The Attorney General et Al v Joseph and Boyce

• Jurisdiction: Caribbean States
• Judge: Wit, J.A.
• Judgment Date: 08 November 2006
• Date: 08 November 2006
• Docket Number: CCJ Appeal No CV 2 of 2005; BB Civil appeal No 29 of 2004
• Court: Caribbean Court of Justice

Caribbean Court of Justice

Saunders, P.; Nelson, J.A.; Pollard, J.A.; Bernard, J.A.; Wit, J.A.

CCJ Appeal No CV 2 of 2005; BB Civil appeal No 29 of 2004

The Attorney General et al

and

Joseph and Boyce

Appearances:

Mr Roger Forde QC and Mr Brian L St. Clair Barrow for the appellants.

Mr Maurice Adrian King and Ms Wendy Maraj for the first respondent.

Mr Alair Shepherd QC, Mr Douglas Mendes, SC, Mrs Peta Gay Lee-Brace and Mr Phillip McWatt for the second respondent.

International Law - Treaties — Enforceability of ratified unincorporated treaties — Whether states were obliged to comply in good faith with unincorporated treaties — Relationship between treaty law and domestic law examined — Whether the Constitution prohibits unincorporated treaties from having s direct effect on the domestic plane.

Wit, J.A.

1 On February 2, 2001 two citizens of Barbados, Jeffrey Joseph and Lennox Boyce, the respondents in this appeal, were convicted of murder and subsequently sentenced to death. Their appeals against conviction were dismissed by the Court of Appeal on March 27, 2002.

2 The laws of Barbados make it abundantly clear that there can be only one sentence for murder: death by hanging. The courts do not have any discretion at the sentencing stage. Their hands are tied. Usually, when someone is sentenced and all relevant appeals have been exhausted, the sentence can and should be executed forthwith. Generally, an execution of a non-capital sentence will not be stayed when the convicted person seeks the benevolence of mercy. This is, however, significantly different in case of a death sentence, the only penalty where execution of the sentence comes down to execution of the person sentenced. In such a case, therefore, the Constitution of Barbados (section 78) dictates that prior to any possible execution the case has to be referred to the Barbados Privy Council (BPC). That august body, usually presided over by the Governor-General himself (or herself, as the case may be), will have to decide whether “mercy” should be bestowed upon the condemned man or not. In other words, they decide whether the sentence of death, although legally imposed and in an abstract way “just”, should or should not be executed. Only if and when it is decided that the execution must take place, can death warrants be issued. If that decision is properly made and carried out, then can the hanging take place.

3 In the case before us the BPC twice decided (in the constitutionally prescribed form of a binding advice to the Governor-General) that Boyce and Joseph must be hanged. We do not know how they came to that decision nor do we know what kind of information they had at that point in time. However, we do know the relevant facts of this case, and those facts are clear from the record before us. On April 10, 1999, four young men beat up a fifth in such a brutal way that he died some days later. All four were arrested and prosecuted. All four were charged with murder. All four were, nevertheless, offered by the Crown to be tried for the lesser crime of manslaughter in exchange for a guilty plea. Two of the four, one of them being the person who actually seemed to be at the root of the problem with the victim and who involved the other three, chose this avenue.

4 Although manslaughter carries a maximum sentence of life imprisonment, the two who pleaded guilty to that charge were each sentenced to twelve (12) years. The other two, the respondents, opted to be tried on a charge of murder on the basis of a not guilty plea. They came to regret that. They were convicted for murder and subsequently, one could say automatically, sentenced to death. There are no facts to suggest that the involvement of the respondents in the crime was more serious than that of the other two. Joseph did have a criminal record but an unimpressive one. Boyce had no criminal record whatsoever. Reports by the prison authorities on their behaviour were in neither case unfavourable. The only relevant difference between the respondents and their fellow accused seems to be that the latter spared the Crown the time and costs of a trial.

