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Cite as:  WLR 1623,  UKPC 10,  1 WLR 1623
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Bowe (Junior) & Anor v. R. Rev 1 (Bahamas)  UKPC 10 (8 March 2006)
Privy Council Appeal No 44 of 2005
(1) Forrester Bowe (Junior)
(2) Trono Davis Appellants
The Queen Respondent
THE COURT OF APPEAL OF
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JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL
Delivered the 8th March 2006
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Present at the hearing:-
Lord Bingham of Cornhill
Lord Nicholls of Birkenhead
Lord Hope of Craighead
Lord Rodger of Earlsferry
Lord Brown of Eaton-under-Heywood
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[Delivered by Lord Bingham of Cornhill]
Jurisdiction of the Court of Appeal
(1) Subject to exceptions in the case of those under the age of 18 at the time of the killing or pregnant at the date of sentence, section 312 of the Penal Code of the Bahamas (now section 291) requires sentence of death to be passed on any defendant convicted of murder.
(2) The Court of Appeal has no jurisdiction to entertain an appeal against a mandatory sentence.
(3) Any challenge to the constitutionality of the mandatory life sentence laid down by section 312 could not be relied on by a defendant in the criminal proceedings but must be the subject of a separate constitutional motion in the Supreme Court.
It was suggested, in reliance on Walker v The Queen  2 AC 36, that the Board itself had no jurisdiction to grant leave and remit in the present cases.
"A person convicted on information in the Supreme Court may appeal to the court under the provisions of this Act?
(c) with the leave of the court against the sentence passed on his conviction unless the sentence is one fixed by law.
Attention was also drawn to section 12(3):
"On an appeal against sentence the court shall, if it thinks that a different sentence ought to have been passed, quash the sentence passed at the trial, and pass such other sentence warranted in law by the verdict (whether more or less severe) in substitution therefor as the court thinks ought to have been passed, and in any other case shall dismiss the appeal."
Thus, the court reasoned, where the law lays down a mandatory penalty on conviction, the court is denied jurisdiction to review the sentence and plainly cannot substitute any other sentence. Where the court's premise is met, the Board would accept that these conclusions must follow. But the appellants' challenge is directed to the premise. Their contention is that section 312, as interpreted in Jones, is inconsistent with the Constitutions of 1963 and 1969, considered below, and that the section must be modified so as to conform with those constitutions by prescribing a discretionary instead of a mandatory sentence of death. The merits of this argument must be considered at some length hereafter. But for purposes of jurisdiction the incorrectness of the argument cannot be assumed, and if the argument is correct the Court of Appeal's reasoning breaks down, for it is not reviewing a sentence fixed by law and there is no objection to its substituting a lesser sentence for a discretionary sentence of death. In somewhat similar circumstances appeals against apparently mandatory sentences were entertained in Reyes v The Queen  UKPC 11,  2 AC 235, Fox v The Queen  UKPC 13,  2 AC 284, and R v Hughes  UKPC 12,  2 AC 259. At this point the court fell into error.
"28.?(1) If any person alleges that any of the provisions of Articles 16 to 27 (inclusive) of this Constitution has been, is being or is likely to be contravened in relation to him then, without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the Supreme Court for redress.
(2) The Supreme Court shall have original jurisdiction?
(a) to hear and determine any application made by any person in pursuance of paragraph (1) of this Article; and
(b) to determine any question arising in the case of any person which is referred to it in pursuance of paragraph (3) of this Article,
and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of any of the provisions of the said Articles 16 to 27 (inclusive) to the protection of which the person concerned is entitled:
Provided that the Supreme Court shall not exercise its powers under this paragraph if it is satisfied that adequate means of redress are or have been available to the person concerned under any other law.
(3) If, in any proceedings in any court established for The Bahamas other than the Supreme Court or the Court of Appeal, any question arises as to the contravention of any of the provisions of the said Articles 16 to 27 (inclusive), the court in which the question has arisen shall refer the question to the Supreme Court.
