The Judicial Committee of the Privy Council Decisions

Briggs v. Cipriani Baptiste (Commissioner of Prisions) and Others (Trinidad and Tobago) [1999] UKPC 47 (28th October, 1999)

Anthony Briggs Appellant

v.

(1) Cipriani Baptiste (Commissioner of Prisons)

(3) The Attorney General of Trinidad and Tobago Respondents

FROM

REASONS FOR DECISION OF THE LORDS OF THE

JUDICIAL COMMITTEE OF THE PRIVY COUNCIL,

OF THE 22nd July 1999, Delivered the

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Lord Nicholls of Birkenhead

[Majority Judgment delivered by Lord Millett]

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1. At the conclusion of the hearing on 22nd July 1999 their Lordships indicated that the appeal was dismissed and that they would give their reasons later. This they now do.

2. In August 1992 the appellant Anthony Briggs bludgeoned a taxi driver to death. He was arrested on 17th March 1993 and charged with murder. He was detained in custody awaiting trial for more than three years. On 21st June 1996 he and a co-defendant were jointly convicted of murder. His appeal against conviction to the Court of Appeal of Trinidad and Tobago was dismissed and his petition for special leave to appeal was dismissed by the Board on 2nd October 1997.

3. On 7th October 1997 the appellant submitted a petition to the Inter-American Commission on Human Rights ("the Commission"). In due course his petition was declared admissible. In the meantime the Government of Trinidad and Tobago published "Instructions relating to applications from persons under sentence of death" ("the Instructions"). These prescribed strict time limits and procedures for applications to the Commission by prisoners under sentence of death. In Thomas v. Baptiste [1999] 3 WLR 249 ("Thomas") the Board was later to rule that the Instructions were unlawful.

4. As a result of the Instructions there was a danger that the sentences of death passed on a number of convicted prisoners who had lodged petitions with the Commission would be carried out before the Commission had considered their cases. On 27th May 1998, therefore, at the request of the Commission and as a matter of urgency, the President of the Inter-American Court of Human Rights ordered provisional measures in respect of five such petitioners. They included the appellant. The order required Trinidad and Tobago to take all measures necessary to preserve the lives of the five petitioners "so that the Court may examine the pertinence of the provisional measures requested"; to inform the Court on the measures taken in compliance with the order; and to submit the Commission’s request for provisional measures for the consideration of the full Court during its next regular session. These provisional measures were ratified by the full Court on 14th June 1998.

5. The time limits prescribed by the Instructions expired on 11th June 1998. Trinidad and Tobago thereupon informed the Commission that the appellant’s case had been referred to the Advisory Committee on the Power of Pardon and that any recommendation which the Commission might make in his case would not now be taken into consideration. In its Report to the Inter-American Court on the measures taken in compliance with the Order of the Court Trinidad and Tobago contended that it could not comply with the Court’s Order of 14th June.

6. On 30th July a warrant of execution was read to the appellant. It fixed the 4th August as the date for the sentence to be carried out. The appellant promptly applied for constitutional relief. On 3rd August by consent Jamadar J. ordered a stay of execution. On the application of the prosecution Lucky J. discharged the stay on 27th August and ordered the appellant’s execution to be carried out on the following day. On appeal to the Court of Appeal Permanand J.A. granted a further stay of execution on the same day. Her order was continued in force until the appellant’s case came before the Court of Appeal in May 1999.

7. Their Lordships respectfully agree with the observation of the Chief Justice on that occasion that the order made by Lucky J. on 27th August was one which should never have been made. They also consider that the death warrant should not have been read to the appellant on 30th July. On those dates the appellant’s petition to the Commission was still pending and an order of the Inter-American Court was in force requiring the state to take provisional measures to preserve his life pending further consideration by the Court. Furthermore on 30th July Thomas was currently before the Court of Appeal. The prisoners in that case were challenging the state’s right to carry out the death sentence while proceedings were still pending before the Commission, as well as its right to do so where the defendant had endured intolerable conditions in prison since conviction. Both issues arose in the appellant’s case also. The conditions to which he was subjected after conviction were similar to those endured by the defendants in Thomas, and this issue is not before their Lordships only because it was disposed of by the Board in Thomas.

