Edward Joseph v The Attorney General

• Jurisdiction: Caribbean States
• Judge: Glasgow, J.
• Judgment Date: 16 October 2024
• Judgment citation (vLex): [2024] ECSC J1016-1
• Docket Number: CLAIM NO. GDAHCV2021/0386
• Court: Eastern Caribbean Supreme Court

In the Matter of the Grenada Constitution

and

In the Matter of a Challenge to the Constitutionality of Sections 70, 75 and 276(2) of the Criminal Code Cap. 72A of the 2010 Edition of the Continuous Revised Laws of Grenada

and

In the Matter of Sections 5 and 13 of the Constitution

and

In the Matter of An Application for Constitutional Redress Pursuant to Section 16 of the Constitution

Between:

Edward Joseph

Applicant/Claimant

and

The Attorney General

Defendant

Consolidated with

In the Matter of the Grenada Constitution

and

In the Matter of a Challenge to the Constitutionality of Section 16 of the Predial Larcency Cap. 250 of the 2010 Edition of the Continuous Revised Laws of Grenada

and

In the Matter of Sections 5 and 15 of the Constitution

and

In the Matter of An Application for Constitutional Redress Pursuant to Section 16 of the Constitution

Between:

Shabba Ferguson Jason Alexis

Claimants

and

Attorney General

Defendant

Before:

The Hon. Justice Raulston L.A Glasgow High Court Judge

CLAIM NO. GDAHCV2021/0386

CLAIM NO. GDAHCV2018/0008

IN THE SUPREME COURT OF GRENADA

AND THE WEST INDIES ASSOCIATED STATES

HIGH COURT OF JUSTICE

(CONSTITUTIONAL)

Appearances:

Mr. Ruggles Ferguson K.C. for Edward Joseph

Mr. Jerry Edwin for Shabba Ferguson and Jason Alexis

Mr. Adebayo Oluwu and Ms. Alleyna Cheeseman for the Defendant

BACKGROUND

Glasgow, J.

1 This claim is one of the more novel matters argued before this court. It seeks to interrogate issues of grave importance for the jurisprudence in Grenada. More crucially, this case engages discourse on one of the vexing societal debates namely, whether previously accepted norms with respect to judicial corporal punishment are still appropriate, acceptable and significantly, constitutional, in light of modern and evolved thought on these matters. Specifically, the debate between the parties centers on whether this court ought to strike down flogging, which both sides accept was once an approved form of punishment for convicted persons, as being in violation of the rights and freedoms articulated in the Constitution of Grenada (“the Constitution”).

2 The parties' disputation is made easier to resolve because they concur and indeed launch their contentious presentations with the agreed proposition that flogging is offensive to contemporary views on human dignity and is repulsive to modern notions of the sanctity of the most basic human rights. The parties however seriously diverge on what the court should do about the state of the law on flogging. For the claimants, their position is that the court ought to find that retaining the laws on flogging and its hapless half sibling, whipping, (flogging and whipping will together be referred to as “flogging” in this ruling) are inconsistent with and in breach of the claimants' fundamental rights assured to them by the Constitution.

3 For the defendant, it is argued that while flogging is repulsive to modern standards of human dignity, judicial corporal punishment has always been and remains acceptable. The defendant posits that even if one accepts that judicial corporal punishment impinges on and derogates from the claimants' section 5(1) constitutionally protected rights and freedoms, there is little to nothing that the court can or ought to do about it. This is due to the fact that flogging as a description of punishment is saved, hermetically sealed and secured from judicial scrutiny. The defendant reasons that it is the Constitution itself that shields and secures flogging from being declared inconsistent with the constitutionally protected fundamental rights of the claimants. The defendant contends further that in some other respects, even where flogging may be struck down as inconsistent with the rights and freedoms of the claimants, the court is precluded from doing anything about it because flogging as a description of punishment is reasonably justifiable in a modern democratic structure. In the discourse to follow I trust that I can ably articulate some or all of the reasons that I disagree with the defendant.

Background to the claims

4 Mr. Shabba Ferguson and Mr. Jason Alexis initiated constitutional claims by originating motion filed on 6 ^th January 2018, seeking inter alia several declarations with respect to the constitutionality of provisions of the Praedial Larceny Act 1. Mr. Edward Joseph later initiated a similar constitutional claim by filing originating motion on 20 ^th September 2021 seeking, inter alia, several declarations with respect to the constitutionality of provisions of the Criminal Code 2. On 12 ^th November 2021, Mr. Ferguson and Mr. Alexis applied for an order that Mr. Joseph's claim be consolidated with their own and the two claims be heard together. As the collective crux of the claimants' respective claims concerned the constitutionality of flogging and whipping as forms of criminal punishment, the application was granted 3.

