Privy
Council Appeal No. 53 of 1997
Trevor
Nathaniel Pennerman Fisher Appellant
v.
(1)
The Minister of Public Safety and Immigration
(2)
the Superintendent of Prisons and
(3)
The Attorney General Respondents
FROM
THE
COURT OF APPEAL OF THE BAHAMAS
---------------
JUDGMENT OF THE LORDS
OF THE JUDICIAL
COMMITTEE OF THE PRIVY
COUNCIL,
Delivered the 16th
December 1997
------------------
Present at the hearing:-
Lord Goff of Chieveley
Lord
Steyn
Lord
Hoffmann
Lord
Hutton
Mr.
Justice Gault
[Majority Judgment Delivered by Lord Goff of Chieveley]
-------------------------
1. There
is before their Lordships an appeal by the appellant, Trevor Nathaniel
Pennerman Fisher, from a decision by the Court of Appeal of the Bahamas dated
24th January 1997 in which the Court of Appeal dismissed the appellant's appeal
from the decision of Osadebay J. on 30th September 1996 dismissing his motion
for constitutional relief on the principle established in Pratt v.
Attorney-General for Jamaica [1994] 2 A.C. 1. The central question in the
appeal before their Lordships is whether and, if so, to what extent time spent
by the appellant in detention before his trial falls to be taken into account
for the purposes of the application of that principle.
2. Their
Lordships propose first to set out a chronology of the relevant events leading
up to the conviction and sentence of
the appellant for
murder. Durventon Daniels
was murdered on 16th September 1990.
On 4th October 1990 the appellant was arrested for that murder, and also
for an attempted murder in a separate incident on 1st October 1990. On 8th October 1990 he was charged with both
offences, two other men (Tyrone Thurston and Daze Louis) also being charged
with the murder; and on the same day the appellant pleaded guilty to possession
of a firearm and ammunition, concurrent sentences of 2 years' and 1 year's
imprisonment being then imposed. On
30th July 1991 he was committed to stand trial separately for the murder and
the attempted murder. He was arraigned
on 1st July 1992 for the murder, and on 7th October 1992 for the attempted
murder. On 3rd November 1992 he was
convicted of the attempted murder, and also of armed robbery and possession of
a firearm. For these offences he was
sentenced to concurrent terms of imprisonment of 15 years, 15 years and 3 years
respectively. On 13th January 1994 his
appeal from these convictions was dismissed.
On 21st March 1994 he stood trial with Daze Louis for the murder of
Durventon Daniels, the charge against Tyrone Thurston having been withdrawn
before the trial. Following a
submission at the close of the prosecution case, Louis was acquitted on the
direction of the judge. The trial of
the appellant continued, and on 25th March 1994 he was convicted of murder and
sentenced to death.
3. The
appellant's appeal against his conviction for murder was dismissed by the Court
of Appeal on 10th October 1994. On 17th
May 1995 he gave notice of his intention to petition the Privy Council for
leave to appeal as a poor person. The
petition was lodged on 10th February 1996 and heard on 23rd May 1996 when the
Judicial Committee directed that it be dismissed, the Order in Council
following on 23rd June 1996. On 5th
September 1996 a warrant was read for the execution of the appellant on 12th
September 1996.
4. On
10th September 1996 the appellant filed an originating motion seeking
constitutional relief, and a stay of execution was granted. The notice of motion came before Osadebay
J., who dismissed it on 30th September 1996, and as already recorded the Court
of Appeal dismissed an appeal from that decision on 24th January 1997. It is from that decision that the appellant
now appeals to their Lordships.
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.
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.
5. 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.
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:-
"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.
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.
6. 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."
7. 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.
8. It was
the primary submission of Sir Godfray Le Quesne Q.C., on behalf of the
respondents, that it is not appropriate to bring into account pre-trial delay
for the purposes of considering whether execution has been rendered inhuman on
the principle in Pratt. As a
general principle, their Lordships accept this submission. It is, their Lordships consider, clear from
the authorities, not only that the question of the impact of pre-trial delay
was not considered in the previous cases, but that the principle was so stated
as to relate exclusively to the period following sentence of death during which
time the convicted man is facing the agony of execution. It follows that simply to extend the
relevant period to take into account time awaiting trial, in addition to the
period awaiting execution, would not merely be an extension of the Pratt
principle, but would involve the application of that principle to circumstances
in which it is, as formulated, not applicable.
