BARBADOS


 


IN THE SUPREME COURT OF JUDICATURE


HIGH COURT OF JUSTICE


CIVIL DIVISION


 


No. 1982 of 2003


                                        


Between


 


FRANK ANDERSON CARTER                        APPLICANT


 


AND


 


THE ATTORNEY GENERAL OF BARBADOS       RESPONDENT


 


-AND-


 


No. 2161 of 2003


 


Between


 


ANTHONY LEROY AUSTIN                            APPLICANT


 


                             AND


                                         


THE ATTORNEY GENERAL OF BARBADOS       RESPONDENT


 


Before the Honourable Mr. Justice William J. Chandler, Judge of the High Court


 


2006: Sep 28 and 24 Nov


2007: July 16


 


Mr. Douglas L. Mendes S.C, Mr. Robert Clarke and Ms. Lisa Gaskin for the Applicants


Mr. Dennis Hanomansingh and Mr. Wayne Clarke for the Respondent


           


INTRODUCTION


 


[1]              This is an application to set aside the decision of the Governor-General on the advice of the local Privy Council as defined by s 76 (1) of the Constitution of Barbados (as distinct from the Judicial Committee of the Privy Council (UK)) given on 13 August, 1990 in respect of Anthony Leroy Austin and on 31 March, 1989 in respect of Frank Anderson Carter. In both instances, the Privy Council recommended to the Governor-General (in accordance with s78 of the Barbados Constitution) that each accused man receive a pardon on condition that he be “confined and imprisoned in the prison at Glendairy for the remainder of his natural life and that his case be reviewed again when he had served a period of imprisonment of thirty years and that he be subject to the Prison Rules and Regulations for the time being in force in the said prison.” The Governor-General accepted the advice in both cases and ordered accordingly.


 


THE FACTS


 


Frank Anderson Carter


[2]              Frank Anderson Carter was convicted of murder and sentenced to death on 25 January 1985.  The Court of Appeal dismissed his appeal against conviction and sentence on 10 June 1986 and affirmed the original sentence. The Judicial Committee of the Privy Council did likewise on a date that is not disclosed on the evidence.


[3]              Carter petitioned the Barbados Privy Council for mercy on 14 October 1987.  On 31 March 1989, the Privy Council considered his petition along with documents identical in nature to those considered in Austin’s case. The Privy Council advised the Governor-General to pardon Carter and imposed a condition that he be imprisoned for the rest of his natural life and that his case be reviewed again when he had served a period of imprisonment of 30 years. On 14 November 1998, the Governor-General commuted Carter’s sentence to life imprisonment with the recommended condition.


[4]              The Privy Council did not provide Carter with the documents it was considering and did not seek his views on those documents or on the condition it proposed to attach to the commutation of his sentence of death. The Privy Council did not provide any reasons for its decision.


[5]              In October 1996, Carter’s Attorney-at-Law petitioned the Privy Council on his behalf seeking early release and apparently followed this up by a letter dated 3 September 1997.  The only reply received was a letter dated 16 September 1997 from the Clerk to the Privy Council which merely drew attention to the 30 year condition attaching to the commutation of Carter’s death sentence.


[6]              Despite the condition imposed on Carter’s commutation, on 16 November 1998, the Superintendent of Prisons submitted a report to the Privy Council in accordance with Rule 42 of the Prison Rules 1974. That report was considered by the Privy Council on 22 February 1999 along with a psychiatrist’s report, a chaplain’s report and a medical report. The Privy Council decided not to recommend his release and the Governor-General accepted this advice.


[7]              Carter was not informed that the Privy Council was meeting on 22 February 1999, was not provided with copies of the documents being considered by the Privy Council and was not given an opportunity to be heard. Neither was Carter informed that the Privy Council had met and of the decision made.  Moreover, to date no reasons have been provided as to why the Privy Council decided against release. 


[8]              On 25 May 2000, Carter wrote to the Attorney-General asking him to facilitate a pardon and release either conditionally or unconditionally.  This letter was not forwarded to the Clerk to the Privy Council until 10 September 2001.


[9]              On 20 July 2000, counsel for Carter submitted a new petition for his release along with a supporting affidavit. This petition along with a report from the Superintendent of Prisons dated 27 July 2000, (which has not been disclosed) was considered by the Privy Council at a meeting held on 18 September 2000.  The Privy Council advised the Governor-General that Carter ought not to be released and this advice was accepted by the Governor-General. Carter was not provided with a copy of the Superintendent’s report and was not given an opportunity to respond.  Neither was he informed that the Privy Council had made a decision nor what that decision was. To date no information has been provided as to the reasons for the Privy Council’s decision.


[10]         Carter again petitioned the Governor-General on 6 October 2000.  The Clerk of the Privy Council informed the Superintendent of Prisons of this new petition and asked him to inform Carter of the Privy Council’s decision of 18 September 2000.  There is no evidence that the Superintendent did so.


[11]         On 14 August 2001, Carter again petitioned the Governor-General for pardon.  His petition was passed on to the Clerk of the Privy Council under cover of a letter from the Superintendent of Prisons dated 15 August 2001 in which he supported Carter’s plea for release.


[12]         On 24 September 2001, the Privy Council met and reviewed Carter’s case. They considered Carter’s letter dated 14 August 2001 along with the Superintendent’s letter dated 15 August 2001, a letter from Mr. N. Keith Simmons, Attorney-at-Law, dated 20 July 2000, Carter’s affidavit dated 25 July 2000, his letter to the Attorney-General dated 25 October 2000 and the letter from the Clerk of the Privy Council to the Superintendent (previously referred to).  The Privy Council decided not to reverse its earlier decision and advised the Governor-General and the Superintendent that Carter be reminded of the Privy Council’s decision dated 18 September 2000. Once again Carter was not asked to comment on any documents (other than his own) which were put before the Privy Council and he was not given any reason for the Privy Council’s decision.                                                                                                                                                


Anthony Leroy Austin


[13]         Anthony Leroy Austin was convicted of murder and sentenced to death by hanging on 19 February 1986. His appeal against conviction was dismissed and the sentence affirmed on 31 July 1987.  His petition to the Judicial Committee of the Privy Council was dismissed on 2 August 1989.


