Hughes, R v (Saint Lucia)  UKPC 12 (11 March 2002)
Privy Council Appeal No. 91 of 2001
The Queen Appellant
Peter Hughes Respondent
THE EASTERN CARIBBEAN COURT OF APPEAL
JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL,
Delivered the 11th March 2002
Present at the hearing:-
Lord Bingham of Cornhill
Lord Hobhouse of Woodborough
Lord Rodger of Earlsferry
[Delivered by Lord Rodger of Earlsferry]
“Whoever commits murder is liable indictably to suffer death.”
Section 1284 provides:
Section 1291 provides:“Unless otherwise expressly provided, a Court may sentence any offender to any less punishment, other than death, than that prescribed.”
“The sentence, to be pronounced upon a person who is convicted of an offence punishable with death, is that he be hanged by the neck until he is dead.”
“No person shall be subjected to torture or to inhuman or degrading punishment or other treatment.”
The Court of Appeal also held that the mandatory death penalty was inconsistent with the identically worded section 5 of the Constitution of Saint Vincent, as set forth in the Saint Vincent Constitution Order 1979 (SI 1979 No 916) (“the Saint Vincent Order”). The Court of Appeal accordingly made orders quashing the sentences of death imposed on Hughes and Spence and remitting to the High Courts of Saint Lucia and Saint Vincent respectively to determine the appropriate sentence in each case.
“Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of section 5 of the Constitution to the extent that the law in question authorises the infliction of any description of punishment that was lawful in Saint Lucia immediately before 1 March 1967 (being the date on which Saint Lucia became an associated state).”
A similar argument would apply to the case of Spence by virtue of paragraph 10 of schedule 2 to the Saint Vincent Order which made the same provision in relation to laws in effect before 27 October 1969 when Saint Vincent became an associated state. Secondly, even if he were wrong on the application of paragraph 10, Sir Godfray contended that the imposition of the mandatory death penalty could not be regarded as inhuman or degrading punishment or treatment in terms of section 5 of the Constitution. In particular he argued that the Constitution contained a specific mechanism for the individuation of the sentence in cases of murder. Even though the judge had to impose a death sentence, under section 76 the Minister was required to obtain a report from the judge and to place it before the Committee on the Prerogative of Mercy who had to consider it along with any other relevant material. Their advice to the Governor General on the exercise of the royal prerogative of mercy was binding (section 74(2)). As the Board had observed in Lewis v Attorney-General of Jamaica  2 AC 50, 77F, “the act of clemency [was] to be seen as part of the whole constitutional process of conviction, sentence and the carrying out of the sentence”. By this composite process, involving both the judge and the Committee, the appropriate sentence was determined. The validity of that approach had been recognised by the Court of Appeal of Belize in Lauriano v Attorney-General  3 Bz LR 77.
“Every person who commits murder shall be liable to suffer death.”
The 1888 code was in its turn replaced by a revised code in 1920. In that revision what is now section 178 of the Criminal Code was to be found in precisely its present form.
“it cannot be too strongly stressed that the Constitution does not mean whatever we might wish it to mean.”
Their Lordships approach the text of paragraph 10 in the spirit of these observations.
“This Constitution is the supreme law of Saint Lucia and, subject to the provisions of section 41 of this Constitution, if any other law is inconsistent with this Constitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void.”
The Constitution controls not only the statute law but any law in force in Saint Lucia, including “any unwritten rule of law” (section 124). Therefore, unless paragraph 10 applies, any law, whether written or unwritten, which is inconsistent with the Constitution is to that extent void.
“If any person alleges that any of the provisions of sections 2 to 15 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 High Court for redress.”
Section 16(2) gives the High Court original jurisdiction in certain matters and ends with a proviso allowing the High Court to decline jurisdiction “if it is satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned under any other law”.
“Nothing contained in … any law shall be held to be inconsistent with … section 5 of the Constitution to the extent that the law in question authorises the infliction of any description of punishment that was lawful in Saint Lucia immediately before 1 March 1967 …”.
The second element, with its limitation built in, can likewise be set out in this way:
“Nothing … done under the authority of any law shall be held to be … in contravention of section 5 of the Constitution to the extent that the law in question authorises the infliction of any description of punishment that was lawful in Saint Lucia immediately before 1 March 1967 …”.
