The Judicial Committee of the Privy Council Decisions

FROM

Lord Goff of Chieveley

Lord Slynn of Hadley

Lord Nolan

Lord Nicholls of Birkenhead

2. Following their conviction and sentence the two men were placed in cells on death row in the State Prison at Port of Spain. On 7th April 1990 the appellant, together with other prisoners on death row, escaped from prison. After the escape a prison guard then on duty was found strangled to death. However on 25th June 1990 the appellant was recaptured and returned to death row. On 29th July 1994 Brian Wallen died in prison of natural causes. It is for that reason that Lincoln Guerra alone is the appellant in the present proceedings. Meanwhile, on 7th June 1989, the two men gave notice of application for leave to appeal against their convictions. But it was not until 12th October 1993 that their appeals were heard by the Court of Appeal - nearly four and a half years after their conviction and sentence. Their Lordships will return later to the cause of this delay. The hearing was concluded on 2nd November, when the appeals were dismissed. The Court handed down reasons for the decision on 25th November 1993. A petition by the two men for leave to appeal to the Privy Council was dismissed on 21st March 1994, the formal order being drawn up on 30th March. On 21st March attorneys acting for the two men wrote to the United Nations Human Rights Committee ("UNHRC") and to the Inter-American Commission on Human Rights ("IACHR"), seeking a determination that their constitutional rights had been violated by reason of the delay which had elapsed since their conviction and sentence to death on 18th May 1989, four years and ten months before. The Attorney-General of Trinidad and Tobago was duly informed of these applications.

3. After the dismissal on 21st March of the petition of the two men for leave to appeal to the Privy Council, the authorities moved with great speed. Two days later, on 23rd March, the Advisory Committee on the Power of Pardon (with whom, pursuant to section 89(1) of the Constitution, the designated Minister consulted before advising the President whether to reprieve the two men) met to consider the question of commutation of their death sentences. Following the consultation, the Minister must have recommended that the law should take its course. The warrants for their execution were read to them at 1440 hours on the next day, 24th March, for execution at 0700 hours on the following morning, 25th March. It follows that less than 17 hours' notice was given to them of their impending execution.

4. Even so, following the reading of the warrants of execution, those advising the two men succeeded in filing a constitutional motion on the same evening on behalf of the two men alleging that their execution pursuant to the warrants would constitute a violation of their constitutional rights.

5. A summons was immediately issued for a stay of execution pending the determination of the constitutional motion. Lucky J. dismissed the application at 2200 hours that evening. Very early the following morning a single judge of the Court of Appeal, Hosein J.A., also dismissed the application for a stay, but granted leave to appeal to the Privy Council from his order and further granted a stay of execution for 48 hours pending an appeal to the Privy Council. Their Lordships find it unnecessary to recount in detail the events of the next few days, which were largely concerned with steps taken with a view to obtaining stays of execution pending the hearing of the constitutional motion or of any appeal from an order dismissing the motion. It is enough to record that, pursuant to the leave to appeal granted by Hosein J.A., a stay was granted, and continued, by the Privy Council until 25th April 1994. On 18th April 1994 Jones J. heard and dismissed the constitutional motion, and refused a stay of execution pending an appeal; but on 29th April Sharma J.A., by consent, granted a stay of execution until after the determination of the appeal from Jones J. to the Court of Appeal, the intervening period since 25th April having been covered by an undertaking by the Attorney-General that no execution would take place. On 9th June the Court of Appeal, having heard the appeal, reserved judgment. On 25th July, following the execution of Glen Ashby during the hearing by the Court of Appeal of his appeal from the dismissal of a constitutional motion, no stay of execution being then in place, the Privy Council, in order to preserve its jurisdiction as the final Court of Appeal for Trinidad and Tobago, granted a stay of execution of the appellant and Brian Wallen in the event of the Court of Appeal dismissing their appeal from the decision of Jones J. On 27th July 1994 the Court of Appeal dismissed their appeal from Jones J. but, since the stay granted by the Privy Council then took effect, they themselves found it unnecessary to order a stay. Two days later, as already recorded, Brian Wallen died in prison.

6. On 6th September 1994 the State of Trinidad and Tobago submitted to the UNHRC that the appellant's communication to the Committee was inadmissible for non-exhaustion of domestic remedies. On 4th April 1995 the Committee accepted that submission but stated that they would reconsider the appellant's communication after the appeal on his constitutional motion had been disposed of. That appeal came before their Lordships' Board on 27th June 1995.

