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West Indian Reports/Volume 58/Ferguson (Herbert) v Attorney-General - (2001) 58 WIR 446

(2001) 58 WIR 446

Ferguson (Herbert) v Attorney-General

[2001] UKPC 3

JUDICIAL COMMITTEE OF THE PRIVY COUNCIL

LORD BINGHAM OF CORNHILL, LORD STEYN, LORD CLYDE, LORD HUTTON AND LORD HOB-
HOUSE OF WOODBOROUGH

13 DECEMBER 2000; 24 JANUARY 2001

Criminal evidence – Prosecution evidence – Disclosure to defence – Breach of duty to disclose – Breach not
affecting order made at preliminary inquiry, nor hampering defence at trial

Criminal evidence – Prosecution evidence – Disclosure to defence – Right to disclosure at common law –
Right supported by general constitutional guarantees – Right not implicit in Constitution of Trinidad and To-
bago

The appellant was charged with murder. His defence was self-defence. At the opening of his trial the prose-
cution handed to the defence statements made by four persons who were not to be called by the prosecution
as witnesses at the trial; the statements had not been made available to the defence at an earlier date. The
appellant was acquitted and sought redress for a breach of his constitutional rights arising from his arrest,
detention (bail not being available to a person charged with murder) and prosecution. His constitutional mo-
tion was dismissed by Lucky J and his appeal was dismissed by the Court of Appeal. On further appeal, it
was conceded that the order for the appellant's arrest and remand in custody had been properly made and
that, at the preliminary inquiry, there had been sufficient evidence to establish a prima facie case against the
appellant. The issues in contention were narrowed to the consequences of the failure to disclose the witness
statements before or at the preliminary inquiry by particular reference to the deprivation of the liberty other-
wise than by due process (Constitution of Trinidad and Tobago, s 4(a)), to the deprivation of the protection of
the law (s 4(b)), and to the deprivation of the right to a fair hearing in accordance with the principles of funda-
mental justice (s 5(2)(e)).
(2001) 58 WIR 446    at    447

Held, advising that the appeal be dismissed, (1) that the issue whether there had been a breach of constitu-
tional guarantees had to be judged on a realistic assessment of the proceedings as a whole; even had the
four statements been handed over at the preliminary inquiry the order of the magistrate (committing the ap-
pellant for trial and remanding him in custody) would have been exactly the same, and it had been lawful;
there was no suggestion that the defence at the trial had been hampered in any way; accordingly, on an as-
 Page 2

sessment of the whole proceedings there had been no breach of the constitutional guarantees of due
process, protection of the law and a fair hearing.

Kraska v Switzerland (1993) 18 EHRR 188 and Barberà, Messegué and Jabardo v Spain (1988) 11 EHRR
360 applied.

R v Forbes [2001] 2 WLR 1 and Brown v Stott [2001] 2 All ER 97 considered.

(2) That there was no express guarantee of timeous and fair disclosure by the prosecution of witness state-
ments in the Constitution, and none could be implied; such disclosure was adequately covered by the com-
mon law and by the general guarantees under the Constitution.

Attorney-General v Whiteman (1991) 39 WIR 397 distinguished.

Ferguson v Attorney-General (1999) 57 WIR 403 affirmed.

Cases referred to in the advice of the Board

Attorney-General v Whiteman (1991) 39 WIR 397, [1991] 2 AC 240, [1992] 2 All ER 924, [1991] 2 WLR 1200,
PC.

Barberà, Messegué and Jabardo v Spain (1988) 11 EHRR 360, European Court of Human Rights.

Brown v Stott; see Procurator-Fiscal, Dunfermline v Brown, below.

Director of Public Prosecutions v McNicolls (1999) (unreported), 13 December, Trinidad and Tobago CA.

Ferguson v Attorney-General (1999) 57 WIR 403, Trinidad and Tobago CA.

Frank v Mangum 237 US 309 (1915), US Supreme Court.

Kraska v Switzerland (1993) 18 EHRR 188, European Court of Human Rights.

Minister of Home Affairs v Fisher (1979) 44 WIR 107, [1980] AC 319, [1979] 3 All ER 21, [1979] 2 WLR 889,
PC.

Procurator-Fiscal, Dunfermline v Brown, 5 December 2000, sub nom Brown v Stott [2001] 2 All ER 97, [2001]
2 WLR 817, 2001 SLT 59, PC.

