Developments in the Protection of the Rights of Mentally Unfit Defendants in the English-speaking Caribbean
There is a dearth of judicial authority on the required treatment by Caribbean states of defendants to criminal proceedings who are unfit to stand trial. The Eastern Caribbean Court of Appeal’s recent decision in Attorney General v. Anthony Henry is one of the first decisions in this area. Several questions arise in the context of this decision: what obligations do Caribbean states have in relation to mentally unfit defendants? How should criminal justice systems in the Caribbean respond when faced with mentally unfit defendants? How can states update their approaches to the treatment of mentally unfit defendants? What role should courts play in the advancement of human rights and in setting high and protective standards for vulnerable groups?
By: Jordan A.J. Jarrett, Staff Member
On November 10, 2021, the Eastern Caribbean Court of Appeal delivered its decision in Attorney General of Saint Lucia v. Henry. The decision, authored by the Court’s Chief Justice, concerned two Saint Lucian nationals (“the respondents”) who were charged with serious criminal offenses and detained in prison pursuant to the Criminal Code of Saint Lucia, after being found mentally unfit to plead. The respondents remained in prison without trial for twenty-four and thirty-two years, respectively. Among the respondents’ claims before the Saint Lucian High Court was that their detention in prison, as opposed to a mental hospital, breached their rights to liberty and to protection from inhuman and degrading treatment under the Constitution of Saint Lucia. The High Court gave judgment in favor of the respondents, awarding them damages and declaratory relief as vindication for breaches of their rights. The Attorney General appealed.
The Court of Appeal’s Decision
The Court of Appeal found that the respondents’ long detention in prison without trial, though authorized by the Criminal Code of Saint Lucia, had become arbitrary and unlawful on account of the significant time that elapsed since the respondents were charged. The Court therefore concluded that the respondents’ rights to liberty and protection of the law were breached. The respondents were accordingly entitled to constitutional relief in the form of damages, permanent stays of the criminal charges against them, and declaratory relief. The Court of Appeal, however, disagreeing with the High Court, concluded that the respondents’ detention in a mental hospital was not required by law. And further, noting the medical treatment received by the respondents while in prison and the absence of ill-treatment or want of care, the Court found that the respondents’ rights to protection from inhuman and degrading treatment were not breached.
Critically, the Court of Appeal recognized that a trial judge’s power to detain a mentally unfit defendant ought to serve “the limited purpose of permitting a defendant to recover their fitness to plead with a view to standing trial.” The Court further recognized that the detention of an unfit defendant, without periodic reviews to ascertain their mental health status, could result in an arbitrary and unjustifiable detention that breaches the defendant’s rights to personal liberty and protection of the law. And, in a postscript to the decision, Pereira CJ stressed the need for “[i]ncreased oversight and management” on the part of executive and prosecuting authorities manifested in a “collaborative framework which enables . . . defendants to receive appropriate psychological and judicial reviews and determinations of their fitness to plead.”
A Major Milestone in the Advancement of Human Rights
The Court’s decision is a significant step in the advancement of human rights in the English-speaking Caribbean. By recognizing that the detention of a mentally unfit defendant should serve the limited purpose of facilitating the defendant’s recovery, and by ascribing weight to the psychiatric care and medication received by the respondents while detained in prison (in determining whether the respondents suffered cruel and inhuman treatment), the Court of Appeal’s decision (at the very least, inferentially) recognizes a general right of mentally unfit defendants to be detained in conditions which facilitate their recovery, and to receive appropriate psychiatric treatment while detained pending trial.
The decision as a whole provides a good foundation for future challenges to state inaction in cases of this ilk in the nine states and territories that form part of the Court of Appeal’s jurisdiction and other English-speaking Caribbean states with similar constitutional arrangements. Critically, the Court’s decision can be read to positively impose a duty on states to give greater oversight to the conditions and circumstances under which criminal defendants are detained pending trial. It therefore provides some impetus for institution-wide policy reevaluation and has the potential to catalyze state efforts to better protect the constitutional rights of mentally unfit defendants. This is particularly the case in states like Jamaica where it has been reported that significant numbers of mentally unfit persons have been detained pending trial without the relevant judicial, administrative, and psychiatric review mechanisms to ascertain their fitness to stand to trial.