[14]         On 13 August 1990, the Barbados Privy Council deliberated on Austin’s petition for clemency which he had previously submitted on 14 October 1987.  It had before it the record of the criminal appeal, a report of the Superintendent of Prisons, a report of the Chaplain of Prisons, Austin’s antecedents as prepared by the police and Austin’s said petition.  The Privy Council advised the Governor-General that Austin’s sentence should be commuted on condition that he be “confined and imprisoned in the prison at Glendairy for the remainder of his natural life and that his case be reviewed again when he would have served a period of imprisonment of 30 years and that he be subject to the Prison Rules and Regulations 1974 for the time being in force in the said prison.”


[15]         The Privy Council did not provide Austin with copies of the documents it had before it and did not seek his views in relation to those documents.  It did not inform him that it was considering the commutation of his sentence on the condition identified in the previous paragraph and it did not receive his views on the sentence which was to be substituted for the death penalty. The Privy Council received and considered Austin’s petition but did not refer to his individual circumstances or refer to any points of mitigation. Austin’s petition was by that time nearly three years old. In the result, the Privy Council tendered its advice and the Governor-General issued his conditional commutation. Austin’s views on the documents under consideration, information concerning his personal circumstances and any other exculpatory information were not considered.        


[16]         The Privy Council imposed the 30 year condition because of the “horrendous nature of the offence”. No reason was given for the condition at the time Austin’s sentence of death was commuted.


[17]         By petition dated 1 June 1999, and received on 11 June 1999 by the Clerk to the Privy Council, Austin petitioned His Excellency the Governor- General to have his sentence remitted.  That petition was considered by the Privy Council on 29 November 1999. The only other document which the Privy Council had before it was a report of the Superintendent of Prisons which did no more than inform the Privy Council that Austin had served 14 years since the date of his conviction and 9 years since his sentence of death was commuted. 


[18]         The Privy Council advised that there should be no remission of sentence and His Excellency accepted this advice. Austin was not provided with a copy of the Superintendent’s report and his comments were not invited thereon. The Privy Council gave no express reasons for its decision not to advise remission of Austin’s sentence.


 


[19]         To this date Austin has not had the benefit of Rule 42.( herein after quoted at para. [43]


 


The Applicants’ Cases


[20]         The applicants have provided evidence of the release of prisoners whose sentences have been commuted and submit that they have spent more time in prison than anyone else in similar circumstances. They submit that they have not been accorded the right to regular four yearly reviews under s 42 Prison Rules, have not been invited to express their views on documents put before the Privy Council when the Privy Council considered their cases and in Carter’s case, that he has not been told why he is not being reviewed.


[21]         In those circumstances, the applicants contend that their continued detention violates their rights to liberty and the protection of the law.  They contend that the decision by the Privy Council to advise the Governor-General to commute their sentences of death to life imprisonment on condition that they not be considered for release before they had served thirty years and the Governor-General’s acceptance of this advice:


 


1)     was in breach of the principles of natural justice;


2)     was in breach of the separation of powers doctrine;


3)     was in breach of s 42 Prison Rules 1974;


4)     fettered the Governor General’s discretion under s 78 of the Constitution; and


5)     constituted an inhuman and degrading punishment. 


 


[23]    They contend further-


6)     That the imposition of the 30 year condition and their imprisonment for more than 20 years subjected them to unequal treatment and accordingly violated their right to the protection of the law; and


7)     That the Crown’s failure to review their cases every four years since commutation in breach of s 42 Prison Rule 1974 and the Crown’s failure to accord them an adequate right to be heard when their cases were considered were in violation of their rights to liberty and the protection of the law.


[24]         They contend finally that the breaches which have occurred, viewed against the back drop that all persons in similar circumstances have spent less time in prison before release, violates the presumption of equal treatment before the law and can only be adequately remedied by an order from this Honourable Court releasing them from prison forthwith.


 


The Respondent’s Case                                                                                     


[25] The respondent contended that there has been no breach of the applicants’ constitutional rights. In support of this argument, counsel submitted:     


          1)       a)       that the applicants have not demonstrated that the Privy                       Council is a        tribunal determining civil rights as provided                      for under s 18 (8) of the Constitution;


              b)      that the applicants did make written representations to the                         Privy Council which were considered by the Privy                                         Council and      in that regard it cannot be argued that there                                 was a denial of due process;


              c)       that they have not been subjected to arbitrary detention                             when regard is had to the limitations on that right                                           imposed by the Constitution itself and the fact that the                                 applicants could in reality expect nothing more than to be                           imprisoned for the remainder of their natural lives once                                   their death sentences were commuted.


2)                The respondent further submits that at the time when                           the sentences of the applicants were commuted and,                       again in the late 1990s when they were respectively                        reviewed, the governing legal principle would have been                     s 78 of the Constitution. Under this section the                                  applicants were to be granted a conditional pardon or the                     substitution of a lesser punishment for the substitution of                          the one originally granted. The respondent is of the                           view that the court would fall into error if it were urged                             to review the process by which the decision was                                 reached and rule retroactively as was the case in Lewis v                      AG of Jamaica [2000] 3 WLR 1785 (Lewis).


3)               Further, the respondent submits that Lewis is                                               distinguishable from the present case given that the                              applicant in Lewis had   been denied clemency. It was                       argued that the apparent failure of natural justice had                     prejudiced the applicants. However, in this matter no                          such argument can succeed because, contrary to what                         was         contained in the warrants of commutation, their                          sentences had been reviewed. 


          4)                In the Barbados Constitution, there is an entrenched                                    ouster clause. The respondent urges the Court to give                                   full weight to the ouster clause but if it is not so minded,                                      the applicants are to establish a contravention of their                                   fundamental rights before the court could be asked to                                       consider ignoring the ouster clause.  


          5)                If the Court deems the ouster clause to have no effect                                   and finds that Lewis is to have retroactive application to                                      this case, then the applicants should still be denied that                                 constitutional relief as it means that judicial review has                                been open to them all along under the Administrative                                   Justice Act Cap 109B or the Rules of Court. The proviso                                    to section 24 (1) should therefore be applied to the                                            present matter.