R v Brown [1998] AC 367, [1997] 3 All ER 769, [1997] 3 WLR 447, [1998] 1 Cr App Rep 66, HL.
(2001) 58 WIR 446    at    448

R v Epping & Harlow Justices, ex parte Massaro [1973] QB 433, [1973] 1 All ER 1011, [1973] 2 WLR 158,
England Divisional Court.
 Page 3

R v Forbes [2001] 1 All ER 686, [2001] 2 WLR 1, HL.

Thomas v Baptiste (1999) 54 WIR 387, [2000] 2 AC 1, [1999] 3 WLR 249, PC.

Appeal

Herbert Ferguson appealed to the Judicial Committee of the Privy Council (appeal 11 of 2000)
against the dismissal by the Court of Appeal of Trinidad and Tobago (de la Bastide CJ, Hamel-
Smith and Jones JJA) on 11 May 1999 (Ferguson v Attorney-General (1999) 57 WIR 403) of his ap-
peal against the decision of Lucky J on the appellant's constitutional motion. The Attorney-General
was the respondent to the appeal. The facts and the grounds of appeal are set out in the advice of
the Board delivered by Lord Steyn.

Edward Fitzgerald QC and Douglas Mendes (instructed by Simon Muirhead & Burton) for the appellant.

James Guthrie QC (instructed by Charles Russell) for the Attorney-General.

Their lordships took time for consideration.

24 January 2001. The following judgment was delivered.

Lord Steyn delivered the advice of the Board.

[1] On 4 May 1979 the appellant shot and killed Michael Pino in San Fernando, Trinidad. The deceased was
one of a group of four men who tried to enter a discotheque but were refused entry. Their way was barred by
the owner of the discotheque and two security guards, one of whom was the appellant. There was a heated
argument. The accounts of the eye-witnesses as to what then happened differed. It is, however, common
ground that the appellant drew his gun and shot Michael Pino at close range. Pino died in hospital the next
day. On 21 May 1979, inquest proceedings began. On 7 June 1979, at the conclusion of the proceedings, the
coroner ruled that sufficient evidence existed to support a charge of murder against the appellant. The appel-
lant was so charged and remanded in custody. On 8 June 1979, a preliminary inquiry into the charge against
the appellant commenced before a magistrate. On 2 August 1979, after hearing evidence and submissions,
the magistrate committed the appellant to stand trial for the murder of Michael Pino. On 11 June 1981, the
trial opened. On 23 June 1981, the appellant was acquitted by the jury.

[2] On 11 August 1982, the appellant filed a constitutional motion in which he alleged that both at the inquest
and at the preliminary inquiry his rights under the Constitution of Trinidad and Tobago (enacted by Act 4 of
1976) had been violated. In his motion the appellant relied on
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(2001) 58 WIR 446    at    449

many provisions of the Constitution. But only ss 4, 5 and 14 are relevant. Section 4 so far as it is material
provides:

'It is hereby recognised and declared that in Trinidad and Tobago there have existed and shall
continue to exist without discrimination by reason of race, origin, colour, religion or sex, the fol-
lowing fundamental human rights and freedoms, namely:– (a) the right of the individual to …
liberty … and the right not to be deprived thereof except by due process of law; (b) the right of
the individual to … the protection of the law.'

Section 5(2), so far as it is relevant, reads as follows:

'… Parliament may not – … (e) deprive a person of the right to a fair hearing in accordance with
the principles of fundamental justice for the determination of his rights and obligations; (f) de-
prive a person charged with a criminal offence of the right – … (ii) to a fair and public hearing
by an independent and impartial tribunal … (h) deprive a person of the right to such procedural
provisions as are necessary for the purpose of giving effect and protection to the aforesaid
rights and freedoms.'

[3] The motion was filed pursuant to s 14 of the Constitution. The relevant subsections of that section provide
as follows:
'(1) For the removal of doubts it is hereby declared that if any person alleges that any of the
provisions of this chapter has been, is being, or is likely to be contravened in relation to him,
then without prejudice to any other action with respect to the same matter which is lawfully
available, that person may apply to the High Court for redress by way of originating motion.

'(2) The High Court shall have original jurisdiction –

(a)     to hear and determine any application made by any person in pursuance of subsection
(1), and

(b)     to determine any question arising in the case of any person which is referred to it in pur-
suance of subsection (4),

and may, subject to subsection (3), make such orders, issue such writs and give such direc-
tions as it may consider appropriate for the purpose of enforcing, or securing the enforcement
of, any of the provisions of this chapter to the protection of which the person concerned is enti-
tled.'

