STATE PAYS COSTS

THE British Privy Council has delivered a landmark judgment in London where successful litigants in criminal appeals will now be entitled to costs which can run into millions of dollars. This judgment can become a burden on the Trinidad and Tobago treasury if the Government is called on to pay out costs to persons charged with criminal offences ranging from murder to fraud.

Added to that, and because the law is silent in this country, successful appellants may be entitled to costs in the Magistrates’ Court, High Court and Court of Appeal. Before this, no TT litigant in any criminal case, had been awarded costs in the Privy Council. This has only been done in civil cases. Before this, the local Court of Appeal had awarded costs in criminal appeals, but according to Israel Khan SC, the costs amounted to a meagre $750. Costs have been awarded in the Privy Council in civil matters involving private matters and in cases of constitutional law and judicial review.

The Law Lords handed down a decision on Monday in an appeal brought by Alexander Benedetoo and William Labrador, who were charged with murder in the British Virgin Islands. They were acquitted earlier this year after the Privy Council judges were critical of the prosecution. The Privy Council comprised Lords Bingham, Steyn, Hope, Hutton and Rodger. The judgment was delivered by Lord Hope. Already, lawyers who practise in the criminal courts, believe this is a good thing for the local judiciary. Khan described the judgment as a landmark one, saying this ruling will assist poor persons who have been maliciously prosecuted and some of whom have been languishing in jail for years. Khan said because of the status of these persons, they have not had the benefit of experienced counsel and may have had to borrow money to fight for their rights. This ruling, according to Khan, can bring these litigants back to their original position.

Former Deputy Director of Public Prosecutions (DPP) Rangee Dolsingh SC, said successful litigants in criminal appeals should be entitled to costs. But Dolsingh believes that the court should have discretion and give costs based on the merits of the case. “If the prosecution had no case whatsoever, and if from the outset they had a malicious and frivolous case, then the appellant should be entitled to costs. But the court will have to determine whether costs should be given in a matter where a prima case was made out and the accused was called upon.” Dolsingh continued, “without knowing the full facts in this case, there must have been extenuating circumstances for the judges to make such a drastic order. Maybe, they were of the opinion that this prosecution had no merit from the first day. “This landmark decision may have the effect on those who are prosecuted. Those who are prosecuting must be prosecutors and not persecutors. The courts are there to see that there is fair play and justice.

Defence attorney Om Lalla also welcomed the judgment, saying the police will have to be more careful now when they charge people because a bad result could result in a lot of money being paid out by the State for costs, apart from any other constitutional relief. “The State will not take too kindly to the police charging people maliciously,” Lalla told Newsday. He said when malicious charges are brought against persons, these persons’ only recourse is to file constitutional motions challenging the prosecution. He said awarding of costs will be welcomed by litigants. Contacted last night, Attorney General Glenda Morean said the award of costs was a discretion for the court. “However, costs generally follow the event. This means that the successful party is usually awarded costs. But the decision to award costs is usually based on the facts and circumstances of the particular case.” Morean said the decision in the British Virgin Islands case will not affect the situation as stated above. She pointed out that the power to award costs in this case was within the Privy Council. “The position is not really altered fundamentally,” she added.