8. After conflicting decisions at first instance the Court of Appeal gave judgment in Thomas in favour of the state on 4th August 1998 and granted conditional leave to appeal to the Board. Final leave was granted on 28th August. The issues involved were of great constitutional importance, and it was plain from the first that Thomas would need to be considered by the Board. The proper approach when the state is faced with a serious legal challenge of a general nature to the propriety of carrying out the death sentence is to stay executions in other cases raising the same issue pending its final determination: see Reckley v. Minister of Public Safety and Immigration [1995] 2 A.C. 491 at 498.

9. On 27th January 1999 the Board allowed the appeal in Thomas and indicated that it would give its reasons later. It did so in March 1999. The Board declared that it would be a breach of the defendants’ constitutional rights to carry out the death sentences imposed on them before their applications to the Commission had been finally determined and the final decisions of the Commission and the Court had been duly considered by the relevant authorities of Trinidad and Tobago. The Board ordered that the carrying out of the death sentences be stayed accordingly.

10. Meanwhile the Inter-American Court had held a public hearing on 28th August 1998 to determine whether it had jurisdiction to order a state party to take provisional measures to preserve the life of a petitioner pending the consideration of his case by the Commission. The Court ruled that Article 63(2) of the American Convention on Human Rights 1969 ("the Convention") gave it such jurisdiction. On the following day the Court made a further Order requiring the state to maintain provisional measures in force in respect of eight petitioners including the appellant "so as not to hinder the processing of their cases before the Inter-American system" (emphasis supplied).

11. In due course the Commission approved a Confidential Report under Article 50 of the Convention. The Report was transmitted to Trinidad and Tobago on 25th November 1998. The Commission found that the appellant’s detention for a period of three years and three months while awaiting trial was a denial of his right to personal liberty and an infringement of Article 7(5) of the Convention. This provides:-

"5. Any person detained shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to be released without prejudice to the continuation of the proceedings. His release may be subject to guarantees to assure his appearance for trial."

 

12. The Commission expressly found that there had been no breach of Article 5 (the right to humane treatment and the prohibition of cruel, inhuman or degrading punishment or treatment) or of Article 8 (the right to a fair trial). Despite the narrowness of the ground on which the Commission had upheld the appellant’s complaint, it made the following recommendation:-

"The petitioner is entitled to an effective remedy which includes compensation and consideration for an early release or commutation of sentence."

 

13. Article 51 of the Convention provides:-

"(1) If, within a period of three months from the date of the transmittal of the report of the Commission to the states concerned, the matter has not either been settled or submitted by the Commission or by the state concerned to the Court and its jurisdiction accepted, the Commission may, by the vote of an absolute majority of its members, set forth its opinion and conclusions concerning the question submitted for its consideration.

(2) Where appropriate, the Commission shall make pertinent recommendations and shall prescribe a period within which the state is to take the measures that are incumbent upon it to remedy the situation examined.

(3) When the prescribed period has expired, the Commission shall decide by the vote of an absolute majority of its members whether the state has taken adequate measures and whether to publish its report."

14. The three month period prescribed by Article 51(1) expired on 25th February 1999. The Commission drew up an Article 51 Report and transmitted it to Trinidad and Tobago on 12th March. The Commission confirmed its previous conclusions and repeated its recommendation. It informed the state that it placed itself at the disposal of the parties with a view to reaching a friendly settlement of the matter on the basis of respect for the human rights recognised in the Convention. When this produced no response the Commission informed the Court that it proposed to publish its Article 51 Report in its Report for 1998-9.

15. By a letter dated 16th April 1999 the Solicitor-General of Trinidad and Tobago informed the Commission that the Advisory Committee on the Power of Pardon had met to consider the Commission’s Report and its recommendation that the appellant was entitled to an effective remedy which included compensation and consideration for an early release or commutation of sentence. The Solicitor-General advised the Commission that the Advisory Committee had rejected the recommendation of the Commission and had recommended that the law should take its course. He added that the Minister of National Security had accepted the Committee’s recommendation and had advised the President accordingly.

