In a landmark ruling that upholds core constitutional protections for incarcerated people, the High Court of Trinidad and Tobago has ruled that the State cannot carry out routine interception and recording of confidential communications between prisoners and their legal representatives. The judgment, delivered by Justice Robin Mohammed last Friday, has invalidated key provisions of the 2020 Interception of Communications (Amendment) Act, declaring them unconstitutional, illegal, null and void.
The constitutional challenge was brought by Lyndon James, a prisoner who is currently awaiting retrial for the 2008 murder of businesswoman Vindra Naipaul-Coolman. James, represented by a team of senior attorneys from Freedom Law Chambers led by Anand Ramlogan SC, targeted two specific sections of the 2020 amendment: sections 6(b)(v) and 7. These clauses expanded the State’s authority to intercept all prisoner communications within correctional facilities and stripped the vast majority of these exchanges of their longstanding legal professional privilege protection.
In his detailed judgment, Justice Mohammed found that the challenged amendments directly violated multiple fundamental constitutional rights, including the explicit right of detainees to retain legal counsel and communicate confidentially with them, as well as the foundational right to a fair judicial hearing. Beyond the substantive rights violation, the judge also determined that the legislation was never enacted in compliance with the special constitutional procedure required for any law that limits fundamental human rights, marking a fatal procedural flaw in the amendment’s passage.
Justice Mohammed emphasized the inextricable link between legal professional privilege, the rule of law, and functional democratic governance. “The courts are the guardians of the Constitution, they can only fulfil that role of guardianship if there is unimpeded access to the justice system,” he wrote in his judgment. He further noted that confidential communication between prisoners and their lawyers takes on heightened importance, given that incarcerated people rely on these discussions to address a wide range of critical issues, from challenges to their detention and claims of mistreatment to claims of constitutional violations and safety threats within the facility. “A safe space is an integral element to fostering open dialogue between attorneys and clients,” he added.
A key finding in the ruling was that the 2020 amendments effectively imposed a blanket ban on legal professional privilege for all prisoner communications. Justice Mohammed pointed out that no ministerial orders were ever issued to designate specific areas within prisons where privilege would remain protected, leaving no exception for confidential legal discussions.
The judge also rejected the State’s core argument that legal privilege could not apply to conversations held over illegal mobile phones that prisoners may smuggle into correctional facilities. “The Defendant’s proposition that the Claimant cannot reasonably expect to attach privilege to conversations facilitated by illegal cellular phones, is unsustainable,” he ruled. While he confirmed that communications made in furtherance of ongoing criminal activity never qualify for privilege protection, Justice Mohammed stressed that the mere use of an unapproved device does not automatically strip a defendant of their right to confidential legal discussion about their own case.
Justice Mohammed acknowledged that the State has a legitimate public interest goal of curbing criminal activity within prison walls. However, he found that the government failed to prove that sweeping, routine interception of all legal communications is a proportionate response to that goal. “Plainly a telephone call made by an inmate or detainee to his lawyer, to provide instructions or take advice, is not the same thing as the issuing of criminal instructions or the furtherance of criminal activity,” he explained.
The judge also noted that a far less intrusive alternative was available to the State: engaging independent legal counsel to review any intercepted communications to determine whether they qualify for legal privilege before retaining or using the content. “The option of engaging independent counsel provided a less intrusive measure which could and ought to have been used,” he said. “A fair balance has not been struck between the rights of the individual (the prisoners) and the interests of the community (the public),” he added.
Going a step further, Justice Mohammed found that the entire amendment was enacted on an “erroneous premise”: that the changes did not conflict with constitutional rights, and thus did not require the special legislative majority mandated under Section 13 of the national constitution. “Indeed, it is plainly obvious that if the parent Act was passed in compliance with Section 13, an Amendment Act which imposes further restrictions on Sections 4 and 5 rights ought to be passed in compliance with Section 13,” he wrote.
In final orders, Justice Mohammed formally declared the challenged provisions unconstitutional, and ruled that the amendments to the Interception of Communications Act are “illegal, null, void and of no effect”. James was awarded full costs for his successful challenge, with the judgment certified to allow for costs at the senior and junior counsel level. The Office of the Attorney General, which defended the law, was represented by Senior Counsel Gilbert Peterson, Rishi Dass SC, and Rachel Wright.