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URL: http://www.bailii.org/uk/cases/UKPC/1996/1.html
Cite as: [1996] 1 All ER 562, [1996] AC 527, [1996] UKPC 1, [1996] 2 WLR 281

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Reckley v. The Minister for Public Safety and Immigration and Others (Bahamas) [1996] UKPC 1 (5th February, 1996)

Privy Council Appeal

 

 

Thomas ReckleyPetitioner

v.

(1) The Minister for Public Safety and Immigration

(2) The Advisory Committee of the Prerogative

of Mercy and

(3) The Attorney General of The Bahamas Respondents

 

(No. 2)

 

FROM

 

THE COURT OF APPEAL OF THE COMMONWEALTH

OF THE BAHAMAS

 

---------------

JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL UPON

A PETITION FOR A STAY OF EXECUTION

Delivered the 5th February 1996

------------------

 

Present at the hearing:-

Lord Keith of Kinkel

Lord Goff of Chieveley

Lord Browne-Wilkinson

Lord Hoffmann

Sir Michael Hardie Boys

  [Delivered by Lord Goff of Chieveley]

 

-------------------------

 

The petitioner, Thomas Reckley, was charged with murder on 4th May 1989.  He was tried before Mrs. Justice Sawyer and a jury, and on 7th November 1990 he was sentenced to death.  He appealed to the Court of Appeal against both conviction and sentence. His appeal was dismissed on 3rd May 1991.  He petitioned for special leave to appeal to the Privy Council; but his petition was dismissed on 12th March 1992.  On 8th May 1992 lawyers acting for the petitioner wrote to the Advisory Committee on the Prerogative of Mercy established under Article 91 of the Bahamian Constitution, drawing their attention to certain features of the petitioner's case.  They received no acknowledgement of the receipt of that letter, or answer to it.

  At the time when the petitioner's petition to the Privy Council for leave to appeal was dismissed, there were pending before the

1. Constitutional Court in the Bahamas proceedings (Jones v. Attorney-General of the Commonwealth of The Bahamas) in which a number of persons under sentence of death were claiming that the death sentence was contrary to the Bahamian Constitution and so unlawful.  The Attorney-General indicated that no death sentence would be carried out until after the determination of those proceedings.  The proceedings were finally determined on 11th April 1995, when the Privy Council [1995] 1 W.L.R. 891 dismissed an appeal from the decision of the Bahamian courts rejecting the challenge to the lawfulness of the death penalty.

 

2. The Advisory Committee met to consider the petitioner's case on 18th May 1995, and following that meeting the Minister decided to advise the Governor-General that the law should be allowed to take its course.  On 25th May 1995 a warrant for the execution of the petitioner was signed by the Governor-General directing that the execution should take place at 8.00 a.m. on Tuesday, 30th May 1995.  The warrant was read to the petitioner at 6.30 a.m. on Friday, 26th May.  The warrant contained a statement to the effect that the petitioner's case had been considered by the Advisory Committee, and there is no evidence to suggest that the relevant paragraph was not read to him; but it appears that he may not have appreciated the contents of that paragraph, since it is recorded in manuscript at the foot of the warrant that he said that he had been told that they were going to consider his case in the Committee. Apart from the reading of the warrant of execution itself, the petitioner was not himself directly informed of the fact that the Advisory Committee had considered his case until he received a letter from the Ministry of Public Safety and Immigration at about 10.00 a.m. on Monday, 29th May which, though delivered at the prison on the evening of Friday, 26th May, was not delivered to him until the Monday morning.

 

3. However there is evidence that the contents of the letter in question were communicated to the petitioner's legal advisers on the evening of Thursday, 25th May; and on Friday, 26th May proceedings were commenced on behalf of the petitioner in the form of a constitutional motion in the Supreme Court, claiming that his execution pursuant to the warrant would be contrary to his constitutional rights.  Two points were taken.  First, it was said that, having regard to the time which had elapsed since the death sentence was passed upon him, to execute him would constitute inhuman and degrading punishment contrary to Article 17 of the Bahamian Constitution, on the principle stated by the Privy Council in Pratt v. Attorney-General for Jamaica [1994] 2 A.C. 1.  Second, it was claimed that the petitioner had not been afforded the  right  to see  the  judge's report and other material

placed by the Minister before the Advisory Committee, and to make representations to the Committee with reference to that material before they tendered their advice to the Minister; their Lordships will refer to this as "the Advisory Committee point".

