The Judicial Committee of the Privy Council Decisions

Higgs and David Mitchell v. The Minister of National Security and Others (Bahamas) [1999] UKPC 55 (14th December, 1999)

Privy Council Appeal No. 45 of 1999

(2) David Mitchell Appellants

v.

The Minister of National Security and Others Respondents

FROM

JUDGMENT OF THE LORDS OF THE JUDICIAL

Present at the hearing:-

1. The appellants are held at Fox Hill Prison in The Bahamas under sentence of death for murder. They have exhausted the right to appeal against their convictions. But they have brought constitutional motions claiming that the execution of the death sentences would violate their fundamental rights and freedoms under the Constitution. There are two principal grounds. The first is that each has pending before the Inter-American Commission on Human Rights ("the Commission") a petition complaining that their executions would violate their human rights. The Commission, which is an organ of the Organisation of American States ("OAS") of which The Bahamas is a member, has not yet dealt with the petitions. The appellants say that an execution before the decision of the Commission has been received and considered by the Government of The Bahamas would be contrary to due process of law and would violate their right to life under article 16 of the constitution. The second ground is that having regard to the length of time for which the appellants have been held in prison, both before and after conviction, the conditions in which they have been held and the treatment they have received, the executions would be "inhuman or degrading treatment or punishment" contrary to article 17(1) of the Constitution.

 

1. The Commission.

2. The Commission has a role in respect both of member states of the OAS which are parties to the American Convention on Human Rights 1969 ("the Convention") and member states, such as the Bahamas, which are not. In relation to states in the former category, it is charged with enforcing the Convention, if necessary by proceedings before the Inter-American Court of Human Rights ("the Court"). The Convention gives individuals and non-governmental organisations a right to petition the Commission to complain of violations and the Commission, if it is unable to arrive at a satisfactory settlement, may submit the matter to the Court, which has sole jurisdiction to interpret the Convention. The procedure was recently discussed in the judgment of the Board in Briggs v. Baptiste (The Times 3rd November 1999) an appeal from Trinidad and Tobago.

 

3. In relation to states which are not parties to the Convention, the Commission has a general duty to promote the observance of the human rights set out in the American Declaration of the Rights and Duties of Man 1948 ("the Declaration"). There is no right of individual petition as such, but the Commission has under article 20(b) of its Statute power:-

"to examine communications submitted to it and any other available information, to address the government of any member state not a Party to the Convention for information deemed pertinent by this Commission, and to make recommendations to it, when it finds this appropriate, in order to bring about more effective observance of fundamental human rights."

 

4. The "communications" received by the Commission under this article tend in practice to be complaints by individuals of the violation of their rights under the Declaration. The Commission has in fact made procedural regulations which assimilate the preliminary procedures for dealing with such communications with those for petitions under the Convention. For example, it is a condition of the admissibility of both Convention petitions and non-Convention communications that the petitioner should have exhausted his domestic remedies: see article 37 of the Regulations of the Inter-American Commission on Human Rights. But the outcome of the proceedings in non-Convention cases is that the Commission sends its "decision" in the form of a report to the member state concerned, including any recommendations it may make in accordance with article 20(b) of the Statute. Being recommendations, they are not binding upon the member state as a matter of treaty law or in any other way.

 

2. The Commission and The Bahamas

5. Although The Bahamas has been a member of the OAS since 1982, it does not appear that until quite recently anyone availed himself of the power of the Commission to receive communications and make inquiries about alleged violations of human rights there. The government was in fact unaware that the assistance of the Commission could be invoked by an individual through this route. In Henfield v. Attorney-General of the Commonwealth of The Bahamas [1997] AC 413 counsel for the government, on instructions, accepted the submission of counsel for the appellants that citizens of The Bahamas had no individual access to the United Nations Human Rights Committee (which was correct) or any other international human rights body (which was not). The context in which the question arose was whether this made any difference to the five year period which the Board had said in Pratt v. Attorney-General for Jamaica [1994] 2 A.C. 1, 35 was the period after sentence after which there would normally be "strong grounds for believing" that an execution would be inhuman or degrading punishment. The period of five years had been an attempt to strike a balance between the cruelty of a long delayed execution and the need to allow time for completion of the available appellate processes. In the case of Jamaica, which was party to both the International Covenant on Civil and Political Rights (with its Protocol giving a right of petition to the U.N. Human Rights Committee) and the American Convention on Human Rights, the Board in calculating the time reasonably required for appeals allowed a period of 18 months for petitions to one or other international body. In Henfield it decided that since neither form of petition existed in The Bahamas, three and a half years was the appropriate period within which an execution could normally be expected to be carried out.