6)                The Applicants have no entitlement to reviews under                  s 42 of the Prison Rules 1974 but must seek their                            review under s 53 of the Prison Act Cap 168 which they                   have failed to do.


 


The Issues                                                                                                 


[26]    The submissions of both parties can be addressed by an examination   of the           following issues:


1)     Does the Governor-General in the exercise of his discretion perform a Judicial or an Executive function?


2)     The constitutionality of the Governor-General’s role in directing the place and conditions under which such a sentence may be served as provided by s 78 of the Constitution


3)     The Role of the Privy Council vis-à-vis s 18 (1) of the Barbados Constitution.


4)     The legality of Rule 42 of the Prison Rules, 1974. The meaning of s 53 of the Prison Act Cap 168


5)     The meaning of a sentence of life imprisonment.


6)     Have the fundamental rights of the applicant’s been infringed?


 


DISCUSSION


Issue #1                                                                                                     


[27]    The first issue can be disposed of with reference to s 63 of the Barbados Constitution.  This section provides


                   63. (1) The executive authority of Barbados is vested                         in Her Majesty.


                   (2). Subject to the provisions of this Constitution, the       executive authority of Barbados may be exercised on behalf of Her Majesty by the Governor-General either           directly or through officers subordinate to him.


                   (3). Nothing in this section shall prevent Parliament from conferring functions on persons or authorities other       than the Governor-General.”


[28]         It is therefore quite clear that the Governor-General in the exercise of his discretion is a member of the Executive and it follows that he performs an Executive function.


Issue #2


The Governor-General and Section 78 of the Barbados Constitution


 


[29]         Since the filing of these applications, The Barbados Court of Appeal had the opportunity to examine the second issue in the case of Mormon Scantlebury v The Queen (68 WIR 88).


[30]         For the purposes of this appeal, the relevant facts of Scantlebury are that on 1 November 2002, the appellant (Scantlebury) was convicted of the murder of Wayne Croney (the deceased) and sentenced by Payne J. to detention “during Her Majesty’s pleasure”, in accordance with s 14 of the Juvenile Offenders Act, Cap. 138 (JOA). At the time of the offence, 30 June 2002, Scantlebury was aged 17. The Court of Appeal quashed the conviction on appeal against sentence and took the opportunity to address the relevant constitutional issues.


[31]         A key consideration before the Court of Appeal was whether a member of the Executive branch of Government should fix the tariff for detention in a case during Her Majesty’s Pleasure. It was argued by counsel (and held to be law) that for a member of the Executive to perform such a role conflicts with established constitutional theory and principle.   


[32]         At the time of the offence, s78 of the Barbados Constitution provided that:


          1) The Governor-General may, in Her Majesty's name       and on Her Majesty's behalf -


(a) Grant to any person convicted of any offence against the law of Barbados a pardon, either free or subject to lawful conditions;


(b) Grant to any person a respite, either indefinite or for a specified period, from the execution of any punishment imposed on that person for such an offence;


(c) Substitute a less severe form of punishment for that imposed on any person for such an offence; or


(d) Remit the whole or part of any punishment imposed on any person for such an offence or any penalty or forfeiture otherwise due to the Crown on account of such an offence.


          2) The Governor-General shall, in the exercise of the powers conferred on him by subsection (1) or of any power conferred on him by any other law to remit any penalty or forfeiture due to any person other than the Crown, act in accordance with the advice of the Privy Council.


          3) Where any person has been sentenced to death for an offence against the laws of Barbados, the Governor- General shall cause a written report of the case from the trial judge, together with such other information derived from the record of the case or elsewhere as the Governor General may require, to be forwarded to the Privy Council so that the Privy Council may advise him on the exercise of the powers conferred on him by subsection (1) in relation to that person.


          4) The power of requiring information conferred upon the Governor-General by subsection (3) shall be exercised by him on the recommendation of the Privy Council or, in any case in which, in his judgment, the matter is too urgent to admit of such recommendation being obtained by the time within which it may be necessary for him to act, in his discretion.


 


[33]    S78 1 (c) provided the framework within which the Governor-General exercised his power to substitute a less severe form of punishment for that imposed by the Court. The performance of this function by the Governor-General is quite different from that of the Court. A judge pronounces sentence in open court after arguments on the aggravating and mitigating circumstances of the case; this is a judicial function. The Governor-General on the advice of the Privy Council exercises a discretion which is part of the Royal Prerogative and is not a judicial function. 


[34]    The Barbados Court of Appeal per Simmons CJ went on to consider a number of regional cases and the excerpts, which are relevant to this appeal, are reproduced below:


“[50] Three cases from the Commonwealth Caribbean show how the Judicial Committee of the Privy Council has adopted the jurisprudence of the Court at Strasbourg, engrafted on it common law perspectives of interpretation and made the confluence of systems apply to countries in the Commonwealth Caribbean governed by written constitutions whose outstanding characteristic is the supremacy of the constitution itself.                                                                                                                                                              


Greene Browne v. R. (St. Kitts and Nevis)


 


At the time of committing the offence of murder, the appellant was aged 15.  On the date of conviction, he was 16.  He was, notwithstanding a verbal error made by the trial judge in pronouncing sentence, effectively sentenced to detention during the Governor-General’s pleasure in accordance with the proviso to s.3(1) of the Offences against the Person Act 1873 (as amended).  The issue before the Privy Council was the legality of the sentence.  Was the sentence in accordance with the Constitution of St. Kitts and Nevis?  The Attorney-General of St. Kitts and Nevis sought the assistance of the Privy Council in finding the solution to the problem.  He made two concessions.  He expressly accepted the decisions in Ex Parte Venables and Thompson and Hinds v. R. (1975) 24 WIR 326.  We shall discuss Hinds later.