 

4. On Monday, 29th May, an application was made to Mr. Justice Emmanuel Osadebay for an order preventing the implementation of the sentence of death until final determination of the constitutional motion.  In the evening of the same day, he refused the stay.  His reasons for so doing (which were delivered on 1st June) were in brief as follows. First, since the delay in the petitioner's execution was due to the de facto moratorium imposed pending the outcome of the proceedings in Jones (supra), his execution following such delay would not constitute a breach of constitutional rights, on the principle in Pratt.  Second, the Advisory Committee point was contrary to decisions of the Privy Council, including de Freitas v. Benny [1976] AC 239.  Later in the evening of Monday, 29th May, an appeal from the decision of Osadebay J. was heard by Fountain C.J. (Ag) sitting as a single judge of the Court of Appeal.  Early on the following morning he dismissed the appeal, and refused to grant a stay of execution pending a petition for leave to appeal to the Privy Council; but on the same day, Tuesday, 30th May, the Judicial Committee granted a stay of execution pending the hearing of a petition for leave to appeal.  On Tuesday, 13th June, after a hearing on Thursday, 8th June, the Judicial Committee [1995] 2 A.C. 491, while expressing the opinion that there were no arguable grounds for an appeal on the Pratt point, nevertheless extended the stay of execution until after the hearing and determination of the appeal in the Trinidadian case of Guerra v. Baptiste and Others [1995] 3 WLR 891, in which the Privy Council was being invited to reconsider the decision in de Freitas v. Benny.  Judgment in the case of Guerra was delivered on 6th November 1995, but their Lordships in that case decided that the Advisory Committee point did not arise for decision and so declined to deal with it. As a result the petition for leave to appeal from the refusal of a stay of execution in the present case was restored before the Privy Council on 9th November, when it was further adjourned for hearing on 4th December, the argument to be limited to two points, viz. (1) the Advisory Committee point; and (2) a second point, arising out of the decision in Guerra, that the period of notice of execution given to the petitioner was so short as to constitute a breach of his constitutional rights. Their Lordships declined to permit any further argument on the Pratt and Morgan point.  The stay of execution was extended until after the hearing and determination of the petition for leave.

 

 

5. On 4th December the petition for leave was restored for hearing before their Lordships, when argument was addressed to them on the two points. Their Lordships can deal with the second point briefly, since they are satisfied that there was no substance in it.

 

In Guerra the Privy Council decided that justice and humanity require that a man under sentence of death should be given reasonable notice of the time of his execution. Such notice was required "to enable a man to arrange his affairs, to be visited by members of his intimate family before he dies, and to receive spiritual advice and comfort to enable him to compose himself, as best he can, to face his ultimate ordeal" (see [1995] 3 WLR 891 at page 905); and also to "provide him with a reasonable opportunity to obtain legal advice and to have resort to the courts for such relief as may at that time be open to him" (at page 907). It was also held in that case, restoring on this point the decision of Davis J. in Andy Thomas v. The State 29th July 1987 (unreported), that there was a settled practice in Trinidad and Tobago at the date when the Constitution came into force that a reasonable time for this purpose should be at least four clear days, including a weekend; and that, on the principle stated by Lord Diplock in Thornhill v. Attorney-General of Trinidad and Tobago [1981] AC 61 at page 71, such a settled practice was binding under the Constitution.