 

6. The error was corrected in Fisher v. Minister of Public Safety and Immigration [1998] AC 673 (which, in view of a subsequent appeal by the same appellant, their Lordships will call "Fisher No. 1"). In that case the appellant Mr. Fisher had presented a petition to the Commission which was pending at the date of the hearing before the Board. Sir Godfray Le Quesne Q.C., as counsel for the government, informed the Board that the government recognised the power of the Commission to receive communications from citizens of The Bahamas complaining of violations of their human rights. He said at page 685A that "it was the intention of the government that the applicable regulations should be duly respected".

 

3. The appellants' cases.

7. Their Lordships must now set out some of the chronology of the proceedings against the appellants. First, Mr. Higgs. He murdered his wife in July 1993 and was arrested a few days later. He was committed for trial on 26th November 1993 but there was a technical defect in the committal as a result of which it was quashed on 12th July 1994. On 14th November 1994 he was committed again and on 2nd October 1995 found guilty and sentenced to death. On 16th April 1996 the Court of Appeal allowed his appeal on the grounds of excessive interventions by the judge and ordered a retrial. On 6th August 1996 he was again convicted and sentenced to death. The Court of Appeal dismissed a second appeal on 2nd May 1997 and a petition for special leave to appeal to Her Majesty in Council was dismissed on 6th November 1997. On the following day he lodged his petition with the Commission. On 21st October 1998 the government wrote to the Commission stating that it considered that 18 months would be a reasonable period to allow for the Commission to reach its decision and make its recommendations. Neither the government nor the Commission sent a copy of this letter to Mr. Higgs. The period expired on 7th May 1999. His execution was fixed for 10th August 1999 and the warrant read to him on 3rd August 1999, but a stay of execution was granted on 9th August 1999 pending the hearing of this constitutional motion. It came before Marques J. and was dismissed on 12th August. An appeal to the Court of Appeal was dismissed on 17th August. From that decision Mr. Higgs now appeals to the Privy Council.

 

8. Mr. Mitchell's case has followed a rather simpler course. On 9th May 1994 he murdered a couple in their home by stabbing them to death. He was arrested on the same day and on 24th November 1994 he was convicted and sentenced to death. His appeal to the Court of Appeal was dismissed on 2nd October 1995 (with reasons given on 27th October 1995) and (after special leave had been granted) his appeal to the Privy Council was dismissed on 21st January 1998: see Mitchell v. The Queen [1998] AC 695. On 27th January 1998 he lodged his petition with the Commission. In October 1998 the government wrote a similar letter to that in Mr. Higgs's case, informing the Commission that the period of 18 months would expire on 27th July 1999. Thereafter, Mr. Mitchell's execution was fixed for 10th August 1999, the same day as Mr. Higgs, and the warrant was read to him. He brought his constitutional motion on 5th August 1999 and this led to stays of execution being granted to both him and Mr. Higgs. Since then their cases have proceeded together.

 

9. Both appellants have been in Fox Hill Prison since their respective arrests. For Mr. Higgs, this has been six and a half years. For Mr. Mitchell it has been five and a half. Their Lordships will return later, when they consider the question of whether execution would be an inhuman or degrading punishment, to the question of the conditions in which they have been held and the treatment which they have received. But first they turn to the effect of the unresolved petitions to the Commission.

 

4. International law in domestic courts.

10. The point of departure in considering the effect of the petitions is the fact that the constitution of the OAS (including the Statute which established and conferred powers upon the Commission) is an international treaty. In the law of England and The Bahamas, the right to enter into treaties is one of the surviving prerogative powers of the Crown. Her Majesty does not require the advice or consent of the legislature or any part thereof to authorise the signature or ratification of a Treaty. The Crown may impose obligations in international law upon the state without any participation on the part of the democratically elected organs of government.