Mr. Ferguson and Mr. Alexis' joint affidavit in support of originating motion

5 Mr. Ferguson was convicted for the offence of vagrancy (section 8(1) of the Praedial Larceny Act) and sentenced to 6 strokes by the magistrate. He was unrepresented by counsel at the time. Mr. Ferguson alleges that following his sentencing, he was immediately taken to the police station, stripped naked, tied down on a flat board, ordered to place his genitals in a hole in the board, and a cloth placed over his mouth. Mr. Ferguson was whipped across his back and backside. There was no medical personnel present during the beating. After being flogged, he was told to clothe himself and leave the police station. Mr. Alexis deposes that on 13 ^th January 2017, he was arrested and charged with the offence of praedial larceny, and he may be flogged if convicted for that offence.

Mr. Joseph's affidavit in support of the originating motion

6 Mr. Joseph was convicted and sentenced in the 1970's for housebreaking but received an early release by the Grenada People's Revolutionary Government. By 2017, he fell on hard times, became dependent on alcohol and committed a robbery while armed with a cutlass. At the robbery trial, Mr. Joseph pleaded guilty to the offence of robbery with violence contrary to section 276 (1) (b) of the Criminal Code. At the sentencing hearing on 24 ^th November 2017, he was sentenced to imprisonment for 9 years and 3 strokes. He was unrepresented by counsel at the time of sentencing. After sentencing, Mr. Joseph was immediately taken to the police station closest to the court, and told that he would be flogged as sentenced.

7 Mr. Joseph alleges that he protested to the police officers and requested that he be flogged at His majesty's Prison (the prison) in the presence of a medical doctor. His request did not meet with success. He was ordered to take off his pants, bend over a table, and he received 6 strokes. After the flogging, he was taken to the prison but he was never examined by a medical doctor. Mr. Joseph later learned that the judge had only ordered him to receive 3 strokes instead of 6 strokes. He recalls that he did not tell anyone at the prison about the flogging since he was angry and deeply ashamed about it.

The Claimants' Claim for Relief

Mr. Ferguson and Mr. Alexis

8 Mr. Ferguson and Mr. Alexis collectively claim that the punishment of flogging amounts to degrading and inhuman punishment contrary to section 5 of the Constitution. They also claim that the sections of the Praedial Larceny Act which authorise flogging for men while expressly prohibiting flogging for women amounts to discrimination based on sex which is contrary to section 13 of the Constitution. They also complain that judicial officers wrongfully exercise their discretion to order a sentence of flogging when anyone is convicted of praedial larceny, irrespective of whether the infraction was in respect of sections 8(1), 8( 2) or 8(3) of the Praedial Larceny Act. This wrongful exercise of the magistrate's discretion is unlawful.

9 Mr. Ferguson also seeks an award of compensation and exemplary damages on the grounds that his flogging was executed with a degree of arbitrariness and unlawfulness. Mr. Alexis asks the court to grant him an interim injunction to restrain the defendant from imposing or executing the punishment of flogging on him until the determination of his claim. Mr. Ferguson and Mr. Alexis collectively request:

• 1) A declaration that the sentence of flogging authorized by section 16 of the Praedial Larceny Act is inhuman and degrading punishment;

• 2) A declaration that the manner and circumstances in which the punishment of flogging was inflicted on Mr. Ferguson on 14 ^th July 2017 amounted to inhuman and degrading punishment in contravention of section 5 of the Constitution;

• 3) A declaration that section 16 of the Praedial Larceny Act which authorizes the flogging of men but prohibits the flogging of women contravenes section 13 of the Constitution;

• 4) A declaration that section 16(2) of the Praedial Larceny Act which provides for mandatory flogging is inhuman and degrading and contravenes section 5 of the Constitution;

• 5) An order permanently restraining the defendant from imposing or executing the punishment of flogging under the Praedial Larceny Act so long as it is authorized in contravention of section 13 of the Constitution;

• 6) Vindicatory damages for Mr. Ferguson;

• 7) Exemplary damages against the defendant for the arbitrary way the punishment of flogging was inflicted on Mr. Ferguson; and

• 8) Costs.

Mr. Joseph

10 Mr. Joseph concurs that flogging is degrading and inhuman punishment. He argues that while flogging of males under the Criminal Code predates the Constitution, females are excluded from the punishment, which is a breach of sections 5 and 13 of the Constitution. He points out that the Constitution allows for laws to be modified or adapted to conform to the Constitution. He strenuously maintains that the...