7. The following issues were the subject of submissions to their Lordships:

(1) Whether the lapse of 4 years and 10 months between 18th May 1989 (when the appellant was convicted and sentenced) and 21st March 1994 (when the appellant's petition for leave to appeal to the Privy Council was dismissed) had the effect that the execution of the appellant would have been in breach of his constitutional rights, on the principle established in Pratt.

(2) Whether the very short notice (17 hours) given to the appellant of his impending execution was in breach of his constitutional rights.

(3) Whether there was a breach of the appellant's constitutional rights in failing to allow him an opportunity to make representations to the Advisory Committee.

(4) Whether the failure of the State to adopt a procedure which permitted the appellant to make representations to the UNHRC or the State to take into account the advice of the UNHRC, constituted a breach of the appellant's constitutional rights.

(5) Whether the courts below erred in failing to grant a stay of execution pending the hearing and determination of the appellant's constitutional motion.

8. Of the above issues, that arising from the decision in Pratt [1994] 2 A.C.1 was plainly the central issue in the case. At the close of argument, their Lordships concluded that the appellant's appeal on this issue was well-founded; and they therefore announced immediately that the appeal would be allowed and the appellant's sentence of death commuted to a sentence of life imprisonment. Their Lordships' reasons for reaching this conclusion are set out below.

9. Their Lordships are however faced with the situation that four other issues were raised before them. The second issue (relating to notice of execution) is a discrete issue within a comparatively narrow compass, on which there are conflicting decisions of the Courts of Trinidad and Tobago. Their Lordships have accordingly concluded that they should decide that issue. The fifth issue (concerned with failure to grant a stay of execution) is academic in the sense that a stay of execution was eventually granted; and in any event the point is now covered by the decision of the Privy Council in Reckley v. Minister of Public Safety and Immigration [1995] 3 W.L.R. 390, which the respondents accept is applicable in Trinidad and Tobago. It is therefore unnecessary for their Lordships to deal with this issue.

(a) the right of the individual to life, liberty, security of the person and enjoyment of property and the right not to be deprived thereof except by due process of law;

. . . . . . . . .

5.(1) Except as is otherwise expressly provided in this Chapter and in section 54, no law may abrogate, abridge or infringe or authorise the abrogation, abridgement or infringement of any of the rights and freedoms hereinbefore recognised and declared.

(2) Without prejudice to subsection (1), but subject to this Chapter and to section 54, Parliament may not -

. . . . . . . . .

(b) impose or authorise the imposition of cruel and unusual treatment or punishment...;"

13. Before the coming into force of the Constitution of Trinidad and Tobago of 1976 (and indeed the Constitution of 1982) capital punishment was accepted as a punishment which could lawfully be imposed, so that execution pursuant to a lawful sentence of death could amount to depriving a person of his life by due process of law, and could not of itself amount to a cruel and unusual punishment contrary to section 5(2)(b). However, as was recognised by the Privy Council in Pratt [1994] 2 A.C. 1 at page 19C (following a suggestion of Lord Diplock in Abbott v. Attorney-General of Trinidad and Tobago [1979] 1 WLR 1342, 1348), applying the common law the judges of Jamaica would have had power to stay a long delayed execution as not being in accordance with the due process of law. Their Lordships have no doubt that the same is true of the judges of Trinidad and Tobago, and that such execution, if not stayed, would constitute cruel and unusual punishment with the effect that not only would any attempt by Parliament to authorise it be contrary to section 5(2)(b) of the Constitution, but also that, on the principles stated by Lord Diplock in Thornhill v. Attorney-General for Trinidad and Tobago [1981] AC 61 (to which their Lordships will refer in more detail in the next section of this judgment), such execution would not be in accordance with the due process of law under section 4(a) of the Constitution which recognises the right of the individual to life and the right not to be deprived thereof except by the due process of law. For these reasons, their Lordships conclude that the principles stated in Pratt are applicable in Trinidad and Tobago as they are in Jamaica, the only difference (which is of no importance) being that in Jamaica such execution would constitute inhuman punishment, whereas in Trinidad and Tobago it would constitute cruel and unusual punishment.

The facts

14. The following account of the relevant events occurring after the conviction and sentence of the appellant is taken from the chronology supplied by the respondents, and evidence submitted by the respondents before the courts below.

15. The appellant (with Brian Wallen) was convicted and sentenced to death on 18th May 1989. He and Wallen gave notice of application for leave to appeal to the Court of Appeal, which was filed with the Court on 7th June 1989. As already recorded, the appellant was at large between 7th April and 25th June 1990.