 

6. These were the principles which Mr. Tattersall Q.C. sought to invoke on behalf of the petitioner in the present case.  His first submission was that there was a settled practice in The Bahamas that a condemned man should be given no less than 21 days notice of his execution. This submission however failed on the evidence before their Lordships, which provided no basis for any such settled practice.  Certainly there was none before the coming into force of the  Constitution in 1963.  During that time, the evidence before their Lordships showed that the periods of notice of execution varied from 1 clear day (in 1955) to 13 clear days (in 1957). There appear to have been only two executions between 1963 and the Constitution of 1969; nothing of value can be derived from them.  Since 1969, there were variations between 7 days (for two cases in 1974, both concerned with the service of a second warrant) and 37 days (in 1981).  No settled practice can be inferred from evidence such as this.  Mr. Tattersall briefly attempted to retrieve his case on this point by recasting it as one of legitimate expectation; but their Lordships can see no substance in this argument.

 

7. Mr. Tattersall's alternative submission was that the period of notice given to the petitioner was in any event unreasonable.  The period of  notice  given was in fact between 6.30 a.m. on Friday,

26th May and 8.00 a.m. on Tuesday, 30th May.  This period was less than the 4 clear days which was the subject of the settled practice in Trinidad and Tobago, but in fact provided as much time for the requisite purposes as that settled practice did.  Although the period of notice was short, their Lordships are unable to hold that it was so short as to be unreasonable in the circumstances.  It follows that the submission on this point must in any event fail; and it is unnecessary for their Lordships to advert to the obvious difficulty which arises in relation to a point of this kind, which is that the date fixed for the execution will in fact have been vacated, so that the period of notice in question has ceased to be of relevance. Their Lordships wish to record that Mr. Tattersall also complained about the late delivery of the letter to the petitioner informing him of the decision of the Minister, having consulted with the Advisory Committee, to advise the Governor-General that the law should take its course. While it is reprehensible that this letter was not delivered shortly after its receipt at the prison, their Lordships cannot see that its late delivery gives rise to any legal consequences in the present case.

For these reasons their Lordships are satisfied that no arguable point arose on this submission.  They turn therefore to consider the Advisory Committee point, which was the substantial point raised before them.  Their Lordships recognise that it is unusual for a point of this character to be considered upon an adjourned hearing of a petition for leave to appeal from a refusal of stay of an execution.  Their Lordships have taken that exceptional course in the present case because it involves a challenge to a previous decision of the Privy Council and so could not have been successfully advanced in the Bahamian courts.

 

8. To address this point, it is necessary first for their Lordships to refer to Articles 90, 91 and 92 of the Bahamian Constitution of 1973.  Article 90(1) provides that the Governor-General may, in Her Majesty's name and on Her Majesty's behalf:-

"(a)grant to any person convicted of any offence against the law of The Bahamas a pardon, either free or subject to lawful conditions;

(b)grant to any person a respite, either indefinite or for a specified period, from the execution of any punishment imposed on that person for such an offence;

(c)substitute a less severe form of punishment for that imposed by any sentence for such an offence; or

(d)remit the whole or any part of any sentence passed for such an offence or any penalty or forfeiture otherwise due to Her Majesty on account of such an offence."

9. It follows that there are conferred on the Governor-General a very wide range of powers which, under Article 90(2), are to be exercised by him in accordance with the advice of a designated Minister.  For present purposes the relevant power is that conferred by Article 90(1)(c), viz., in the present case to substitute a sentence of life imprisonment for a sentence of death.

 

10. Article 91 makes provision for the Advisory Committee on the Prerogative of Mercy, and establishes its constitution viz. the designated Minister, the Attorney-General, and between three and five other members appointed by the Governor-General. Article 92 is concerned with the functions of the Advisory Committee, and provides as follows:-

"92.-(1) Where an offender has been sentenced to death by any court for an offence against the law of The Bahamas, the Minister shall cause a written report of the case from the trial Justice of the Supreme Court, together with such other information derived from the record of the case or elsewhere as the Minister may require, to be taken into consideration at a meeting of the Advisory Committee.

 

  (2) The Minister may consult with the Advisory Committee before tendering any advice to the Governor-General under paragraph (2) of Article 90 of this Constitution in any case not falling within paragraph (1) of this Article.

