The Attorney General et Al v Joseph and Boyce

JurisdictionCaribbean States
CourtCaribbean Court of Justice
Judgede la Bastide, Saunders
Judgment Date08 Nov 2006
Docket NumberCCJ Appeal No CV 2 of 2005; BB Civil appeal No 29 of 2004

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 despondent.

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

Criminal Law - Murder — Appeal against sentence — Death penalty — Whether it was appropriate for the Court of Appeal to commute death sentences — More than 5 years elapsed since conviction — Application of rule laid down in Pratt v. Morgan.

Constitutional Law - Fundamental rights and freedoms — Right to protection of the law — Whether the State could attempt to execute the respondents before completion of their petition to the Inter-American Commission to Human Rights — Effect of the unincorporated American Charter of Human Rights on domestic law — Finding that unincorporated treaties created a legitimate expectation for citizens — Respondents had a legitimate expectation that they would be allowed a reasonable time to complete the process.

JUSTICES

de la Bastide and Saunders

THE FACTUAL BACKGROUND
1

On the 10th April, 1999, Marquelle Hippolyte, a lad 22 years old, was brutally beaten to death with pieces of wood. Four men, all in their early twenties, were charged with his murder. At their trial, the Prosecution offered to accept pleas of guilty of manslaughter from the accused. Two of the men accepted that offer and pleaded guilty to the lesser offence. They were each sentenced to 12 years' imprisonment. The other two, the respondents Jeffrey Joseph (“Joseph”) and Lennox Ricardo Boyce (“Boyce”), rejected the offer. They entered pleas of not guilty and were accordingly tried. On 2nd February, 2001 they were both found guilty of murder. Joseph had one previous conviction for robbery in 1995 for which he had been placed on two years' probation. Boyce had no criminal record. The mandatory sentence of death by hanging was imposed on each of them.

2

Joseph and Boyce appealed their convictions to the Court of Appeal. On the 27th March, 2002, those appeals were dismissed. The men then began to make arrangements to appeal to the Judicial Committee of the Privy Council (“the JCPC”). This was indicated to His Excellency the Governor-General. While these arrangements were being made, the Barbados Privy Council (“the BPC”) notified counsel for the men that it intended to meet to advise the Governor-General in relation to the exercise by him of his powers under section 78 of the Constitution. Section 78, which we will later set out, deals with the prerogative of mercy. Copies of certain documents which had been requested by the BPC were also sent to counsel. These included the antecedents of the convicted men, the respective reports of the trial judge, the Chaplain and the Prisons Superintendent, and a medical report.

3

Correspondence then ensued between counsel and the Attorney-General with respect to whether the men had a right to be heard before the BPC and what level of funding should be made available to them for their legal representation before that body. Counsel were repeatedly invited to make written submissions to the BPC but they chose not to do so. Counsel's position was that unless a commutation of the sentence was being recommended, it was inappropriate for the BPC to meet given that the men intended, and were actively preparing, to prosecute an appeal to the JCPC.

4

The BPC met on the 24th June, 2002 and advised against commutation of the death sentences. Two days later, death warrants were read to the men. An order was obtained from the High Court staying their executions, and the appeal to the JCPC was eventually heard. That appeal addressed a single issue namely, whether the mandatory nature of the death penalty rendered that punishment unlawful and unconstitutional. On 7th July, 2004, by a 5–4 majority, the JCPC upheld the mandatory death penalty in Barbados and the respective appeals of Joseph and Boyce were dismissed (See: Boyce v. The Queen [2005] 1 A.C. 400; (2004) 64 W.I.R. 37).

5

Shortly after the JCPC's dismissal of the appeal, lawyers for the condemned men informed the State's solicitors that the men intended to file an application before the Inter-American Commission on Human Rights (“the Commission”). On 3rd September, 2004, the men filed applications before that body seeking declarations that their rights under the American Convention on Human Rights (“A.C.HR”) had been violated. The BPC was duly informed that these applications were pending. On the 13th September, 2004 the BPC met again, but merely to consider the Order in Council emanating from the conclusion of the proceedings before the JCPC. Upon the conclusion of its meeting, the BPC tendered its advice to the Governor-General that the death sentences should be carried out. On the 15th September, 2004, death warrants were again read to the men for their execution to be carried out on 21” September, 2004.