9. This
conclusion is reinforced by other considerations. First of all, since the state of mind of the person in question
during this earlier period is not the agony of mind of a man facing execution,
but what was described by Powell J. in Barker v. Wingo (1972) 407 U.S.
514, 532, as the "anxiety and concern of the accused", it by no means
follows that the two periods of delay should be treated in the same way. Next the period of five years, or for
present purposes in the Bahamas three and a half years, which has been chosen
as a norm, has been so chosen with reference to the appellate processes which
may be invoked after conviction. It
does not reflect in any way the state of affairs before trial. Third, as was well illustrated by a
submission by Mr. Davies on behalf of the appellant before their Lordships, the
degree of anxiety and concern felt by an accused man before his trial is likely
to be affected by his prospects, as seen by him, of an acquittal by the
jury. It was Mr. Davies' submission
that the evidence against the appellant at his trial for murder was so strong
that his anxiety could be equated, or at least compared, with the agony of mind
of a man facing execution. The
difficulty with this submission is, however, that cases where a convicted man
is facing the actual prospect of execution have been placed in a special
category, and are differentiated from cases where men are facing no such
prospect but only the possibility of conviction with a very wide variation in
the degree of hope of an acquittal.
10. For
all these reasons, their Lordships can see no basis for simply extending the Pratt
principle to take into account delay which has occurred before trial. This would involve consideration of two
different types of period - part of the period awaiting trial and the whole
period from sentence to the date fixed for execution; and, quite apart from the
fundamental objection that the state of mind of the man in question is
different during the two periods, it is difficult see on what basis a norm
could be established which would accommodate both these periods. In truth, as the Court of Appeal recognised,
the principle in Pratt was established in response to the fact that, in
some Caribbean countries, men sentenced to death were being held on Death Row
for wholly unacceptable periods of time, and was specifically fashioned to meet
that problem. It does not admit to
being extended, in the manner contended for on behalf of the appellant, to
address the wholly different problem of pre-trial delay.
The
respondent's alternative submission.
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.
11. This
twofold submission reflects the fact that provision is made, in
the law of
the Bahamas, for the protection of those
awaiting
trial whose trial is delayed for a long period of time. First, there is the protection of the common
law, under which the accused can apply to the judge to dismiss the charge for
want of prosecution on the ground that for the trial to proceed after so long a
delay would amount to an abuse of process of the court: see D.P.P. v. Tokai
[1996] AC 856. Second, there is the
constitutional protection provided in Article 19(3) of the Constitution, under
which a person who is detained upon reasonable suspicion of his having
committed a criminal offence is entitled, if he is not tried within a
reasonable time, to be released either unconditionally or upon reasonable
conditions. Third, there is the
constitutional protection provided in Article 20(1) of the Constitution, under
which a person charged with a criminal offence must be tried within a
reasonable time. The first and third of
these provisions provide protection which specifically addresses the problem of
pre-trial delay; and the third is broader than the first in that, to invoke it,
it is unnecessary for the accused man to point to any specific prejudice
resulting from the delay (see Bell v. D.P.P. [1985] 1 A.C. 937, 951). The second limb of Sir Godfray's submission,
in which he invoked the proviso to Article 28(2), presupposes that it was open
to the appellant to exercise his common law right to apply to the judge to have
the charge dismissed for want of prosecution.
That may well be right; but since it is not clear, on the facts of the
case before their Lordships, that the appellant could point to specific
prejudice resulting from the delay, their Lordships prefer to concentrate on
the first limb of Sir Godfray's submission.
12. It is
apparent that, under the Constitution, pre-trial and post-conviction delay
enable the accused or convicted man to invoke rights of a different
nature. Pre-trial delay may, under the
Constitution, enable the accused man to attack the trial process itself; and
his attack, if successful, can have the effect that he will not be convicted of
the charge. Post-conviction delay is
not, however, concerned with the validity of the trial process. It presupposes the existence of a valid
conviction, and the attack of the convicted man is directed to the punishment
to which he has been sentenced following that conviction. It is on this basis that a man who has been
sentenced to death may contend, on the principle in Pratt, that delay
which has elapsed since his conviction and sentence may render the execution of
that sentence inhuman punishment
contrary to section 17(1) of the Constitution. It follows that a man who relies upon pre-trial delay should
direct his complaint to the trial process, his purpose being to prevent his
conviction; whereas, in a death sentence case, a man who relies on
post-conviction delay should direct his complaint to the inhumanity of carrying
out his punishment after the delay which has occurred since his conviction. In the opinion of their Lordships, this
analysis supports the conclusion that the principle in Pratt is
concerned with post-conviction delay, and that it is not permissible for the
purposes of invoking that principle simply to add pre-trial delay to the
post-conviction delay. It follows that
their Lordships accept the first of Sir Godfray's alternative submissions.
