Appeal court overrules judge

An appellate court has dismissed significant portions of a judge’s decision which included monetary compensation of $.5 million to two juvenile siblings who were housed at the Youth Training Centre (YTC) and the Women’s Prison, while they await trial for murder.

In a 62-page decision, Justices of Appeal Nolan Bereaux, Rajendra Narine and Gregory Smith, set aside all of the previous orders of Justice Vasheist Kokaram except for two declarations that the decision of the former chief magistrate to remand the then 12-year-old boy in 2014 to the YTC and his sister to the Women’s Prison, was in contravention of sections 54(1) and 60(1) of the Children’s Act.

In a 150-page decision last year, Kokaram held that neither facility was a community residence as provided for in the Children’s Act of 2012, which provides that minors awaiting trial should be housed at a “community residence.”

Kokaram also held that their detention at the two facilities were unlawful and illegal and ruled that the former chief magistrate, Marcia Ayers-Caesar, had no jurisdiction to order that they be sent there.

He also ruled that the siblings’ detention were in breach of their rights as he awarded them monetary compensation for it.

However, in a 62-page ruling, the appellate court judges found the judge to be wrong on several of his findings.

Narine, who delivered the decision, said the judge was correct to find that the YTC and the Women’s Prison were not community residences, and that the orders of the former chief magistrate to send them there when she remanded them for murder were in contravention of the provisions of the Act.

However, Narine said it would have been impossible for Ayers-Caesar to comply with the Act since there were no licensed community residences for their detention.

Narine said she found herself in an unenviable position, but exercised her best options to remand the boy to St Michael’s Home for Boys and the girl to the Women’s Prison. The girl is now 18-year-old and has been returned to the adult prison.

He did find that Kokaram was wrong to order that the boy be placed in the custody of the Children’s Authority, which the State argued was a legal entity and not a physical place to accommodate children.

“It would have been difficult for the chief magistrate to comply with the Act,” Narine said.

As he ruled that the deprivation of their liberty was not arbitrary since they were both charged with the non-bailable offence of murder, Narine said Ayers-Caesar had no choice but to remand them into custody. “The deprivation of their liberty was a decision required by law, and not an arbitrary act on her part,” Narine said, adding that there is no Constitutional right to be detained at a particular place, and the Children’s Act specifies children, who are not on bail, must be put in the custody of a community residence with the right to due process.

He also said the two siblings were able to access the court so that there was no breach to their right to protection of the law.

Appearing for the Commissioner of Prisons and the Attorney General, who filed the appeal, were Fyard Hosein,SC, and Josephina Baptiste-Mohammed, while Douglas Mendes,SC, Keisha Prosper and Kendra Mark appeared for the former chief magistrate. The siblings were represented by Anand Ramlogan,SC, Alvin Pariagsingh, Ganesh Saroop and Chelsea Stewart.

The siblings have a pending appeal in the Privy Council in which they are challenging provisions of the Bail Act. They argued before Kokaram that they should have been released from custody into their mother’s care or a community residence pending the outcome of their case.

Kokaram ruled against them saying he had no power to do so.