Maurice Arnold Tomlinson v The Attorney General of Jamaica
| Jurisdiction | Jamaica |
| Judge | Shelly-Williams, Snr. PJ Ag.,,Batts J.,Pettigrew Collins J,Shelly-Williams Snr. PJ Ag. |
| Judgment Date | 27 October 2023 |
| Court | Supreme Court (Jamaica) |
| Year | 2023 |
| Docket Number | CLAIM NO. 2015HCV05731 |
IN THE MATTER OF THE CONSTITUTION OF JAMAICA
AND
IN THE MATTER of an Application by MAURICE ARNOLD TOMLINSON, alleging a breach of his rights under sections 13(3)(a), 13(3)(c), 13(3)(g), 13(3)(i), 13(3)(j)(ii), 13(3)(o), 13(3)(p), 13(3)(6) and 14 of the Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act, 2011
AND
IN THE MATTER of an Application by MAURICE ARNOLD TOMLINSON for constitutional redress pursuant to section 19(1) of the said Charter
AND
IN THE MATTER of an Application made pursuant to Rule 56.9 of the Civil Procedure Rules, 2002 (CPR).
[2023] JMFC Full 5
THE HONOURABLE Mrs Justice Lorna Shelly-Williams (Senior Puisne Judge, Acting)
THE HONOURABLE Mr Justice David Batts
THE HONOURABLE Mrs Justice Andrea Pettigrew-Collins
CLAIM NO. 2015HCV05731
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN THE FULL COURT
Constitutional Law — Charter of Rights — Savings Law Clause — Offences Against the Person Act — Whether the savings law clause precludes enquiry by court — Meaning of “ sexual offence” — Whether court bound by the parties' statement of meaning — Whether buggery is a sexual offence.
Mr Ian Wilkinson KC and Mr Daniel Beckford instructed by Wilkinson Law on behalf of the Claimant
Miss Lisa Whyte and Miss Jevaughnia S Clarke instructed by the Director of State Proceedings for the Defendant.
Miss Danielle Archer instructed by Danielle Archer & Co for 1 st Interested Party.
Mr Ransford Braham KC and Miss Shirley Richards instructed by Richards Edwards Theoc & Associates for the 2 nd Interested Party.
Mr Wendel Wilkins and Miss Jamila Thomas instructed by Lambie Thomas & Co for the 3 rd Interested Party.
Mrs Carolyn P. Hay KC instructed by Carolyn P Hay & Co for the 4 th Interested Party.
The Claimant filed a claim in which he sought declarations concerning breaches of his constitutional rights and challenged Sections 76, 77 and 79 of the Offences Against the Persons Act (OAPA). The matter was first heard by Hutchinson J (as she then was) who delivered a judgment on the 19 th of January 2022 indicating that all the issues are to be tried together. This decision was appealed and on the 31 st of March 2023, the Court of Appeal mandated that:-
A separate trial is to be held to determine the preliminary issue of whether the constitutionality of sections 76, 77 and 79 of the Offences Against the Person Act can be enquired into in the light of the savings law clause in section 13(12) of the Charter of Fundamental Rights and Freedoms in the Constitution of Jamaica.
The Court was provided with written submission, that was buttress with oral submissions. The parties were also asked by the Court to file submissions on the definition of sexual offences.
Ms. White, on behalf of the Attorney General, submitted that the savings law clause in section 13(12), protects the stated laws from judicial scrutiny. She submitted the savings law clause prevents this court from enquiring into the constitutionality of Sections 76, 77 and 79 of the OAPA She cited the authorities of Lambert Watson v The Queen [2004] UKPC 34, Chandler v State of Trinidad and Tobago [2022] UKPC 19 and Boyce v R [2005] 1 AC 400 in support of this position. Counsel argued that in the cases cited, the issue of the savings law clause was deliberated on and the Privy Council concluded that saving law clauses prevented these laws from being constitutional challenge.
Counsel acknowledged that once a statute, that is the subject of a savings laws clause, has been modified, then the saving laws clause would no longer apply. This was found to be the position in Lambert Watson. Ms White argued that in the instant case as it relates to Sections 76, 77 and 79 of OAPA, there is no express change to the said Act and Regulations and as such the prosecution of the offences under them remains unchanged.