16. Their Lordships observe that it was neither politic nor wholly accurate to say that the Advisory Committee had rejected the Commission’s recommendation. The Advisory Committee’s function was limited to the question of reprieve. It had no involvement in relation to the grant or withholding of compensation for any breach of the appellant’s right to personal liberty. Acceptance of the Committee’s recommendation would not amount to a refusal to award compensation for the period during which the appellant was wrongfully kept in custody while awaiting trial. It would, of course, amount to a decision not to commute the death sentence, and this would necessarily involve a refusal of early release. But the Commission had required only that these should be considered. The Solicitor-General had informed the Commission that the Advisory Committee had met to consider the Commission’s Report and its recommendation, and there is no reason to believe that the Advisory Committee did not properly consider them before concluding that neither commutation nor early release was appropriate. The appellant had been convicted after a fair trial of a particularly brutal murder and the only complaint of his which had been upheld was in relation to the length of his detention in custody awaiting trial. Their Lordships note that the Chief Justice of Trinidad and Tobago described the remedy recommended by the Commission as "unthinkable" and one which would produce outrage among a substantial majority of the public.

17. Their Lordships are disposed to agree with this assessment. They do not wish to minimise the seriousness of the breach of the appellant’s right to personal liberty while awaiting trial, but they observe that the normal remedy for false imprisonment is compensation. Where the defendant is sentenced to a term of imprisonment, the national Court may instead provide a sufficient remedy by directing that the period of pre-trial custody should be taken into account. This is obviously not possible where the defendant is sentenced to death or life imprisonment. In such a case, compensation is the only remedy which is both available and appropriate. They repeat what they said in Thomas at p. 265:-

"Their Lordships are unwilling to adopt the approach of [the Commission], which they understand holds that any breach of a condemned man's constitutional rights makes it unlawful to carry out a sentence of death. In their Lordships' view this fails to give sufficient recognition to the public interest in having a lawful sentence of the court carried out. They would also be slow to accept the proposition that a breach of a man's constitutional rights must attract some remedy, and that if the only remedy which is available is commutation of the sentence then it must be adopted even if it is inappropriate and disproportionate."

18. The recommendations of the Commission are not binding even as a matter of international law. They derive their authority from the standing of the members of the Commission and their judicial qualities of impartiality, objectivity and restraint. They need to be sensitive to the concerns of state parties and to the legitimate public interest in having a lawful sentence of the court after a fair trial carried out. Above all, they need to ensure that any remedy they recommend is appropriate to the breach. If they do not they are unlikely to persuade the state to accept it.

19. On 4th May 1999 the Commission forwarded a copy of the Solicitor-General’s letter of 16th April to the appellant’s London solicitors. In its covering letter the Commission advised them as follows:-

"… Article 51 of the Convention provides a period of three months from the date of the transmittal of the report of the Commission under Article 50 of the Convention to the state concerned within which to submit the matter to the Inter-American Court of Human Rights. The Commission did not submit the case cited above to the Court within the three months following the date of transmittal of its Article 50 Report 64/98, November 25, 1998, but rather decided to set forth its opinions, conclusions and recommendations in Report 44/99 issued pursuant to Article 51, which was transmitted to the State and the Petitioner on March 15, 1999. Consequently, the Commission will not be submitting the case cited above to the Court." (Emphasis supplied).

20. This was the state of play when the appellant’s case came before the Court of Appeal of Trinidad and Tobago on 20th May. The Court applied the decision of the Board in Thomas. It granted a declaration that it would have been a breach of the appellant’s constitutional rights to have carried out the death sentence imposed on him before his petition to the Commission had been finally disposed of and any report of the Commission and any ruling of the Inter-American Court had been duly considered by the appropriate authorities in Trinidad and Tobago. The Court of Appeal refused to continue the stay of execution because, in the light of the information before the Court, those conditions had been satisfied.

21. On the same day Trinidad and Tobago asked the Inter-American Court to confirm that its order of 29th August 1998 was now discharged in relation to the appellant. Their Lordships consider that the State was well entitled to believe that it was. The order had imposed provisional measures in respect of persons whose petitions were currently under consideration by the Commission "so as not to hinder the processing of their cases before the Inter-American system". In the case of the appellant that process appeared to be complete. The State had not challenged the Commission’s conclusions and was now out of time to do so. The State’s response to the Commission’s recommendations was not satisfactory, but they were not binding on the State. It is difficult to identify any dispute which could have been referred to the Court in these circumstances, and it is not surprising that the Commission had chosen to publish an Article 51 Report rather than refer the case to the Court. It was also now out of time to do so.

22. The Commission opposed the State’s request on the ground that it had failed to remedy the breaches of the Convention which the Commission found had taken place. By a further order of 25th May 1999 the Court directed that the order of 29th August 1998 should remain in force in relation to the appellant "until such time as the Court, having previously considered the reports concerning the present status of his case, issues a decision on this matter".