Updating the Legal and Administrative Treatment of Mentally Unfit Defendants
While signaling a potentially new dispensation of legal and administrative treatment being afforded to mentally unfit defendants, the Court of Appeal’s decision brings to the fore at least one broader systemic discussion relevant to the road ahead for the progression of the rights of mentally unfit defendants in the Caribbean. Today, some Caribbean countries retain laws that provide for the compulsory detention of mentally unfit defendants, without any statutory provisions requiring trial judges to take a holistic, treatment-oriented approach to care and custody pending trial, and without any system of review or statutory monitoring obligations on the part of the court or the state. Even in circumstances where laws are framed more expansively to confer broad discretion on trial judges to make orders for the care of a mentally unfit defendant without compulsory detention (like section 25C of the Criminal Justice Administration Act of Jamaica and section 115 of the Criminal Procedure Code of Saint Vincent and the Grenadines), no detailed statutory guidance exists to encourage trial judges to make such orders or to place mental health recovery at the forefront of the trial judge’s mind in such cases.
At least three normative, soft law instruments suggest that enhanced vigilance and care are required in the handling of mentally unfit defendants. The 2013 Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment (“General Comment 53”), which reflects some of the prevailing discourse on the detention of mentally unfit persons, posits inter alia that: (i) compulsory detention should be avoided as much as possible, and (ii) states should prioritize adequate community-based or alternative social care services over compulsory detention.
In similar stead, The Principles and Best Practices on the Protection of Persons Deprived of Liberty In the Americas declares that states should aim to avoid “unnecessary deprivation of liberty in hospitals or other institutions.” Institutionalization should be deployed as “a measure of last resort, and solely when there is serious likelihood of immediate or imminent harm to that person or to others.” States should instead prioritize the progressive de‐institutionalizing of persons with mental disabilities, through “alternative service models that facilitate the achievement of objectives that are compatible with an integrated, continuing, preventative, participatory, and community‐based psychiatric care and health system.” The United Nations Standard Minimum Rules for the Treatment of Prisoners (the “Nelson Mandela Rules”) follow this general trend, stating that mentally unfit persons “shall not be detained in prisons, and arrangements shall be made to transfer them to mental health facilities as soon as possible” where detention in prison would exacerbate their mental conditions.
These instruments, and others, generally call for a cautious approach to the treatment of mentally unfit defendants. At the very least, all Caribbean states should consider (i) granting courts express statutory powers to make orders for the care and custody of mentally unfit defendants outside of compulsory detention; (ii) crafting clear guidance for the courts which places patient recovery at the forefront of the exercise of judicial case management discretions and underscores that detention of such defendants is a matter of last resort; and (iii) taking positive steps to identify and eliminate the systemic shortcomings alluded to by Pereira CJ in relation to the overall treatment of unfit defendants who are detained, particularly by devising functioning periodical review mechanisms to continuously assess the circumstances of an unfit defendant’s detention so as to ensure that unfit defendants are detained only for as long as is necessary depending on their particular circumstances. These are not merely matters of concern for states seeking to avoid liability under their own domestic constitutional arrangements but are relevant to satisfying core obligations in international human rights law under the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and other treaties.
Conclusion
The Court’s decision in Attorney General of Saint Lucia v. Henry is admittedly limited to the narrow issues raised by the parties and does not frontally make many general statements on the rights of mentally unfit persons who are detained in prison. Less restrained approaches to human rights adjudication, however, are not foreign to Caribbean human rights adjudication. In the tug of war between the development of indigenous understandings of Caribbean Constitutions and the development of more protective human rights standards globally, high-standard setting, less restrained approaches to adjudication, impacted by the substantive contents of international human rights law can be plainly observed in death penalty cases. Such approaches are the lifeblood of modern human rights adjudication and should be encouraged as a means of judicial advancement of the fulsome protection of all fundamental human rights.
In the round, the Court of Appeal’s decision is a win for the protection of a vulnerable group in the Caribbean. The decision is but a springboard for the progressive, comprehensive implementation of human rights standards in the Caribbean and is a welcomed step in the right direction.
Jordan A.J. Jarrett is an Attorney-at-law, LL.M. candidate at Columbia Law School and a Staff member of the Columbia Journal of Transnational Law. He holds a Bachelor of Laws with First Class Honors from the University of the West Indies (Cave Hill) and a Legal Education Certificate from the Norman Manley Law School in Jamaica.