The Applicant was charged on the 14th March 2018 with two counts of unlawful carnal knowledge and indecent assault of a 5 year old girl. During the course of the proceedings, the Defence raised a fitness to plea issue who requested a report from a Consultant Psychiatrist based in the Turks and Caicos Islands. The report found that the Applicant was fit to make a plea. Counsel for the Applicant thereafter made an application to the Court to retain a psychiatrist from Jamaica to do an evaluation on his client. The learned Chief Justice acceded to the request of Counsel to engage the services of an independent Consultant Psychiatrist to be paid for by legal aid but ruled that the psychiatrist be based in the Turks and Caicos Islands.
Counsel for the Applicant thereafter filed a Constitutional Motion made by Originating Summons issued on 30 August 2018 by which the Applicant sought, inter alia, the following reliefs: (i) an Order for leave to be heard upon the application arising in the Constitutional Motion; (ii) a stay of further proceedings upon the Information against the Applicant in Regina v Kenrick Forbes pending hearing and final determination on this Constitutional Application; (iii) a Declaration under sections 6(1) and 21(1) of the Turks and Caicos Islands Constitution Order 2011 (“the Constitution”); (iv) a Declaration in respect of section 7(1) of the Constitution that “equal protection under the law” requires as a fundamental right, the provision of an independent psychiatrist to conduct an examination of the Plaintiff, in the circumstances of the charges which the Applicant faces before the Criminal Court; (v) a Declaration in respect of section 8(1) of the Constitution that the words contained therein, “All persons deprived of their liberty (in this section referred to as “prisoners”) have the right to be treated with humanity and with respect for the inherent dignity of the human person.” when read conjunctively with the words of section 11 of the Lunatics Ordinance, and section 6 of the Mental Health Ordinance 2016, require that persons of unsound mind and/or suffering from a mental disorder not be imprisoned at Her Majesty’s Prison as would a person of sound mind convicted and sentenced through ‘due process’ for the commission of a criminal offence; (vi) a Declaration that Legal Notice 61 of 2013, under the hand of the then Governor, Peter Beckingham, made the 19th day of December, 2013 in terms:-“Whereas it is provided in the definition of “secure place” under section 2 of the Lunatics Ordinance, that secure place means any place approved by the Governor for the detention of a lunatic” The designation of HM Prison as such a safe place contravenes and/or is in conflict with section 11 of the Lunatics Ordinance and/or section 8(1) of the Constitution; (vii) a Declaration that section 3 of the Constitution, which is in the same terms as Article 3 of the European Convention on Human Rights (“the Convention”) imposes a duty upon the Turks and Caicos Islands Government, including but not limited to Her Majesty’s Prison, to act in accordance with that provision, namely:- “Protection from inhuman treatment 3. No person shall be subjected to torture or to inhuman or degrading treatment or punishment.” and (viii) a Declaration that the imprisonment of mentally ill persons in Her Majesty’s Prison in the Turks and Caicos Islands without lawful cause, is cruel and inhuman treatment and in contravention of section 3 of the Turks and Caicos Islands Constitution Order 2011 and/or Article 3 of the European Convention on Human Rights.
This Originating Summons was supported by the affidavit of the Applicant’s father in which he sought to outline proof of the Applicant’s mental health problems and unnatural behaviour.
Headnote and holding:
An expert witness has an obligation to demonstrate a sense of independence and objectivity in her evaluation and was being impartial when she concluded that the Applicant is fit to plea (para 20-21); see Kenneally v De Puy International  1 IEHC 728 (dicta of Barton J, para 42, APPLIED).
The Lunatics Ordinance has no application to these proceedings and in any event, that piece of legislation was repealed pursuant to section 68 of the Mental Health Ordinance 2016 (para 25).
There is no evidence before the court that the Applicant is suffering from a mental illness. The court did not accept the evidence of the Applicant’s father to the effect that the Applicant suffers from mental illness from childhood as there was no medical evidence before the court to support that conclusion. Provided that the Psychiatrist’s recommendations are followed to the letter, the Applicant’s treatment while on remand is not inhuman or degrading (paras 28, 38); see Keenan v the United Kingdom Application No 27229/95, European Court of Human Rights (CONSIDERED); Holomiov v Moldova Application No 30649/2005, European Court of Human Rights (CONSIDERED).