 

11. But the corollary of this unrestricted treaty-making power is that treaties form no part of domestic law unless enacted by the legislature. This has two consequences. The first is that the domestic courts have no jurisdiction to construe or apply a treaty: see J.H. Rayner (Mincing Lane) Ltd. v. Department of Trade and Industry [1990] 2 A.C. 418. So, in the present case, the effect of the treaty in international law may be that The Bahamas has a duty to wait indefinitely for the decision of the Commission or that it has a duty to wait a reasonable time or (given the advisory and non-binding nature of the possible recommendations of the Commission) it has no duty to wait at all. The courts of The Bahamas have no jurisdiction to pronounce upon this question.

 

12. The second consequence is that unincorporated treaties cannot change the law of the land. They have no effect upon the rights and duties of citizens in common or statute law: see the classic judgment of Sir Robert Phillimore in The Parlement Belge (1879) 4 P.D. 129. They may have an indirect effect upon the construction of statutes as a result of the presumption that Parliament does not intend to pass legislation which would put the Crown in breach of its international obligations. Or the existence of a treaty may give rise to a legitimate expectation on the part of citizens that the government, in its acts affecting them, will observe the terms of the treaty: see Minister for Immigration and Ethnic Affairs v. Teoh (1995) 183 C.L.R. 273. In this respect there is nothing special about a treaty. Such legitimate expectations may arise from any course of conduct which the executive has made it known that it will follow. And, as the High Court of Australia made clear in Teoh's case, the legal effect of creating such a legitimate expectation is purely procedural. The executive cannot depart from the expected course of conduct unless it has given notice that intends to do so and has given the person affected an opportunity to make representations.

 

13. The rule that treaties cannot alter the law of the land is but one facet of the more general principle that the Crown cannot change the law by the exercise of its powers under the prerogative. This was the great principle which was settled by the Civil War and the Glorious Revolution in the seventeenth century. And on no point were the claims of the prerogative more resented in those times than in relation to the establishment of courts having jurisdiction in domestic law. There have been no prerogative courts in England since the abolition of Star Chamber and High Commission. But the objection to a prerogative court must be equally strong whether it is created by the Crown alone or as an international court by the Crown in conjunction with other sovereign states. In neither case is there power to give it any jurisdiction in domestic law.

 

5. Fisher No. 2

14. These well-established principles were the background to the decision of the Board in Fisher v. Minister of Public Safety and Immigration (No. 2) [1999] 2 WLR 349. Their Lordships have already referred to the first constitutional motion in this case (Fisher No. 1). After the Board had given its decision in that case on 16th December 1997, the government wrote to the Commission (on 29th December 1997) pointing out that more than 18 months had elapsed since the petition had been presented on 7th June 1996. It said that the government could not wait indefinitely and that unless the Commission made its decision by 15th February 1998, the law would have to take its course without further delay. No decision was received and on 26th March 1998 a warrant of execution was read. Mr. Fisher brought a second constitutional motion, alleging that his execution before the decision of the Commission had been received would be a violation of his human rights under the constitution and also contrary to his legitimate expectations created by the government's undertaking given at the earlier hearing.

 

15. Counsel made alternative submissions as to which of Mr. Fisher's constitutional rights would be violated. His primary case (see page 354G) was that it was his right to life under article 16(1). In answer to the objection that article 16(1) includes the words "save in execution of the sentence of a court", counsel said the article should be given a liberal construction. The execution had to be lawful and it should not be considered lawful if the case was still being considered by the Commission.

 

16. The judgment of the majority of the Board on this question, delivered by Lord Lloyd of Berwick, was that the legality of the execution, as a matter of domestic law, could not be affected by the terms of an international treaty. He said the government could not, by joining the OAS in 1982, create a new constitutional right or alter what had previously been the legality of executing the sentence of a court. Otherwise "it would mean that the government had introduced new rights into domestic law by entering into a treaty obligation …" at page 355C. On this point the minority of the Board agreed.

 

17. Counsel's alternative constitutional argument was that the execution would in such circumstances be inhuman or degrading punishment. Lord Lloyd said that if the death penalty was not otherwise inhuman or degrading, as had been held by the Privy Council in Jones v. Attorney-General of the Commonwealth of The Bahamas [1995] 1 W.L.R. 891, it could not become inhuman and degrading on account of an international treaty. The minority of the Board, however, considered that execution would be cruel and inhuman, not because of the pendency of the petition to the Commission as such, but because Mr. Fisher had spent a considerable time in prison since the exhaustion of his domestic remedies anxiously awaiting the decision of the Commission and it would therefore be inhuman to execute him before it was given.