(4) No law shall make provision with respect to rights of appeal from any determination of the Supreme Court in pursuance of this Article that is less favourable to any party thereto than the rights of appeal from determinations of the Supreme Court that are accorded generally to parties to civil proceedings in that Court sitting as a court of original jurisdiction.
(5) Parliament may make laws to confer upon the Supreme Court such additional or supplementary powers as may appear to be necessary or desirable for enabling the Court more effectively to exercise the jurisdiction conferred upon it by paragraph (2) of this Article and may make provision with respect to the practice and procedure of the Court while exercising that jurisdiction."
The majority of the Court of Appeal read this article as precluding it from entertaining a challenge to the constitutionality of a sentencing provision on an appeal against sentence in criminal proceedings. Redress must be sought in a separate application to the Supreme Court. The Board cannot accept these conclusions for two main reasons. First, they are inconsistent with the decision of the Board in Chokolingo v Attorney-General of Trinidad and Tobago  1 WLR 106, 111-112. Secondly, they are inconsistent with article 28. Subsection (1) of the article makes plain that the right of application to the Supreme Court for redress is "without prejudice to any other action with respect to the same matter which is lawfully available". Thus the right of application to the Supreme Court is not provided as a unique or exclusive procedure, an interpretation made still clearer by the proviso to subsection (2). The provision in subsection (3) for reference to the Supreme Court applies only where the question arises in proceedings in any court "other than the Supreme Court or the Court of Appeal": the inescapable inference is that if the question arises in proceedings in one or other of those courts, it shall be resolved in that court in those proceedings. In concluding otherwise the Court of Appeal majority fell into error.
The relevant constitutional provisions
"4.?(1) Subject to the provisions of this section, the existing laws shall continue in force after the commencement of this Order as if they had been made in pursuance thereof and notwithstanding the revocation of the existing Letters Patent but the existing laws shall be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with the Constitution.
(2) Where any matter that falls to be prescribed or otherwise provided for under the Constitution by the Legislature or by any other authority or person is prescribed or provided for by or under an existing law (including any amendment, adaptation or modification to any such law made under this section) or is otherwise prescribed or provided for immediately before the commencement of this Order by or under the existing Letters Patent, that prescription or provision shall, as from the commencement of this Order, have effect as if it had been made under the Constitution by the Legislature or, as the case may be, by the other person or authority.
(3) The Governor may by order made at any time within two years after the appointed day make such amendments, adaptations or modifications to any existing law as may appear to him to be necessary or expedient for bringing that law into conformity with the provisions of the Constitution or otherwise for giving effect or enabling effect to be given to those provisions.
(4) The provisions of this section shall be without prejudice to any powers conferred by the Constitution or by any other law upon any person or authority to make provision for any matter, including the amendment or repeal of any existing law.
. . . .
(6) For the purposes of this section, the expression 'existing law' means any law, rule, regulation, order or other instrument made or having effect as if it had been made in pursuance of the existing Letters Patent and having effect as part of the law of the Bahama Islands immediately before the commencement of this Order."
Section 12(1) of the Order provided a two-year standstill period, and conferred special powers on the Governor:
"12.?(1) Until the expiration of the period of two years immediately after the appointed day, nothing contained in any existing law shall be held to be inconsistent with any provision of sections 2 to 13 (inclusive) of the Constitution, and nothing done during that period under the authority of any such law shall be held to be done in contravention of any of those sections; thereafter Part I of the Constitution shall have full force and effect in the Bahama Islands save that no provision in any existing law which is declared by order of the Governor under subsection (9) of this section to be an excepted provision shall be deemed to be inconsistent with any provision of the said sections 2 to 13 (inclusive) and nothing done under the authority of any such provision shall be held to be done in contravention of any of those sections."
The section went on to provide that after the appointed day a Commissioner should examine existing laws with reference to the provisions of sections 2 to 13 of the Constitution: he was then to report, and a conference would be held to consider provisions impugned in the report.
"Whereas every person in the Bahama islands is entitled to the fundamental rights and freedoms of the individual, that is to say, has the right, whatever his race, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, to each and all of the following, namely?
