The Judicial Committee of the Privy Council Decisions

Fisher v. The Minister of Public Safety and Immigration and Others (Bahamas) [1997] UKPC 1 (16th December, 1997)

Trevor Nathaniel Pennerman Fisher Appellant

v.

(1) The Minister of Public Safety and Immigration

(3) The Attorney General Respondents

JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 16th December 1997

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

Present at the hearing:-

[Majority Judgment Delivered by Lord Goff of Chieveley]

The relevant provisions of the Constitution.

"17.-(1) No person shall be subjected to torture or to inhuman or degrading treatment or punishment.

...

19.-(1) No person shall be deprived of his personal liberty save as may be authorised by law in any of the following cases -

...

(c) for the purpose of bringing him before a court in execution of the order of a court;

(d) upon reasonable suspicion of his having committed, or of being about to commit, a criminal offence;

...

(3) Any person who is arrested or detained in such a case as is mentioned in sub-paragraph (1)(c) or (d) of this Article and who is not released shall be brought without undue delay before a court; and if any person arrested or detained in such a case as is mentioned in the said sub-paragraph (1)(d) is not tried within a reasonable time he shall (without prejudice to any further proceedings that may be brought against him) be released either unconditionally or upon reasonable conditions, including in particular such conditions as are reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to trial.

...

20.-(1) If any person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.

...

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 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."

 

The constitutional proceedings.

6. Before Osadebay J., a number of points were taken on behalf of the appellant. These included submissions that (1) it would be unlawful now to execute the appellant, because he had been subjected to inhuman treatment having regard to the conditions in which he had been detained pending execution; (2) the mandatory death sentence in the Bahamas was unconstitutional; (3) the decision to issue the death warrant in respect of the appellant was unlawful, since it was in breach of his legitimate expectation that no such decision would be taken without regard to a petition by him to the Inter-American Commission on Human Rights; and (4) the failure of the Court of Appeal to give reasons for dismissing the appellant's appeal against conviction was unfair and in breach of Articles 19 and/or 20 of the Constitution. As to (1) Osadebay J., having heard the evidence and visited the prison, rejected the complaint on the facts; as to (2), he held that the point had been conclusively decided by the Privy Council adversely to the appellant in the cases of Jones v. Attorney-General of the Commonwealth of The Bahamas [1995] 1 W.L.R. 891 and Reckley v. Minister of Public Safety and Immigration [1995] 2 A.C. 491, and on this point his decision was upheld by the Court of Appeal; as to (3) he held that consideration of any representations from the Commission was a matter for the responsible Minister and the Advisory Committee, and not for the courts; and as to (4), the Court of Appeal's decision had in any event been overtaken by the decision of the Privy Council to dismiss the appellant's petition for leave to appeal.

7. The main issue raised by the appellant before Osadebay J. related however to the period of 3 years and 5 months during which the appellant was detained in prison before trial. As to that, it was submitted that, in breach of Article 20(1) of the Constitution, the appellant had not been accorded a fair trial within a reasonable period, and that in considering whether the delay rendered his execution inhuman punishment contrary to Article 17(1) of the Constitution, this period of pre-trial delay should be taken into account in addition to the delay of 2 years and 6 months which occurred between the date of his conviction and sentence and the date when he was due to be executed. As to this submission, Osadebay J. held that any complaint by the appellant in respect of pre-trial delay should have been taken by a motion to stay the indictment, and his failure to do so rendered the issue res judicata, so that it was not open to him to pursue the point by way of an application for relief under the Constitution. He further held that, for the purposes of the principle in Pratt [1994] 2 A.C. 1, the relevant delay was that which passed between sentence and the date on which execution was to take place, and that period (two years and six months) fell well short of the necessary period established by the authorities (which was then five years). The Court of Appeal upheld the decision of Osadebay J. on this point. They concluded that the decision in Pratt was intended to prevent the death row phenomenon, and so did not apply to a prisoner who had not yet been sentenced to death. No part of the period of pre-sentence delay could therefore be relied on in order to establish that execution would be inhuman punishment under Article 17(1) of the Constitution, on the Pratt principle. It is from that decision that the appellant now appeals to their Lordships' Board.