23. Despite this, a warrant of execution was read for the second time to the appellant on 17th June 1999. It fixed 22nd June as the date for the sentence to be carried out. On the same day the Court’s secretariat wrote to the appellant’s local solicitors and stated that his case was still pending before the Commission and the Court. It did not identify the issue which remained to be decided.

24. On 18th June the appellant brought a constitutional motion for a declaration that the execution of the sentence of death upon him would deprive him of his constitutional rights. The judge (Bereaux J.) dismissed the motion. On the following day the Court of Appeal of Trinidad and Tobago dismissed his appeal. It did so on the ground that, despite the terms of the Inter-American Court’s order of 25th May and the letter of 17th June, there was in fact nothing now pending before the Commission or the Court.

25. The Court of Appeal had the greatest difficulty in understanding what matter or matters were still awaiting the decision of the Inter-American Court. Counsel for the appellant was pressed to identify them. He responded by submitting that there were two. One was the question whether the appellant’s case was still being processed by the Inter-American system. This may seem to derive some support from the actual wording of the Court’s order and its reference to the status of the appellant’s case, but it is in reality a submission of some desperation. The question: "is there still a question to be decided?" cannot be answered in the affirmative simply by saying: "that is the question". The question must be identified.

26. The other was the complaint of the Commission that Trinidad and Tobago had not complied with its recommendations. This derives some support from the Commission’s case for maintaining the provisional measures in force and from what appear to be the reasons of two of the members of the Court for making the order. These have been supplied to their Lordships, but their status and authenticity is unclear. The Court of Appeal rejected this answer on the ground that Trinidad and Tobago was not legally obliged to comply with the recommendations of the Commission either as a matter of domestic law or under the terms of the Convention. Its only obligation was to give proper consideration to them and to act in good faith, and it was not suggested that it had failed to do so.

27. Ultimately the Court of Appeal rejected this answer on jurisdictional grounds. Article 51 of the Convention requires a submission to the Inter-American Court, either by the Commission or by the State concerned, to be made within three months from the transmission of the Article 50 Report to the State. Once that period has expired, the Court has no power or jurisdiction to make a substantive order.

28. The argument before their Lordships has taken a similar course. The appellant’s primary contention is that, following the decision of the Board in Thomas, it would be a denial of his constitutional rights to carry out the sentence of death while an order of the Inter-American Court imposing provisional measures is in force. The appellant’s secondary contention is that he has been subjected to cruel and unusual treatment contrary to section 5(2)(b) of the Constitution of the Republic of Trinidad and Tobago and that this merits the commutation of his sentence. He relies on the fact that he has twice had a warrant of execution read to him and has on three separate occasions faced the imminent prospect of execution.

29. To this the State responds as follows. First, the appellant’s petition to the Commission was finally determined when the Commission decided to publish its Article 51 Report, and thereupon the Court’s order of 29th August 1998 was spent. Thereafter there was nothing pending before the Commission or the Court, and no issue capable of being submitted to the Court. The Court’s order of 25th May 1999 was made without jurisdiction and, insofar as it was an interim order pending further decision, was empty of content. Secondly, the execution of the appellant would not deprive him of life without due process of law contrary to section 4(a) of the Constitution of Trinidad and Tobago. Thirdly, the repeated reading of the death warrant did not amount to cruel and unusual treatment contrary to section 5(2)(b) of the Constitution, but was rather a matter for the Advisory Committee to take into consideration.

30. Their Lordships have considerable sympathy with the first of these responses. Indeed, they can see no answer to it. The handling of petitions in the Inter-American system is spelt out in detail in the Convention. The jurisdiction of the Court is confined to cases that are submitted to it: Article 62(3) of the Convention. Only States and the Commission can submit cases to the Court: Article 61(1). Articles 51(1) and 63(2) are the only provisions of the Convention which enable States or the Commission to submit cases to the Court.

31. Once an Article 50 Report has been transmitted to the State concerned and a friendly settlement is not achieved, two possible courses of action are available. The first course is for either the Commission or the State concerned within the period of three months following the transmission of the Article 50 Report to the State to submit the matter to the Court. The procedure to be followed thereafter is prescribed by the Statute and Rules of Procedure of the Court. By adhering to the Convention the State has undertaken to comply with the order of the Court: Article 68(1) of the Convention. If it fails to do so, the Court may report its failure to the General Assembly of the Organisation of American States, making any pertinent recommendations: Article 65. A judgment ordering compensatory damages can be enforced under the State’s domestic procedure: Article 68(2).