 

  (3) The Minister shall not be obliged in any case to act in accordance with the advice of the Advisory Committee.

 

  (4) The Advisory Committee may regulate its own procedure.

 

  (5) In this Article `the Minister' means the Minister referred to in paragraph (2) of Article 90 of this Constitution."

 

11. Article 92(1) is directly in point in cases such as the present.  The effect is that, in death sentence cases, the question of the exercise of the prerogative of mercy will automatically be considered by the Advisory Committee.  This is to be contrasted with all other cases in respect of which it is provided, by Article 92(2), only that the Minister may consult with the Committee. In neither case however is the Minister obliged to act in accordance with the advice of the Committee.  An important feature of death sentence cases is that the Minister is required to cause a written report from the trial judge to be taken into consideration at the meeting of the Committee

 

"together with such other information derived  from the record of the case or elsewhere as the Minister may require".

 

12. On the face of this provision, therefore, there is (apart from the trial judge's report) no obligation on the Minister to place any particular information before the Advisory Committee in death sentence cases.  It was the submission of the respondents that these provisions reflected the essential nature of the exercise of the prerogative of mercy in death sentence cases, namely that this is a personal discretion vested in the Minister to depart from the law, as a matter of grace.

 

13. Even so it was the first submission of Mr. Tattersall on behalf of the petitioner that the exercise of the prerogative of mercy was in the present case amenable to judicial review. His second submission was that, in any event, the principle of fairness required in a death sentence case that the convicted man should be entitled to make representations to the Advisory Committee; and since effective representations could not be made by him unless he or his advisers were aware of the nature of material before the Committee antagonistic to his case, the gist of that material must be made known. In support of the latter part of that submission, reliance was placed in particular on the decision of the House of Lords in R. v. Secretary of State for the Home Department, Ex parte Doody [1994] 1 AC 531.

 

14. Mr. Tattersall's submissions immediately face the difficulty that they are contrary to the decision of the Privy Council in de Freitas v. Benny [1976] AC 239. In that case, which arose by way of an appeal under the Constitution of Trinidad and Tobago, the   Appellant claimed at page 247 that he was entitled (1) to be shown the material which the designated Minister placed before the Advisory Committee, and (2) to be heard by the Committee in reply at a hearing at which he was legally represented. It was claimed that the functions of the Committee were quasi-judicial in nature and accordingly that "any failure to grant to the appellant the rights he claims would contravene the rules of natural justice and infringe his right not be deprived of life except by due process of law".  The submission was rejected by the Judicial Committee in a judgment delivered by Lord Diplock. His judgment is so germane to the present case that their Lordships propose to take the exceptional course of quoting the relevant part in full.  It reads as follows at pages 247-8:-

"Except in so far as it may have been altered by the Constitution the legal nature of the exercise of the royal prerogative of mercy in Trinidad and Tobago remains the same as it was in England at common law.  At common law this has always been a matter which lies solely in the discretion of the sovereign, who by constitutional convention exercises it in respect of England on the advice of the Home Secretary to whom Her Majesty delegates her discretion.  Mercy is  not the subject of legal rights. It begins where legal rights end. A convicted person has no legal right even to have his case considered by the Home Secretary in connection with the exercise of the prerogative of mercy.  In tendering his advice to the sovereign the Home Secretary is doing something that is often cited as the exemplar of a purely discretionary act as contrasted with the exercise of a quasi-judicial function.  While capital punishment was still a lawful penalty for murder in England it was the practice of the Home Secretary in every capital case to call for a report of the case from the trial judge and for such other information from such other sources as he thought might help him to make up his mind as to the advice that he would tender to the sovereign in the particular case. But it never was the practice for the judge's report or any other information obtained by the Home Secretary to be disclosed to the condemned person or his legal representatives.