 

The principle in Pratt.

8. The principle established in the case of Pratt has been the subject of further consideration by the Privy Council in later cases, notably Guerra [1996] 1 A.C. 397, and Henfield [1997] AC 413. It is founded on the constitutional principle, which in the Bahamas is enshrined in Article 17(1) of the Constitution, that no person shall be subjected to torture or to inhuman or degrading treatment or punishment. As was pointed out in Henfield at page 420A-B, the essential question in Pratt was whether the execution of a man following long delay after his sentence to death can amount to inhuman punishment contrary to Article 17(1). The Privy Council held that such delay is capable of having that effect. This is because:-

9. "There is an instinctive revulsion against the prospect of hanging a man after he has been held under sentence of death for many years. What gives rise to this instinctive revulsion? The answer can only be our humanity; we regard it as an inhuman act to keep a man facing the agony of execution over a long extended period of time." See [1994] 2 A.C. 1, 29.

10. There are other passages in the judgment in Pratt which likewise make it clear that it is the inhumanity of keeping a man facing the agony of execution over a long period of time which renders his subsequent execution unlawful.

 

11. It follows that, as is clear from the authorities, the period of delay which falls to be taken into account when considering whether the constitutional right under Article 17(1) has been infringed in this way is the period beginning with sentence of death. In Henfield it was said by the Board at page 421B-C:-

"In considering the effect of such delay, attention has been concentrated on the five-year period specified in Pratt v. Attorney-General for Jamaica. This period has been treated as the overall period which, in ordinary circumstances, must have passed since sentence of death before it can be said that execution will constitute cruel or inhuman punishment. It has not however been regarded as a fixed limit applicable in all cases, but rather as a norm which may be departed from if the circumstances of the case so require."

 

12. In that case it was however decided that in the Bahamas, having regard to the fact that the Government has not become a signatory of the International Covenant on Human Rights and the Optional Protocol, the relevant period is not five years but three and a half years. It was on this basis that the matter was considered by the Court of Appeal in the present case, and on which it has been accepted that this appeal to the Board falls to be decided. This is however a matter to which their Lordships will have to revert at the end of this judgment.

The respondent's alternative submission.

16. Sir Godfray Le Quesne advanced an alternative submission in answer to the appellant's claim that pre-trial delay should be taken into account for the purposes of the principle in Pratt. This was founded on the fact that separate provision for delay before trial is made in Articles 19(3) and 20(1) of the Constitution, the terms of which are set out earlier in this judgment, and that the common law itself provides a remedy for such delay. On this basis, Sir Godfray advanced the following twofold submission:-

 

(1) It cannot have been the intention of the Constitution that such a person could ignore these procedures and then, after conviction, claim that his punishment would be unconstitutional under Article 17(1) by reason of his imprisonment awaiting trial.

 

(2) If the appellant is being held in custody awaiting trial for an unreasonable time, the Supreme Court has power at common law to fix a date for the trial and, if the court does not then proceed, to dismiss the charge for want of prosecution (see Bell v. D.P.P. [1985] 1 A.C. 937, 950-1). This constitutes "adequate means of redress" for the purposes of the proviso to Article 28(2), thereby excluding constitutional relief under Article 28.

The principle in Guerra.

19. There is however another possible approach to the problem, viz. taking pre-trial delay into account on the principle established in Guerra [1996] 1 A.C. 397. It will be remembered that, in that case, it was recognised that the five year period applicable in Trinidad and Tobago was not to be regarded as "a fixed period applicable in all cases, but rather as a norm which may be departed from if the circumstances of the case so require": see Henfield [1997] AC 413, 421. In the case of Guerra, the delay which followed his conviction was 4 years and 10 months, just 2 months less than the five year period, the principal cause of the delay being the fact that the notes of the evidence at his trial were not available for an appeal until over 4 years after the conclusion of the trial. The Privy Council, taking into account the serious delay which had occurred and the cause of that delay, and the fact that, as a result, the overall lapse of time since sentence was close to the five year period, held that execution in such circumstances would constitute inhuman punishment, notwithstanding that the five year period had not yet elapsed. The question arises whether in a case where there had, as in Guerra, been very substantial post-conviction delay, pre-trial delay of a serious character could properly be brought into consideration to enable the court to hold that, looking at the case in the round, it would be inhuman punishment thereafter to execute the man in question, notwithstanding that the relevant period of post-conviction delay (there five years) had not expired.