The motion sought the following relief:

'(a) A declaration that the arrest, detention and prosecution by the State of the [appellant] for
the charge of murder of Michael Pino is unconstitutional, illegal, void and of no effect.
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(2001) 58 WIR 446    at    450

'(b) A declaration that the imprisonment of the [appellant] from 7 June 1979 to 23 June 1981, is
unconstitutional, illegal, void and of no effect.

'(c) An order that monetary compensation be awarded to the [appellant] for the said unconstitu-
tional and illegal imprisonment as mentioned above.

'(d) All such orders, writs and directions as may be necessary or appropriate to secure redress
by the [appellant] for a contravention of the human and fundamental freedoms guaranteed to
him by the Constitution of Trinidad and Tobago.'

[4] The accompanying affidavit of the appellant explained that at the inquest only three eye-witnesses were
called, namely Rampersad Ramdath, Rupert Taylor and Rajnath Rampersad. But, although the police had
taken statements from other witnesses, namely Joy Charles, Ralph Martin, Reynold Brewster and Mo-
hammed Khan, they were not called to give evidence nor were their statements disclosed to the appellant.
The affidavit alleged that, except for Reynold Brewster, these witnesses supported the appellant's contention
that he had acted in self-defence. The affidavit further asserted that at the preliminary inquiry the prosecution
failed to call Rampersad Ramdath, Joy Charles, Reynold Brewster and Mohammed Khan. Moreover, the affi-
davit alleged that the prosecution –
'failed to make available the statements given by these witnesses to defence counsel and/or
failed to make available the above persons mentioned to defence counsel as potential wit-
nesses when their evidence was vital in conducting a proper inquiry.'

The affidavit stated that Ralph Martin had been called at the preliminary inquiry but pointed out that his state-
ment to the police, which was inconsistent with his oral evidence, was not disclosed. The appellant alleged
that –
'As a result of the omissions both at the inquest and inquiry I was committed to stand trial at the
San Fernando assizes and was remanded in custody.'

[5] The affidavit exhibited the statements, which had not been disclosed to the defence at the preliminary in-
quiry, as well as a record of the evidence of witnesses called and submissions made at the preliminary in-
quiry.

[6] In response there was an affidavit from a barrister who had appeared for the prosecution at the prelimi-
nary inquiry which stated that he handed over copies of the relevant statements to the defence on 11 June
1981, ie the first day of the trial.

[7] This was the state of the evidence and the shape of the case when it came before courts in Trinidad.

(2001) 58 WIR 446    at    451

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The decision of Lucky J

[8] In November 1995, after an astonishing delay of thirteen years from the filing of the motion, the matter
came before Lucky J for hearing. The judge gave judgment. His conclusion was that there was no duty to call
the named witnesses or to disclose their statements at either the inquest proceedings or the preliminary in-
quiry. He held that there was no breach of the provisions of s 4 or s 5 of the Constitution. He dismissed the
motion.

The decision of the Court of Appeal

[9] The detailed and carefully reasoned judgment of the Court of Appeal (Ferguson v Attorney-General
(1999) 57 WIR 403) was given by de la Bastide CJ, with whom Hamel-Smith and Jones JJA agreed. The
Court of Appeal held that, at the inquest proceedings, the coroner was not obliged to call the witnesses nor to
disclose their statements. The Court of Appeal further concluded that there was also no obligation on the
prosecution to call the four witnesses at the preliminary inquiry. But the Court of Appeal held that material
which the prosecution was under a duty to disclose in an indictable case should be disclosed at or before the
preliminary inquiry.

[10] de la Bastide CJ explained this ruling and applied it to the present case in the following terms (at pp 422,
423):

'Fairness … which is said to be the key to the rules of disclosure, would seem to require that
material which the prosecution is under a duty to disclose should be disclosed in indictable
cases at or before the preliminary inquiry (providing of course that it is available to the prosecu-
tion at that time). Even if it means breaking new ground, I would hold that that represents the
common law position. Breach of that duty, however, does not automatically entitle an accused
person to a remedy, whether by way of having a conviction quashed or under s 14 of the Con-
stitution. In order to justify the granting of such relief the person complaining must prove that he
has suffered prejudice. This he may do either by showing that, but for the non-disclosure, he
would not have been committed at all or that he would have been committed for a bailable in-
stead of a non-bailable offence, typically manslaughter instead of murder, or that the failure to
disclose at that early stage impaired in some significant way his chances of an acquittal at a
subsequent trial at which he was convicted.

