who had the statutory right to object to a valuation list were entitled to appear for that purpose in person or by agents before the Assessment Committee and the committee could not limit that right.
This appears to be concerned with the right to act through an agent in a field quite different from the appearance of an individual on a disciplinary charge and I think, the learned Lords Justice would have been surprised to find their observations, broad though their language may have been, extended to so different and distant a pasture. An interpretation so wide would seem to conflict with the old case of Collier v. Hicks (1831) 2 Barnewall & Adolphus 663, to which Lord Denning referred in Enderby Town Football Club Ltd. v. The F.A. [1971] 1 All E.R. 215, 218 as indicative of the position in a domestic tribunal, and where it was held that in the lower courts there is no absolute right to legal representation but that the courts have a discretion to allow such representationif they think fit.
The argument for the appellant came closer to the context of the present case when counsel turned to the judgment of the Lord Denning, M.R. on the interlocutory appeal in Pett v. Greyhound Racing Association Ltd. [1968] 2 All E.R. 565.
The defendant Association was intending to hold an enquiry into the alleged drugging of a greyhound. The plaintiff sought a declaration that it was acting ultra vires in refusing to allow him to appear by counsel. He also sought by summons an interlocutory injunction to restrain the inquiry unless he was so allowed. In this he was successful and when...
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