 

20. Sir Godfray Le Quesne submitted to their Lordships that the principle in Guerra was only concerned with events which occurred after conviction and sentence. Their Lordships see the logical force of this submission, but they do not feel able to accept it. In Henfield (at page 421), it was stated that the five year period applicable in that case was to be regarded as a norm which may be departed from "if the circumstances of the case so require". Their Lordships are unwilling, in a case concerned with constitutional rights, to impose any hard and fast limit on the matters to be taken into account when considering whether a right of this kind, especially one so fundamental as that in Article 17(1) of the Bahamian Constitution, has been infringed. They are unwilling therefore to exclude the possibility that pre-trial delay, if sufficiently serious in character, may be capable of being taken into account for this purpose.

 

21. Their Lordships however anticipate that only in exceptional circumstances is such a case likely to occur; and they are satisfied that the facts of the present case do not enable the appellant to invoke the principle in Guerra. They draw attention in particular to the fact that the delay which occurred between sentence of death and the reading of the death warrant, which was immediately followed by the appellant's constitutional motion, was 2 years and 6 months. Even taking into account the fact that the applicable period is here accepted to be 3 years and 6 months, rather than the 5 year period applicable in Guerra, the present delay is of a different order from the delay of 4 years and 10 months which occurred in the latter case. Their Lordships are satisfied that post-conviction delay of this length cannot have the effect that the subsequent execution of the appellant would be inhuman punishment contrary to Article 17(1), on the principle in Pratt, even if regard were to be had to the period of pre-trial delay which occurred in the present case.

 

22. Prosecution for other offences.

23. Even so their Lordships propose to consider one aspect of the pre-trial delay in the present case on which particular reliance was placed by the appellant, viz. his prosecution for other offences after he was arrested on the murder charge. Only four days after his arrest, he pleaded guilty to charges of possession of a firearm and ammunition, found in his possession at the time of his arrest, and was sentenced to terms of imprisonment of 2 years and 1 year concurrent. These terms of imprisonment however expired on 2nd February 1992, while the appellant was on remand, and do not appear to have prolonged the period of time which elapsed before the appellant's trial for murder; their only effect was that, if the appellant was subsequently to be acquitted of all other charges, these terms of imprisonment would have been disposed of while he was on remand. More importantly however the appellant was, while awaiting trial for murder, tried in November 1992 for other serious offences, viz. attempted murder and armed robbery. He was convicted of both offences, and on 17th November 1992 he was sentenced to concurrent terms of 15 years imprisonment. He was not however tried on the murder charge until March 1994, about 16 months later.

25. It was the submission of Mr. Davies for the appellant that the action of the responsible authorities in the Bahamas in proceeding to prosecute the appellant for the offence of attempted murder before he was tried on the outstanding charge of murder constituted of itself inhuman treatment contrary to Article 17(1). Their Lordships are unable to accept this submission. In their opinion, these events would have been material to a submission that the prosecution for murder should be dismissed for want of prosecution, or to a submission based on his right under Article 20(1) of the Constitution that he should be tried within a reasonable time; but their Lordships cannot see that they provide any basis for a complaint under Article 17(1) which, being concerned to protect citizens from torture or inhuman or degrading treatment or punishment, is directed towards outlawing treatment of a different character.

 

Conclusion.

26. For the foregoing reasons their Lordships will humbly advise Her Majesty that the appeal should be dismissed.

 

Two subsidiary matters.

27. There are however two other matters to which their Lordships wish to refer before concluding this judgment.

(1) The Inter-American Commission on Human Rights.

28. The first matter relates to the three and a half year period which, in Henfield [1997] AC 413, was held by the Privy Council to be applicable in the Bahamas for the purposes of the principle in Pratt. This was so held on the basis that the Bahamas is not a signatory to the International Covenant on Civil and Political Rights and the Optional Protocol, with the result that citizens of the Bahamas do not have access to the United Nations Human Rights Committee. Since a period of 18 months had been allowed for such petitions when formulating the five year period in Pratt, it was thought right to reduce that period to three and a half years for the Bahamas.