 

18. Finally counsel argued that Mr. Fisher had a legitimate expectation that the government would await the decision of the Commission, or would wait for a reasonable time which had not yet expired. The expectation was founded upon the undertaking given on behalf of the government in Fisher No. 1 and there was some discussion of what it had meant. At first it was agreed between counsel that it meant that the government would wait a reasonable time for the decision of the Commission, which would then be considered by the appropriate body. The issue was whether the government had waited a reasonable time. In his reply, however, the appellant's counsel argued that it meant that the government would wait indefinitely. Lord Lloyd of Berwick, who gave the advice of the Board, did not attempt to construe the undertaking. He said instead (at p. 356) that even if the undertaking had given rise to an expectation that the government would wait indefinitely, that expectation could not have survived the communication to Mr. Fisher of the government's letter to the Commission stating that it would not wait longer than 15th February 1998. The minority, on the other hand, considered that there was a continuing legitimate expectation that the government would wait a reasonable time and that this was in the circumstances longer than 18 months.

 

6. No distinction from Fisher No. 2

19. Their Lordships can find nothing which materially distinguishes this case from Fisher v. Minister of Public Safety and Immigration (No. 2) [1999] 2 WLR 349. The appellant's claim that his execution would violate his constitutional right to life or be, by reason only of the outstanding petition, an inhuman or degrading punishment, were considered and rejected in that case. Only on the issue of legitimate expectation does counsel draw a distinction on the facts. He says that, whereas in Fisher No. 2 the letter to the Commission setting a date for their decision was communicated to the appellant, the government's letters in these cases were not. It could not therefore be said in this case that the government had made its position clear to the appellants. But their Lordships consider that just as the government's undertaking was made public in consequence of Fisher No. 1, so its extent was clarified by the public statement of the government's position in Fisher No. 2, in which the constitutional motion was heard in The Bahamas on 3rd April 1998. No one after the hearing in the latter case could have had a reasonable expectation that the government would wait for more than a reasonable time. And there is no evidential basis for any further expectation, such as that the government would give the appellant notice of exactly what period it considered to be a reasonable time or that it would exceed 18 months. There are accordingly no relevant factual grounds on which Fisher No. 2 can be distinguished.

 

7. The effect of Thomas v. Baptiste

20. Counsel submits, however, that Fisher No. 2 ought not to be followed because it is inconsistent with the reasoning in the later decision of the Board in Thomas v. Baptiste [1999] 3 WLR 249. This was a decision on appeal from the Republic of Trinidad and Tobago and its reasoning requires careful study. The Republic, unlike The Bahamas, was a party to the American Convention on Human Rights 1969. On 26th May 1998 it denounced the Convention with effect from 26th May 1999, but the judgment was given on 17th March 1999 and all relevant events took place while the Republic was still a party. In 1997 the government had become concerned that delays in petitions to the Commission and the United Nations Human Rights Committee were preventing executions from taking place within the Pratt five year period. It therefore published Instructions laying down strict timetables for the various steps to be taken by the Commission in dealing with petitions. Thomas and Hilaire were prisoners under sentence of death whose petitions were not dealt with in the relatively short times allowed by the Instructions. Thomas lodged his petition on 31st March 1998 and the Instructions required that the government should have been asked for its response by 1st May 1998. This did not happen. Hilaire lodged his petition on 7th October 1997 and the Instructions required a decision to be given by 11th June 1998. This did not happen either. So in June and July 1998 the warrants were read for the executions of both men. They filed constitutional motions which were dismissed by the courts in Trinidad and came on appeal to the Privy Council.

 

21. Lord Millett, who gave the judgment of the majority of the Board, said at pages 258-259 that the Instructions were unlawful because they were "disproportionate". It was reasonable for the government to lay down time limits to introduce "an appropriate element of urgency" into the international process but that they "curtailed petitioners’ rights further than was necessary". It would have been sufficient to prescribe a period of 18 months for the whole process.

 

22. Their Lordships note in passing that Lord Millett saw no objection to the imposition of an 18 month time limit on the exercise of the right of petition. That is exactly what the Government of The Bahamas has done in this case.

