Everton Welch  vs. The Attorney General of Antigua and Barbuda

From the Court of Appeal of Antigua and Barbuda

Appellant Everton Welch and Eustace Armstrong were disturbed by Rolston Samuel while they were engaged in burglary of Mr Samuel’s house. Welch and Armstrong turned on Mr Samuel and beat him so severely that he died of his injuries some short time later. Welch was two months short of his eighteenth birthday at the time of the murder. He was convicted of Mr Samuel’s murder and was sentenced to be detained during Her Majesty’s pleasure.

He remained in prison on foot of this sentence until 14 December 2011. The sentence was passed under section 3(1) of the Offences against the Person Act. In its material part it provides:

“Upon every conviction for murder, the court shall pronounce sentence of death … provided that sentence of death shall not be pronounced on or recorded against a person convicted of an offence if it appears to the court that at the time when the offence was committed he was under the age of eighteen years; but in lieu thereof the court shall sentence him to be detained during Her Majesty’s pleasure; and if so sentenced he shall be liable to be detained in such place and under such conditions as the Governor-General may direct …”

Section 5(1)(b) of the Antigua and Barbuba Constitution Order 1981 provide that no person shall be deprived of his liberty save as may be authorised by law in execution of the sentence or order of a court in respect of a criminal offence of which he has been convicted. On foot of the provision and in light of the decisions of the Board in Browne v The Queen [2000] 1 AC 45 and Director of Public Prosecutions of Jamaica v Mollison [2003] 2 AC 411, Everton Welch applied  for a declaration that his right to liberty under section 5 of the Constitution had been contravened on the basis that the sentence of detention during Her Majesty’s pleasure was unconstitutional. He claimed other relief including an order that he was entitled to compensation for deprivation of his liberty. That claim was made under section 5(7) of the Constitution which provide:

“Any person who is unlawfully arrested or detained by any other person shall, subject to such defences as may be provided by law, be entitled to compensation for such unlawful arrest or detention from the person who made the arrest or effected the detention, from any person or authority on whose behalf the person making the arrest or effecting the detention was acting or from them both …”

The  High Court held that in accordance with the Board’s decisions in Browne and Mollison section 3(1) of the Offences against the Person Act contravened the Constitution and that the sentence imposed on Welch was invalid. He further held that the section should be modified by substituting “the court’s pleasure” for “Her Majesty’s pleasure”. The sentence on Welch was therefore “corrected” to a sentence of detention at the court’s pleasure. In delivering judgment on the appellant’s claim the Judge stated that he did not consider that “any award of damages – whether compensatory or exemplary – was appropriate”. An appeal against the judgment  before the Court of Appeal  was dismissed. In a short ex tempore ruling the court stated that the appellant was not entitled to compensation as he “would have been imprisoned in any event”.

The Board observed that the basis on which the Court of Appeal concluded that the appellant would have been in prison “in any event” was not explained and the Board was satisfied that, at the time that its judgment was delivered, the court did not have material before it on which it could properly reach that conclusion. The Board held that the issue should be determined by a judge of the Eastern Caribbean Supreme Court sitting in Antigua and Barbuda familiar with sentencing levels and guidelines in that jurisdiction. It may, moreover, be necessary to receive evidence in order to determine that issue and, plainly, it would be more suitable that this be received and assessed by a first instance judge. The Board therefore remitted the matter to the Supreme Court in order to determine whether, if the proper sentence had been passed, the appellant would have been released earlier and, if so, to what amount of compensation he should be entitled.