 

29. No reference was made during the argument in Henfield to the Inter-American Commission on Human Rights. During the hearing in the present case, their Lordships were informed that the reason for this was that, although the Bahamas have ratified the Charter of the Organisation of American States, they have never ratified the American

30. Convention on Human Rights. However it was not appreciated at the time of Henfield that, under Regulations made pursuant to the Statute of the Inter-American Commission on Human Rights, provision is made for the procedure applicable in the case of complaints of violations of human rights imputable to States which are not Parties to the American Convention on Human Rights. Their Lordships were shown the relevant Regulations which, in general terms, make the same procedure applicable in the case of such States as is applicable in the case of States which are Parties to the Convention, except that in the case of States which are not Parties the ultimate sanction is limited to publication by the Commission of its decisions. This came to the notice of the Government of the Bahamas when the appellant in the present case made a complaint to the Commission, as a result of which the applicable procedure was duly implemented.

32. On the material before them there is no reason why their Lordships should not accept the assurances so given by Sir Godfray on behalf of the Government. Indeed it appears that when the appellant lodged his complaint with the Commission, and the Commission implemented the applicable procedure, the Government then complied with its obligations, furnishing the information requested and duly responding to the Commission's initial comments and recommendations. Their Lordships felt some concern at being asked to make the requested ruling in the present case, in which the point does not arise for decision, especially as the matter affects the status of the previous decision of the Privy Council in Henfield. They have however come to the conclusion that it is plain, not only that at the time of the argument in Henfield the Government must have misunderstood its obligations with regard to the Inter-American Commission, but also that, having regard to the assurance communicated to their Lordships through Sir Godfray Le Quesne, an assurance which has been borne out by the manner in which the Government responded to communications from the Commission in the present case, the Government fully intends to honour its obligations in this respect. In these circumstances, their Lordships think it right now to record that, in their opinion, the decision of the Board in Henfield was indeed made per incuriam in so far as it decided that a period of three and a half years was applicable in the Bahamas for the purposes of the principle in Pratt, in place of the five year period previously understood to be applicable. This conclusion has of course no impact on the decision as it affected the parties to those proceedings.

(2) Leave to appeal.

33. Article 104(2) of the Bahamian Constitution provides as follows:-

"(1) An appeal to the Court of Appeal shall lie as of right from the final decisions of the Supreme Court given in exercise of the jurisdiction conferred on the Supreme Court by article 28 of the Constitution (which relates to the enforcement of fundamental rights and freedoms).

 

(2) An appeal shall lie as of right to the Judicial Committee of Her Majesty's Privy Council or to such other court as may be prescribed by Parliament under article 105(3) of this Constitution from any decision given by the Court of Appeal in any such case."

 

34. In the present case the appellant, following dismissal of his appeal from the decision of Osadebay J., applied to the Court of Appeal for leave to appeal to the Privy Council. The Court of Appeal however declined to grant leave on the ground that since, under paragraph (2) of Article 104(2), an appeal lies to the Privy Council as of right, the Court of Appeal had no jurisdiction to grant leave.

37. On a narrow view the issue before the Privy Council may appear to be confined to the question whether mere pre-sentence delay may as a matter of law be taken into account in deciding whether, by reason of the lapse of time between the imposition of the death sentence and the proposed date of execution, it would be a breach of Article 17(1) of the Constitution of the Commonwealth of The Bahamas to allow an execution to proceed. But it is impossible to divorce the narrow question from related and contributory pre-sentence causes of the mental anguish of the condemned man, such as his detention in appalling conditions contrary to any civilised norm. In the present case there is a finding by the judge that while the conditions under which Fisher and other condemned prisoners were housed could be improved, the condition could not be described as falling below the evolving standards of decency

that are a hallmark of a maturing society "having regard to security and financial constraints". So be it. But in other countries in the Caribbean death row conditions may not meet the criterion of minimum civilised standards. It is therefore necessary to consider the narrow question in the context of a broader perspective.