(a) life, liberty, security of the person …"
There followed section 2, which in subsection (1) (and subject to exceptions specified in subsection (2)) provided:
"No person shall be deprived intentionally of his life save in execution of the sentence of a court in respect of a criminal offence of which he has been convicted."
In section 3 it was provided:
"(1) No person shall be subjected to torture or to inhuman or degrading treatment or punishment.
(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 description of punishment that was lawful in the Bahama Islands immediately before the coming into operation of this Constitution."
Section 14 provided for enforcement in terms substantially indistinguishable from those of article 28 of the 1973 Constitution, quoted in para 10 above.
"the revocation of the existing Order shall not affect the operation on and after the appointed day of any law made or having effect as if made in pursuance of the existing Order or confirmed in force thereunder and having effect as part of the law of the Bahama Islands immediately before the appointed day (including any law made before the appointed day and coming into operation on or after that day)."
Section 4 of the Order was similar in effect, so far as relevant, to section 4 of the 1963 and 1969 Orders, save that the Governor-General (as he had become) was to have twelve months to make such amendments to any existing law as might appear to him to be necessary or expedient for bringing that law into conformity with the provisions of the Bahamas Independence Act 1973 and the Order.
"subject to the provisions of this 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."
"30.?(1) Subject to paragraph (3) of this Article, 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 Articles 16 to 27 (inclusive) of this Constitution to the extent that the law in question?
a. is a law (in this Article referred to as 'an existing law') that was enacted or made before 10th July 1973 and has continued to be part of the law of The Bahamas 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 the said Articles 16 to 27 (inclusive) in a manner in which, or to an extent to which, it was not previously so inconsistent.
(2) In sub-paragraph (1)(c) of this Article 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 paragraph (1) of this Article 'written law' includes any instrument having the force of law and in this paragraph and the said paragraph (1) references to the repeal and re-enactment of an existing law shall be construed accordingly.
(3) This Article does not apply to any regulation or other instrument having legislative effect made, or to any executive act done, after 9th July 1973 under the authority of any such law as is mentioned in paragraph (1) of this Article."
In Chapter VI of the Constitution ("The Executive") the Governor-General's powers to grant pardons and respites, to substitute penalties and to remit sentences were reproduced, as was the requirement that he act in accordance with the advice of Minister whom he, acting in accordance with the advice of the Prime Minister, was to designate (article 90(1) and (2)). The Committee was re-established, composed as before (article 91), and in capital cases the procedure was to be the same. The designated Minister was not obliged in any case to act in accordance with the advice of the Committee (article 92(3)).
(1) These Orders and Constitutions guaranteed to the people of the Bahamas certain rights regarded as fundamental, including the right (although qualified) to life and the right (again qualified) not to be subjected to torture or to inhuman or degrading treatment or punishment.
(2) While article 30(1) of the 1973 Constitution contained a general savings clause similar in effect to those held by a majority of the Board in Boyce v The Queen  UKPC 32,  1 AC 400; Matthew v State of Trinidad and Tobago  UKPC 33,  1 AC 433; and Watson v The Queen  UKPC 34,  1 AC 472 to be effective to preclude challenge to an existing law (if that law had not been amended after the relevant date) on grounds of inconsistency with the human rights guarantees of the Constitutions of Barbados, Trinidad and Jamaica, the 1963 and 1969 Orders and Constitutions of The Bahamas contained no such general savings clause.
(3) Section 4(1) of the 1963 and 1969 Orders imposed a mandatory duty to construe existing laws with such modifications, adaptations, qualifications and exceptions as might be necessary to bring them into conformity with the Constitution.
(4) If, as the appellants contend, section 312 is inconsistent with sections 2 and 3 of the 1963 and 1969 Constitutions, it must be construed with such modification as may be necessary to bring it into conformity with the 1963 or 1969 Constitution, unless section 312 is saved by another provision of the respective Orders or Constitutions.
(5) The saving provision in section 3(2) of the 1963 and 1969 Constitutions relates to modes of punishment: it is effective to confer immunity on the death penalty but not on the mandatory requirement that the death penalty be imposed.