32. The alternative course is available where neither the Commission nor the State concerned wishes to submit the matter to the Court. This procedure does not involve the Court or result in any order binding on the State. The Commission prepares an Article 51 Report, which may contain recommendations (not orders) and prescribe a time limit within which the State should remedy the situation. If the Commission is dissatisfied with the State’s response, it may decide to publish the Article 51 Report. This is the only sanction available to it under this procedure. The decision to publish or not to publish the Article 51 Report is the final step in this procedure. Thereafter the proceedings are complete. There is no longer any matter pending before the Commission or capable of being referred to the Court.

33. The submission of the matter to the Court must be made, if at all, within three months following the transmission of the Article 50 Report to the State concerned. This appears not only from Article 51(1) of the Convention, but also from Article 50 of the Regulations of the Commission. The importance of the time limit is that the state is entitled to know which of the two alternative procedures is being adopted. The Court has emphasised that the time limits in Article 51(1) must not be applied in a way which distorts the object and purpose of the Convention, and that in special circumstances some omissions and delays in complying with procedural rules may be excused provided that a suitable balance is maintained between justice and legal certainty: see Cayara Case, (Preliminary Objections) (unreported), 3rd February 1993.

34. Article 63(2) empowers the Court, in cases of extreme gravity and urgency, to adopt provisional measures "in matters it has under consideration". The Commission cannot, however, request the Court to adopt provisional measures once the Commission has completed its proceedings and there is no longer any matter pending before it. Its power to request provisional matters in "a case not yet submitted to the Court" must mean in a pending case still capable of being referred to the Court. Similar language is used in relation to provisional measures in Article 76(1) of the Regulations of the Commission. Article 24(1) of the Rules of Procedure of the Court authorises the Court to adopt provisional measures "At any stage of the proceedings". Even if the Court needs no further reference once it is seized of a case, it is given no power to adopt such measures once the proceedings are complete and both Commission and Court are functus officio.

35. This analysis is in conformity with the Court’s own jurisprudence. In Cayara (supra) the Commission failed either to submit the case to the Court within the relevant time limit or to prepare an Article 51 Report. It then belatedly submitted the matter to the Court. The Court dismissed the case, holding at page 21 that:-

"The Court must preserve a fair balance between the protection of human rights, which is the ultimate purpose of the system, and the legal certainty and procedural equity that will ensure the stability and reliability of the international protection mechanism."

 

36. But it held that the Commission continued to enjoy the other powers conferred on it by Article 51 (which did not include the submission of the case to the Court). The present case is a fortiori, for there the Commission was not yet functus officio.

37. In its Advisory Opinion OC. – 13/93 (Certain Attributes of the Inter-American Commission on Human Rights) (Arts. 41, 42, 46, 47, 50 and 51 of the American Convention on Human Rights) 16th July 1993 the Court confirmed that the time limit of three months provided by Article 51, though not necessarily fatal, has a preclusive character, except in special circumstances, with regard to the submission of the case to the Court. In its Advisory Opinion OC – 15/97 (Reports of the Inter-American Commission on Human Rights Art. 51 American Convention on Human Rights) 14th November 1997 the Court ruled that the matter could not be brought before the Court because it concerned a concluded case, the Article 51 Report having been published.

38. Their Lordships observe that the Court’s orders in the present case were of an interlocutory nature and were designed to preserve the status quo until the case was determined. The order of 29th August 1998 required the state to maintain provisional measures in force "so as not to hinder the processing of their cases before the Inter-American system", i.e. before the Commission and the Court. Once the processing of the case was complete, the order automatically expired. It was not necessary for Trinidad and Tobago to apply for the order to be discharged, and it did not do so. It merely sought confirmation that the order had expired according to its own terms. The order of 25th May 1999 required the state to maintain provisional measures in force "until such time as the Court … issues a decision on this matter". Neither order was capable of having any further effect once the proceedings were complete.