 

38. There is no binding authority compelling the Privy Council as a matter of precedent to decide the narrow question one way or the other. Indeed, as recently as October 1996 the Privy Council expressly left this question open for subsequent decision: Henfield v. Attorney-General of The Bahamas [1997] AC 413, at 426G-427A. Their Lordships are not called upon to decide this question on the basis of their individual views of what is desirable in the interests of the administration of justice in The Bahamas. The question must be resolved on the basis of an evaluation of the strength of the competing arguments on the proper construction of Article 17(1) of the Constitution. Their Lordships are mandated by the Constitution to afford to Fisher the full measure of protection of the rights enshrined in it.

 

39. Sir Godfray Le Quesne Q.C., who appeared on behalf of the respondents, made one of the most eloquent and powerful speeches that I have ever been privileged to hear. But perhaps I can be forgiven for saying that the longer he spoke the more convinced I became that he was urging on the Board a formalistic method of construction appropriate to the interpretation of a conveyancing statute. It is necessary to bear in mind the genesis of Article 17(1). It was taken from Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953), which served as a model for the Constitutions of most of the Caribbean countries. In Minister of Home Affairs v. Fisher [1980] AC 319 Lord Wilberforce explained how such constitutional guarantees should be construed. Delivering the opinion of the Judicial Committee Lord Wilberforce observed in a classic judgment that such constitutional guarantees must not be subjected to the approach applicable to the interpretation of other legislation. What is needed is "a generous interpretation avoiding what has been called `the austerity of tabulated legalism', suitable to give to individuals the full measure of the fundamental rights and freedoms referred to": at pages 328H. It follows that Article 17(1) ought to be interpreted so as to ensure that it affords meaningful and effective rights protecting individuals from, inter alia, inhuman treatment and punishment.

40. Turning from the general to the particular I draw attention to the wording of Article 17(1) which comes within the category of constitutional guarantees described by Lord Wilberforce as "drafted in a broad and ample style which lays down principles of width and generality": see Fisher's case, at 328. Furthermore in the jurisprudence of the European Court of Human Rights three principles have emerged with important implications for the proper construction of Article 17(1). First, Article 3 of the European Convention is an unqualified and absolute guarantee of the human rights it protects: Republic of Ireland v. United Kingdom (A25) (1978) 2 EHRR 25 para. 163. In order to filter out insubstantial complaints the only qualification is that in order for conduct to be covered by the prohibition it must "attain a minimum level of severity". But there is no express or implied derogation in favour of the State: the prohibition is equally applicable during a war or public emergency. There is no derogation in favour of the state in order to enable it to fight terrorism or violent crime: Tomasi v. France (1993) 15 EHRR 1, para. 115; see also Jacobs and White, The European Convention on Human Rights, 2nd ed., 1996, 49; Harris, O'Boyle and Warbrick, Law of the European Convention on Human Rights, 1995, 55-56; Constitutional Law and Human Rights, ed. Lester and Oliver, 1997, para. 124 and note 5. Similarly, in Article 17(1) of The Bahamian Constitution there is no express or implied derogation in favour of the State. It is an absolute and unqualified constitutional guarantee of the relevant human rights which it serves to protect. What is the consequence of this general principle? There can under Article 17(1) be no complaint about the inevitable consequences of the need to carry out a death sentence after the lapse of sufficient time to allow for appeal procedures, requests for clemency, and so forth. Such lapses of time are required in the interests of the condemned man. But in principle any substantial and serious suffering of an avoidable nature added to the anguish inevitably resulting from the death sentence may constitute inhuman or degrading treatment or punishment. The State may not superimpose upon the inevitable consequences of a death sentence further unnecessary agony and suffering. The second principle emerging from the jurisprudence of the European Court of Human Rights is the principle of effectiveness, viz. that in interpreting the Convention the court seeks to given the provisions of the Convention the "fullest weight and effect consistent with the language used