16. In November 1990 the appellant applied for legal aid for his appeal. On 20th March 1991 a judge granted a certificate for legal aid for the appellant. On 15th April 1991 the Legal Aid and Advisory Authority (L.A.A.A.) asked Mr B. Dolsingh to appear for the appellant on legal aid; though it appears that it was not until 10th May 1993 that the L.A.A.A. received the judge's certificate for the appellant's legal aid.

17. The transcript of the summing-up was available on 13th February 1990, but the notes of evidence were not. Mr Gonsalves, the Clerk of Appeals who has been attached to the Appeal Division since January 1993, has stated that there is no evidence when the notes of evidence became available. At all events, on 10th May 1993 Mr Gonsalves notified Mr Dolsingh and the attorney for Wallen that the notes of evidence and the summing-up were available, and that the date for the hearing of the appeals of the appellant and Wallen was fixed for 25th May 1993. Mr Gonsalves has also stated that a copy of the summing-up was sent to Mr Dolsingh on 13th May, and that on 21st May Mr Dolsingh informed Mr Gonsalves that he had received the notes of evidence but that, as he had only received them that day, an adjournment of the hearing would be necessary. The hearing was in fact adjourned first to 21st July, and again over the long vacation to 5th October, on each occasion on the application of Wallen's attorney. With the date fixed for October, Mr Dolsingh filed the appellant's grounds of appeal on 24th August, and amended grounds of appeal on 10th September. It appears that Wallen's grounds of appeal were not filed until 4th October and for that reason the hearing was adjourned for one more week. The appeal began on 12th October and continued until 2nd November, when the Court of Appeal announced that the appeals would be dismissed. The reasons for their decision were handed down on 25th November. As is plain both from the length of the hearing and the reasons of the Court, the issues raised were of some complexity. On 5th November 1993 the appellant gave notice of his intention to petition the Privy Council for leave to appeal, his application for leave being dismissed on 21st March 1994.

18. From the foregoing chronology of events, it is plain that the principal cause of delay was the lapse of time between the end of the trial on 18th May 1989 and the furnishing to the appellant's attorney on 21st May 1993 of the notes of the evidence at the trial - a lapse of time of four years. However, their Lordships think it right to mention at this stage that, in their judgment on the appellant's constitutional motion, the Court of Appeal stated that in their view "the period between sentence and final appeal must be discounted by some five months to take into account the delay occasioned by the appellants in prosecuting their appeals. The Court of Appeal, in what can be considered a departure from its normal practice, highlighted the delay in its judgment...as it was quite evident that an attempt was being made to deliberately postpone the hearing". Their Lordships confess that they have found this statement rather puzzling. The only statement made in the earlier judgment of the Court of Appeal is that the appeals began on 12th October 1993 "after a number of adjournments made for one reason or another at the request of attorneys and stretching from 25th May 1993". Moreover it is difficult to see what blame could attach to the first adjournment (from 25th May to 21st July) which, on the respondents' evidence, resulted from the late furnishing of the notes of evidence. The only adjournments which could possibly be criticised were those from 21st July over the long vacation to 5th October, and from 5th October to 12th October - a total period of two and a half months. However, as will appear hereafter, this comparatively short period of delay is not, in their Lordships' view of the case, relevant to the outcome on the issue of delay.

19. Jones J. set out the facts of the present case, and then turned to the problems involved in Trinidad in preparing notes of evidence. Here he referred to an affidavit of Mr Gonsalves, who described the difficulties involved in the following passage:-

20. Mr Gonsalves went on to describe the efforts being made to introduce a more efficient system based on computer aided transcription.

21. Jones J. also cited passages from judgments of Bernard C.J., in which he described the problems facing the judiciary, and especially the Court of Appeal, in Trinidad, having regard to the small number of judges and their lack of administrative support staff and the increasing workload which they have to bear, especially in criminal appeals as a result of the spate of violent crime, including murders, in the country. Their Lordships have of course studied this material with great care, and with sympathy and understanding for the great difficulties which face the judges of Trinidad and Tobago. Jones J. stated that it was against this background that delays in the jurisdiction must be viewed. He also accepted an argument that while the appeal is pending the condemned man could entertain no fear of execution. He concluded that the period between conviction and reading of the death warrants was not unreasonable or such as to amount to cruel or unusual treatment or punishment, and in any event was within the five year period considered by the Privy Council in Pratt.