39. Like the Court of Appeal of Trinidad and Tobago, their Lordships are unable to identify any outstanding issue before the Inter-American Court. The Commission has made its findings of fact, but these are not challenged by the State. It has made recommendations with which the State has not complied, but it is not bound to do so. There is no longer any lis.

40. Nevertheless their Lordships do not feel able to dispose of this appeal on this ground. They are sitting as the final Court of Appeal for Trinidad and Tobago, i.e. the State concerned. They are concerned to apply the domestic law of Trinidad and Tobago. They have no jurisdiction to pronounce on the interpretation and effect of the Convention or the meaning of the Inter-American Court’s orders. By adhering to the Convention Trinidad and Tobago accepted the jurisdiction of the Court on all matters relating to the interpretation or application of the Convention: Article 62(1).

41. Their Lordships would add this. If the Convention had been incorporation into the domestic law of Trinidad and Tobago by domestic legislation, the national Courts would be entitled and bound to consider whether the orders of the Inter-American Court complied with the terms of the relevant legislation. If, without incorporation and contrary to their Lordships’ opinion, the due process clause in the Constitution of Trinidad and Tobago had the effect of making orders of the Inter-American Court directly enforceable in domestic law, the national Courts would similarly be entitled and bound to consider whether such orders were made within the limits of the jurisdiction conferred on it by the Convention. The interpretation of the Constitution is a matter for the national Courts, and its scope and effect in domestic law cannot be enlarged by orders of an international court made outside the terms of the Convention to which the Government of Trinidad and Tobago assented. In determining such questions their Lordships would expect the national Courts to give great weight to the jurisprudence of the Inter-American Court, but they would be abdicating their duty if they were to adopt an interpretation of the Convention which they considered to be untenable.

42. This brings their Lordships to the second of the responses made by the State, that the execution of the appellant would not deprive him of his constitutional right under the law of Trinidad and Tobago not to be deprived of life except by due process.

43. Their Lordships consider that it is important to be clear about what the case of Thomas decided and what it did not decide. It did not overturn the constitutional principle that international conventions do not alter domestic law except to the extent that they are incorporated into domestic law by legislation. It did not decide that the recommendations of the Commission (which are not binding even in international law) or the orders of the Inter-American Court are directly enforceable in domestic law. It mediated the proceedings before the Inter-American system through the due process clause in the Constitution. It confirmed the principle that the consideration of a reprieve is not a legal process and is not subject to the constitutional requirement of due process, and that the Advisory Committee is not bound to consider, let alone adopt, the recommendations of the Commission.

In the Thomas case, however, the defendants were contending that their trials were unfair, and they still hoped to obtain a finding to that effect and rulings from the Court that their convictions should be quashed or their sentences commuted. The case decided that, in such circumstances, for the government to carry out the sentences of death before the petitions had been heard would deny the defendants their constitutional right to due process. Even so, there was no suggestion that the orders of the Court would confer legally enforceable rights under domestic law. The terms of the stay ordered by the Board are inconsistent with any such suggestion.

44. In that case there was an outstanding dispute of fact which remained to be investigated by the Commission and if necessary decided by the Court, viz. whether the defendants had had a fair trial. If the Court were to rule that the trial had not been fair and to order that the conviction be quashed, the State would be at liberty as a matter of domestic law to ignore the order and carry out the sentence, but it is very difficult to believe that it would have done so. Trinidad and Tobago is a modern democracy which operates under the rule of law and is sensitive to its international obligations. By granting the stay in question the Board ensured that the defendants would obtain that to which they were entitled under the Constitution, the right to pursue their outstanding complaints to the point where a favourable determination was capable of leading to the quashing of their convictions or the commutation of their sentences.

45. But that is not the present case. The Commission has found that the appellant has had a fair trial. He has been properly convicted of murder for which the mandatory penalty, preserved by the Constitution, is death. The Commission has found that the appellant was wrongly deprived of his liberty while awaiting trial, and this has not been challenged. There are no disputed facts remaining to be determined by the Inter-American system which could be relevant to the Advisory Committee’s deliberations. The Commission has made its recommendation, and this has been taken into consideration by the Committee. The appellant has no constitutional right to compel the state to comply with orders of the Court, though the State would normally wish to do so; still less has he any constitutional right to compel it to adopt the Commission’s recommendation. The due process which was interrupted in Thomas has been completed in the present case.

