The State is set to pay compensation for the breach of the constitutional rights of a pair of siblings from Diego Martin, who were remanded to adult prison facilities after being charged with murder along with two adults.

Delivering a judgement, yesterday, five Law Lords of the Judicial Committee of the Privy Council upheld an appeal over the local Court of Appeal’s decision to refuse constitutional relief in Sasha and Brian Seepersad’s case.

The country’s highest appeal court ruled that their constitutional right to protection of the law was infringed by the failure of the State to provide adequate facilities for their detention.

According to the evidence in the case, Sasha, then 16, and 13-year-old Brian were denied bail and remanded to Arouca Women’s Prison and the Youth Training Centre for almost a year after being charged with murdering Dulraj Boyan Deodath in January 2014.

Before being elevated to the Court of Appeal, former High Court judge Vasheist Kokaram upheld their lawsuit, in which they claimed that the Children’s Act and other legislation related to children’s rights required that minors facing trial for criminal offences be housed in community residences designed to cater specifically to their needs.

Kokaram also ruled that their due process and protection of the law rights under Section 4 (a) and (b) of the Constitution were infringed and ordered a total of $450,000 in compensation.

The siblings were removed from the adult facilities and placed in children’s homes, which were also not licensed under the legislation, but were returned to the facilities when they each turned 18 years old.

In October 2019, Brian was among a group of five inmates at the YTC, who managed to escape. Several months later, he was killed in an alleged shoot-out with police at a house in Morvant.

When the Court of Appeal considered the siblings’ case in late 2018, it affirmed Kokaram’s ruling that their detention contravened the Children’s Act.

However, his rulings on the constitutional breaches and compensation were reversed.

In the judgement written by Sir Bernard McCloskey, the Privy Council agreed with the Appeal Court that the siblings’ due process rights were not infringed by their improper detention at an adult prison.

“The Board considers that the due process clause is not designed to provide protection against this type of loss of benefit,” McCloskey said.

“Nor did the Chief Magistrate’s inability to order the detention of the appellants in the kind of accommodation to which the newly-statutory provisions entitled them give rise to a breach of due process,” McCloskey added, as he noted that there was no complaint of procedural unfairness or against the conduct of their proceedings.

However, McCloskey did rule that the facts of what transpired demonstrated a serious failure of the State to afford them protection of the law under Section 4 (b) of the Constitution.

“Fundamentally, the executive brought into operation the Children’s Act without having first put in place the arrangements necessary to give effect to their mandatory requirements in a context where the intended beneficiary of these measures, namely children, had been identified by both international and domestic law as deserving of special protection,” McCloskey said.

He stated that the executive’s failure to establish community residences, as required, was directly responsible for their unlawful detention.

“Finally the executive has failed to offer any explanation of, much less any justification for, its acts and omissions.

“Taking into account all of the foregoing, the Board considers that the exercise by the executive of its legal powers was arbitrary, as the appellants contend,” he said.

As part of his judgement, McCloskey ordered that the High Court should reconsider compensation for the siblings if the State and their attorneys fail to come to an agreement.

The Seepersads were represented by Richard Clayton, QC, Anand Ramlogan, SC, Kate O’Raghallaigh, Rowan Pennington-Benton, and Alvin Pariagsingh.

Howard Stevens, QC, and David Goldblatt represented the State.