 

23. Lord Millett then proceeded to consider how the existence of the Convention might generate rights justiciable in the domestic courts of the Republic. He had drawn attention at the very beginning of his judgment (at p. 255F) to section 4(a) of the Constitution of Trinidad and Tobago, which affirmed the right of the individual to life, liberty, security of the person and the enjoyment of property and the right not to be deprived thereof except by "due process of law". The due process clause, he said at pages 259-260, invoked "the concept of the rule of law itself and the universally accepted standards of justice observed by civilised nations". It "gives constitutional protection to the concept of procedural fairness". This included, by analogy with the right to a fair trial, the right to a fair appellate process: "the right of a condemned man to be allowed to complete any appellate or analogous legal process that is capable of resulting in a reduction or commutation of his sentence before the process is rendered nugatory by executive action".

 

24. Lord Millett then dealt with the question of how, consistently with the doctrine that treaties are not part of domestic law, the petition to the Commission should be regarded by the domestic courts of the Republic as a "legal" process. He said at pages 260-261 that the applicants' claim did not infringe the principle that acts under the prerogative cannot change the law:-

"The right for which [the applicants] contend is not the particular right to petition the commission or even to complete the particular process which they initiated when they lodged their petitions. It is the general right accorded to all litigants not to have the outcome of any pending appellate or other legal process pre-empted by executive action. This general right is not created by the Convention; it is accorded by the common law and affirmed by section 4(a) of the Constitution. The applicants are not seeking to enforce the terms of an unincorporated treaty, but a provision of the domestic law of Trinidad and Tobago contained in the Constitution."

 

25. So far, this reasoning still did not explain why, apart from the Republic's treaty obligations, the petition to the Commission should be a "pending appellate or other legal process" when an appeal to Human Rights Watch or Amnesty International would not be. But the answer was given at page 261B in the very next sentence:-

"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."

 

26. It therefore appears to their Lordships that the ratio decidendi of Thomas v. Baptiste is that the due process clause in section 4(a) of the Trinidad and Tobago Constitution gave the Crown power to accept an international jurisdiction as part of the domestic criminal justice system. It was on this ground that Lord Millett at page 261 distinguished Fisher No. 2:-

"Their Lordships note that a similar argument was rejected in Fisher v. Minister of Public Safety and Immigration (No. 2) [1999] 2 WLR 349. They observe, however, that the Constitution of The Bahamas which was under consideration in that case does not include a due process clause similar to that contained in section 4(a) of the Constitution of Trinidad and Tobago."

 

27. The Board in Thomas v. Baptiste did not therefore cast doubt on the correctness of Fisher No. 2. The ground upon which the minority had dissented in that case, namely that execution during the pendency of the petition was a cruel and unusual punishment, was (at p. 262C) summarily rejected. ("The argument has no merit".)

 

28. Counsel for the appellants say that the distinction which the Board drew between the Constitutions of Trinidad and Tobago and The Bahamas was illogical and wrong. Due process is part of the common law. Lord Millett in fact said at page 261A that it was "accorded by the common law and affirmed by section 4(a)" (emphasis added). There must be an implication in Article 16(1) of the Constitution of The Bahamas that the "execution of the sentence of a court" to which it refers will have been carried out with regard to due process of law. Their Lordships have no difficulty in making this implication of the ordinary common law concept of due process as being in accordance with law and general principles of fairness. But the majority of the Board in Thomas clearly did not regard this common law concept as having the power (absent specific language in the Constitution) to incorporate procedures having an existence only under international law into the domestic criminal justice system. It is not for their Lordships to say whether this was right or wrong. It is impossible, without throwing the law on this subject into a state of total uncertainty, to do otherwise than apply the distinction which the Board has drawn. Fisher No. 2 is a very recent decision of the Board which, as their Lordships have said, is precisely in point. Their Lordships do not think it would be right to re-open it unless they were obliged to do so by precedent or satisfied that it was wrong. Thomas itself makes it clear that it is not a contrary authority and so far from thinking that Fisher No. 2 was wrong, their Lordships are satisfied that it was right.

 

29. Reference was made to the recent decision of Lewis v. Attorney-General for Jamaica 15th June 1999; Court of Appeal of Jamaica (Supreme Court Civil Appeal No. 7 of 1999) (unreported), which contains an interesting discussion of the relationship between Fisher No. 2 and Thomas v. Baptiste. But since an appeal to the Privy Council in that case is pending, their Lordships think that it would be inappropriate to comment on the judgments.