6

On the 16th September, 2004 the men filed a motion before the High Court seeking declarations that their rights to life, security of the person, the protection of the law and their right not to be subjected to inhuman and degrading treatment were being infringed. They sought a commutation of the sentence of death imposed upon them. This motion was subsequently amended to add the complaint that they were treated unfairly and/or in a manner that was in breach of the principles of natural justice. The motion was consolidated with motions filed earlier in 2002 that had not been heard. Execution of the men was again stayed pending the determination of the motions. The Inter-American Court also issued provisional measures requiring Barbados to preserve the lives of the two men until the outcome of the petitions before the Inter-American system.

7

The constitutional motions in the High Court were heard by Mr. Justice Greenidge. The most crucial of the issues argued was whether the BPC was obliged to await the outcome of the Commission's proceedings before advising the Governor-General in relation to the exercise by him of the prerogative of mercy. Greenidge, J. dismissed the motions in a judgment delivered by him on 22nd December, 2004. Joseph and Boyce successfully appealed this judgment to the Barbados Court of Appeal. The Attorney General now appeals the Court of Appeal's decision to this Court.

THE JUDGMENTS OF THE COURTS BELOW
8

Greenidge, J. in dismissing the motions, held that the BPC was not required to await the conclusion of the Commission's proceedings before tendering its advice to the Governor-General. The learned judge also held that the BPC was an advisory and not a judicial entity and, noting that in 2002 the men had been afforded but had not availed themselves of an opportunity to make written representations to the BPC, he stated that there was no right for an applicant to make oral representations to that body. The judge also held that the men had no right to have their legal representation before the BPC funded at public expense and that the BPC had acted constitutionally on the occasions it had met as no appellate process had commenced before the first reading of the death warrant and, at the time of the second reading, the men had already exhausted their domestic appeals.

9

The Court of Appeal (C. Williams, L. Waterman and P. Williams, JJ.A.) first examined the question whether it was a breach of the men's rights to execute them prior to the receipt by the BPC of reports from the Inter-American Commission. The Court held that the Executive, as the treaty-making organ of government, could not ignore treaties which gave rights to citizens and to which the Executive had bound the State. The Court of Appeal agreed with the trial judge that the men had no right to an oral hearing before the BPC but held nonetheless that circumstances might arise where an oral hearing might be desirable. The Court saw no reason why the BPC should have held an oral hearing in this particular case and it rejected the contention that the men had been deprived of an opportunity to place representations before the BPC. The Court relied heavily on Neville Lewis v. The Attorney-General [2001] 2 A.C. 50; (1999) 57 W.I.R. 275 and on R. (West) v. Parole Board [2005] 1 W.L.R. 350. The Court commented on the ouster clause contained in section 77(4) of the Constitution (set out later in this judgment at [23]). The Court held that the BPC was an independent quasi-judicial decision-making body and not just an advisory body having a consultative role. Section 24 of the Constitution – which provides for a right to apply to the High Court for redress for the contravention of the fundamental rights and freedoms – was not ousted by section 77(4) and it was for the Court to determine, on a true construction of the Constitution, whether there had been an error of jurisdiction or breach of natural justice or some misdirection which made the ouster clause inapplicable. The Court could in appropriate proceedings, it was said, either set aside the decision of the BPC or declare it to be a nullity. The Court of Appeal expressly refrained from giving a considered opinion on whether the men were entitled to adequate funding to facilitate their representation before the BPC. In determining the order that should be made, the Court reasoned that since in all the circumstances it was not realistic to expect that the men would conclude the international proceedings available to them within the time-table outlined in Pratt and Morgan v. The Attorney-General, [1994] 2 A.C. 1; (1993) 43 W.I.R. 340 the proper order to make was to commute the death sentences and to substitute terms of imprisonment for life.

10

The Court alluded to three other circumstances in...

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