and with the rest of the text": Prof. J.G. Merrills, The Development of International Law by the European Court of Human Rights, 1988, 98. The third principle developed in the jurisprudence of the European Court of Human Rights is equally important in the present context. In judging cases under Article 3 the court must consider the actual facts of the case in order to assess whether the treatment or punishment in its impact on the individual was inhuman or degrading. This is illustrated by observations of the court in Soering v. United Kingdom (1989) where the court held that it would be contrary to Article 3 for a State to extradite a person where there were substantial grounds for believing that the person concerned, if extradited, would face a real risk of being subjected to inhuman or degrading punishment in the requesting country: see judgment of 7th July 1989 (No. 161), 11 EHRR 439. The applicant faced a possible death sentence in the United States. The court's decision turned on a combination of the "conditions of detention", viz. the death row phenomenon, and the "personal circumstances" of the applicant who was 18 years and somewhat immature. Accepting that the death sentence was a lawful punishment the court observed:-

"... the manner in which the death penalty is imposed or executed, the personal circumstances of the condemned person and a disproportionality to the gravity of the crime committed, as well as the conditions of detention awaiting execution, are examples of factors capable of bringing the treatment or punishment received by the condemned person within the proscription under Article 3."

43. That brings me to the substantial question whether as a matter of constitutional construction Article 17(1) compels the court to ignore any pre-sentence delay. The starting point is that under Pratt v. Attorney-General for Jamaica a lapse of 5 years between sentence of death and proposed execution presumptively makes it unlawful to proceed with the execution; under Henfield that period is contracted to 3½ years in the case of The Bahamas. But this does not mean that the actual circumstances affecting the condemned man may not be examined. On the contrary in Henfield Lord Goff of Chieveley stated (at page 421B-C):-

"In considering the effect of such delay, attention has been concentrated on the five-year period specified in Pratt v. Attorney-General for Jamaica. This period has been treated as the overall period which, in ordinary circumstances, must have passed since sentence of death before it can be said that execution will constitute cruel or inhuman punishment. It has not however been regarded as a fixed limit applicable in all cases, but rather as a norm which may be departed from if the circumstances of the case so require."

 

44. In other words, a shorter period may suffice depending on the circumstances of an individual case. This observation is in line with the earlier observation of Lord Goff in Guerra v. Baptiste [1996] 1 A.C. 397 about a norm applying without "detailed examination of the particular case": at page 415H. This approach is consistent with the approach adopted by the European Court of Human Rights in regard to Article 3. Given this recognition that it is sometimes necessary to examine the actual circumstances of a particular case, I venture to suggest that it is self evident that evidence may be placed before a court that the mental suffering involved in the period between the imposition of the death sentence and the proposed execution may affect particularly severely a very immature young man, a mentally retarded man, and so forth. Moreover, one can imagine a case where it is proved that in order to terrify a condemned man prison officers regularly taunted him with the horrors of his meeting with the hangman, or subjected him to a mock reading of the death warrant or even a mock execution. Such cases occur: see Schabas, The Death Penalty as Cruel Treatment and Torture, 199, 101-102. Plainly such circumstances would be relevant to the question whether a shorter period than 5 years or 3½ years may justify the inference that it would be unlawful under Article 17(1) to execute the condemned man. It is true of course that these examples are all special cases affecting a particular condemned man. But there then springs to mind the distinct possibility that in one or more Caribbean countries - not The Bahamas - the conditions under which condemned men are kept on death row are truly appalling. Echoing language of Lord Griffiths in Pratt v. Attorney-General for Jamaica I would say that a State that wishes to retain capital punishment must accept the responsibility of ensuring that condemned men are confined in conditions that satisfy a minimum standard of decency. In considering whether a lesser period than the 5 year or 3½ year norms may be sufficient to render a proposed execution unlawful it must be permissible to take into account that the anguish of the condemned man has been greatly increased by his incarceration in appalling conditions. Our humanity permits no other answer to this question.