5 Taking these facts at face value, it would not have surprised me if it had been argued that no reasonable person in Barbados would claim that this is one of those cases that clearly demanded the execution of the death penalty or that the respondents were persons who must be hanged “though the heavens fall”. Even given the right of the people of Barbados to have the death penalty on their law books, a right both recognised by the Barbados Constitution and by international law, the reality is that the authority to execute such a sentence has been, and probably will be, used only sparingly. The legal system of Barbados has a built-in flexibility as to the execution of death sentences. Executions are never automatic. That means that choices have to be made. It goes without saying that these choices, which are in fact decisions on life or death, are extremely difficult and dramatic. But they have to be made and those who have to make them are charged with a grave responsibility. It follows that these decisions, like all decisions in the public domain, will have to be rational. Decisions on who will be hanged and who will be spared are, of course, no longer a matter of turning the imperial thumb up or down, whether divinely inspired or not. In 21S' century Barbados, these are policy decisions as to how to individualise the impersonal reflection of abstract justice. They should therefore not only be rational but also unequivocally reflect that rationality. Although one cannot ignore the fact that the BPC has a very broad discretion as to the exercise of mercy, in the present case, however, the decision to have these death sentences executed leaves the objective observer somewhat bewildered as the Crown apparently seeks to take the lives they initially wanted to spare; seemingly for the reason that the condemned men could have spared the Crown the time and costs of a trial. That might very well be a proper reason for a difference in sentencing, but a difference between twelve years and death for that “circumstance” seems clearly disproportionate and utterly unreasonable (or, in the sometimes obscure vernacular of English law, Wednesbury unreasonable).

6 Instead of approaching the case in this straightforward way, the respondents took a roundabout route. They submitted that the BPC had treated them unfairly and in breach of the principles of natural justice. In other words, they did not attack the rationality of the decision of the BPC in advising the Governor-General against commutation of their death sentences, but they attacked the procedure that was followed by the BPC in reaching that decision. They argued that the unfairness of this procedure was such that it amounted to a serious violation of their fundamental right to the protection of the law as laid down in section 11(c) of the Constitution of Barbados. They were therefore, so it was argued, entitled to a remedy provided in section 24 of that Constitution, notwithstanding the fact that this provision can only be invoked if “any of the provisions of sections 12 to 23 has been, is being or is likely to be contravened.” Apart from that, it was argued that so much time had gone by since the day they had been sentenced to death that, by now, the execution of that sentence would be “inhuman or degrading” and thus in contravention of section 15 of the Constitution, a provision clearly covered by section 24 of the Constitution. It was further argued that in the circumstances of this case, commutation of the death penalty was the proper thing to do. In terms of case law, the Courts below were asked to follow the ruling of the Judicial Committee of the Privy Council (JCPC) in the Jamaican case of Neville Lewis and others v. Attorney-General (2000) 57 W.I.R. 275 as this was, so the Courts were told, binding precedent.

7 What was it that the BPC had done wrong? According to the respondents, the BPC had twice unnecessarily and unduly triggered the issuance of their death warrants, the first time in June 2002, after the Court of Appeal had dismissed their appeals on March 27, 2002 and the second time in September 2004, after the JCPC, the then court of final appeal for Barbados, had dismissed their appeals against the mandatory character of their death sentences. On the first occasion the BPC had informed the attorneys of both respondents that the BPC would meet on June 24, 2002 to advise the Governor-General as to the exercise of the “prerogative of mercy”, despite the fact that these attorneys had already informed the BPC that they had in fact petitioned the JCPC applying for special leave to appeal the decision of the Court of Appeal (which leave was subsequently obtained). On the second occasion the BPC had, without further ado, again advised the Governor-General that a date for execution should be fixed, even though the BPC was formally informed by the attorneys of the respondents that a complaint had been filed with the Inter-American Commission on Human Rights ( IA.C. HR). The respondents forcefully argued that the BPC should have awaited the results of this international law procedure as this outcome, whether in the form of a recommendation of the Commission or, ultimately, of a judgment of the Inter-American Court of Human Rights, should in good faith be considered before a decision could be reached on the granting or denying of mercy.

8 The Court of Appeal agreed with the respondents. It appears to me that they decided (1) that Lewis was binding precedent, and that, following Lewis, the conclusion must be (2) that the BPC should have awaited the outcome of the procedure before the IA.C. HR before deciding on the mercy issue, (3) that the refusal of the BPC to do so amounted to a violation of the fundamental right of “protection of the...