(6) In pursuance of the duty imposed by section 4(1) of the 1963 and 1969 Orders, section 312 was to be construed before 10 July 1973 as prescribing a discretionary and not a mandatory sentence of death: thus the savings clause in article 30(1) of the 1973 Constitution applied to section 312 as so construed.
The main issue
(1) It is a fundamental principle of just sentencing that the punishment imposed on a convicted defendant should be proportionate to the gravity of the crime of which he has been convicted.
(2) The criminal culpability of those convicted of murder varies very widely.
(3) Not all those convicted of murder deserve to die.
(4) Principles (1), (2) and (3) are recognised in the law or practice of all, or almost all, states which impose the capital penalty for murder.
(5) Under an entrenched and codified constitution on the Westminster model, consistently with the rule of law, any discretionary judgment on the measure of punishment which a convicted defendant should suffer must be made by the judiciary and not by the executive.
"The other main characteristic of this system was its rigidity. Practically no capital statute provided any alternative to the death penalty, which thus had to be pronounced irrespective of the special circumstances of particular cases. This method disregarded the fundamental principle which is essential to any effective system of crime-prevention and which has been aptly defined by Raymond Saleilles as le principe de l'individualisation de la peine".
The eighth amendment to the Constitution of the United States, adopted in 1791, reproduced the language of the Bill of Rights 1689, and was concerned primarily with selective or irregular application of harsh penalties: Furman v Georgia 408 US 238 (1972), 242. In O'Neil v Vermont 144 US 323 (1892), 339-340, three justices held that the amendment was directed, not only against punishments which inflict torture "but against all punishments which by their excessive length or severity are greatly disproportioned to the offences charged. The whole inhibition is against that which is excessive either in the bail required, or fine imposed, or punishment inflicted." In Weems v United States 217 US 319 (1910), 366-367, McKenna J speaking for the Supreme Court said:
"Such penalties for such offenses amaze those who have formed their conception of the relation of a state to even its offending citizens from the practice of the American commonwealths, and believe that it is a precept of justice that punishment for crime should be graduated and proportioned to offense.
Is this also a precept of the fundamental law? We say fundamental law, for the provision of the Philippine bill of rights, prohibiting the infliction of cruel and unusual punishment, was taken from the Constitution of the United States and must have the same meaning."
Since article 3 of the European Convention on Human Rights, article XXVI of the American Declaration of the Rights and Duties of Man 1948 and section 3 of the 1963 and 1969 Constitutions derive, despite differences of language, from the same source, the core meaning of each is the same. Lord Denning recognised the long-standing power of the court to quash a penalty which was excessive and out of proportion (R v Northumberland Appeal Compensation Tribunal, Ex p Shaw  1 KB 338, 350-351; R v Barnsley Metropolitan Borough Council, Ex p Hook  1 WLR 1052, 1057-1058). The matter was clearly and succinctly put by Saunders JA (Ag) in the Eastern Caribbean Court of Appeal in Spence v The Queen and Hughes v The Queen (unreported, 2 April 2001, Criminal Appeals Nos 20 of 1998 and 14 of 1997) when he said in para 216 of his judgment:
"It is and has always been considered a vital precept of just penal laws that the punishment should fit the crime".
The Board is of the same opinion, and is not aware that the principle has ever been authoritatively controverted.
"And whereas the several offences, which are included under the general denomination murder, differ so greatly from each other in the degree of their atrociousness that it is unjust to involve them in the same punishment …"
This was also the view taken by the Royal Commission on Capital Punishment 1949-1953, whose Report (Cmd 8932, September 1953) has been described by a South African author as "the most profound official study of every facet of the problem of the death penalty ever made anywhere in the world" (B. v. D van Niekerk, "… Hanged by the Neck until You are Dead" (1969) 86 SALJ 457, 463). In paragraph 21 of its Report, on page 6, the Royal Commission stated:
"Yet there is perhaps no single class of offences that varies so widely both in character and in culpability as the class comprising those which may fall within the comprehensive common law definition of murder."
