Retrospective Legislation, Bills of Attainder, the Separation of Powers and the Rule of Law: Ferguson v. The Attorney General of Trinidad and Tobago  UKPC 2
From the Privy Council comes an interesting review of the general principles governing retrospective legislation: Ferguson v. The Attorney General of Trinidad and Tobago  UKPC 2.
The facts in the several cases under appeal arose out of the introduction of a ten-year statutory limitation period for criminal prosecutions in Trinidad and Tobago. At the point the law was brought into force, there were several dozen outstanding prosecutions in respect of offences allegedly committed outside the new limitation period. All of the appellants soon brought applications in which they sought to avail of the new limitation period.
A public outcry ensued, especially because of the high profile of one of the prosecutions, which related to an alleged fraud in the construction of an airport. New legislation was introduced, providing in part that the ten-year limitation period was “repealed and deemed not to have come into effect”.
The Constitution of Trinidad and Tobago follows the Westminster model, drawing its general principles from British practice and setting them down in written form (at para. 14). The Privy Council had to decide whether the removal of the limitation period with retrospective effect violated the qualified separation of powers set out in the Constitution (at para. 15) or its due process and rule of law principles (at para. 16).
Giving the advice of the Privy Council, Lord Sumption noted that a bill of attainder is the “paradigm case of a statute which infringes both the separation of powers and the due process clause” (at para. 19): “The objection to a bill of attainder is the same as the objection to any exercise by the legislature of an inherently judicial function. It does not have the essential attribute of law, which is its generality of application” (at para. 20).
He distinguished, however, between provisions that directly target individuals by changing the law — the classic bill of attainder, “usually inherently contrary to the separation of powers and the rule of law” (at para. 23) — and general provisions that only indirectly affect individuals. Where the effects of a retrospective provision are indirect, there is no constitutional difficulty: “Once it is established as a matter of construction, mere retrospectivity does not violate the separation of powers or the rule of law, and is not contrary to due process. It is after all characteristic of all developments of the common law arising from judicial decisions” (at para. 24). Unless, of course, one can demonstrate “that the statute was directed at identifiable people or groups of people” (at para. 26, discussing Liyanage v The Queen  AC 259). But that was not possible here:
It follows that the challenge to the Amending Act on this ground can succeed only if it is shown that the terms, although framed generally, would in practice apply only to a limited category of people including the appellants against whom it can be said to have been targeted. But this is manifestly not the case. The Amending Act not only looks like general legislation. It is general legislation. It affects all cases to which section 34 would otherwise apply, past, present or future. This includes a very large number of persons and cases against which it cannot have been targeted. It is right to add that if the concern had been only or mainly with the appellants, the logical course would have been to amend Schedule 6 so as to add the offences with which they were charged to the list of those excluded from section 34. That was one of the options proposed by the DPP but it was not the one adopted (at para. 31).
To the suggestion that the temporal proximity between the public outcry and the amendment demonstrated that the statute was directed at identifiable people (namely the appellants), Lord Sumption replied: “Sometimes the facts of a particular case simply exemplify the need for a general law” (at para. 32).
There was a subsidiary argument based on abuse of process. In the period leading up to the introduction of the retrospective legislation, the Director of Public Prosecutions sought adjournments in the pending cases. The argument was that he was in “breach of the duties of impartiality and objectivity attaching to his functions as a prosecutor (i) by seeking an adjournment of the committal proceedings…without disclosing that he proposed to use the time to promote a repeal of section 34…; and (ii) by then actively persuading the Attorney General to introduce a bill retrospectively changing the law” (at para. 40). The first branch of the argument failed on the facts (at para. 41). As to the second, Lord Sumption took the view that the DPP had, just about, acted within the limits of his discretion:
It is entirely proper for the DPP to consult or advise the law officers on matters relating to the operation of the criminal law, but this does not extend to campaigning for a change which will directly affect a current case which his office is prosecuting. It is, however, fair to say that he had been placed without warning or prior consultation in an embarrassing position, especially in the light of the outcome of the extradition proceedings and the stage which the proceedings had reached when section 34 was brought into force. In the unusual circumstances of this case, the Board is not prepared to disagree with the assessment of both courts sitting in Trinidad that his actions were within acceptable limits (at para. 42).
This was not exactly a ringing endorsement of the DPP’s conduct (perhaps still more evidence of a general judicial reluctance to interfere in matters prosecutorial) but Lord Sumption was comforted by the additional consideration that the appellants would ultimately receive a fair trial. To the extent that they had been treated unjustly, the injustice lay in the constitutionally valid retrospective legislation, not the conduct of the DPP (at para. 43). The trials will go on.
H/T David Mullan.
This content has been updated on February 5, 2016 at 16:17.