22. The Court of Appeal, whose judgment was delivered by Hamel-Smith J.A., set out the reasoning of Jones J., and proceeded to reinforce it by observations of their own. They indicated that, in their opinion, the five year "time limit" laid down in Pratt was inappropriate for Trinidad and Tobago because it was too short. Furthermore, it could not be said that the appellants' case was simply shelved and forgotten as appears to have been the case in Pratt. They stressed the increased workload which has resulted from the crime wave in Trinidad, and maintained that, although the condemned prisoner may expect a certain amount of expedition in the hearing of his appeals, he must recognise that his appeal is not the only one and that a balance must be maintained. They continued:-

For the appellants to complain that the period in question is sufficient to constitute the imposition of cruel and unusual punishment on them is to ignore reality, more so when there has been no delay whatsoever between final appeal and the reading of the death warrant, that time period which all other jurisdictions which maintain the death penalty recognise to be the most critical in determining whether there has been a breach of the right in question."

23. They concluded by stating that, in the final analysis, the period in question had not exceeded the time limit imposed in Pratt and as a result the appeal must fail on the ground of delay.

24. Their Lordships turn first to the principles established in Pratt. The fundamental principle is to be found at pages 33B-D of the judgment of the Judicial Committee in that case, as follows:-

25. It follows that the mere fact that the appellant takes advantage of the appellate procedures open to him will not of itself debar him from claiming that the delay involved has contributed to the breach of his constitutional rights. But if the delay has occurred as a result of exploiting the available procedures in a manner which can be described as frivolous or an abuse of the court's process, the delay incurred cannot be attributed to the appellate process and is to be disregarded.

28. This passage is, in their Lordships' opinion, as applicable to Trinidad and Tobago as it is to Jamaica, and demonstrates the limited extent to which regard can be had in the present context to problems facing the judicial system. It follows that such problems cannot be allowed to excuse long delays. If capital punishment is to be carried out it must be carried out "with all possible expedition". It is in this sense that a "reasonable time" for appeal is to be understood. In the assessment of such reasonable time, great importance must be attached to ensuring that, consonant with the tradition of the common law and the recognition of the inhumanity involved in prolonging the period awaiting execution in a condemned cell on death row, such delay will not occur and any delay which does occur will be curtailed.

In Pratt at page 35G, the Board also concluded that:-"in any case in which execution is to take place more than five years after sentence there will be strong grounds for believing that the delay is such as to constitute 'inhuman or degrading punishment or other treatment'".

29. It is to be observed that this period was not specified as a time limit. Its function was to enable the Jamaican authorities to deal expeditiously with the substantial number of prisoners who had spent many years on death row, without having to deal with all such prisoners individually following constitutional proceedings. It follows that the period of five years was not intended to provide a limit, or a yardstick, by reference to which individual cases should be considered in constitutional proceedings. With great respect to the Court of Appeal in the present case, they erred in so regarding it.

30. Having regard to the foregoing considerations, their Lordships approach the present case as follows. They start with the fact that the time which had elapsed between sentence of death and completion of the hearing by the Court of Appeal was four and a half years, and that the time which elapsed between sentence and the completion of the entire domestic appellate process (i.e. until after dismissal of the appellant's petition for leave to appeal to the Privy Council) was four years and ten months. These figures are to be compared with realistic targets of approximately 12 months and two years respectively. The result of that comparison is that each of the target periods was very substantially exceeded. Furthermore examination of the facts reveals that the overwhelming reason for this excess was the failure to make available the judge's notes of the evidence at the trial until four years after the trial was over. The respondents submitted that this was a not unreasonable time having regard to the conditions prevailing in Trinidad as described by Mr Gonsalves in his affidavit. Their Lordships feel driven to state that they do not see how it could be said that an appellate process is being carried out with all possible expedition if it takes four years to produce the notes of the evidence at the trial. In any event, any such contention is impossible to sustain in the present case, because nobody appears to know why it took so long to produce the notes. No doubt the trial judge, like all trial judges in Trinidad, was very fully occupied; but that of itself cannot explain why this relatively humdrum though laborious task should take such a very long time, especially as the judge had the assistance of a secretary. In all the circumstances, their Lordships are bound to conclude that there has been a substantial and unjustifiable period of delay in the disposal of the appellant's appeal, a period which in all probability exceeds three years. The fact that the appellant was at large for about two months, during which time he was spared the anguish of mind suffered by those on death row, has no significant bearing on this long period of delay, nor has the similar period arising from the adjournment of the hearing of the appeal over the long vacation in 1993, assuming (which their Lordships respectfully doubt) that it is of any relevance.