It went on to observe (para 38, p 11) that "the circumstances in which murder is committed vary infinitely" and to express as "an inescapable conclusion" (para 535, p 190) that
"the general liability under the existing law to suffer capital punishment for murder cannot be satisfactorily limited by such means [re-definition or classification into degrees], because no legal definition can cover all the multifarious considerations, relating to the offender as well as to his crime, which ought to be taken into account (and are at present taken into account by the Secretary of State) in deciding whether the supreme penalty should be exacted in each individual case".
It was of opinion (para 595, p 208) that "No formula is possible that would provide a reasonable criterion for the infinite variety of circumstances that may affect the gravity of the crime of murder". The Royal Commission repeated this view when it described murder (para 606, p 212) as "a crime that varies widely in character and culpability, and for which the penalty of death is often wholly inappropriate". In reaching these conclusions the Royal Commission reflected the evidence given by the Home Office (to the Royal Commission (1-2 Minutes of Evidence, p 13 (1949)), which was that
"No simple formula can take account of the innumerable degrees of culpability, and no formula which fails to do so can claim to be just or satisfy public opinion."
The Board is mindful that in The Bahamas the definition of murder imports an intention to kill, and to that extent the breadth of the common law offence in England and Wales is somewhat narrowed, as it has been in some other Caribbean jurisdictions. In the Board's opinion, however, it is true, as it recently held in Reyes v The Queen, above, para 11:
"it has however been recognised for very many years that the crime of murder embraces a wide range of offences of widely varying degrees of criminal culpability. It covers at one extreme the sadistic murder of a child for purposes of sexual gratification, a terrorist atrocity causing multiple deaths or a contract killing, at the other the mercy-killing of a loved one suffering unbearable pain in a terminal illness or a killing which results from an excessive response to a perceived threat. All killings which satisfy the definition of murder are not equally heinous."
These are not insights which have been gained since 1973.
"No one would now dispute that for many of these crimes it would be monstrous to inflict the death penalty."
The same view prevailed in the United States. In Winston v United States 172 US 303 (1899), 310, the Supreme Court referred to the "hardship of punishing with death every crime coming within the definition of murder at common law". This theme was echoed, again by the Supreme Court, in Williams v New York 337 US 241 (1949), 247-248, where the court held:
"The belief no longer prevails that every offense in a like legal category calls for an identical punishment without regard to the past life and habits of a particular offender. This whole country has traveled far from the period in which the death sentence was an automatic and commonplace result of convictions – even for offenses today deemed trivial".
In McGautha v California 402 US 183 (1971), 198, it was said that there had in the United States been a "rebellion against the common law rule imposing a mandatory death sentence on all convicted murderers". Although dissenting, Burger CJ observed in Furman v Georgia 408 US 238 (1972), 402:
"I had thought that nothing was clearer in history, as we noted in McGautha one year ago, than the American abhorrence of 'the common-law rule imposing a mandatory death sentence on all convicted murderers': 402 US at 198. As the concurring opinion of Mr Justice Marshall shows, ante, at 339, the 19th century movement away from mandatory death sentences marked an enlightened introduction of flexibility into the sentencing process. It recognized that individual culpability is not always measured by the category of the crime committed".
In Woodson v North Carolina 428 US 280 (1976), 301, an historical survey was said to make clear that
"one of the most significant developments in our society's treatment of capital punishment has been the rejection of the common-law practice of inexorably imposing a death sentence upon every person convicted of a specified offense".
"it is practically impossible to lay down an inflexible rule by which the same punishment must in every case be inflicted in respect of every crime falling within a given definition, because the degrees of moral guilt and public danger involved in offences which bear the same name and fall under the same definition must of necessity vary … The fact that the punishment of death is not inflicted in every case in which sentence of death is passed proves nothing more than that murder, as well as other crimes, has its degrees, and that the extreme punishment which the law awards ought not to be carried out in all cases".
In 1930 a Select Committee of the House of Commons recommended abolition of the death penalty for a trial period of five years. In 1947-1948 attempts were made in Parliament to introduce degrees of murder, leading to appointment of the 1949-1953 Royal Commission. But, as the detailed statistical examination made by the Royal Commission made clear, 45.7% of those sentenced to death in England and Wales between 1900 and 1949 were not executed (including 90% of women) and in Scotland the percentage not executed was even higher (although the figure for women was 80%): Report, paras 42-45, pp 13-15. Thus, as the Royal Commission observed in para 46, p 15,
"the liability to suffer the death penalty for murder is thus already limited to those murderers who in the opinion of the Home Secretary or the Secretary of State for Scotland deserve it, and the rigidity of the law is in practice circumvented".