 


[51] Lord Hobhouse of Woodborough, rendering the advice of the Privy Council, held that under s.3(1) of the Offences against the Person Act of the State, the sentence, including its punitive element (i.e. the tariff) was determinable by the Governor-General. “Under Chapters III and V of the Constitution… the Governor-General is part of the Executive, not the Judiciary.”  His Lordship then went on to examine the Constitution of the State and, following Hinds v. R., characterised the Constitution as one modelled upon ‘Westminster’.  Most importantly, his Lordship concluded that: ‘These Constitutions are drafted upon the principle of separation of powers.’                                                                                                                                                                                                                           


                                                                                                                                                                                                                                                                                                                           


              [52] The facts of Hinds v. R. (supra) are so well known that it is not necessary to set them out in any detail. The facts as they related to sentencing were neatly encapsulated by Lord Hobhouse at p.216:


 


A statute had set up a “Gun Court” to try persons charged with firearms offences.  Section 8 of the statute prescribed a mandatory sentence of detention at hard labour during the Governor-General’s pleasure for certain offences, determinable by the Governor-General on the advice of a five-man review board of which only the chairman was a member of the judiciary.  Various defendants who had been convicted before the court and sentenced in accordance with s.8 appealed contending that the sentence was unconstitutional. The appeals succeeded.”


 


                   Lord Hobhouse cited a famous passage of Lord Diplock’s judgment in Hinds at p.341:


 


“In the field of punishment for criminal offences, the application of the basic principle of separation of legislative, executive and judicial powers that is implicit in a constitution on the Westminster Model makes it necessary to consider how the power to determine the length and character of a sentence which imposes restrictions on the personal liberty of the offender is distributed under these three heads of power.


 


“The power conferred upon the Parliament to make laws for the peace, order and good government of Jamaica enables it not only to define what conduct shall constitute a criminal offence but also to prescribe the punishment to be inflicted on those persons who have been found guilty of that conduct by an independent and impartial court established by law. (See Constitution, Chapter III, s 20(1)).  The carrying out of the punishment where it involves a deprivation of personal liberty is a function of the executive power; and, subject to any restrictions imposed by a law, it lies within the power of the executive to regulate the conditions under which the punishment is carried out.


 


“In the exercise of its legislative power, Parliament may, if it thinks fit, prescribe a fixed punishment to be inflicted upon all offenders found guilty of the defined offence – as, for example, capital punishment for the crime of murder.  Or it may prescribe a range of punishments up to a maximum in severity, either with or, as is more common, without a minimum, leaving it to the court by which the individual is tried to determine what punishment falling within the range prescribed by Parliament is appropriate in the particular circumstances of his case.


 


Thus Parliament, in the exercise of its legislative power, may make a law imposing limits upon the discretion of the judges who preside over the courts by whom offences against that law are tried to inflict on an individual offender a custodial sentence the length of which reflects the judge’s own assessment of the gravity of the offender’s conduct in the particular circumstance of his case.  What Parliament cannot do, consistently with the separation of powers, is to transfer from the judiciary to any executive body whose members are not appointed under Chapter VII of the Constitution, a discretion to determine the severity of the punishment to be inflicted upon an individual member of a class of offenders.” (Our emphasis).


 


Of course, strictly speaking, written Commonwealth Caribbean Constitutions contain many features which were not to be found in the unwritten British Constitution (the Westminster model) prior to the enactment of the Human Rights Act. But Lord Diplock was undoubtedly influenced by dicta of the Supreme Court of Ireland in Deaton v. Attorney-General and the Revenue Commissioners referred to at paragraph [49], where we quote paragraph 27 of Lord Bingham’s judgment in Anderson.”                                                                                                   


                   [54] In Greene Browne, Lord Hobhouse disposed of the issue in the appeal in these words: (p.217)


 


“It follows that the sentence prescribed by section 3(1) is contrary to the Constitution ….and that the sentence passed on the appellant was, even after correction of the verbal error, an unlawful sentence which the courts were not entitled to pass or uphold.  The sentence must be set aside.”


 


          “The Privy Council held that the proper sentence was detention “during the Court’s pleasure” and not “during Her Majesty’s pleasure”.  To that extent the Board, in order to give effect to the requirements of the Constitution and the appellant’s constitutional rights, advised that the decision on the length of the sentence should be made by a court and not entrusted to the Executive.  Section 3(1) of the Offences against the Person Act was accordingly to be modified by the deletion of the words ‘Governor-General’ and the substitution there for of the words ‘the Court’.


 


                   D.P.P. v. Mollison (Jamaica)


[55] On 22 January 2003, the Privy Council gave its judgment in Mollison.  The provision for adjudication was s 29(1) of the Juveniles Act 1951.  Section 29(1) is in all material respects the same as s.14 of the Barbados JOA except that it is ‘the Minister’ in Jamaica who performs the role that is applicable to the Governor-General under s.14 of the JOA.  The Jamaica Act is also wider in its scope than the Barbados statute because it gives the Governor-General a discretion to release on licence a person sentenced to be detained during Her Majesty’s pleasure.  No provisions for licence exist in Barbados under the JOA.


 


[56] The Privy Council held that s.29 (1) of the Juveniles Act was incompatible with the constitutional principle that judicial functions, such   as sentencing, must be exercised by the judiciary and not by the Executive. Accordingly, s.29 (1) was construed with such modifications as were necessary to bring it into conformity with the Constitution pursuant to      the power conferred by s.4 (1) of the Jamaica (Constitution) Order in Council 1962.  Thus the decision of the Privy Council was that the words ‘Her Majesty’s’ in s.29 (1) should be replaced by ‘the Court’s’ and wherever the Governor-General appeared, the words ‘the Court’ should be substituted.


 


[57] Lord Bingham in answering the question whether s29(1) was compatible with the Constitution of Jamaica, pointed out that the Director of Public Prosecutions of Jamaica had conceded that s29(1) infringed the fundamental right to a fair trial before an independent and impartial court. He said: (p.149)


 


“Given this concession, rightly made, it is unnecessary to do more than note the reason for it.  A person detained during the Governor-General’s pleasure is deprived of his personal liberty not in execution of the sentence or order of a court but at the discretion of the executive.  Such a person is not afforded a fair hearing by an independent and impartial court, because the sentencing of a criminal defendant is part of the hearing and in cases such as the present sentence is effectively passed by the executive and not by a court independent of the executive.” (Our emphasis).