 

15. Section 70(1) of the Constitution makes it clear that the prerogative of mercy in Trinidad and Tobago is of the same legal nature as the royal prerogative of mercy in England. It is exercised by the Governor-General but `in Her Majesty's name and on Her Majesty's behalf'.  By section 70(2) the Governor-General is required to exercise this prerogative on the advice of a Minister designated by him, acting in accordance with the advice of the Prime Minister.  This provision does no more than spell out a similar relationship between the designated Minister and the Governor-General acting on behalf of Her Majesty to that which exists between the Home Secretary and Her Majesty in England under an unwritten convention of the British Constitution. It serves to emphasise the personal nature of the discretion exercised by the designated Minister in tendering his advice. The only novel feature is the provision in section 72(1) and (2) that the Minister before tendering his advice must, in a case where an offender has been sentenced to death, and may, in other cases, consult with the Advisory Committee established under section 71, of which the Minister himself is chairman; but section 72(3) expressly provides that he is not obliged in any case to act in accordance with their advice. In capital cases the Advisory Committee too must see the judge's report and any other information that the Minister has required to be obtained in connection with the case, but it still remains a purely consultative body without any decision-making power.

 

16. In their Lordships' view these provisions are not capable of converting the functions of the Minister, in relation to the advice  he tenders  to  the Governor-General, from functions

which in their nature are purely discretionary into functions that are in any sense quasi-judicial. This being so the appellant has no legal right to have disclosed to him any material furnished to the Minister and the Advisory Committee when they are exercising their respective functions under sections 70 to 72 of the Constitution."

 

17. The decision in de Freitas v. Benny was concerned with the Constitution of Trinidad and Tobago; but the observations of Lord Diplock are equally apposite to the Constitution of The Bahamas.

 

18. It is of some interest to observe that Articles 90-92 of the present Bahamian Constitution first appeared in the Constitution of 1963, which came into force at a time before capital punishment was abolished in Great Britain in 1965.  At that time, there can be no doubt that the status of the Home Secretary's discretion in death sentence cases in England was as described by Lord Diplock; and it appears that the statutory intention, when enacting Articles 90-92 of the Bahamian Constitution of 1963, was to replicate that discretion, save that the designated Minister was to be provided with the benefit of advice from an Advisory Committee.  It was recognised by Lord Diplock in Abbott v. Attorney-General of Trinidad and Tobago [1979] 1 WLR 1342, at page 1346, that section 89 of the Constitution of Trinidad and Tobago (identical to Article 92 of the Bahamian Constitution) imposes duties upon the designated Minister and the Advisory Committee arising under public law; and further that no warrant of execution should be issued "until after the Advisory Committee has considered the case and proffered its advice to the designated Minister and the designated Minister has tendered his own advice (which may differ from that of the Advisory Committee) to the President" - in the Bahamas, to the Governor-General.  Even so, their Lordships consider that the introduction of the Advisory Committee, and the statutory provisions governing the exercise of its functions in death sentence cases, reinforce Lord Diplock's analysis in de Freitas v. Benny. First of all, it is made plain that every death sentence case must be considered by the Advisory Committee. There is no question of such consideration depending on any initiative from the condemned man or his advisers. Second, despite the obvious intention that the Advisory Committee shall be a group of distinguished citizens, and despite the fact that the Minister is bound to consult with them in death sentence cases, he is not bound to accept their advice.  This provides a strong indication of an intention to preserve the status of the Minister's discretion as a purely personal discretion, while ensuring that he receives the benefit of advice from a reputable and impartial source. Indeed it may be inferred that the reason why provision was made in the Constitution for an Advisory Committee was to provide a constitutional safeguard in circumstances where the Minister's discretionary power was of such a nature that it was not subject to judicial review. Third, the material which has to be taken into consideration at the meeting of the Advisory Committee is, apart from the trial judge's report,

 

"such other information derived from the record of the case or elsewhere as the Minister may require".

 

19. This provision, which is consistent with the practice formerly applicable in England in the consideration of death sentence cases by the Home Secretary, is inconsistent with the condemned man having a right to make representations to the Advisory Committee.

