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You are here: BAILII >> Databases >> The Judicial Committee of the Privy Council Decisions >> Boyce & Anor v R (Barbados) [2004] UKPC 32 (07 July 2004) URL: https://www.bailii.org/uk/cases/UKPC/2004/32.html Cite as: [2004] 3 WLR 786, 17 BHRC 118, [2005] 1 AC 400, [2004] UKPC 32, [2005] AC 400 |
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Boyce & Anor v R (Barbados) [2004] UKPC 32 (07 July 2004)
Privy Council Appeal No. 99 of 2002
(1) Lennox Ricardo Boyce and
(2) Jeffrey Joseph Appellants
v.
The Queen Respondent
FROM
THE COURT OF APPEAL OF BARBADOS
---------------
JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL,
Delivered the 7th July 2004
------------------
Present at the hearing:-
Lord Bingham of Cornhill
Lord Nicholls of Birkenhead
Lord Steyn
Lord Hoffmann
Lord Hope of Craighead
Lord Scott of Foscote
Lord Rodger of Earlsferry
Lord Walker of Gestingthorpe
Mr. Justice Edward Zacca
[Majority judgment delivered by Lord Hoffmann]
------------------
Summary
The appeals
The mandatory death penalty.
The Constitution.
"If any other law is inconsistent with this Constitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void."
International law
"6(1) Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.
7. No one shall be subject to torture or to cruel, inhuman or degrading treatment or punishment."
"1. Every person has the right to have his life respected. This right shall be protected by law … No one shall be arbitrarily deprived of his life.
2. In countries that have not abolished the death penalty, it may be imposed only for the most serious crimes …
6. Every person condemned to death shall have the right to apply for amnesty, pardon or commutation of sentence, which may be granted in all cases."
"The Board is mindful of the constitutional provisions … governing the exercise of mercy by the Governor General … But it is not a sentencing function and the Advisory Council is not an independent and impartial court … The administration of justice involves the determination of what punishment a transgressor deserves, the fixing of the appropriate sentence for the crime. The grant of mercy involves the determination that a transgressor need not suffer the punishment he deserves, that the appropriate sentence may for some reason be remitted. The former is a judicial, the latter an executive, responsibility. It has been repeatedly held that not only determination of guilt but also determination of the appropriate measure of punishment are judicial not executive functions …. The opportunity to seek mercy from a body such as the Advisory Council cannot cure a constitutional defect in the sentencing process."
Fundamental rights in Barbados
The savings provision
"26(1) Nothing contained in or done under the authority of any written law shall be held to be inconsistent with or in contravention of any provision of sections 12 to 23 to the extent that the law in question ?
(a) is a law (in this section referred to as 'an existing law') that was enacted or made before 30th November 1966 and has continued to be part of the law of Barbados at all times since that day;
(b) repeals and re-enacts an existing law without alteration; or
(c) alters an existing law and does not thereby render that law inconsistent with any provision of sections 12 to 23 in a manner in which, or to an extent to which, it was not previously so inconsistent.
(2) In subsection (1)(c) the reference to altering an existing law includes references to repealing it and re-enacting it with modifications or making different provisions in lieu thereof, and to modifying it; and in subsection (1) "written law" includes any instrument having the force of law and in this subsection and subsection (1) references to the repeal and re-enactment of an existing law shall be construed accordingly."
"It was a reasonable working assumption, in the interests of legal certainty and to secure an orderly transfer of legislative authority from the colonial power to the newly independent democracy."
The Order in Council
"Subject to the provisions of this section, the existing laws shall be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with the Barbados Independence Act 1966 and this Order."
(a) Irrationality
(b) Ultra vires
"A Constitution Order may contain such transitional or other incidental or supplementary provision as appear to Her Majesty to be necessary or expedient."
"It is the duty of the court to decide what modifications require to be made to the offending provision in the proviso and to give effect to its modified form, not to strike down the proviso altogether."
(c) Language and purpose
Principles of construction
Existing punishment
"Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question authorises the infliction of any punishment or the administration of any treatment that was lawful in Barbados immediately before 30th November 1966."
Stare decisis
The Interpretation Act
"(5) Where an enactment provides a punishment for an offence against the enactment, the offence shall be punishable by a punishment not exceeding that so provided.
(6) Where at the end of a section of any enactment a fine, penalty or term of imprisonment is set out, any contravention of that section shall be an offence against the enactment and shall be punishable by a fine, penalty or term of imprisonment not exceeding that so set out."
"Every enactment shall be construed as always speaking and anything expressed in the present tense shall be applied to the circumstances as they occur, so that effect may be given to each enactment according to its true spirit, intent and meaning."
The separation of powers
______________
Dissenting judgment by Lord Bingham of Cornhill,
Lord Nicholls of Birkenhead, Lord Steyn and
Lord Walker of Gestingthorpe
"(1) No person shall be subjected to torture or to inhuman or degrading punishment or other treatment.
(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question authorises the infliction of any punishment or the administration of any treatment that was lawful in Barbados immediately before 30th November 1966."
It would seem that subsection (2) was prompted by recognition that some penal practices of the former colonial government, in particular corporal punishment, were likely to be thought to offend the prohibition in subsection (1). It is, however, clear that section 15(2) does not protect the mandatory aspect of the death penalty: R v Hughes [2002] UKPC 12, [2002] 2 AC 259, paragraphs 47-48.