The
principle in Guerra.
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.
13. 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.
14. 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.
Prosecution
for other offences.
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.
15. Their
Lordships do not hide their concern that the defendant should have been tried
for these offences at a time when he was awaiting trial on a capital charge for
another offence. This was plainly
undesirable. Their Lordships have been
assisted by the affidavit evidence of Mr. Bernard Turner, who has investigated
the history of the matter. It appears
that the decision to set down the case of attempted murder before the murder
case was the result of a lack of communication within the Attorney-General's
Office. It also appears that the fact
that the attempted murder case was tried first was responsible for some of the
subsequent delay in bringing the murder case on for trial, though the length of
such delay is uncertain. First of all,
counsel for one of the appellant's co-accused in the murder trial, Tyrone
Thurston, asked at the start of the April Sessions of 1993 for a review of the
evidence against his client before the trial commenced, to determine whether
the Attorney-General would agree to withdraw the charges against him. This review was carried out, and in August
1993 it was decided to discontinue the proceedings against Thurston. This matter must of itself have led to a
postponement of the trial for about 5 months.
Furthermore at the following October 1993 Sessions it was decided not to
list the appellant's case for trial, partly because in the very heavy list
priority was given to other murder cases listed for trial in respect of murders
committed before that committed by the appellant, for which the defendants had
been charged before the appellant, but partly also because the appellant was
already serving his sentences for attempted murder and armed robbery. In the result, the appellant's case was
listed for trial on 28th February 1994, and came on for trial in March. It follows that the delay attributable to
the intervening trial for attempted murder was at most 11 months, and may well
have been less. 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.
For the foregoing
reasons their Lordships will humbly advise Her Majesty that the appeal should
be dismissed.
Two
subsidiary matters.
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.
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.
16. 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 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.
17. On
behalf of the Government, Sir Godfray Le Quesne drew these matters to the
attention of their Lordships, and informed them that it was the intention of
the Government that the applicable Regulations should be duly respected. Sir Godfray also submitted to their
Lordships that, since there was (apart from the ultimate sanction) no relevant
distinction between the procedure applicable to States which are and those
which are not Parties to the Convention, there was no reason why, for the
purposes of the principle in Pratt, the five year period previously
understood to be applicable in the Bahamas should be departed from. He therefore invited their Lordships so to
rule.
18. 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.
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."
19. 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.
20. In so
acting the Court of Appeal acted under a very understandable misapprehension
which arose from the unusual sense in which the word "leave" is used
in this context. Under rule 2 of the
Judicial Committee (General Appellate Jurisdiction) Rules it is provided that
no appeal shall be admitted
unless either (a) leave to appeal has been granted by the
Court appealed from, or (b) in the absence of such leave, special leave to
appeal has been granted by Her Majesty in Council. In a case such as the present, the function of an application to
the Court of Appeal for leave to appeal is to ask the Court of Appeal to
indicate that the case is one in which an appeal lies to the Privy Council as
of right. If the case falls within that
class, the Court of Appeal so indicates by granting leave to appeal. It follows that, in such a case, there is no
exercise of discretion by the Court of Appeal which, in a case falling within
the second paragraph of article 104(2), is obliged to grant leave; and if the
Court of Appeal so grants leave, the case falls within paragraph (a) of rule 2
of the above Rules.
-------------------------------------
Dissenting Judgment
Delivered by Lord Steyn
21. A
dissenting judgment anchored in the circumstances of today sometimes appeals to
the judges of tomorrow. In that way a
dissenting judgment sometimes contributes to the continuing development of the
law. But the innate capacity of
different areas of law to develop varies.
Thus the law of conveyancing is singularly impervious to change. But constitutional law governing the
unnecessary and avoidable prolongation of the agony of a man sentenced to die
by hanging is at the other extreme. The
law governing such cases is in transition.