For reasons which now seem unpersuasive, the Royal Commission favoured the grant of a sentencing discretion to juries (para 595, p 208); it did not contemplate that there could, consistently with justice, be no discretion. As is well known, the United Kingdom made an attempt to distinguish capital from non-capital murder in 1957, and when this proved unsuccessful abolished the death penalty in 1965. Such evidence as there is of practice in The Bahamas suggests that, both before and after 1973, the proportion of those reprieved has been greater than the proportion of those executed.
"There is a clear distinction between the prescription of a fixed penalty and the selection of a penalty for a particular case. The prescription of a fixed penalty is the statement of a general rule, which is one of the characteristics of legislation; this is wholly different from the selection of a penalty to be imposed in a particular case … The Legislature does not prescribe the penalty to be imposed in an individual citizen's case; it states the general rule, and the application of
thethat rule is for the Courts … the selection of punishment is an integral part of the administration of justice and, as such, cannot be committed to the hands of the Executive …".
In Liyanage v The Queen  1 AC 259, 287-288, the Board found no ground for inferring that, under the Constitution of Ceylon, judicial power was intended to be shared with the executive or the legislature. In The State v O'Brien  IR 50, 59-60, the Supreme Court of Ireland again held a sentencing provision to be unconstitutional:
"The section … placed it in the hands of [the Review Board] to determine actively and positively the duration of the prisoner's sentence, and not just to effect an act of remission. The determination of the length of sentence for a criminal offence is essentially a judicial function".
"no King after the Conquest assumed to himself to give any judgment in any cause whatsoever, which concerned the administration of justice within this realm, but these were solely determined in the courts of justice."
Lester and Oliver (Constitutional Law and Human Rights, 1997, para 14) cite this case as authority for the proposition that the
"power of doing justice in the courts has been irrevocably delegated to the judges and magistrates, so that the monarch may take no part in the proceedings of a court of justice."
To Dicey, commenting on the case in An Introduction to the Study of the Law of the Constitution, 1885, p 18, this was a rule "essential to the very existence of the constitution". Blackstone was of the same opinion. In volume I of his Commentaries on the Laws of England (1765), paras 268-269, he wrote:
"In criminal proceedings, or prosecutions for offences, it would still be a higher absurdity, if the king personally sat in judgment; because in regard to these he appears in another capacity, that of prosecutor . . . In this distinct and separate existence of judicial power in a peculiar body of men, nominated indeed, but not removable at pleasure, by the crown, consists one main preservative of the public liberty; which cannot subsist long in any state, unless the administration of common justice be in some degree separated both from the legislative and also from executive power."
The power of punishing offences against the law of nature, he added in volume IV, para 8, "is now vested in the magistrate alone".
"It is trite law that the exercise by the Government of a prerogative which includes a prerogative of mercy is entirely a matter for the Executive itself, and the courts have no jurisdiction whatsoever to inquire into the manner in which the prerogative power is exercised, always provided, of course, that the Government has the power."
The Board was later to rule to the same effect: de Freitas v Benny  AC 239, 247. It is of course true that the practice followed in the Bahamas is indistinguishable in principle from that followed in England and Wales before abolition of the death penalty for murder in 1965, and a similar practice was followed in relation to mandatory life sentences for murder until compliance with the European Convention was held to require the making of sentencing decisions by the court. But there was an important difference, in that the human rights provisions giving rise to this requirement formed part of the domestic law of the Bahamas, enjoying enhanced protection, for some 37 years before such was the case in England and Wales.
"Nothing contained in or done under the authority of any written law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question authorises the doing of anything by way of punishment or other treatment which might lawfully have been so done in Southern Rhodesia immediately before the appointed day."
