The Attorney General et Al v Joseph and Boyce
| Jurisdiction | Caribbean States |
| Judge | Nelson, 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
Mr Roger Forde QC and Mr Brian L St Clair Barrow for the appellants.
Mr Maurice Adrian King and Ms Wendy Maraj for the rirst respondent.
Mr Alair Shepherd QC, Mr Douglas Mendes SC, Mrs Peta Gay Lee-Brace and Mr Phillip McWatt for the second respondent.
Constitutional Law - Fundamental rights and freedoms — Protection of the law — Whether rights of the respondents were infringed by the failure of the Barbados Privy Council to await the reports of the Inter American Commission on Human Rights — Effect of unincorporated American Charter of Human Rights on domestic law — Legitimate expectation — Finding that respondents had a legitimate expectation that their petitions to the IACHR would be heard.
Judicial Review - Prerogative of mercy — Whether the ouster clause in s.78 of the Constitution excluded the exercise of the prerogative of mercy from judicial review where the exercise of the review where the exercise of the prerogative was ultra vires.
Delivered on the 8th day of November 2006
Page 1 of 11
I have had the advantage of reading the joint judgment of the learned President and Saunders J in draft and I agree with it. However, I would like to make some observations of my own to supplement what fell from those learned judges.
These appeals arise out of the death of Marquelle Hippolyte on April 15, 1999 five days after he was attacked and beaten with pieces of wood by four men. The respondents, Joseph and Boyce, were jointly charged with Benn and Murray with the murder of Hippolyte. At the outset of the trial the prosecution offered to accept guilty pleas to the lesser charge of manslaughter. Benn and Murray pleaded guilty to manslaughter. Joseph and Boyce did not. Benn and Murray were sentenced to 12 years' imprisonment.
It is apparent that the case against Joseph and Boyce was based on a common design with Benn and Murray to cause grievous bodily harm to the deceased. Joseph and Boyce were convicted on February 2, 2001 and sentenced to death. Joseph and Boyce appealed their conviction and sentence, but their appeals were dismissed by the Court of Appeal on March 27, 2002.
On April 5, 2002 Joseph served the Barbados Privy Council (“BPC”) with notice of his petition to the Privy Council for special leave to appeal in forma pauperis.
After the Court of Appeal dismissed the respondents' appeals the BPC met to consider clemency for the respondents after advising them of the material it had before it and inviting written representations. The respondents made no written representations but served notice before the meeting of their application to the Judicial Committee of the Privy Council (“the Privy Council”) for special leave to appeal.
The meeting proceeded nonetheless and death warrants were read to the respondents although the special leave applications were pending.
The respondents, Joseph and Boyce, immediately filed constitutional motions (“the first motions”) seeking a stay of execution pending the hearing and determination of their appeals to the Privy Council or until further order. A stay of execution for 28 days was granted on June 28, 2002. The stay was never extended, and the first motions were not then proceeded with. However, the appeal, which ultimately became one of a trilogy of cases heard together by the Privy Council on the constitutionality of the mandatory nature of the death penalty, was dismissed on July 7, 2004: see ( Boyce v. The QueenBoyce v. The Queen [2005] 1 A.C. 400; (2004) 64 W.I.R. 37). By a 5–4 majority the Privy Council held that the mandatory death penalty was not unlawful or unconstitutional.
On July 9, 2004 the respondents' solicitors in London gave notice of their intention to make a complaint to the Inter-American Commission on Human Rights (“IACHR”) and requested a stay of execution. The BPC was formally told on September 4, 2004 that the IACHR applications were filed. Nevertheless the BPC met on September 13, 2004 and considered the order of the Privy Council of July 7, 2004 dismissing the respondents' appeals. The BPC advised against commutation, and death warrants were read to the respondents a second time.
On September 16, 2004, the respondents filed constitutional motions (“the second motions”) seeking inter alia a stay of execution pending the determination of their applications before the IACHR. The orders for a stay of execution were eventually granted.
The first and second motions were consolidated and heard by Greenidge, J. The learned judge dismissed the motions on December 22, 2004 granting a stay of execution for 6 weeks pending an appeal. An appeal was filed on January 18, 2005. The Court of Appeal extended the stay until the hearing and determination of the appeals. By order dated May 31, 2005 the Court of Appeal (Colin Williams, Waterman and Peter Williams, JJ.A.) allowed the appeals and commuted the death sentences of Joseph and Boyce to life imprisonment. Pursuant to final leave granted by the Court of Appeal of Barbados on November 25, 2005 the Crown now appeals the order of the Court of Appeal.
Meanwhile on September 17, 2004 the IACHR had admitted the petitions of Joseph and Boyce and invited the Barbados Government to respond. The IACHR also applied to the Inter-American Court on Human Rights (“the Inter-American Court”) for provisional measures aimed at preserving the lives of Joseph and Boyce. On September 17, 2004 the President of the Inter-American Court made that order and the full court of the Inter-American Court confirmed it on November 25, 2004. These orders came before the respondents had exhausted the issues raised by their constitutional motions of September 16, 2004, and no further reference is made to them in this judgment.
I need not rehearse the findings of the Court of Appeal at this stage other than to say that it held that the decisions of the BPC were subject to judicial review and that the ratified but unincorporated treaties i.e. the American Convention on Human Rights and the International Covenant on Civil and Political Rights 1966 (ICCPR) gave the respondents the right to have their petitions to these human rights bodies processed and the reports of these bodies placed before the BPC for consideration before it made a decision on clemency. The Court of Appeal therefore considered that the BPC's decisions in 2002 and 2004 not to recommend clemency constituted a breach of the respondents' right to the protection of the law (section 11(c) of the Constitution). The Court of Appeal commuted the death sentences to life imprisonment for the following reasons:
“Judicial deference to the BPC and the limited time before the expiry of the five-year period therefore dictate that we should not order a stay of execution pending the report from the IACHR. In view of the time frame and the circumstances of the case, the proper order is to commute the sentences.”
Ultimately the Court of Appeal felt that the real ground for allowing the appeal was that the delay between conviction and execution was long enough to amount to “inhuman or degrading punishment” within the meaning of section 15(1) of the Constitution as explained in the Pratt and Morgan? guidelines.
By the time this appeal was heard the fifth anniversary of the conviction of Joseph and Boyce had passed, as the Court of Appeal presciently predicted. Leading counsel for the Crown, Mr Forde QC, therefore conceded that if his appeal were successful he could not properly ask for the reinstatement of the death sentences in the light of Pratt and Morgan v. Attorney-General for Jamaica [1994] 2 A.C. 1 (PC); (1993) 43 W.I.R. 340. No issue was taken for this purpose with the aggregation of the time taken to pursue domestic appeals with the time spent before international human rights tribunals.
In cases such as the present involving the mandatory death penalty the courts are faced with a paradox. In the first place, the trial judge must, if the jury finds the accused guilty,...
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