 

30. For the sake of completeness, their Lordships note that there are grounds for saying that even if this appeal was from Trinidad and Tobago, the claim that execution before the decision of the Commission was unconstitutional might well fail. First, as already noted, Lord Millett accepted that the government would have had the right to stipulate for an 18 month time limit on the petition process. Secondly, Lord Millett laid stress upon the fact that the applicants' petitions to the Commission complained not only of the carrying out of the sentences (which would have been a matter for the non-justiciable procedures of the advisory committee on the exercise of the power of commutation) but also of the fairness of their trials. He repeated this point in Briggs v. Baptiste (The Times 3rd November 1999). In the present appeals, no complaint is made about the fairness of the trials.

 

8. Inhuman punishment

31. Their Lordships turn next to the second principal ground for the constitutional motions, namely that the infliction of the death penalty would in the circumstances be an inhuman or degrading punishment, contrary to Article 17(1) of the Constitution. The circumstances relied upon are (1) the length of time which the appellants have been in prison awaiting execution, (2) the length of time they were in custody before conviction and sentence and (3) the conditions in which they have been held and the treatment they have received. Before examining the particular facts relied upon under these three heads, their Lordships must make some general observations about the construction of Article 17(1), which embodies a concept contained, in slightly variant forms of language, in many constitutional instruments since the Bill of Rights 1689 (1 Will. & Mary, sess. 2. c. 2). The original prohibition on "cruel and unusual" punishments was intended, as was the rest of the Act of 1689, to limit the powers of the Crown rather than the legislature. In England, under the doctrine of the sovereignty of Parliament, the Act still has only this function. The mischief against which it was aimed was the imposition of cruel and degrading treatment by way of addition to the punishment prescribed by common law or statute. Of such practices, the most notorious and obscene were the cruelties and degradations inflicted upon persons condemned to death, both before and after their executions. But, while the 1689 Act took as its benchmark the punishment prescribed by law, the concept soon evolved in other countries into a general prohibition on punishments considered cruel or unusual by the standards of the day, which applied to the legislature as well as the executive. In England the sovereignty of Parliament meant that the prohibition could not, in the last resort, be enforced by the judiciary against the legislature. But the constitution of the United States expressly used the principle to limit the powers of Congress as well as the executive and the constitution of The Bahamas was made in the same mould.

 

32. In relation to the death sentence which is expressly preserved in Article 16(1) of The Bahamas Constitution, the relevant principle is that lucidly stated in the extract from Montaigne quoted by Lord Steyn in his judgment (dissenting on this point) in Thomas v. Baptiste [1999] 3 WLR 249, 272. If a man has been sentenced to death, it is wrong to add other cruelties to the manner of his death. The prohibition is on the infliction of punishment additional to what Montaigne called "the straightforward death penalty". Thus in Pratt v. Attorney-General for Jamaica [1994] 2 A.C. 1 the Board held that execution after excessive delay was an inhuman punishment because it added to the penalty of death the additional torture of a long period of alternating hope and despair. It is not the delay in itself which is a cruel and unusual punishment. As de la Bastide C.J. said in his judgment in the Court of Appeal in Thomas v. Baptiste, "it is the act of hanging the man that is rendered cruel and unusual by the lapse of time". Likewise in his judgment in Thomas when it was before this Board, Lord Millett said (at p. 265E) that the principle would prohibit the infliction of death preceded by torture or flogging (a paradigm example) or detention in solitary confinement.

 

33. It is however difficult for this principle to apply to treatment, even unlawful treatment, which cannot be regarded as punishment inflicted by way of aggravation of the sentence of death. It was for this reason that the Board in Fisher No. 1 [1998] AC 673, 682 said that only in exceptional (and unspecified) circumstances could pre-trial delay be regarded as something which affected the question of whether it would be inhuman to inflict the death penalty. Pre-trial delay can seldom be regarded as an additional form of punishment. The prisoner charged with murder is detained because he is awaiting trial, in the same way as other prisoners on remand. The detention cannot ordinarily be regarded as an addition to the punishment, aggravating the eventual sentence. It would have taken place even if the prisoner had been acquitted.