46. In conformity with the decision of the Board in Thomas, their Lordships are content to affirm that the repeated reading of the death warrant did not amount to cruel and unusual treatment contrary to section 5(2)(b) of the Constitution, but is rather a matter for the Advisory Committee to take into consideration.

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47. My reasons for not being able to agree with the decision of their Lordships' Board given on 22nd July 1999 are as follows. On 29th August 1998 the Inter-American Court of Human Rights ordered the State of Trinidad and Tobago to take all measures necessary to preserve the life of Anthony Briggs so as not to hinder the processing of his case before the Inter-American system. This was pursuant to its powers under article 63 of the American Convention on Human Rights. In cases of extreme gravity and urgency, and when necessary to avoid irreparable damage to persons, the court is required to adopt such provisional measures as it deems pertinent in "matters it has under consideration". On 25th May 1999 the same court decided to maintain the provisional measures ordered on 29th August 1998 regarding Briggs until the Court "issues a decision on this matter".

48. That has not yet happened. The Inter-American Court of Human Rights has not issued a decision on this matter. Despite this, the State of Trinidad and Tobago intends to execute the sentence of death pronounced on Anthony Briggs on 21st June 1996 following his conviction for murder. The State takes the view that it can ignore this order. It can do so, even though it is a State party to the Convention and has accepted the jurisdiction of the Inter-American Court. It can do so, even though State parties to the Convention undertake to comply with the judgment of the Inter-American Court in any case to which they are parties (article 68).

49. I find this deeply unattractive. I am not prepared to accept that the law of Trinidad and Tobago is so foreshortened that the courts of Trinidad and Tobago must stand by, powerless to act, while Briggs is executed. By acceding to the Convention Trinidad and Tobago intended to confer benefits on its citizens. The benefits were intended to be real, not illusory. The Inter-American system of human rights was not intended to be a hollow sham or, for those under sentence of death, a cruel charade. This was recognised by their Lordships' Board in Thomas v. Baptiste [1999] 3 WLR 249. Delivering the majority judgment, Lord Millett said at p. 261B:-

"By ratifying a treaty which provides for individual access to an international body, the government made that process for the time being part of the domestic criminal justice system and thereby temporarily at least extended the scope of the due process clause in the Constitution."

 

50. The State's response is that the Inter-American system has run its course in the case of Anthony Briggs. He made an application to the Inter-American Commission on Human Rights on 7th October 1997. The Commission approved report no. 64/98 on 3rd November 1998, and sent a copy to the Government on 25th November. The Commission did not submit a case to the Inter-American Court within the three-month period provided by article 51. Instead, the Commission decided to set out its conclusions and recommendations in report no. 44/99, issued pursuant to article 51 on 9th March 1999. This report was subsequently published in the Commission's annual report to the General Assembly of the Organization of American States in April 1999. In report no. 44/99 the Commission found that the delay of three years and three months between arrest and trial was a violation of Anthony Briggs' right, under article 7(5) of the Convention, to be tried within a reasonable time or released without prejudice to the continuation of the proceedings. The Commission recommended that Briggs was entitled to an effective remedy which included "compensation and consideration for an early release or commutation of sentence". On 29th March the Advisory Committee on the Power of Pardon met, and rejected this recommendation. The committee recommended that "the law should take its course". The Minister of National Security accepted the committee's recommendation, and advised the President accordingly. Thus, it is said by the State, the application of Anthony Briggs has now been finally disposed of by the Inter-American human rights system and the Government. The provisional measures adopted on 29th August 1998 are now spent. His case has been fully processed. The Inter-American Court had no jurisdiction to make its order of 25th May 1999. Its order was null for want of jurisdiction.

51. The difficulty with this submission is that the interpretation of the Convention, and hence the jurisdiction of the Inter-American Court under the Convention, is a matter within the sole jurisdiction of that court. Under article 62(3) the Inter-American Court is charged with the interpretation as well as the application of the Convention. Thus, it is not for the courts of the State parties to the Convention to decide the scope of the Inter-American Court's jurisdiction. In the case of Anthony Briggs the Inter-American Court, by making its order of 25th May 1999, asserted that it still has jurisdiction, at least to the extent of adopting provisional measures.