                                                                                     


[58] Section 26(8) of the Jamaican Constitution has a similar ‘savings provision’ to s.26 of the Barbados Constitution, preserving the validity of certain laws predating independence, even if they might conflict with the fundamental rights and freedoms Chapter of the Constitution.  To circumvent the argument that s.29 (1) of the Juveniles Act of 1951 (a pre-independence law) was saved by s.26 (8) of the Constitution, the Privy Council held that section s29(1) was incompatible with the principle of the separation of powers, which underpinned the structure and essential theory of the Constitution.  Support was again found in Hinds v. R. in the passage cited at paragraph [52] above.  Hinds was explained on the basis that the decision was to the effect “that the sentencing provisions under challenge in Hinds were held to be unconstitutional, not because of their repugnancy to any of the rights guaranteed by sections in Chapter III of the Constitution, but because of the incompatibility with a principle on which the Constitution itself was held to be founded.” – per Lord Bingham at p.151.


 


“Applying the power of modification derived from s.4(1) of the 1962 Order in Council, and following other Caribbean cases such as San Jose Farmers Co-operative Society Ltd v. Attorney-General (1991) 43 WIR 63, Vasquez v. R. (1994) 45 WIR 103, Browne v. R. (supra) and approving a dictum of de la Bastide CJ in Roodal v. The State (2002)(Trinidad and Tobago (Criminal Appeal No.64 of 1999, unreported decision of 17 July 2002), the Privy Council modified s29(1) of the Juveniles Act.


 


                   Tennyson Griffith v. R. (Barbados)


                   [60] It is now time to bring this review of Commonwealth Caribbean cases home to Barbados.  The seven appellants in Tennyson Griffith had been convicted on 19 May 1992 of murder.  Four of them were under 18 at the date of the offence and, in accordance with s14 of the JOA, they were sentenced to detention during Her Majesty’s pleasure.  The other three were sentenced to death.  The Privy Council dismissed the appeals against conviction following Khan v. State of Trinidad and Tobago [2004] 2 WLR 692, but allowed the appeals against sentence by the four appellants who were under 18 at the date of commission of the offence.  In this regard their Lordships followed Ex Parte Venables and Thompson, Browne v. R. and D.P.P. v. Mollison.


 


“For the third time in appeals from the Commonwealth Caribbean on the issues raised by this appeal there was a concession by the Crown.  First, Mr. Peter Knox for the Crown, conceded that detention during Her Majesty’s pleasure is an indeterminate sentence whose duration is determinable by the Executive.  Secondly, Counsel accepted that such a sentence violated the general constitutional principle of the separation of powers which is embedded in the structure of the Barbados Constitution – following Hinds v. R.  Applying s.4(1) of the Barbados Independence Order 1966, the Board construed s.14 of the JOA as providing that the Court rather than Her Majesty must direct the release of an offender.…


“[66] ……It follows then that applying the binding authority of Tennyson Griffith and the authority of Browne Greene, Mollison and Hinds, we are obliged to hold that the sentence imposed on Scantlebury is unconstitutional to the extent that it requires the Governor-General to determine the duration of the sentence.”


 


[35]         S78 (2) empowers the Governor-General to “grant to any person a respite… from the execution of any punishment”. Subsection (c) allows for the “substitution of a less severe form of punishment for that imposed on any person for such an offence…” and (d) allows for the “remission of the whole or any part of a punishment imposed for any offence or any penalty or forfeiture…”


[36]         On the peculiar facts of this case, the commutation of the sentence of death to life imprisonment carried a condition that the applicants not be considered for release before they had served 30 years in prison. The Constitutional provisions give power to the Governor-General to substitute the form of punishment imposed or remit the whole or part of the sentence. This is within the power conferred on him by s 78 and is part of the Prerogative power. (See Reyes [2002] AC 235.)


[37]         It would appear that the further condition of non-reviewability purported to prescribe the quantity of time which should be served by the applicants prior to any review. To that extent, therefore, the commutation not only substituted the form of punishment i.e. from death to life but went further and prescribed a minimum period of time to be served before review. It therefore, prescribed a quantity of sentence to be served prior to review, which is a judicial function, as distinct from an executive act. There was little by way of opposition from the Crown to this submission of the applicants’ counsel on this issue. In exercising powers of sentencing, a court is enjoined to look at the aggravating as well as mitigating factors in exercising its discretion relative to the quantity of time for which sentence will be imposed.


[38]         It would appear that the powers given to the Governor-General under s 78 1 (c) and (d) are disjunctive. The section does not give power to impose or prescribe minimum sentences or minimum sentences to be served before review.


 


Issue #3


The Role of the Privy Council vis-à-vis s18 (1) of the Barbados Constitution.


 


[39]         The applicants rely on the Privy Council case of Reyes v The Queen


[2002] 2 A.C. 235 (Reyes) in support of their argument that there was a violation of the doctrine of separation of powers. Lord Bingham in delivering the judgment of the Board said (at p 257):


“It is plain that the Advisory Council has a most important function to perform. But it is not a sentencing function and the Advisory Council is not an independent and impartial court......


 


The administration of justice involves the determination of what punishment a transgressor deserves, the fixing of the appropriate sentence for the crime. The grant of mercy involves the determination that a transgressor need not suffer the punishment he deserves, that the appropriate sentence may for some reason be remitted.  The former is a judicial, the latter an executive, responsibility……


 


“It has been repeatedly held that not only determination of guilt but also determinations of the appropriate measure of punishment are judicial not executive functions.  Such was the effect of the decisions in Hinds v The Queen [1977] AC 195 at 226(D); R v Mollison (No. 2) (unreported) 29 May 2000, Appeal No. 61/97, 29 May 2000); Nicholas v The Queen (1998) 193 CLR 173, paras. 16, 68, 110, 112. 


 


Later Lord Bingham continued (at p 258):


 


“While the Board would be the first to acknowledge the importance of the role which the constitution has conferred on the Advisory Council, it is clear that such a non-judicial body cannot decide what is the appropriate measure of punishment to be visited on a defendant for the crime he has committed.


 


[40]         The impact of this statement by Lord Bingham is indeed far reaching. Reyes clearly indicates that the role of Privy Council is not to recommend or decide the measure of a punishment as this would be tantamount to the executive exercising the judicial function of sentencing. With respect to the Barbados Constitution and specifically s 18, the Court must consider whether a hearing before the Privy Council can amount to “a fair hearing ….by an independent and impartial court established by law.”