The challenge was rejected. Much of the argument and the judgment turned on the liability of secondary parties, not germane to these appeals. On the issue which is germane the reasoning of the Board cannot, with respect, be sustained. First, the Board (at p 47) discounted the relevance of American authority which had been cited on the ground that different concepts were involved in the eighth amendment to the U.S. Constitution and the prohibition of inhuman or degrading punishment, and did not accept that a punishment could offend the latter provision if it was "cruelly disproportionate." As shown above, this approach is incorrect. Secondly, the Board (at p 48) construed the prohibition as applying only to such types or modes or descriptions of punishment as were inhuman or degrading. That could not, it was said, be suggested of the death penalty, which was a punishment imposed before the appointed day, and the savings clause was held to support that construction. This reasoning did not, however, take account of the objection raised to the mandatory nature of the penalty, and is inconsistent with the reasoning in Fox v The Queen and R v Hughes, above, where the Board correctly held that the prohibition did apply to the mandatory nature of an otherwise lawful death penalty, which was not rendered immune from challenge by a savings clause in substantially this form. Thirdly, and most fundamentally, the Board in Runyowa effectively abdicated its duty of constitutional adjudication. Giving the judgment of the Board, Lord Morris of Borth-y-Gest first addressed the role of the legislature (at p 49):
"If the contention of the appellant had been correct the courts in Southern Rhodesia should be involved in inquiries as to the constitutional validity of legislation which would extend altogether beyond the duty of consideration whether some law contravened section 60 for the reason that it imposed some novel form of punishment which is inhuman or degrading. A legislature may have to consider questions of policy in regard to punishment for crime. For a particular offence a legislature may merely decree the maximum punishment and may invest the courts with a complete discretion as to what sentence to impose - subject only to the fixed maximum. There may be cases, however, where a legislature deems it necessary to decree that for a particular offence a fixed sentence is to follow. As an example a legislature might decide that upon conviction for murder a sentence of death is to be imposed. A legislature might decide that upon conviction of some other offence some other fixed sentence is to follow. A legislature must assess the situations which have arisen or which may arise and form a judgment as to what laws are necessary and desirable for the purposes of maintaining peace, order and good government"
Then Lord Morris turned (at pp 49-50) to the role of the courts:
"It can hardly be for the courts unless clearly so empowered or directed to rule as to the necessity or propriety of particular legislation. Nor can it be for the courts without possessing the evidence upon which a decision of the legislature has been based to overrule and nullify the decision. As Quenet A.C.J. said (in Gundu and Sambo's case), if once laws are validly enacted it is not for the courts to adjudicate upon their wisdom, their appropriateness or the necessity for their existence. The provision contained in section 60 of the Constitution enables the court to adjudicate as to whether some form or type or description of punishment newly devised after the appointed day or not previously recognised is inhuman or degrading but it does not enable the court to declare an enactment imposing a punishment to be ultra vires on the ground that the court considers that the punishment laid down by the enactment is inappropriate or excessive for the particular offence. Harsh though a law may be which compels the passing of a mandatory death sentence (and may so compel even where aiding or abetting or assisting is by acts which, though proximate to an offence, are relatively trivial), it can be remembered that there are provisions (e.g., section 364 of the Criminal Procedure and Evidence Act in Southern Rhodesia) which ensure that further consideration is given to a case."
In the domestic context of the United Kingdom such observations would, at the time, have been orthodox. But the courts were required to interpret and apply a Constitution which guaranteed certain fundamental rights to the citizens of Rhodesia and Nyasaland. Under that Constitution the courts were empowered and directed to rule on the constitutionality of particular legislation, which might indeed raise questions about its necessity or propriety. The Board is bound to observe that if a person could be mandatorily sentenced to death with no legal redress of any kind on conviction of an offence which might be "relatively trivial", the human rights guarantees in the Constitution amounted to little more than a false prospectus. There is compelling force in the criticisms made of this decision by D Pannick, Judicial Review of the Death Penalty, 1982, pp 53-54. It should, in fairness, be acknowledged that the Crown did not, in its written case, rely on this decision, and in oral argument counsel recognised that some might call the decision "barbaric" and offensive to a modern sense of justice.