This is amply demonstrated by the jurisprudence of the Privy Council
over the last twenty years. In 1976,
and again in 1979, in unanimous judgments the Privy Council held that a
condemned man could not complain about delay of his execution caused by his
resort to appellate proceedings: de Freitas v. Benny [1976] AC 239; Abbott
v. Attorney-General of Trinidad and Tobago [1979] 1 WLR 1342. In 1983 cases involving delays of between
six and seven years in the execution of condemned men in Jamaica came before
the Privy Council: Riley v. Attorney-General of Jamaica [1983] AC 719. The majority observed that
"... it could hardly lie in any applicant's mouth to complain" about
delay caused by appellate proceeding: at 724F.
The ruling of the majority was in absolute terms: "... whatever the
reasons for or length of delay in executing a sentence of death lawfully imposed,
the delay can afford no ground for holding the execution to be a contravention
of section 17(1)"; at 726H. Lord
Scarman and Lord Brightman dissented from "the austere legalism" of the majority. That
dissent helped to keep alive the idea that under a constitutional guarantee
against inhuman or degrading treatment or punishment prolonged and unnecessary
delay may render it unlawful to execute the condemned man. Ten years later the issue again came before
the Privy Council in Pratt v. Attorney-General for Jamaica [1994] 2 A.C.
1. The Board observed that in Jamaica
alone 23 prisoners had been awaiting execution for more than 10 years and 82
had been under sentence of death for more than 5 years: at 17G. In Pratt the Privy Council,
exceptionally consisting of seven members, departed from the earlier decisions
of the Privy Council and held that prolonged and unacceptable delay,
pragmatically set at periods in excess of 5 years, might be
unconstitutional. And in important
subsequent decisions the Privy Council ruled that the 5 year period is not a rigid
yardstick but a norm from which the courts may depart if it is appropriate to
do so in the circumstances of a case: see Guerra v. Baptiste [1996] AC 397; and Henfield v. Attorney-General of The Bahamas [1997] AC 413. After a long struggle effect was
given to the constitutional guarantee of human rights enshrined in Article
17(1). But there are important
unresolved questions. Now for the first
time the important issue must be squarely faced whether prolonged and
unacceptable pre-sentence delay may be taken into account to tilt the balance
where the delay since sentence of death is 22 years thus falling short of the 32
years norm applicable on the authority of Henfield in The Bahamas. In these circumstances I must explain the
reasons for my dissent from the majority judgment in some detail.
22. 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.
23. 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.
24. 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. 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."
25. Taking
into account the death row phenomenon, and "the personal circumstances of
the applicant, especially his age ..." the court held that the
extradition, if implemented, would give rise to a breach of Article 3. Similarly, it follows that Article 17(1)
does not require the court to shut its eyes to realities of particular torment
that a condemned man had undergone. It
requires the court to take into account the actual impact of the infliction of
illegitimate or unnecessary suffering on the individual: see Jacobs and White.
op. cit., 55-56. Nothing of a
substantial nature that is logically relevant to that question ought to be
excluded from consideration.
26. I
pause now to mention two arguments advanced by the respondents for the
contention that pre-sentence delay is always
irrelevant. They said
that Article 20
of the Constitution guarantees a
fair hearing within a reasonable time, and that it enables a man awaiting trial
to seek an order for the expediting of his trial or for a stay. That is so.
But the existence of the due process remedy does not mean that the court
in judging an issue of delay after the imposition of the death sentence must
always ignore what had happened before he was condemned to death, e.g. that
awaiting trial for murder for 10 years the individual was held in appalling
conditions on death row itself. In
constitutional interpretations one does not set off against inhuman treatment a
failure of due process. That would be
absurd. The respondents also argued
that Article 28(1) shuts out any possibility of taking into account
pre-sentence delay. It provides that
where there is adequate means of redress "under any other law" the
court may not allow constitutional redress.
The reality is, however, that the appellant does not rely on unnecessary
and unacceptable pre-sentence delay as an independent cause of action but
merely as evidence tending to aggravate the inhuman or degrading treatment or
punishment to which he would be subjected if he were now to be executed. The respondents' legalistic arguments are
misconceived in the construction of a constitutional guarantee like Article
17(1).
27. 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
32 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."
28. 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 32 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 32 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.