 

34. The same is true of prison conditions. Detention in prison before execution is a necessary part of the death penalty. If additional hardships and privations of the kind mentioned by Lord Millett are inflicted upon prisoners on death row, that may well amount to an aggravation of punishment which would make their subsequent execution inhuman and degrading. It is less easy to regard detention in substantially the same general conditions as other prisoners as something that affects the constitutionality of the execution. As de la Bastide C.J. said in the Thomas judgment to which their Lordships have already referred, "There is not … the same nexus between the abuse complained of and the death sentence as exists between delay in carrying out the death sentence and the actual carrying out of it". This is not to say that the additional cruelties must have been deliberately intended by the prison authorities as additional punishment. That would certainly not have been true of the delays which were held to make the punishment inhuman and degrading in Pratt v. Attorney-General for Jamaica [1994] 2 A.C. 1. The question of whether they amount to an aggravation of the punishment of death is an objective one. But there must be some connection with that punishment which would make the execution itself inhuman and degrading.

 

35. For this reason the majority of the Board in Thomas held that prison conditions which it described (at p. 265B) as "completely unacceptable in a civilised society" would not render an execution inhuman or degrading, even if they amounted to an infringement of other constitutional rights. The judgment of the Board in that case makes it clear that the fact that the appellants have suffered "inhuman treatment" in prison, contrary to Article 17(1) of the Constitution, will entitle them to a remedy such as was granted by the Supreme Court of Zimbabwe in Conjwayo v. Minister of Justice, Legal and Parliamentary Affairs 1992 (2) S.A. 56 (ordering the prison authorities to allow longer periods for exercise) but not necessarily to commutation of the death sentences. Their Lordships regard their adherence to this ruling as the main difference of principle between themselves and the minority opinions in this case.

 

36. Their Lordships wish to make it clear that they in no way condone lengthy pre-trial delays or uncivilised prison conditions. They are unacceptable. But they differ sharply from the case of delay in execution because whereas a prisoner cannot be expected to put an end to his uncertainty by demanding his own execution, both pre-trial delay and prison conditions are the subject of other legal remedies. In Fisher No. 1 (at pp. 680-681) Lord Goff of Chieveley drew attention to the remedies open to a prisoner who had been held in custody for an excessive period before trial. He can apply to have the prosecution dismissed as an abuse of process; he may apply under Article 19(3) for an order that unless tried speedily he should be released on bail and he can invoke his constitutional right under Article 20(1) to be tried within a reasonable time. Likewise in the case of prison conditions, the prisoner may apply for injunctive relief. The decision in Conjwayo v. Minister of Justice, Legal and Parliamentary Affairs 1992 (2) S.A. 56, to which their Lordships have already referred, is a striking example of the grant of such relief to prisoners under sentence of death.

 

9. The facts

37. Having stated these general principles, their Lordships turn to their application to the facts of these appeals. They will first state the facts relied upon as cumulatively rendering the executions an inhuman punishment.

 

(a) Post-conviction delay.

38. An unusual feature of Mr. Higgs's case is that he was twice convicted and sentenced to death. He spent six and a half months under sentence of death after his first trial, then just over three months awaiting his second trial and then three more years between sentence and the reading of the death warrant which gave rise to these motions. But on any view, the total falls a long way short of five years. Mr. Mitchell, when the warrant was read to him, had been under sentence of death for four years and eight months.

 

(b) Pre-trial delay.

39. Mr. Higgs was held in prison for two years and three months before his first trial and another three months between the date on which his appeal was allowed and the second trial. These relatively long periods are explained by the procedural defect in the committal to which their Lordships have already referred and the fact that the first trial was also defective. Mr. Mitchell was held in custody before trial for just over 6 months.

 

(c) Prison conditions.

40. Mr. Higgs said in an affidavit that while awaiting his trial and retrial, as well as since conviction, he has been "incarcerated on death row together with condemned men awaiting execution". When he swore the affidavit in February 1998 he said that the hour's daily exercise allowed him under the Prison Rules had recently been reduced to half an hour. He also said that in July 1997, after a reading of the death warrant, he was subjected to a "mock execution". He was weighed, measured for a suit for his execution and shown where the execution would be carried out.

 

41. Mr. Mitchell likewise said that he had been kept on death row during his six months on remand as well as after conviction. He said (in August 1999) that his cell was hot and airless and that he was being allowed only 10 minutes exercise four times a week instead of an hour a day.

 

42. An affidavit in answer was sworn by the Assistant Superintendent of Fox Hill Prison. He said that there was no place in the prison designated for condemned prisoners ("death row"); they were simply held, whether on remand or after conviction, in the maximum security block, which housed 775 inmates. The only distinction made for prisoners under sentence of death was that they were required to be held in separate cells. The cells, he said, measured six feet by nine and were adjacent to the corridor with grilled doors. Exercise was allowed on four days a week for at least 25-30 minutes each day. This reduction in the time required by the rules was due to the crowded conditions in the prison and lack of sufficient prison officers to supervise exercise.