 

  The point can be placed in a broader context.  A man accused of a capital offence in the Bahamas has of course his legal rights.  In particular he is entitled to the benefit of a trial before a judge and jury, with all the rights which that entails.  After conviction and sentence, he has a right to appeal to the Court of Appeal and, if his appeal is unsuccessful, to petition for leave to appeal to the Privy Council.  After his rights of appeal are exhausted, he may still be able to invoke his fundamental rights under the Constitution.  For a man is still entitled to his fundamental rights, and in particular to his right to the protection of the law, even after he has been sentenced to death. If therefore it is proposed to execute him contrary to the law, for example because there has been such delay that to execute him would constitute inhuman or degrading punishment, or because there has been a failure to consult the Advisory Committee on the Prerogative of Mercy as required by the Constitution, then he can apply to the Supreme Court for redress under Article 28 of the Constitution.  But the actual exercise by the designated Minister of his discretion in death sentence cases is different.  It is concerned with a regime, automatically applicable, under which the designated Minister, having consulted with the Advisory Committee, decides, in the exercise of his own personal discretion, whether to advise the Governor-General that the law should or should not take its course. Of its very nature the Minister's discretion, if exercised in favour of the condemned man, will involve a departure from the law.  Such a decision is taken as an act of mercy or, as it used to be said, as an act of grace. As Lord Diplock said in de Freitas v. Benny at page 247G: "Mercy is not the subject of legal rights. It begins where legal rights end". And the act of the Advisory Committee in advising the Minister is of the same character as the act of the Minister in advising the Governor-General.

 

20. Mr. Tattersall invoked a number of authorities in support of his argument; but in their Lordships' opinion, they did not assist him.  First, he cited the leading case of Council of Civil Service Unions v. Minister  for  the Civil  Service  [1985] A.C.  374.  That case recognised that the exercise of a prerogative power was not ipso facto immune from judicial review; but it certainly did not go so far as to suggest that every exercise of such a power was amenable to that jurisdiction.  This was made plain in a number of passages from their Lordships' speeches in that case.  To select just one example, Lord Scarman said (at page 407B):-

"... if the subject matter in respect of which prerogative power is exercised is justiciable, that is to say if it is a matter upon which the court can adjudicate, the exercise of the power is subject to review in accordance with the principles developed in respect of the review of the exercise of statutory power."

 

21. See also Lord Diplock at pages 408-9, and Lord Roskill at page 418A-C.  These passages are, in their Lordships' opinion, inconsistent with the submission advanced on behalf of the petitioner in the present case, in that the exercise of the prerogative of mercy in a death sentence case under the Bahamian Constitution is, for the reasons already given, not justiciable. Their Lordships were also referred to R. v. Secretary of State for the Home Department, Ex parte Bentley [1994] Q.B. 349, and Burt v. Governor-General [1992] 3 N.Z.L.R. 672. Neither case was however directly concerned with the possibility of judicial review of the exercise of the prerogative of mercy in a death sentence case; and their Lordships did not for present purposes derive assistance from them.  Ex parte Bentley was concerned with the response of the Home Secretary to a campaign that a man, who had been executed for murder in 1953, should be granted a posthumous pardon.  The Home Secretary considered that there were no grounds upon which he could recommend a free pardon.  It was submitted to the Divisional Court that the Home Secretary had erred in law in not considering the possibility of granting a posthumous conditional pardon. The Court accepted the submission and remitted the matter to the Home Secretary for further consideration in the light of their ruling.  Their Lordships do not however consider that this decision which, as the Divisional Court itself recognised, was concerned with an exceptional situation, has any bearing on the present case.  Burt v. Governor-General, a decision of the New Zealand Court of Appeal, contains a valuable though obiter discussion by Sir Robin Cooke P. on the exercise of the power of pardon.  The discussion was however inconclusive; and it was inevitably coloured by its New Zealand context, in particular the impact of section 23 of the New Zealand Official Information Act 1982 (under which a petitioner has a right to information about a recommendation concerning him) and of the New Zealand Bill of Rights Act 1990. Moreover the views there tentatively expressed by Sir Robin  were not directly concerned with the reviewability of the exercise of the prerogative of mercy in a death sentence case, still less with such a case governed by Articles 90-92 of the Bahamian Constitution, including the provision relating to the functions of the Advisory Committee.