"26.(1) Nothing contained in or done under the authority of any written law shall be held to be inconsistent with or in contravention of any provision of sections 12 to 23 to the extent that the law in question -
(a) is a law (in this section referred to as 'an existing law') that was enacted or made before 30th November 1966 and has continued to be part of the law of Barbados at all times since that day;
(b) repeals and re-enacts an existing law without alteration; or
(c) alters an existing law and does not thereby render that law inconsistent with any provision of sections 12 to 23 in a manner in which, or to an extent to which, it was not previously so inconsistent.
(2) In subsection (1) (c) the reference to altering an existing law includes references to repealing it and re-enacting it with modifications or making different provisions in lieu thereof, and to modifying it; and in subsection (1) 'written law' includes any instrument having the force of law and in this subsection and subsection (1) references to the repeal and re-enactment of an existing law shall be construed accordingly."
Reference must lastly be made to section 4(1) and (6) of the Barbados Independence Order (corresponding to section 5 of the Trinidad and Tobago Act):
"4.(1) Subject to the provisions of this section, the existing laws shall be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with the Barbados Independence Act 1966 and this Order …
(6) In this section 'existing law' means any law having effect as part of the law of Barbados immediately before the appointed day (including any law made before the appointed day and coming into operation on or after that day)."
(1) When Barbados became independent, the European Convention on Human Rights ceased (after thirteen years) to apply to it. But it very promptly became a member of the United Nations, and so bound by the Universal Declaration of Human Rights. On 5 January 1973 it acceded to the International Covenant on Civil and Political Rights and (on the same date) to the Optional Protocol, from neither of which has it withdrawn.
(2) Barbados became a member of the Organisation of American States, and so bound by the American Declaration of the Rights and Duties of Man in November 1967. In June 1978 it signed and in November 1978 it ratified the American Convention on Human Rights, and in June 2000 it accepted the compulsory jurisdiction of the Inter-American Court of Human Rights. It has not withdrawn from these obligations.
(3) As recorded in paragraph 58 of our opinion in Matthew, the jurisprudence of the Human Rights Committee, the Inter-American Commission and the Inter-American Court has been wholly consistent in holding the mandatory death penalty to be inconsistent with the prohibition of cruel, inhuman or degrading treatment or punishment. Nothing turns on minor differences of wording between one instrument or another. The appellants submitted that "No international human rights tribunal anywhere in the world has ever found a mandatory death penalty regime compatible with international human rights norms," and this assertion has not been contradicted. It is true that no application against Barbados has, to our knowledge, been made to any of these bodies, perhaps because the execution of those condemned to death has, as we understand, been exceptional. But no convincing reason has been given why punishment or treatment which is inhuman, degrading or unusual elsewhere should not have that character in Barbados.
(4) In written submissions to the Inter-American Commission on Human Rights for a hearing in October 2003, the State of Barbados insisted, we do not doubt sincerely, on its respect for human rights and international obligations. It described itself (page 7) as "unique amongst Commonwealth Caribbean countries in its acceptance and promotion of Inter-American human rights obligations." It continued (page 8):
"Barbados recognises and values the binding international legal obligations it has accepted under international and regional treaties, including those of the Inter-American system. It affirms its obligations to uphold its representative democratic system as well as to respect the fundamental rights of the individual."
At page 14 it stated:
"Barbados seeks to uphold all of the international legal obligations it has accepted under the Inter-American system. However in doing so, it must balance its obligations to uphold democratic constitutional processes, on the one hand, and its obligations related to certain human rights instruments on the other."
The context of these submissions was an amendment recently made to the Constitution of Barbados to give express constitutional protection to the mandatory death penalty. The Commission has sought an advisory opinion from the Inter-American Court, and to that extent the matter remains open. But the Commission, in a note of 17 March 2004 to the Government of Barbados, has made clear its opinion:
"The Commission has considered the oral arguments made on behalf of Your Excellency's government during the hearing held on October 20, 2003, and has reviewed the written submissions provided by your government in support of those arguments. After considering the matter during its 119th Regular Period of Sessions, the Commission has remained of the view that the mandatory imposition of the death penalty is incompatible with the protections enshrined under the Inter-American human rights instruments, for the reasons set out in its numerous decisions adopted on this issue. In reaching this conclusion, the Commission has noted the submissions of Your Excellency's government concerning the existence under Barbadian law of exceptions, defenses and other circumstances that prevent the imposition of capital punishment, statutory exceptions that allow the avoidance of capital punishment, and the availability of the mercy prerogative of the Privy Council to individuals who have been sentenced to death. It is apparent from the numerous decisions of the Commission on this matter, however, as well as from the judgment of the Inter-American Court in the Case of Hilaire, Constantine and Benjamin et al, that the existence of such provisions and procedures does not alleviate the requirement that the death penalty only be imposed after a judicial hearing where the sentence is not mandated in advance and where all mitigating factors may be presented and taken into account by the judicial authority in determining whether death is the appropriate punishment.
Accordingly, the Commission maintains the observations contained in its note of January 21, 2003, as well as its recommendation pursuant to Article 18(b) of the Commission's Statute that Your Excellency's government reconsider its amendment to the Constitution of Barbados relating to the mandatory death penalty in light of the protections, standards and jurisprudence of the Inter-American human rights system."
While the matter now rests with the Inter-American Court, which alone can authoritatively interpret the Convention, we think it most unlikely that the Court will reach a decision different in any significant way from its earlier decisions.
(5) If, as we conclude, an interpretation of the Constitution is open to the Board which will be consistent with the international obligations of Barbados and not inconsistent with them, such interpretation should be adopted.