[41]         This question was considered in DPP v Mollison [2003] A.C 411. The Privy Council held that a law which permitted the executive to determine the sentence of an accused person violated the right to be tried by an independent and impartial tribunal. Lord Bingham said (at p. 422):


“A person detained during the Governor General's pleasure is deprived of his personal liberty not in execution of the sentence or order of a court but at the discretion of the executive.  Such a person is not afforded a fair hearing by an independent and impartial court, because the sentencing of a criminal defendant is part of the hearing and in cases such as the present sentence is effectively passed by the executive and not by a court independent of the executive.


 


[42]         Section 18 (1) of the Constitution provides:


“If any person is charged with a criminal offence, then, unless the charge is withdrawn, the cases shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.”   


 


[43]         It would therefore be appropriate to conclude that the Privy Council is not a body defined under s 18 (1) of the Barbados Constitution.                                                                                              


 


Issue #4


Rule 42 of the Prison Rules vis-à-vis S53 Prison Act/Alternative Avenues of Redress                          


                  


[44]         Section 42 of the Prison Rules 1974, provides as follows:


“42. The case of every prisoner serving a term of imprisonment exceeding 4 years shall be reviewed by the Governor-General at four-yearly intervals or shorter periods if deemed advisable.”                                                 


[45]         The applicants submit that they have been denied the benefit of four year reviews under section 42 of the Prison Rules 1974. To that extent, they further submit, that there has been a breach of their right to personal liberty under s 13 (1) of the Constitution. They also contend that they have been denied their right to protection of the law as guaranteed under s 11 of the Constitution.


[46]         The respondent in reply, relied on s 53 of the Prison Act Cap 168 and submits that the applicants were subject to this provision and have failed to use it. They further submit that the applicants had no entitlement under s 42 of the Prison Rules 1974.


[47]         S 53 of the Prison Act Cap 168 states that


“The Minister may, at any time if he thinks fit, release on a supervision order, a person serving the term of imprisonment for life subject to compliance with such conditions, if any, as the Minister may from time to time determine.”


 


[48]         The respondent is of the view that s 53 of the Prison Act Cap 168 was available to the applicants all along. They submit that on the authority of Clarke v The AG [1992] 45 WIR 1 alternative avenues of relief existed and therefore constitutional relief should not be granted. Additionally, the argument is forcefully grounded in the proviso to section 24 (2) of the Constitution.


[49]         S 53 of the Prison Act Cap 168 gives a discretion to the Minister, if he thinks fit, to release on Supervision Order a person serving a term of imprisonment for life. It does not give any entitlement to a person serving such a term to be released. The section cannot be interpreted so as to give a right of recourse to the applicants. It would, at the highest, give them a hope that the Minister might exercise his discretion in their favour if he thought fit to do so.  


[50]         In relation to Rule 42 of the Prison Rules 1974, the sentence would have already been fixed by a court of competent jurisdiction or however otherwise legally imposed where the review is in respect of a sentence of a competent court. Rule 42 says that the case of every applicant “shall” [emphasis mine] be reviewed. This created an obligation upon the reviewing authority to review the cases of persons serving fixed terms. The language used is obligatory as distinct from the discretionary language which is used in s 53 of the Prison Act Cap 168.


[51]         This matter is distinguishable on the basis that the tariff of 30 years involved was set by a member of the executive in a circumstance where that member of the executive had already commuted the sentence of the applicants. There is no evidence that either applicant’s case was brought to the attention of the Minister under s 53 so that they might have the prospect of the exercise of the Minister’s discretion.


[52]         The respondent submitted that the provisions of s 42 do not refer to persons sentenced to life imprisonment but to persons sentenced to a fixed term. The Court finds this argument to be poorly grounded. The term “life imprisonment” has been defined in the case of R v Foy [1962] 2 All ER 246 referred to later in this judgment and in which it was clearly held that life imprisonment means the rest of the prisoner’s natural life. 


[53]         Rule 42 of the Prison Rules 1974 is applicable to all prisoners serving a term of imprisonment exceeding four years. It does not state, as the respondent contended, a fixed term of imprisonment. If the respondent’s argument is that the commutation and the attendant condition of non-reviewability under thirty years were lawful, it would be difficult to understand their submission that Rule 42 was inapplicable since thirty years would represent a period in excess of four years.


[54]         It is noteworthy that Rule 42 does not rule out the review of commuted sentences of death to life imprisonment. Indeed, Rule 42 preserves the ongoing exercise of the Governor-General’s discretion even in cases of commutation. 


[55]         This leads me to one further observation in respect of Rule 42. S 78 of the Constitution invests the Governor-General with the discretionary powers above referred to. I have already adverted to the doctrine of separation of powers which is part of our constitutional arrangements. The application of primary legislation in the form of the Prison Act Cap 168 and the subsidiary legislation in the form of the Prison Rules 1974 made under the act is a judicial function.


[56]         Assuming that the commutation to life is a lawful exercise of discretionary power under s78 of the Constitution, then the applicants would be entitled to the review under Rule 42. The Constitution does not give the Governor-General the power to dis-apply Rule 42 so as to disentitle the applicant to their reviews. The proper course for dis-applying Rule 42 would be an amendment of the Prison Rules by the same authority invested with the power to make alter or amend them or by Parliament under its sole power to pass laws for the good order and government of Barbados. So that any condition to disallow the review for 30 years would be the purported exercise of a power not vested in the Governor-General by s 78 of the Constitution.   


[57]         Having stated that the applicants were entitled to the benefit of reviews under Rule 42 of the Prison Rules 1974, I must now turn to the submission of counsel for the applicants that in accepting the condition that the applicants’ cases should not be reviewed until after the expiration of 30 years, this constituted a fetter on the Governor- General’s discretion.


[58]         There was not much opposition to this submission from the respondent. In the case of Austin, there were no reviews and in respect of Carter, there was the semblance of reviews without the materials referred to in Lewis V AG of Jamaica [2000] 3 WLR 1785 being provided or the opportunities for his legal advisers to prepare and make representations on being given sufficient notice of the date when his matter was to be considered.