 

43. Marques J., hearing the constitutional motion, decided to inspect the prison himself on 30 minutes notice to the Assistant Superintendent. He found that the conditions there did not fall below reasonable standards of decency, having regard to financial and security constraints. He found that the applicants were not held in an area which was solely for condemned prisoners and which could be described as death row, although the room in which executions were carried out was in the same building. He rejected the allegation that Mr. Higgs had been subjected to a "mock execution" and said that he was "not satisfied that either applicant has suffered a deprivation of the entire hour allotted to them by the Prison Rules for exercise". Their Lordships are bound to say that the purport of the last finding is obscure because there was uncontradicted evidence that they had been entirely deprived of exercise on three days a week and that the period had been reduced by at least a half on the other four days.

 

10. Conclusion

44. Counsel submitted that their Lordships should take a global approach to the question of whether execution had been rendered an inhuman punishment and that although the period for which the appellants had been under sentence of death might not in itself be sufficient, it should be so regarded in conjunction with the pre-trial delay and the conditions under which they had been held. As authority for this approach they relied upon what Lord Goff of Chieveley in Fisher No. 1 (at pp. 681-682) described as "the principle in Guerra's case" (Guerra v. Baptiste [1996] AC 397). That principle was the holding that in a case in which there had been "very substantial" but less than five years post-conviction delay, pre-trial delay "of a serious character" could in principle be taken into account so that "looking at the case in the round", an execution would be inhuman punishment. Likewise in the case of prison conditions, their Lordships were referred to the judgment of the Supreme Court of Zimbabwe in Catholic Commission for Justice and Peace in Zimbabwe v. Attorney-General (1993) 14 H.R.L.J. 323, a case which preceded and was followed in Pratt v. Attorney-General for Jamaica [1994] 2 A.C. 1. This was a case in which executions were held unconstitutional on account of delay, but Gubbay C.J. at page 336 also took into account the "demeaning conditions of confinement" of the prisoners. It appears from the statement of facts that condemned prisoners were segregated and subjected to a particularly harsh prison regime.

 

45. Their Lordships would certainly accept that the question of whether the treatment of the prisoner has been such as to render his execution an inhuman punishment must be looked at in the round, taking into account all matters which would make the totality of his punishment something more than "the straightforward death penalty". But the principle is that the matters to be taken into account must have been an aggravation of the punishment of death. There must be, as de la Bastide C.J. said, a nexus between the matters complained of and the sentence of death. Their Lordships do not say that cruelties inflicted upon condemned prisoners cannot constitute an unlawful aggravation of the death sentence merely because they are also inflicted upon other prisoners. But the establishment of the necessary link is more difficult when the conditions in the prison are a generalised consequence of overcrowding and lack of resources. There appears to their Lordships that there is no such nexus in the present case. The pre-trial delay had no connection with the fact that a sentence of death was eventually imposed. The conditions under which the appellants were held in Fox Hill Prison had no connection (save for their being held in individual cells) with the fact that they were under sentence of death.

 

46. Their Lordships would say in conclusion that even if the conditions suffered by the appellants had been confined to those on death row, they would not have been inclined to differ from the finding of Marques J. that the they were not inhuman or degrading treatment and, a fortiori, did not make a subsequent execution inhuman or degrading. This is a question of fact and degree. It has often been said that the Privy Council is not a second court of appeal. Its function is to lay down general principles and to correct substantial miscarriages of justice. Their Lordships think it would create uncertainty and be detrimental to the administration of justice in The Bahamas if this Board were in each case to form its own view on whether local conditions in the prison fell on one side or the other of the imprecise line dividing treatment which is inhuman from that which is not. If one compares the evidence in this case with the conditions in Thomas, vividly described by Lord Steyn in his dissenting judgment at pp. 273-274, which were held not to amount to cruel and unusual punishment or treatment, it seems to their Lordships impossible to say that Marques J. must have erred in principle in making a similar finding in respect of the conditions in this case. The learned judge directed himself correctly on the proper considerations to be applied and his findings should not be disturbed.

 

47. Their Lordships will therefore humbly advise Her Majesty that these appeals should be dismissed.