34. Finally on this aspect of the case their Lordships wish to refer to the view expressed both by Jones J. and by the Court of Appeal that little if any regard should be paid to the period spent by a condemned man on death row before his final appeal has been dismissed. Their Lordships do not feel able to subscribe to this philosophy which, if accepted, would inevitably lead to toleration of the death row phenomenon in circumstances where a number of avenues of appeal can be pursued by an appellant. The simple fact is that, following conviction and sentence to death, the condemned man is placed on death row and has there to contemplate the prospect of execution even though, in some cases but not in others, he may have a real hope of a successful appeal. This fact alone is enough to justify the conclusion that the period before the appellate process has been finally exhausted must be taken into account in deciding whether there has been such delay since the death sentence was imposed as to render execution thereafter cruel and unusual punishment.

(2) Failure to give sufficient notice of execution

35. The warrant for the appellant's execution was read to him at 1440 hours on Thursday 24th March 1994, for his execution at 0700 hours on the following day, 25th March. This gave him less than 17 hours notice of his execution. It was submitted that so short a notice of execution constituted a breach of the appellant's constitutional rights. This submission was rejected by the courts below.

36. In considering this aspect of the present appeal, their Lordships are guided by the authoritative exposition of the principles embodied in chapter 1 of the Constitution of Trinidad and Tobago (concerned with the recognition and protection of fundamental human rights and freedoms) in the judgments of the Judicial Committee in De Freitas v. Benny [1976] AC 239 and Thornhill v. Attorney-General for Trinidad and Tobago [1981] AC 61, the judgment in each case being delivered by Lord Diplock. In those cases, the judgments were given with reference to the Constitution of 1962; but the same principles apply to the Constitution of 1976 which is applicable in the present case, and their Lordships will refer to the relevant sections in chapter 1 of the latter Constitution.

The de facto enjoyment of the right in question as a matter of settled practice could in that case be derived from the adoption by the Judges of Trinidad and Tobago of the English Judges' Rules 1964. In the result, the respondent could only succeed if he was able, invoking section 3, to show that the practice of allowing an arrested person to consult a lawyer of his choice at the earliest opportunity was contrary to law at the time of commencement of the Constitution. Obviously he was unable to discharge that burden.

39. Their Lordships turn to the facts of the present case. Here they are concerned with the period of notice given to the appellant of his impending execution. The essential submissions advanced on behalf of the appellant were that the period of notice was so short that execution in such circumstances would constitute cruel and unusual punishment contrary to section 5(2)(b), or that it would deprive him of his life otherwise than by due process of law or deprive him of the protection of the law contrary to section 4(a) or (b) respectively. In relation to the latter submission it must be borne in mind that, as Lord Diplock stated in Abbott v. Attorney-General of Trinidad and Tobago [1979] 1 WLR 1342, 1347F-G, the due process of law must continue to be observed in the case of a condemned man after sentence of death has been passed upon him, and indeed embraces the carrying out of the sentence itself.

40. Their Lordships are of the opinion 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 is 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. Their Lordships understand that this principle was long recognised in England in the days when capital punishment was still in force; and, for reasons which will shortly appear, the like principle appears to have long been accepted in Trinidad and Tobago. In these circumstances they are satisfied that to execute a condemned man without first giving him such notice of his execution would constitute cruel and unusual punishment contrary to section 5(2)(b) of the Constitution.

46. It follows that their Lordships accept the reasoning of Davis J. on this point. Even so, they doubt if the settled practice found by him to exist goes so far as to require the warrant to be read on any particular day of the week, or to prevent the warrant from being read on a day more than four clear days before the date of execution specified in the warrant. In their Lordships' opinion the effect of the settled practice as found by Davis J. is that the warrant of execution must be read at a date which gives the condemned man the benefit of at least four clear days between the reading of the death warrant and his execution, and that those four clear days should include a weekend, no doubt to ensure that, so far as is reasonably practicable, the condemned man's family should be free to visit him; and the effect is that the reasonable time referred to by their Lordships in relation to the prohibition against cruel and unusual punishment should be so interpreted. Customarily, as appears from the evidence before Davis J., this requirement is fulfilled by reading the warrant on a Thursday for execution on the following Tuesday; and, in the absence of any evidence to the contrary, there seems to be no reason why, as a matter of practice, that custom should not continue to be observed in Trinidad and Tobago.