 


Issue #5


The Essentials of a Review


[59]         Reviews ought to be conducted in the manner required by law and the opportunities afforded to the applicants and their legal representatives to present their cases for review. In each case the exercise of discretion ought to be based upon those materials placed before the reviewing authority and such information relevant to the case or to the peculiar circumstances of the applicants which have come about since the last review.


[60]         It is insufficient to remind applicants of the previous decision taken with respect to their cases since this would deprive them of the full opportunity of the review process which must take into account the dynamics of each individual applicant’s case.


[61]         The Court therefore finds that there is merit in the applicants’ submission.      


 


Issue #6


The Meaning of Life Imprisonment                                                         


[62]         The applicants submit that the imposition of the sentence of thirty years by the Governor-General subjected them to unequal treatment and violated their right to protection of the law. They argue that they have been in prison longer than other parties who were detained in similar circumstances and that the imposition of the sentence constituted an inhumane and degrading punishment and is tantamount to subjecting them to arbitrary detention.


[63]         The respondent submit that that the applicants had no reason to legitimately expect that they would serve a lesser sentence than imprisonment for the remainder of their lives.


[64]         The first consideration for the court has to be what is a meant by a sentence of life imprisonment. In the case of R v Foy [1962] 2 All ER 246 (Foy), Parker CJ said


 “Life imprisonment means imprisonment for life. No doubt many people come out while they are still alive, but when they do come out, it is only on licence and the sentence of life imprisonment hangs over them until they die.”


 


[65]         Two conditions were laid down for the applicants’ pardon. They were to be confined and imprisoned for the rest of their lives and secondly that their cases were not to be reviewed before thirty years. Under s 78 (1) (c) of the Constitution, the Governor-General exercised his discretion and substituted the sentence on the accused persons. It appears to me that it was quite clear that the commutation was to be to life imprisonment. There was nothing in the commutation to life which would give the impression to the applicants that they would receive anything less than life imprisonment.


[66]         The condition imposed could at the highest, give them an expectation that they would serve at least thirty years before being eligible for review.  


[67]         The court looks with approval to the words of Parker CJ in Foy and finds great difficulty in acceding to the applicants’ claims that they had any reason to assume that life imprisonment meant anything but imprisonment for life.


 


Equal Treatment before the Law                                                             


[68]         The applicants compare themselves to parties who have been previously detained under “Her Majesty’s Pleasure”; a sentence which this court has found to be unconstitutional. It must however, be noted that there is a fundamental difference between a person detained under a sentence of life imprisonment and one previously detained under a sentence of “Her Majesty’s Pleasure”. Lord Browne- Wilkinson in ex parte Venables and Thompson (supra) said


“detention during Her Majesty’s pleasure is wholly indeterminate in duration: it lasts so long as Her Majesty (i.e. the Secretary of State) considers appropriate.”  [1997] 3 All ER 97 at 122).


 


[69]         The applicants point to several persons who have had their sentences commuted to life and have been released after serving terms of imprisonment of less than thirty years. Against this background, they submit that they have not been given equal treatment before the law since persons in similar circumstances have been released. Whilst the names of inmates and the periods of imprisonment served before release have been submitted, no evidence has been adduced as to the individual circumstances of each offender, the nature of the murder, their attitude to the offences, their characters after serving their respective periods of imprisonment, the psychological profiles or indeed the basis on which they were released.


[70]         In the circumstances, the applicants have failed to prove that the persons released were liberated in circumstances similar to their own and they have, as a consequence, been subjected to unequal treatment before the law.


 


Issue #7


Inhuman and Degrading Punishment                                                       


[71]         This point was raised by the applicants, en passant. No serious argument was made in support of the submission. It is difficult to see how the position can be maintained against the background that the applicants were condemned to death and had their death sentences commuted thus sparing their lives.


[72]         Whilst I have held that they were denied the opportunity to have their sentences reviewed, the review process again involved the exercise of discretion once the review had started. It did not give to the applicants a right to be released, only to be considered for release. In the circumstances I am of the opinion that the submission that the applicants were subjected to inhuman and degrading punishment is without merit and must fail.


 


THE CONSTITUTIONAL OUSTER CLAUSE

[73]         S 77 (4) of the Constitution of Barbados provides:


“(4) The question whether the Privy Council has validly


performed any function vested in it by the Constitution shall not be inquired into in any court.”                                                                 


[74]         This provision is entrenched by s49 of the Constitution. The Constitution at s 1 contains a “supreme law clause” thereby making it the supreme law of Barbados. This section provides:


“The Constitution is the supreme law of Barbados and subject to the provisions of this Constitution, if any other law is inconsistent with this Constitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void.”                                                                              


[75]         The applicants seek to rely on s 18 (8) of the Constitution to establish that their right to a fair hearing was breached by the Barbados Privy Council in making its decision to commute their death sentences to life imprisonment.


[76]         That section states thus:


“any court or other tribunal prescribed by law for the      determination of the existence or extent of any civil right or obligation shall be established by law and shall be independent and impartial; and where proceedings for such determination are instituted by any person before such court or other tribunal, the case shall be given a fair hearing within a reasonable time.”


 


[77]         The respondent contends that the applicants had no right to mercy. The only right they had was to have their respective death sentences considered and a determination made as to whether mercy ought to be extended or not. In this regard the respondent contends further that the provisions of s 18 (8) had not been contravened in relation to the applicants and submits that the constitutional ouster clause at section 77 (4) should come into operation to preclude the Court from enquiring into the performance of the Privy Council’s functions in this case.


[78]         There is much debate about the way in which Constitutional ouster clauses should be interpreted. It has long been thought that Constitutional ouster clauses should be taken as they are and given a “face value” approach since they are deemed to represent the clear intention that certain questions should not be the subject or review by the courts.


[79]         Thus the approach is taken that “where the Constitution itself excludes such questions, the courts lose their jurisdiction to entertain these questions because they have no power to override the Constitution.” This is the view of Dr. Basu in his Commentary of the Constitution of India.


[80]         This approach is taken by several authorities. In Jones v. Solomon Civil Appeal No: 85 of 1986, a case from the Court of Appeal of Trinidad and Tobago, Sharma J.A. stated:


“When the court is called upon to deal with the effect of an ouster clause contained in a Constitution, … it must so interpret the ouster clause that the supremacy of the constitution is preserved.”


