The Attorney General et Al v Joseph and Boyce

• Jurisdiction: Caribbean States
• Judge: Hayton, 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 Phillip Mc Watt for the second respondent.

Jurisdiction — Court of Appeal — Whether the court was obligated to refer a matter back to the Barbados Privy Council (BPC) where the BPC failed to act in a procedurally fair manner — Examination of the court's powers under s.24 of the Constitution.

Hayton, J.A.

1 Having had the advantage of reading the joint judgment of the learned President and Saunders J in draft, for the reasons given by them I agree that:–

• (a) the procedural fairness of the exercise of the prerogative of mercy under s.78 of the Barbados Constitution is subject to judicial review, and this is not ousted by s.77(4);

• (b) the reasoning of the majority of the Judicial Committee of the Privy Council (“JCPC”) in Thomas v. Baptiste [2000] 2 A.C. 1; (1998) 54 W.I.R. 387, applied by the majority of the JCPC in Neville Lewis v. Att-Gen of Jamaica [2001] 2 A.C. 50; (2000) 57 W.I.R. 275, does not justify the JCPC's conclusions that rights purportedly conferred on individuals by ratification of an international treaty, the American Convention on Human Rights, have become part of the domestic criminal justice systems respectively of Trinidad and Tobago (under the “due process of law” clause in s.4(a) of its Constitution) and of Barbados (under “the protection of the law” clause in s.11(c) of its Constitution);

• (c) the crucial protection provided to condemned murderers by the JCPC in these two cases can, instead, be justified on the basis that the treaty-compliant behaviour of a Government can give rise, as in this case, to an indefeasible legitimate expectation of the condemned man that he will not be executed until a reasonable time has been allowed for the Inter-American Human Rights system to run its course and the results thereof to have been considered by the Barbados Privy Council (BPC”) under s.78 of the Barbados Constitution;

• (d) the Court of Appeal was right to hold itself bound to follow Neville Lewis and to use its power under s.24 of the Constitution to commute the death sentences of the respondents to life imprisonment when it was apparent that their imprisonment was inevitably going to infringe the period laid down in Pratt and Morgan v. Att-Gen for Jamaica [1994] 2 A.C. 1; (1993) 43 W.I.R. 340 as contravening s.15 of the Constitution prohibiting inhuman treatment; and thus

• (e) the appeal must be dismissed (with costs to each of the respondents certified as fit for two counsel).

2 It is noteworthy that counsel for the respondents rested their submissions simply on the need to accept the correctness of the reasoning in Neville Lewis and to follow that decision. Thus, no argument was heard on the possibility of developing judicial review of the prerogative of mercy in accordance with Wednesbury irrationality principles (named after Associated Provincial Pictures Ltd v. Wednesbury Corporation [1948] 1 KB 123) nor of developing a broad principle that rights conferred by international human rights treaties are part of domestic law, irrespective of any alleged “mediation” provided by “due process” or “protection of the law” clauses in Constitutions. It may be that the law will so develop but, before coming to any far-reaching conclusions, I consider that full detailed inter partes argument on these specific points is required. True, we did not have the benefit of such forensic argument on indefeasible legitimate expectations, but we could not possibly accept the reasoning of the majority of the JCPC in Thomas, uncritically applied by the majority in Neville Lewis, because it was based on assertion rather than analysis, though reaching a just outcome. Necessity thus became the mother of invention, but the furtherance of justice in this particular case requires only incremental inventive development of the law.

RELATIVE ROLES OF THE BPC AND THE COURT

3 In this respect, I have some comments on the relationship between s.24 and s.78 of the Barbados Constitution which concerns the role of the court and the role of the BPC. On a breach of “the provisions of sections 12 to 23” of the Constitution, s.24 confers on the Courts exceptionally flexible positive powers (e.g. to commute a death sentence to some lesser...