Their Lordships were also referred to the recent decision of the Supreme Court of Belize in Lauriano v. Attorney-General of Belize, dated 20th September 1995, which appears to be inconsistent with the conclusion reached by their Lordships in the present case.  It is sufficient for present purposes to record that their Lordships found nothing in the reasoning in that case to dissuade them from their present course.

In their Lordships' opinion the petitioner faces similar difficulties in respect of the alternative submission advanced on his behalf, viz. that the principle of fairness required that he should be entitled to make representations to the Advisory Committee and, for that purpose, to see, or to be provided with the gist of, the material (including the trial judge's report) which had been placed before the Advisory Committee. In support of this proposition, reliance was placed on the decision of the House of Lords in R. v. Secretary of State for the Home Department, Ex parte Doody [1994] 1 AC 531. That case was however concerned with a different subject matter, viz. the exercise by the Home Secretary of his statutory power to release on licence a person serving a sentence of life imprisonment.  It was there held that the Home Secretary was bound to afford a prisoner serving a mandatory life sentence the opportunity to submit in writing representations as to the penal element in the sentence which he must serve, and further that, to enable those representations to be effective, he must make available to the prisoner the gist of the material upon which he will found when making his decision.  What is important for present purposes, however, is that Lord Mustill (with whose speech the remainder of the Appellate Committee agreed) was careful at page 556G-H to distinguish that case from a case in which the prisoner is "essentially in mercy" where there is "no ground to ascribe to him the rights which fairness might otherwise demand" (see page 556H).  That is precisely the present case.  Indeed it is clear from the constitutional provisions under which the Advisory Committee is established, and its functions are regulated, that the condemned man has no right to make representations to the Committee in a death sentence case; and, that being so, there is no basis on which he is entitled to be supplied with the gist of other material before the Committee. This is entirely consistent with a regime under which a purely personal discretion is vested in the Minister. Of course the condemned man is at liberty to make such representations, in which event the Minister can (and no doubt will in practice) cause such representations to be placed before the Advisory Committee, although the condemned man has no right that he should do so.

 

22. In this connection their Lordships wish to stress the nature of the constitutional safeguard which the introduction of the Advisory Committee has created.  On the Committee, the designated Minister and the Attorney-General will be joined by a group of people nominated by the Governor-General. These will, their Lordships are confident, be men and women of distinction, whose presence, and contribution, at the heart of the process will ensure that the condemned man's case is given, and is seen by citizens to be given, full and fair consideration. Such people as these will expect to be provided with all relevant material, including any material supplied by or on behalf of the condemned man; and in the most unlikely event that the responsible civil servants do not place such material before them, they are perfectly capable of making the necessary enquiries.  It is plain to their Lordships that those who drew the Constitution of the Bahamas were well aware of the personal nature of the discretion to be exercised by the Minister and the consequent absence of any supervisory role by the courts, but also considered that, by introducing an Advisory Committee with the constitution and functions specified in the Constitution, they were providing a safeguard both appropriate and adequate for the situation.

 

23. For these reasons, their Lordships are satisfied that the decision of the Privy Council in de Freitas v. Benny remains good law and, in a case arising under the Constitution of the Bahamas, is determinative of the Advisory Committee point. It follows that there is no arguable point to justify the grant of leave to appeal from the decision of the Acting Chief Justice refusing a stay of execution, and such leave to appeal must therefore be refused.

 

24. Their Lordships wish to conclude by stating that their opinion on the Advisory Committee point has been expressed solely with reference to death sentence cases, for which special provision is made in Article 92(1).  They have not addressed the question with reference to the exercise of the powers of the Governor-General in other cases arising under Article 90(1), and do not therefore wish to be understood to have expressed any opinion on those cases.

 

25. Their Lordships will accordingly humbly advise Her Majesty that this petition ought to be dismissed.

 

CROWN COPYRIGHT as at the date of judgment


© 1996 Crown Copyright


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