 


[81]         Similarly in Harrikisson v. Attorney General of Trinidad and Tobago Civil Appeal No: 59 of 175, Hyatali CJ stated that he:


 


“…was firmly of the opinion that a court would be acting improperly if a perfectly clear ouster provision in the constitution of a country which is its supreme law is treated with little sympathy or scant respect, or is ignored without strong and compelling reasons.”


     


[82]         In my judgment these strict approaches to constitutional ouster clauses cannot be applied to every case. In fact, Hyatali CJ in his reasoning recognised that an ouster clause may be usurped if there are “strong and compelling reasons”. In light of this, I am of the opinion that the breach of fundamental human rights and breaches of natural justice are enough to satisfy the test of “strong and compelling reasons” and that where such breaches are alleged an ouster clause may be ignored. There is sufficient authority to support this.


[83]         The first case, which emanated from the Supreme Court of Sri Lanka was Public Service United Nurses Union v. Minister of Public Administration [1988] 1 Sri LR 229: (1989) 15 Com LB 753 (No: 3 of July). In this case, a constitutional ouster clause was declared ineffective because, in the selected award of incremental benefits, there was a breach of the right to equality of treatment as enshrined by the Constitution.


[84]         That authority is consistent with the decision of the Judicial Committee of the Privy Council in Endell Thomas v. Attorney General of Trinidad and Tobago [1982] AC 113 where it was held that an ouster clause is not efficacious in the light of an infringement of the Bill of Rights. A similar sentiment was echoed in the landmark case of Hinds v. R [1977] AC 195.


[85]         Apart from being a fundamental right enshrined by the Constitution, the right to a fair hearing is one of the more far-reaching of the principles of natural justice. A breach of the principles of natural justice opens up the decision of the tribunal to review even if there is an ouster clause. The violation of a principle of natural justice amounts to an excess of jurisdiction.


[86]         The law is now settled that an ouster clause will not prevent the court from intervening in the case of an excess of jurisdiction. The case of Anisminic v. Foreign Compensation Commission [1967] 2 AC 147 is authority on this point.


 


THE PREROGATIVE OF MERCY                                                       


[87]         S78 of the Constitution bestows the prerogative of mercy on the Governor-General. S78 (1) (a) - (d) have already been cited in this judgment. Subsections  (3) - (4) of that section provides:


“(3) Where any person has been sentenced to death for an offence against the Law of Barbados, the Governor-General shall cause a written report of the case from the trial judge, together such other information derived from the record of the case or elsewhere as the Governor-General may require, to be forwarded to the Privy Council so that the Privy Council may advise him on the exercise of the powers conferred on him by subsection (1) in relation to that person.


 


“(4) The power of requiring information conferred upon the Governor-General by subsection (3) shall be exercised by him on the recommendation of the Privy Council or, in any case in which in his judgment the matter is too urgent to admit of such recommendation being obtained by the time within which it may be necessary for him to act, in his discretion.”


 


[88]         The prerogative of mercy is solely within the purview of the Crown.


Halsburys’ Law of England vol. 73rd Ed states at paragraph 525:


“The crown enjoys the exclusive right of granting pardons and this privilege cannot be claimed by any other person either by grant or prescription. It is usually delegated to colonial governors and to Governors-General, though in doing so the sovereign does not entirely divest herself of the prerogative.”


 


[89]         There is no legal right to mercy. This was noted in Defreitas v. Benny [1976] AC 239 where Lord Diplock stated:


“Mercy is not the subject of legal rights; it begins where legal rights end. 


          


[90]         However, while acknowledging that there is no right to mercy and that the exercise of the prerogative power was not reviewable by the courts it was held in Lewis v. AG of Jamaica [2000] 3 WLR 1785:


 that, although there was no legal right to mercy and the              merits of the decision of the Governor General (acting on the recommendations of the JPC), on the exercise of the            prerogative of mercy were not reviewable by the courts, that prerogative should, in the light of the state’s international obligations, be exercised by procedures which were fair and proper and amenable to judicial review”. 


 


[91]         The practice of the courts in recent years has been to insist on the observance of the rules of natural justice, more particularly since decisions like Council of Civil Service Unions v. Minister for the Civil Service [1985] AC 374. In Yassin v. Attorney General of Guyana (unreported) 30th August 1996 Fitzpatrick JA said:


“In this case justiciability concerning the exercise of the             prerogative of mercy applies not to the decision itself but to the manner in which it is reached. It does not involve telling the head of state whether or not to commute. And where the principles of natural justice are not observed in the course of the processes leading to its exercise, which processes are laid down by the constitution, surely the court has a duty to intervene, as the manner in which it is exercised may pollute the decision itself.”     


 


[92]         In light of my prior finding that the retroactivity principle does not apply on the particular facts of this case one cannot hold that the failure to disclose the documents to the applicants prior to the Lewis decision was unlawful.


[93]         However, following the Lewis (supra) decision, I hold that although the applicants had only the right to petition the Governor-General to exercise the prerogative of mercy and to have their death sentences considered, the prerogative should have been exercised in accordance with the principles of natural justice.


[94]         By failing to allow the applicants to see the documents which would have informed the Privy Council in making their decision, subsequent to the decision in Lewis (supra) the applicants were denied natural justice. In light of my finding that the Governor-General on the advice of Privy Council was not empowered to impose the restriction of thirty years before review, the ouster clause at s 77 (4) of the Constitution does not apply so as to oust the court’s jurisdiction in this matter.


 


DISPOSAL                                                                                                         


[95]         This court is of the view, that the applicants should remain incarcerated and the case be remitted for sentencing.


[96]         However given the unconstitutionality of the conditions attached to the commutation above outlined, and the lack of access to Rule 42 of the Prison Rules 1974, and the fact that both applicants have not been properly reviewed as required, I would not send these matters to be reviewed in the present circumstances, but would order these matters to be remitted to the Chief Justice for imposition of sentence in accordance with the directions given in Mormon Scantlebury.


 


 


 


WILLIAM J. CHANDLER


JUDGE OF THE HIGH COURT