'Applying these principles to the facts of the present case, it seems to me that the prosecution
was in breach of its common law duty of disclosure in failing to disclose all four statements to
the defence at the preliminary inquiry. For the reasons, however, which I have already fully ex-
plained I consider that if they had been disclosed at that time, such disclosure would not have
affected the outcome of the inquiry. In

(2001) 58 WIR 446    at    452

other words, there was no real prospect that armed with those statements, the defence could
have avoided the making of the committal order which the magistrate made, that is for trial on
the charge of murder. Accordingly, I hold that the appellant suffered no prejudice in the instant
case and is not entitled to any remedy.'
 Page 7

In a further observation on the subject of disclosure, de la Bastide CJ added (at p 422):

'… I would qualify the duty to disclose at the preliminary inquiry stage by recognising that such
disclosure may be postponed if this is considered necessary in order to avoid or reduce the risk
of physical harm to the maker of the statement or his family. It is obviously a dictate of public
policy that persons who have information about crimes should be encouraged to share it with
the police. I would not, therefore, formulate any rule of disclosure which was so strict that it
would put persons assisting the police in jeopardy before it becomes absolutely necessary to
do so. I would emphasise however, that this qualification only justifies postponing disclosure
until the trial.'

[11] The appeal was dismissed. Subsequently, in Director of Public Prosecutions v McNicolls, 13 December
(1999) (unreported), the Court of Appeal of Trinidad and Tobago gave a judgment on disclosure to substan-
tially similar effect.

The narrowing of the issues on appeal to the Privy Council

[12] On appeal to the Privy Council Mr Fitzgerald QC, leading counsel for the appellant, did not advance any
argument relating to the failure of the relevant authorities to call witnesses at the inquest or at the preliminary
inquiry, nor did he make submissions concerning the failure of the coroner to disclose statements to the ap-
pellant. Their lordships heard no argument on those matters. They are no longer in issue. Their lordships do
not propose to make any observations about those points. The only remaining issue relates to the failure to
disclose the statements of the four witnesses before or at the preliminary inquiry.

The re-cast argument

[13] The essence of the argument of the appellant before their lordships was as follows. First, the earlier
statement of Martin contained material inconsistent with his oral evidence at the preliminary inquiry. And the
statements of Joy Charles, Reynold Brewster and Mohammed Khan contained material which was helpful to
the appellant inasmuch as they contained references to the deceased advancing to the appellant with his
hand in his pocket, that being also the appellant's account. Their lordships accept this step in the argument
as substantially correct.

(2001) 58 WIR 446    at    453

Secondly, the prosecution's failure to disclose these statements amounted to a breach of the common law
duty of disclosure of the prosecution. For the purposes of this appeal their lordships are prepared to accept
this step in the argument but their lordships wish to reserve their opinion on problems which may be created
by subsequent changes in practice and procedure.

[14] The third step of the argument is, however, the critical one. Counsel submitted that it followed as a mat-
ter of legal logic from the fact of the breach of the common law duty of disclosure that the appellant was de-
prived of his liberty otherwise than by 'due process of law' and deprived of 'the protection of the law' contrary
to s 4(a) and (b) of the Constitution; and that he was deprived of his right to 'a fair hearing in accordance with
the principles of fundamental justice for the determination of his rights and obligations', contrary to s 5(2)(e).
Their lordships are unable to accept this proposition. It can readily be accepted that the constitutional guar-
antees of due process, protection of the law, and a fair hearing are of generous width; see Minister of Home
Affairs v Fisher (1979) 44 WIR 107 at 112, per Lord Wilberforce. They are in principle capable of covering un-
 Page 8

fairness in the treatment of an accused at a preliminary inquiry. On the other hand, their lordships are satis-
fied that the question whether there has been a breach of constitutional guarantees in respect of due
process, protection of the law, and a fair hearing, must be approached in the light of the proceedings consid-
ered as a whole. This is the view which the European Court of Human Rights has consistently taken in re-
spect of the fair hearing guarantee under art 6 of the European Convention on Human Rights; see Kraska v
Switzerland (1993) 18 EHRR 188, para 30; Barberà, Messegué and Jabardo v Spain (1988) 11 EHRR 360,
para 68. A similar approach was recently enunciated by the Privy Council in Procurator-Fiscal, Dunfermline v
Brown, 5 December 2000, at p 9 of the transcript, per Lord Bingham of Cornhill (subsequently reported sub
nom Brown v Stott [2001] 2 WLR 817), and by the House of Lords in R v Forbes [2001] 2 WLR 1 at 13, para
24, per the Appellate Committee. In the context of the Constitution of Trinidad and Tobago there is a close
link between the three guarantees of due process, protection of the law and fair hearing since the fundamen-
tal concept of a fair trial is common to them all; compare Frank v Mangum 237 US 309 (1915) at 347, cited
with approval in Thomas v Baptiste (1999) 54 WIR 387 at 421. There is therefore no reason to doubt that the
issue whether there has been a breach under any of these guarantees must be judged on a realistic assess-
ment of the proceedings considered as a whole. This view does not undermine those guarantees. On the
contrary, the cause of human rights is served by concentrating on matters of substance and approaching with
scepticism technicalities and causally irrelevant breaches.