29. The
theme of my reasoning so far is that Article 17(1) requires the court to take
into account the whole picture insofar it has an impact on illegitimate and
unnecessary suffering inflicted on the individual. But Sir Godfray Le Quesne
submitted that even if this proposition is correct all pre-sentence
delay is irrelevant. The substantial
argument he advanced is that delays before and after the sentence of death are
qualitatively different in their impact on the individual. He said that the agony associated with a
sentence of death only starts upon pronouncement of that sentence. That is not a realistic way of looking at
the matter. A condemned man usually
hopes that his appeals, and application for clemency, will succeed. The uncertainty attaching to those
proceedings adds to his anguish. He
also suffers the agony of not knowing when the death warrant will be read to
him. Uncertainty looms large in the
causes of his despair. It is true that
in contrast the man still awaiting trial on a charge of murder is assailed by
other uncertainties: he hopes to be acquitted.
For him the spectre of the macabre meeting with the hangman is somewhat
more distant. He has greater hopes of
escaping death by hanging than a condemned man. But from the time of his arrest and charge, or at least from the
time of his judicial committal for trial on a charge of murder, he is in real
jeopardy of eventually being sentenced to death and hanged. And in cases like the present he will be
held in prison conditions where he will be exposed to the terror of executions
from time to time. Like a distinguished
author in this field, who argues that pre-sentence delay is relevant, I too
would say that "it is here that the horror of contemplating the sentence
would normally begin": Schabas, op. cit., 133-134. There is undoubtedly a difference between
the position of a man awaiting a trial at which he may be sentenced to death
and a man already condemned to death.
On the other hand, it is unrealistic to say either that there is no
pre-sentence mental suffering or that it can be ignored in considering the
broad question under Article 17(1). If
due to the failure of the State there is inflicted on the individual the agony
of a prolonged delay of his trial on a charge of murder that must logically be
relevant as a contributory and aggravating factor which, depending on the
circumstances, may tilt the balance in a given case.
30. Article
17(1) does not mandate a rigid line being drawn between pre-sentence delay and
delay after pronouncement of the death sentence. Instead it requires the court to assess the totality of the
circumstances regarding the treatment and punishment which may make it inhuman
or degrading to execute the condemned man.
It is important also to bear in mind a major premise of Pratt v.
Attorney-General for Jamaica. Lord
Griffiths explained at page 29:-
"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."
31. Equally
our humanity does not require us to exclude from consideration circumstances,
even if they arose before sentence, if they significantly tend to aggravate the
individual's suffering. Our sense of
humanity and decency ought not to permit us to ignore the circumstance, if
proved, that he has for several years before sentence been held in appalling
conditions with a noose constantly dangling before his mind's eye; it ought not
to permit us to ignore a deliberate decision by the State to delay bringing on
his trial for several years; and it ought not to permit us to ignore an
inexcusable failure to bring him to trial for many years. Moreover, on simple common sense grounds one
must recognise the relevance of pre-sentence circumstances, e.g. it must be an
aggravating circumstance if the State arranges to delay a murder charge in
order to have an accused tried and flogged on a lesser charge before proceeding
with the murder charge. Similarly, our
common sense tells us that the interaction of pre-sentence delay and prison conditions,
with the brooding horror of an awareness of executions going on, may add
greatly to sapping the will and increasing the torment of the condemned
man. Only by shutting one's eyes to
reality can such circumstances be ruled out of consideration on a priori
grounds.
32. 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."
33. 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.
34. That
brings me to the proposition in the judgment of the majority that, although the
possibility of taking into account serous pre-trial delay is not excluded, it
is anticipated that it will only occur in exceptional circumstances. In my respectful view this ruling cannot be
reconciled with Article 17(1). It is at
odds with constitutional language of width and generality. It fails to give effect to the full measure
of the fundamental rights protected by Article 17(1). It means that, unless a court judges that the threshold of
exceptionality is passed, even substantial additional suffering caused by
prolonged and unjustifiable pre-trial delay caused by the state may not be
taken into account in the ultimate decision.
Such an exclusionary restriction on what may be considered is contrary
to the language, purpose and spirit of Article 17(1).
35. By way
of conclusion I would summarise the position as follows. Nobody suggests that a time table must be
provided for the conduct of murder trials in The Bahamas. On the other hand their Lordships were
informed that in The Bahamas such trials are almost invariably concluded in a
period of 18 months. In my view
unjustifiable delay beyond 18 months of murder trials in The Bahamas may well
be an aggravating circumstance which may entitle the court to depart from the
norm.
36. This
brings me to a consideration of the facts of the present case. Given a 22 year delay between the imposition
of the death sentence and the reading of the death warrant, the case falls 12
months short of the 32 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.
37. 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 32 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 32 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 32 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 22 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.
38. 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.
© CROWN COPYRIGHT as at the date of
judgment.