Section 120 of the Constitution provides the key to the language used to express the limitation in respect of both elements. Under that section any law which is inconsistent with any of the provisions of the Constitution is void, but only “to the extent of the inconsistency”. Paragraph 10 provides, however, that, “to the extent that” the inconsistency of the law in question comprises the authorisation of the infliction of the specified description of punishment, it is not to be held to be inconsistent with section 5. If, of course, the inconsistency extends beyond that, then, to the extent of that further inconsistency, the court can hold that the law is inconsistent with section 5 and so void under section 120. Similarly, “to the extent that” anything done is done in inflicting a punishment which is authorised by the law in question and is of the specified description, it is not to be held to be in contravention of section 5. If, on the other hand, the act in question goes beyond that, then, to the extent of that further contravention of section 5, the court can indeed hold that the act is in contravention of section 5 and grant redress under section 16.
“it is another well known principle of construction that exceptions contained in constitutions are ordinarily to be given strict and narrow, rather than broad, constructions.”
In case of doubt paragraph 10 should therefore be given a strict and narrow, rather than a broad, construction.
“(1) No person shall be subjected to torture or to inhuman or degrading punishment or other treatment.
The similarity between section 17(2) and paragraph 10 is obvious. In resisting the appeal in Pratt the Crown argued that their Lordships could not hold that the executions would be contrary to section 17(1) because of the exception in section 17(2). A similar argument had been accepted in Riley. The Board held, however, that the purpose of section 17(2) was to preserve all descriptions of punishment that were lawful immediately before independence and to prevent them from being attacked under section 17(1), but that section 17(2) did not address the question of delay in carrying out the punishment. Their conclusion was put in this way ( 2 AC 1, 29E–F):(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question authorises the infliction of any description of punishment which was lawful in Jamaica immediately before the appointed day.”
“Their Lordships will therefore depart from Riley v Attorney-General of Jamaica and hold that section 17(2) is confined to authorising descriptions of punishment for which the court may pass sentence and does not prevent the appellant from arguing that the circumstances in which the executive intend to carry out a sentence are in breach of section 17(1).”
Mr Fitzgerald submitted that, similarly, in the present case the Board should hold that paragraph 10 was confined to authorising descriptions of punishment for which the court might pass sentence but that it did not prevent the respondent from arguing that the circumstances in which the judge imposed the sentence, without any discretion or any possibility of mitigation, were in breach of section 5.
“The minority, who would have allowed the appeal, adopted a narrower construction of section 17(2) which limited the scope of the subsection to authorising the passing of a judicial sentence of a description of punishment lawful in Jamaica before independence and they held it was not concerned with the act of the executive in carrying out the punishment.
Their Lordships are satisfied that the construction of section 17(2) adopted by the minority is to be preferred. The purpose of section 17(2) is to preserve all descriptions of punishment lawful immediately before independence and to prevent them from being attacked under section 17(1) as inhuman or degrading forms of punishment or treatment. Thus, as hanging was the description of punishment for murder provided by Jamaican law immediately before independence, the death sentence for murder cannot be held to be an inhuman description of punishment for murder.
Section 17(2) does not address the question of delay and is not dealing with the problem that arises from delay in carrying out the sentence.”
Sir Godfray cited the second paragraph. It has to be remembered, however, that in Pratt the Board was not concerned in any way with the fact that the sentence of death was mandatory. As can be seen from the context, in the second paragraph the Board was simply adopting the distinction between the death sentence itself as a description of punishment for murder, on the one hand, and the delay in carrying out that sentence, on the other. For the purposes of that argument the mandatory or discretionary nature of the death sentence would have been entirely irrelevant: whether the death sentence had been imposed by virtue of a provision making it mandatory or by virtue of a provision conferring a discretion on the court, the Board would still have drawn a distinction between that description of punishment and the delay in carrying out the sentence. In this passage the Board was simply drawing the distinction, not making a point about the nature of the death sentence. For this reason their Lordships are satisfied that the passage cannot properly be regarded as authority for the proposition that the mandatory nature of the death sentence is immune from challenge by virtue of paragraph 10.
“The existing laws shall, as from the commencement of the Constitution, be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with the Constitution and the Supreme Court Order.”
In exercise of this power, their Lordships construe section 1284 as modified so as not to include the words “other than death”. The effect is to make section 1284 apply to section 178, just as it applies to other sections that prescribe the punishment for particular offences. With section 1284 applying in this way, section 178 is no longer inconsistent with section 5 of the Constitution and is to be regarded as valid. It will therefore be open to the court under section 178, in this case as in any other, either to impose the death sentence or to impose a lesser punishment, depending on the view which it takes, having regard to all the relevant circumstances.