52. On 5th February 1999, and again on 20th May, the Government wrote to the Inter-American Court, seeking confirmation that the provisional measures adopted on 29th August 1998 had been discharged so far as they related to Anthony Briggs. The court sought observations from the Commission. In its observations the Commission took the position that the justification for issuing the provisional measures continued to exist. The Commission had found that the State had committed a serious violation of the Convention in respect of Anthony Briggs. The State had refused to remedy its violation in accordance with the Commission's recommendations. The Advisory Committee on the Power of Pardon had either ignored or rejected these recommendations. Should the Court discharge the provisional measures and thereby permit the State to execute Anthony Briggs when the State had failed to remedy its violations of his rights under the Convention, it would permit the State to violate the terms of the Convention with impunity, render the supervisory machinery of the Convention meaningless, and undermine the very essence of the Inter-American system. Any death sentence implemented against Anthony Briggs would be illegal as constituting an arbitrary deprivation of his life, contrary to article 4(1) of the Convention. This would be a further violation of the Convention. State parties were under an obligation to make every effort to comply with the Commission's recommendations. Maintaining the provisional measures in this case would be consistent with the past practice of the Inter-American Court.

53. In its order of 25th May 1999 the Inter-American Court noted that the State had failed to comply with its obligation, under the provisional measures adopted on 29th August 1998, to submit periodic reports on the status of the appeals and the scheduled executions of, among other persons, Anthony Briggs. Further, neither the State nor the Commission had informed the court, as required, of "any significant developments concerning the circumstances" of Anthony Briggs. Against this background the court decided to maintain the provisional measures ordered on 29th August 1998 regarding Briggs "until such time as the Court, having previously considered the reports concerning the present status of his case, issues a decision on this matter". The Inter-American Court did not elaborate on the nature or source of its continuing jurisdiction in this case.

54. I recognise that the violation found by the Commission was a breach of article 7(5). This provision, on its face, is concerned with a person's rights pending trial, and not with a person's rights in respect of the trial itself. The latter rights, including the right to a hearing within "a reasonable time", are the subject of article 8. It is difficult to see how a breach of article 7(5), of itself, could prejudice the trial or the conviction or sentence. Despite this, in the present case it must be questionable whether on this point the Commission intended to draw a sharp distinction between the two articles. The Commission stated in terms that the delay of three years and three months between arrest and trial "is such as to amount to a violation of the petitioner's right to be tried within a reasonable time".

55. I recognise also that the recommendation of the Commission was expressed only as an entitlement of Anthony Briggs to "consideration" for an early release or commutation of sentence. I appreciate, further, that the Convention contains no express undertaking by State parties to comply with recommendations of the Commission, as distinct from judgments of the Inter-American Court. I note, moreover, that the Inter-American Court has expressed no opinion on the Commission's observations regarding the Court's supervisory jurisdiction, a jurisdiction not spelled out expressly in the Convention.

56. None of these points, however, entitles the court of a State party to usurp the function which under the Convention is given to the Inter-American Court. A national court is not entitled to decide that, on Convention matters, the Inter-American Court is acting beyond its jurisdiction. That is a matter for the Inter-American Court alone. Nor is it for the national court to pre-empt a decision of the Inter-American Court on the outcome of a matter over which that Court is currently asserting jurisdiction. It is not for the national court to decide that nothing relevant can come out of any further consideration of this matter by the Inter-American Court.

57. Under the due process clause of the Constitution of Trinidad and Tobago an applicant is entitled to have the Inter-American system run its course. Anthony Briggs is not to be shut out from the possibility that, under the supervisory jurisdiction mentioned by the Commission in its observations, the Inter-American Court may yet make an order that the sentence of death be commuted. Briggs could then, at the very least, confront the government with such an order. Whether he could have recourse to the courts of Trinidad and Tobago to enforce such an order is a question which remains to be decided on another occasion. If Anthony Briggs is denied this possibility, he will be denied his constitutional rights under the due process clause of the Constitution.

58. That is the effect of the decision of the Court of Appeal. Having noted the history and the relevant articles in the Convention, Chief Justice de la Bastide concluded:-

"It seems to me, therefore, that there is no power or jurisdiction in the [Inter-American] court to make any substantive order in the case of the Appellant."

 

59. With all respect, the Chief Justice fell into error in considering this was an issue before the court. That was a matter for the Inter-American Court, not the courts of Trinidad and Tobago. I would allow this appeal. I would make a declaration that it would be a breach of the appellant's constitutional rights to execute him while the provisional measures ordered on 25th May 1999 remain in force. I would order a stay of execution accordingly.