The Attorney General et Al v Joseph and Boyce

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

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 Philip McWatt for the second respondent.

Administrative Law - Legitimate expectation — Whether a condemned person had a legitimate expectation that he would be entitled to procedural fairness.

International Law - Treaties — Whether the act of ratification of a treaty gave rise to a legitimate expectation at a municipal plane — Finding that ratification must be accompanied by treaty — Complaint conduct at the municipal level — Whether an unincorporated ratified treaty providing access to international tribunals could affect the status of private persons in municipal law.

Pollard, J.A.

1 The background to this appeal from the Barbados Court of Appeal has been fully set out in the judgments of my learned colleagues. However, I approach some issues in this appeal with perspectives different from my learned colleagues even though our conclusions are essentially similar. The first issue is as follows:

Whether the exercise by the Governor General of the powers under section 78 of the Constitution of Barbados is justiciable and, if so, to what extent.

JUSTICIABILITY OF THE PREROGATIVE OF MERCY

2 As concerns this issue the weight of authority supports a finding for the justiciability of the exercise of the prerogative of mercy. In this context, a clear distinction was made by Lord Slynn who delivered the majority advice of the Judicial Committee of the Privy Council (“the Board”) in Neville Lewis v. Attorney General of Jamaica (2000) 57 W.I.R. 275; [2001] 2 A.C. 50 at p 75 between the process informing the exercise of discretionary powers and the merits of the exercise of such powers by a competent authority. In recent decades the courts have determined that curial intervention in the exercise of executive discretion is less a function of its source, be it prerogative or statutory, than the subject matter under consideration. In Council of Civil Service Unions and Ors. v. Minister for the Civil Service [1985] A.C. 374 p 407 Lord Scarman captured the prevailing judicial view: “Today, therefore, the controlling factor in determining whether the exercise of prerogative power is subject to judicial review is not its source but its subject matter.”

3 In examining the justiciability of the exercise of the prerogative of mercy I propose to adopt as my point of departure the elucidatory dictum of Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service (Ibid at p 408) as follows:

“To qualify as a subject for judicial review the decision must have consequences which affect some person (or body of persons) other than the decision-maker, although it may affect him too. It must affect such other person either (a) by altering rights or obligations of that person which are enforceable by or against him in private law or (b) by depriving him of some benefit or advantage which either (i) he has in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there has been given an opportunity to comment or (ii) he has received assurance from the decision-maker will not be withdrawn without giving him first an opportunity of advancing reasons for contending they should not be withdrawn.”

4 Learned counsel for the appellants, in vigorously submitting that the exercise of the prerogative of mercy was beyond judicial review, relied heavily on the decision of the Board in de Freitas v. Benny [1975] 27 W.L.R. 318; [1976] A.C. 239 which was followed in Reckley v. Minister of Public Safety and Immigration (1996) 47 W.I.R. 9; [1996] A.C. 527. However, the Board in Neville Lewis (Supra at p 2) distinguished those two cases by reference to the personal character of the discretion to be exercised by the competent Minister in advising the mercy committee as contrasted with the decision-making power of the Jamaica Privy Council on whose recommendation the Governor General was required to act. Consequently, the Board determined that in exercising the prerogative of mercy the requirement to act fairly fully justified curial intervention in the process preceding a determination on the merits.

5 Similarly, in the instant case, the Court of Appeal found for the justiciability of the exercise of the powers by the Barbados Privy Council (BPC) under section 78 of the Constitution on the premise that the BPC was a quasi-judicial or decision-making body. Be that as it may, there is good authority for holding that where a body, be it public or private, judicial, quasi-judicial or administrative is charged with making determinations affecting the rights or interests of persons, the process employed in reaching such determinations is subject to judicial review. In Breen v. Amalgamated Engineering Union [1971] 2 Q.B. 175 at 191 Lord Denning observed:–

“even though its functions are not judicial or quasi judicial, but only administrative, still it must act fairly. Should it not do so, the courts can review its decision, just as it can review the decision of a statutory body… If a man seeks a privilege to which he has no particular claim – such as an appointment to some post or other – then he can be turned away without a word. He need not be heard. No explanation need be given: See the cases cited in Schmidt v. Secretary of State for Home Affairs (1969) 2 Ch 149, 170–71. But if he is a man whose property is at stake, or who is being deprived of his livelihood, then reasons should be given why he is being turned down and he should be given a chance to be heard. I go further: If he is a man who has some right or interest, or some legitimate expectation of which it would not be fair to deprive him without a hearing, or reasons given, then these should be afforded him, according as the case may demand”

6 Contrary to the submissions of counsel for the appellants, the weight of authority argues against the need to determine whether the function to be performed by the BPC was quasi-judicial or administrative since the distinction appears to have lost all significance for determining the legality of the acts of public authorities, which, in making determinations affecting the rights or interests of private citizens, are required to act fairly (See Lord Denning in Schmidt and Another v. Secretary of State for Home Affairs (1969) 2 Ch 149 at p 170).

7 Indeed, the principle of procedural fairness is such an imperative of the conduct by bodies, public or private, called upon to determine rights or interests of parties that its absence has been determined to constitute a lack of jurisdiction such that the courts will intervene to ensure compliance therewith ( Attorney General v. Ryan [1980] A.C. 718 at 730; Regina v. Secretary of State for Home Department ex parte Fayed [1998] 1 W.L.R. 763 at 772; Anisminic Limited v. Foreign Compensation Commission [1969] 2 A.C. 147). Consider in this context the judgment of the Court of Appeal delivered by Lord Woolf, M.R. in Regina v. Lord Saville of Newdigate et al, ex parte A & Others [2000] 1 W.L.R. 1855 at [38]. See also Lloyd v. Mc Mahon (1987) A.C. 625; Regina v. SS for the Environment ex parte Hammersmith & Fulham London Borough Council [1991] A.C. 521 and Regina v. Secretary of State for Home Dept ex parte Fayed (1998) 1 W.L.R. 1 W.L.R. 763 at pp 774 and 776. In affirming this principle in O'Reilly and Others v. Mackman & Others [1983] 2 A.C. 237 at p.276, Lord Diplock averred:–

“But the requirement that a person who is charged with having done something, which, if proved to the satisfaction of a statutory tribunal, has consequences that will, or may, affect him adversely, should be given a fair opportunity of learning what is alleged against him and of presenting his case is so fundamental to any civilised legal system, that it is to be presumed that Parliament intended that a failure to observe it should render null and void any decision reached in breach of this requirement. “

8 Developing public law principles establish that it is not important whether the Barbados Privy Council acting pursuant to powers conferred on it by section 78 of the Constitution, was required to perform a quasi-judicial or administrative function or whether the subject matter to be determined was a legal right, a legitimate expectation or other interest falling short of a legal right, the requirement of procedural fairness must be satisfied. And it is of no avail to counsel for the appellants to submit that the source of the power to be exercised was prerogative rather than statutory because the courts' intervention would not ordinarily address the merits of the determination but the process involved in reaching it. ( Anisminic Ltd v. Foreign Compensation Commissions [1969] 2 A.C. 147) Fitzpatrick, J.A. in Yassin v. Attorney General of Guyana (1996) 62 W.I.R. at p 98 said:–

“In this case justiciability concerning the exercise of mercy applies not only 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 process leading to its exercise, which processes are laid down by the Constitution, surely the court has a duty intervene, as the manner in which it is exercised may pollute the decision itself”

9 This dictum was approved by the Board in Lauriano v. Attorney General of Belize. (1995) 47 W.I.R. 74 Refusal of the courts to be shut out by legislation from reviewing the exercise of...