48. Now I turn to a point of supreme importance. Neither in his written case nor his oral argument did Sir Godfray Le Quesne contend that it is open to their Lordships to exclude pre-sentence delay from consideration on the ground that to do so would cause practical difficulties for The Bahamas. The reason why he did not do so is plain. To admit as relevant such an argument necessarily imports an implied derogation in favour of the State under Article 17(1). That would emasculate the absolute prohibition in Article 17(1) and would be wrong. But, Sir Godfray Le Quesne was specifically asked to deal with the consequences for The Bahamas of a ruling in his case that pre-sentence delay may be relevant. In a written submission he then referred to the following observation in Bell v. Director of Public Prosecutions

[1985] 1 A.C. 937. In that case Lord Templeman observed (at 950C):-

"But by section 20(1) [of the Jamaican Constitution] the applicant is entitled to a fair hearing `within a reasonable time', albeit that, in considering whether a reasonable time has elapsed, consideration must be given to the past and current problems which affect the administration of justice in Jamaica."

 

49. The statement in Bell is irrelevant to the construction of Article 17(1) and does not begin to suggest there is an implied derogation in favour of the State in Article 17(1). With characteristic candour Sir Godfray Le Quesne conceded that the problems of the administration of justice in The Bahamas may be irrelevant. Substituting is for may be I agree. The position is clear: if The Bahamas wishes to maintain the death sentence for murder it must ensure that murder trials are not unduly delayed.

52. This brings me to a consideration of the facts of the present case. Given a 2½ year delay between the imposition of the death sentence and the reading of the death warrant, the case falls 12 months short of the 3½ years norm applicable in The Bahamas. But a distinctive feature of this case is a wholly exceptional period of pre-sentence delay. The period between Fisher's arrest and the imposition of the death sentence was 3 years and seven months; the period between Fisher's committal and the death sentence was 2 years and eight months. It is necessary to consider how this came about. After his arrest Fisher pleaded guilty to possession of a firearm and was sentenced to 2 years imprisonment. Two years and two months after his arrest, the prosecuting authorities put Fisher on trial on separate charges of attempted murder, armed robbery and possession of a firearm. After a trial he was convicted and sentenced to a total 15 years imprisonment. He appealed to the Court of Appeal but his appeal was dismissed. I am satisfied that this decision to proceed with lesser charges caused a delay in bringing Fisher to trial on the murder charge of about two years. And that period ties in with the undisputed proposition that criminal trials for murder are usually completed within 18 months in The Bahamas. The respondents rightly conceded that the course adopted by the prosecuting authorities in putting Fisher on trial for lesser offences was unprecedented and irregular. Why it happened remains obscure because the respondents say that the prosecutor concerned has left The Bahamas. In any event, in this case the reading of the death warrant was in the result put back by two years. And that was wholly due to the culpable conduct of the prosecuting authorities. Before I leave this aspect I would make clear that, if this exceptional delay had been caused by congestion in the courts of The Bahamas, I would still have regarded that explanation as one that does not assist the respondents. Given the constitutional guarantee in Article 17(1), The Bahamas can only maintain the death sentence if persons charged with murder are not exposed to exceptional and abnormal pre-trial delays.

 

53. Now I turn to the impact on Fisher of the exceptionally long delay in bringing him to trial on the murder charge. He would have known that the only sentence for murder is death by hanging. He faced a strong prosecution case. In any event nine months after his arrest he was judicially committed for trial on the murder charge. He knew that he was in jeopardy of being sentenced to death and executed. And it is important not to lose sight of the circumstances in which he lived during that 3½ year period. While I do not criticise the conditions of Fisher's pretrial detention, it is necessary to face the stark picture that on undisputed evidence during the 3½ years leading up to his sentence of death Fisher shared accommodation with condemned men and others awaiting serious charges. While the affidavits filed on Fisher's behalf are unsatisfactory, it is obvious that he was exposed for 3½ years to the travails of condemned men and the horror of executions. Some delay in bringing on his trial was inevitable. But I am satisfied that the prosecuting authorities have added a period of about two years to Fisher's suffering on top of the 2½ years that he has been condemned to death. It would be inhuman to execute him now. If ever there has been a case departing from a norm, this is it.

54. Mr. Owen Davies, who appeared on behalf of Fisher, persuaded me in a careful and balanced argument that it would be contrary to Article 17(1) to allow Fisher to be executed. I would therefore advise Her Majesty that the sentence of death in Fisher's case be quashed and that a sentence of life imprisonment be substituted.

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