[15] If the matter is approached in this global way, the following factors must be taken into account in the
present case. There is no longer any challenge to the inquest proceedings. Contrary to the assertion in the

(2001) 58 WIR 446    at    454

motion the order for the arrest and remand in custody of the appellant was properly made. If the appellant
has a complaint it must be based on the conduct of the preliminary inquiry. The function of a preliminary in-
quiry is to ensure that no-one is brought to trial unless a prima facie case has been made out; R v Epping &
Harlow Justices, ex parte Massaro [1973] QB 433. It is conceded that there was sufficient evidence before
the magistrate to establish a prima facie case of murder. The evidence included a written statement of the
appellant in which he gave the following account:

'One of the men, a fair one, attacked me and at the same time pushing his hand in his pocket
saying “I going to kill your ass” I drew my service revolver and fired a shot at the man, he
stopped and then he fell …

'When this man lunged at me and put his hand in his pocket, I believed he was going for some
weapon, and … fearing that my life was in danger I fired a shot, because this man had been
making use of threats and cursing before.'

[16] Not surprisingly, at the preliminary inquiry the prosecution submitted that on the appellant's own account
there was still a prima facie case of murder. If the relevant statements had been handed over at the prelimi-
nary inquiry, and if the witnesses had been tendered for cross-examination, the magistrate would still have
been bound to commit the appellant for trial on the charge of murder. Indeed, it would have been perverse for
the magistrate not to do so. And it is common ground that, under the law in Trinidad and Tobago, bail may not
be granted in respect of a defendant charged with murder. Even if the statements had been handed over at
the preliminary inquiry, the order of the magistrate would therefore have been exactly the same. And that or-
der was a lawful one. Contrary to the suggestion in the motion, it is as plain as a pikestaff that the committal
and further remand of the appellant in custody were lawful.
 Page 9

[17] If the complaint had been that the four statements had never been disclosed, and the appellant had
been convicted, there would certainly have been a breach of the fair trial guarantee. Moreover, their lordships
would accept that, if the statements had never been disclosed but the appellant had nevertheless been ac-
quitted, there could still have been a breach of the fair hearing guarantee. After all, in that event the appellant
would have been exposed to the risk of conviction without access to the means by which he was lawfully en-
titled to defend himself. But that is not what happened in the present case. This is a case of late disclosure.
The statements were only handed over on the first day of the trial. But it is not alleged that the presentation
of the defence was in any way hampered by the late disclosure. On the contrary, their lordships were told
that at trial counsel for the appellant called two of the witnesses in question.

(2001) 58 WIR 446    at    455

[18] Cumulatively, the factors listed point in one direction only. Notwithstanding the late disclosure of the four
statements in breach of the common law duty of disclosure, on a realistic assessment of the whole of the
proceedings there was no breach of the constitutional guarantees of due process, protection of the law, and
a fair hearing.

[19] The extravagant claim in the motion that the arrest, detention, prosecution and imprisonment of the ap-
pellant were unconstitutional was not seriously persisted in on the appeal. But counsel for the appellant ar-
gued that the appellant was nevertheless entitled to compensation to mark the violation of his constitutional
rights. This argument fails because no breach of any of the constitutional guarantees relied on has been es-
tablished.

The alternative argument

[20] In oral argument Mr Mendes, junior counsel for the appellant, advanced a different argument. Putting to
one side the overarching guarantees of due process, protection of the law, and fair hearing, he submitted that
the Constitution guaranteed fair disclosure in a criminal case. Accordingly, he submitted that any material
breach of the duty of disclosure, both as to extent and timing, in principle gave rise to a right to compensation
under s 14. This argument requires careful analysis. Their lordships certainly accept Mr Mendes's submis-
sion that justice in criminal proceedings necessarily requires timeous and fair disclosure of documentary and
other material relevant to the charge. In this sense, such disclosure is inseparably connected with the guar-
antees of due process, protection of the law, and fair hearing. A failure to provide disclosure may therefore,
depending on the context and circumstances, be evidence tending to establish a breach of such constitu-
tional guarantees.