Further, Ms. White contended that if changes are to be made with respect to the inclusion of the savings law clause in the Constitution it must be the legislature that amends same or determines its continued applicability. Counsel's position was that it was not within the remit of the judiciary to effect these changes to the Constitution or laws, and this would be trespassing on the remit of Parliament. Counsel cited paragraph 54 from the decision in Lambert Watson in support of this position.
Counsel for the defendant highlights a number of amendments which have been made to the OAPA since its enactment in Jamaica in 1864. One relevant amendment which was made concerned the Sexual Offences Act (SOA) of 2009 which saw several offences previously listed under the OAPA, transferred to the SOA. Ms White contends however, that the amendments made to the OAPA does not convert the nature of the offences detailed in Sections 76, 77 and 79 and as such they are deemed sexual offences.
Counsel for the defendant noted that neither the OAPA or the SOA defines the term ‘sexual offences,’ however the entire legislative scheme dictates that offences under Sections 76, 77 and 79 of the OAPA are to be classified as sexual offences.
Ms White contends that under the SOA ‘sexual offence’ is given a broad interpretation as evidenced by the definition given for instance to complainant being a person whom a sexual offence was committed against. Accordingly, Counsel contends that the broad reference to sexual offences under the SOA, captures Sections 76, 77 and 79 of the OAPA as they are by nature sexual offences, though not placed in the SOA.
Counsel for the defendant contends that the entire legislative scheme concerning sexual offences shows that the term sexual offence ought to include any sexual activity, whether or not it involves sexual intercourse. Sexual offences the defendant submits spans across, non-consensual crimes, crimes against children and crimes that exploit others for a sexual purpose, whether in person or online. The defendant also contends that sexual offences relate to unlawful intimate activity between individuals with or without physical contact.
The defendant submits that under the SOA, sexual offences are not limited to those that relate only to sexual intercourse. The SOA covers offences against a person's body which may or may not involve physical activity. The defendant avers that the SOA does not contain all sexual offences for example, offences relating to child pornography which are stipulated under Section 2 of the Child Pornography and Prevention Act. Counsel submitted that the SOA cannot be said to be the definitive authority on all sexual offences so as to exclude the offences under Sections 76, 77 and 79 of the OAPA.
Counsel for the claimant, Mr. Wilkinson, submitted that the impugned provisions of the OAPA are not protected by the savings law clause from judicial review. He argued that the savings law clause was not a device to cloak pre-independence laws with absolute immunity or invincibility or to perpetrate unconstitutionality. He relied on a quotation from Sykes J (as he was) in Arthur Baugh v Courts (Jamaica) Limited and the Attorney-General Claim No CL. B. 009 of 1997 at paragraph 20 in support of this position.
It was accepted by Counsel that the savings law clause in the amended 2011 Charter only saves preexisting laws relating to specific matters, of which sexual offences is listed, unlike its predecessor that saved all laws. Counsel argued that amended laws are not protected by the savings law clause. Counsel submitted that any post-2011 Charter change to the relevant section of the statute would now be subject to complete judicial scrutiny. Additionally, it was argued that the savings law clause is circumscribed by the principles in Lambert Watson which encourages not only a narrow construction of the savings law clause (See paragraph 42 of Lord Hope of Craighead judgement) but also supports the claimant's contention that as soon as the pre-dated laws are changed, adapted, or modified they had to comply with the requirements of the Charter.
Counsel for the claimant submitted that the impugned sections of the OAPA have been so changed, adapted or modified by the SOA and the SOA Regulations so as to make those sections no longer the law that existed at the time of the Charter coming into effect and therefore no longer saved. He argued that this is manifested by the introduction of additional consequences for conviction of those offences which includes: the obligation to register, the obligation to report and the obligation to carry a sex offender's registration certificate. He admitted that the impugned sections of the OAPA may not have been directly changed but argued that based on the ratio in Lambert Watson, a statute does not require amendment to the relevant legislation to be considered changed. It is sufficient if the relevant law is adapted, changed, or modified in any respect.
Counsel further argued that support for the contention that the OAPA have been adapted, changed or modified can be found in section 58 of the Interpretation Act. Counsel's position was that this confirms that the OAPA and the SOA and the SOA Regulations must be read together as constituting the law on buggery and gross indecency involving consensual sexual intercourse between adult men in Jamaica.
Mr. Wilkinson further submitted that the nature of some of the amendments are tantamount to punishment against persons who might be found guilty of breaching any of the impugned provisions. Counsel relied on two cases...
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