THE Privy Council has overturned a decision of the Court of Appeal in a combined judicial review and constitutional claim brought by two siblings who challenged their detention at state penal institutions.

They were charged with murder while they were minors.

Brian and Sasha Seepersad had challenged their detention at the Youth Training Centre and the Women’s Prison, and were successful at the High Court, when the judge agreed their detention, while they waited to go to trial, was unlawful and unconstitutional.

They were granted declarations and were awarded compensation.

Sasha Seepersad had been removed from the prison and taken to St Jude’s Home for Girls for roughly a month before she turned 18, when she was returned to the prison.

Brian Seepersad was initially removed from YTC, and put in a community residence controlled by the Children’s Authority. When he turned 18, he was detained at the YTC.

He was one of five YTC inmates who escaped in October 2019. The police shot and killed him in March last year at a house in Second Caledonia, Morvant. Police said Seepersad shot at them.

In 2018, the Court of Appeal overturned Justice Vasheist Kokaram’s decision, dismissing significant portions of his decision, including the monetary compensation awarded to the two.

In their ruling, the Law Lords considered the provisions of the Bail Act, which prohibits granting bail for murder, and the Children Act, which says a court cannot order a child to be detained at an adult prison and which established community residences.

In considering the siblings’ due-process rights, Sir Bernard McCloskey, who delivered the ruling, said while the Bail Act required the two to be remanded in custody at all times, under the Children Act they should be held in community residences. He said there were “undeniable failings of significant dimensions on the part of the State throughout the relevant period.

“…One of its consequences was plainly detrimental to both appellants as they found themselves accommodated in institutions which were not suited to their ages and needs.”

However, in agreeing with the Court of Appeal that this by itself didn’t deprive the two of the right of access to a court, as part of the due-process consideration, because they were minors when the chief magistrate remanded them to the two penal institutions, they ought to have been protected under the provisions of the Children Act.

“These statutory provisions failed the appellants as they were impotent throughout the periods under scrutiny.”

McCloskey also said this failing was a result of the failure by the executive to ensure there were detention facilities by the time those provisions of the Children Act were put into operation.

“The executive’s aforementioned failure was in clear defiance of what Parliament had laid down in the legislation. The purpose of the legislation was frustrated by the executive’s failure to ensure that, once commenced, it would have immed