[21] It does not follow, however, that there is a guarantee of disclosure under the Constitution. It is clear that
there is no express guarantee of this kind under the Constitution. Mr Mendes submitted that a guarantee of
timeous and fair disclosure must be implied into the Constitution in order to give practical effect to the gen-
eral guarantees. He drew their lordships' attention to the decision of the Privy Council in Attorney-General v
Whiteman (1991) 39 WIR 397. In that case a question arose whether, from an express guarantee under sec-
tion 5(2)(c)(ii) of the Constitution, viz the right of a person arrested or detained to communicate with a legal
adviser, there could be implied a right to be so informed. The Attorney-General argued that there was no
such implied right. Delivering the advice of the Judicial Committee, Lord Keith of Kinkel observed (39 WIR at
p 412, [1991] 2 AC at p 247):

'The language of a Constitution falls to be construed, not in a narrow and legalistic way, but
broadly and purposively, so as to give effect to its spirit, and this is particularly true of those pro-
visions which are concerned with the protection of human rights. In this case the right
 Page 10

(2001) 58 WIR 446    at    456

conferred by section 5(2)(c)(ii) upon a person who has been arrested and detained, namely the
right to communicate with a legal adviser, is capable in some situations of being of little value if
the person is not informed of the right. Many persons might be quite ignorant that they had this
constitutional right or, if they knew, might in the circumstances of their arrest be too confused to
bring it to mind.'

[22] Accordingly, it was one of the grounds of the decision of the Privy Council that 'by necessary implication'
the accused was entitled to be informed of his right. Lord Keith observed ([1991] 2 AC at p 248): 'A procedure
which exists only on paper, and is not put into practice, does not give practical protection'. The implication
was based on the view that, without it, the express guarantee would be worthless. This decision certainly
shows that, where truly necessary, constitutional guarantees may be fleshed out by implication. But White-
man was a much stronger case for an implication. Here there is no obvious gap.

[23] The common law duty of timeous and fair disclosure as explained by de la Bastide CJ ensures fairness
to the accused. And there are in principle effective remedies for breaches, inasmuch as appropriate orders
can be sought from trial judges and in the High Court. If, despite this safety net, cases of demonstrable un-
fairness in failure to disclose relevant material appear they can be corrected on appeal or, where appropriate,
by invoking a remedy under the general guarantees of due process, protection of the law, and fair hearing
under the Constitution.

[24] Both counsel for the appellant referred their lordships to observations of the European Court of Human
Rights that the European Convention must be approached as a living instrument in the conditions of today.
They invited their lordships to approach the Constitution of Trinidad and Tobago in the same way. Their lord-
ships accept this general proposition. But it does not warrant an implication of the kind contended for where
none is needed. And their lordships emphasise again that the Court of Appeal has accepted fairness as the
guiding principle. In this context 'the great principle is that of open justice'; see R v Brown [1998] AC 367 at
374, per Lord Hope of Craighead. Any substantial unfairness in the application of the common law duty of
disclosure, which is revealed by particular cases, is therefore capable of being corrected where necessary.
Approaching the Constitution as a living instrument does not therefore justify the proposed implication.

[25] In these circumstances their lordships are satisfied that there is no implied right of disclosure under the
Constitution. The terrain is satisfactorily covered by the general guarantees under the Constitution and the
common law principles of disclosure.

Declaration

[26] Counsel for the appellant invited their lordships to grant a declaration affirming the right to receive dis-
closure before or at the

(2001) 58 WIR 446    at    457

 Page 11

preliminary inquiry. Given the terms of the judgment of the Court of Appeal, and the decision of their lord-
ships, such a declaration would be pointless. In any event, since no constitutional right has been infringed,
the appellant is not entitled under s 14 to such a declaration.

Disposal

[27] Their lordships dismiss the appeal.

Costs

[28] Counsel for the Attorney-General informed their lordships (a) that the orders of costs made by the courts
in Trinidad against the appellant will not be enforced, and (b) that the Attorney-General sought no order for
costs on appeal to the Privy Council. No order of costs is therefore necessary.

Advice that appeal be dismissed.

No order as to costs.