The Privy Council decided in 1993—in the case of Pratt and Morgan—that execution could not lawfully take place more than five years after sentence. It was recommended that a capital appeal should be heard within twelve months of conviction and the entire domestic appeal process completed within two years.
I remain hanging in disbelief at any suggestion that the death penalty can be resumed simply by returning to case management that makes our murder cases Pratt and Morgan compliant.
On several previous occasions when the resumption of hanging ole talk has appeared, I have written to explain that there are existing hindrances to the implementation of the death penalty in addition to Pratt and Morgan.
On this occasion, I emphasise that two of these hindrances arose out of a decision of the Privy Council given shortly after the execution of Dole Chadee and his associates.
The additional hindrances to the implementation of the death penalty are potential challenges to test the fairness of the Mercy Committee process and the state of conditions in prison. They are contained in Lewis and others v The Attorney General for Jamaica decided on 12 September 2000, referred to below as Lewis.
In addition, condemned persons have continued to petition international human rights bodies in order to obtain a recommendation that their sentences be commuted.
In The Attorney General for Barbados v Joseph and Boyce, the Caribbean Court of Justice (the CCJ), in a decision dated 8 November 2006, agreed with an earlier decision of the Privy Council—although on different grounds—that a condemned person had a right to petition the relevant international human rights bodies and to have the reports of those bodies received and considered by the State prior to execution.
The Privy Council, to whose jurisdiction our country has remained subject, has resisted any change in the Pratt and Morgan timetable to permit execution later than five years after sentence in order to accommodate delays in the determination of appeals to international bodies.
It did so even though the Board acknowledged that it might have been over-optimistic to expect that petitions to international human rights bodies could be dealt with in 18 months, particularly where petitions may be made to two international bodies.
The CCJ has disagreed and said that the time for receiving the decision of the international bodies should not be open-ended.
Access to the international bodies was not an impediment in the case of Dole Chadee. He had had already accessed the international bodies and they had rejected his petitions by the time of his two additional last-ditch appeals to the Privy Council in 1999 heard on 10 May and 29 May 1999, which were unsuccessful and followed by his execution on 4 June 1999.
At that time, challenges to the Mercy Committee process and prison conditions were not impediments. But the Privy Council then changed its mind in the Lewis case and departed from previous decisions that precluded matters concerning the Mercy Committee and prison conditions from being a hindrance to implementation.
It was acknowledged by Purseglove SC—in an interview with the Trinidad Express last week—that “the Privy Council is looking all the time for reasons to stop a country executing.”
In the first of Chadee’s appeals, when the Privy Council gave its reasons, it expressly stated that it had held in Thomas and Hilaire in March 1999 that prison conditions were not a constitutional ground, without more, for commutation of a death sentence. Eighteen months later, the Board changed direction in the Lewis case.
Regarding the change of direction by the Privy Council in Lewis, in a pungent dissent, Lord Hoffman said: “If the Board feels able to depart from a previous decision simply because its members on a given occasion have a ‘doctrinal disposition to come out differently’, the rule of law itself will be damaged and there will be no stability in the administration of justice in the Caribbean.”
It is also worth repeating the following words of the Privy Council, per Lord Nicholls, which indicate that nothing short of a constitutional amendment can revive the death penalty for implementation:
“If the requisite legislative support for a change in the constitution is forthcoming, a deliberate departure from fundamental human rights may be made, profoundly regrettable although this may be. That is the prerogative of the legislature. If departure from fundamental human rights is desired, that is the way it should be done. The constitution should be amended explicitly.”
In response to the above realities our political leaders have, as is common, ducked confronting the real issues. On the death penalty question there has been little attempt at consultation with the country followed by genuine bi-partisan constitutional reform, if desired.
Political focus remains on periodic electoral battles to get their hands on the national cash register and sometimes to put their friends and allies in line for the spoils.