Director of Public Prosecutions v. Mollison (Jamaica)  UKPC 6 (22 January 2003)
Privy Council Appeal No. 88 of 2001
The Director of Public Prosecutions Appellant
Kurt Mollison (No. 2) Respondent
THE COURT OF APPEAL OF JAMAICA
JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL,
Delivered the 22nd January 2003
Present at the hearing:-
Lord Bingham of Cornhill
Lord Slynn of Hadley
Lord Walker of Gestingthorpe
[Delivered by Lord Bingham of Cornhill]
Section 29 of the Juveniles Act 1951
"(1) Sentence of death shall not be pronounced on or recorded against a person convicted of an offence if it appears to the Court that at the time when the offence was committed he was under the age of eighteen years, but in place thereof the court shall sentence him to be detained during Her Majesty's pleasure, and, if so sentenced, he shall, notwithstanding anything in the other provisions of this Law, be liable to be detained in such place (including, save in the case of a child, an adult correctional centre) and under such conditions as the Minister may direct, and while so detained shall be deemed to be in legal custody.
(4) The Governor-General may release on licence any person detained under subsection (1) or (3) of this section. Such licence shall be in such form and contain such conditions as the Governor-General may direct, and may at any time be revoked or varied by the Governor-General. Where such licence is revoked the person to whom it relates shall return forthwith to such place as the Governor-General may direct, and if he fails to do so may be arrested by any constable without warrant and taken to such place."
Thus, subject to its terms, the Constitution was to be the supreme law of Jamaica. Section 49 lays down long and detailed conditions for the amendment of the Constitution. Section 50 lays down conditions, although less exacting conditions, for the amendment of sections 13-26 inclusive of the Constitution, being the sections which make up Chapter III."Subject to the provisions of sections 49 and 50 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."
"(1) No person shall be deprived of his personal liberty save as may in any of the following cases be authorised by law –
(b) in execution of the sentence or order of a court, whether in Jamaica or elsewhere, in respect of a criminal offence of which he has been convicted; ..."
Section 20(1) provides:
Chapter III ends, in section 26, with two subsections relevant to this appeal:"(1) Whenever any person is charged with a criminal offence he shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time by an independent and impartial court established by law."
"(8) Nothing contained in any law in force immediately before the appointed day shall be held to be inconsistent with any of the provisions of this Chapter; and nothing done under the authority of any such law shall be held to be done in contravention of any of these provisions.
(9) For the purposes of subsection (8) of this section a law in force immediately before the appointed day shall be deemed not to have ceased to be such a law by reason only of –
(a) any adaptations or modifications made thereto by or under section 4 of the Jamaica (Constitution) Order in Council 1962, or
(b) its reproduction in identical form in any consolidation or revision of laws with only such adaptations or modifications as are necessary or expedient by reason of its inclusion in such consolidation or revision."
It will be noted that section 26(8) is general in its application to "any law" in force before independence and to "any of the provisions of this Chapter". But some sections contain their own specific saving provision. An example is section 17, which in (1) provides that no one shall be subjected to torture or to inhuman or degrading punishment or other treatment and in (2) continues:
"(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."
"All laws which are in force in Jamaica immediately before the appointed day shall (subject to amendment or repeal by the authority having power to amend or repeal any such law) continue in force on and after that day, and all laws which have been made before that day but have not previously been brought into operation may (subject as aforesaid) be brought into force, in accordance with any provision in that behalf, on or after that day, but all such laws shall, subject to the provisions of this section, be construed, in relation to any period beginning on or after the appointed day, with such adaptations and modifications as may be necessary to bring them into conformity with the provisions of this Order."
There follows a series of subsections providing that references to old office-holders and institutions shall be understood as references to the new office-holders and institutions and then, in subsection (5)(a), a general although time-limited power is conferred on the Governor-General:
"(5)(a) The Governor-General may, by Order made at any time within a period of two years commencing with the appointed day and published in the Gazette, make such adaptations and modifications in any law which continues in force in Jamaica on and after the appointed day, or which having been made before that day, is brought into force on or after that day, as appear to him to be necessary or expedient by reason of anything contained in this Order."
It seems clear that section 4 had two complementary objects: to ensure that existing laws did not cease to have force on the coming into effect of the new legal order; and to provide a means by which existing laws could be modified or adapted to ensure their conformity with the Constitution and preclude successful challenge on grounds of constitutional incompatibility.
The first question: is section 29 compatible with the Constitution of Jamaica?
"It is taken for granted that the basic principle of separation of powers will apply to the exercise of their respective functions by these three organs of government."
He went on to observe (at page 213C):
"What, however, is implicit in the very structure of a Constitution on the Westminster model is that judicial power, however it be distributed from time to time between various courts, is to continue to be vested in persons appointed to hold judicial office in the manner and on the terms laid down in the Chapter dealing with the judicature, even though this is not expressly stated in the Constitution: Liyanage v The Queen  1 AC 259, 287-288."
(In the cited case the Board, construing the Constitution of Ceylon and in particular Part 6 relating to "The Judicature", regarded the contents of that Part as "inappropriate in a Constitution by which it was intended that judicial power should be shared by the executive or the legislature": page 287F). In considering the constitutionality of the sentencing provisions under challenge in Hinds, Lord Diplock recognised the power of Parliament to prescribe maximum and minimum sentences by statute (at pages 225G-226D) but then continued:
"What Parliament cannot do, consistently with the separation of powers, is to transfer from the judiciary to any executive body whose members are not appointed under Chapter VII of the Constitution, a discretion to determine the severity of the punishment to be inflicted upon an individual member of a class of offenders. Whilst none would suggest that a Review Board composed as is provided in section 22 of the Gun Court Act 1974 would not perform its duties responsibly and impartially, the fact remains that the majority of its members are not persons qualified by the Constitution to exercise judicial powers. A breach of a constitutional restriction is not excused by the good intentions with which the legislative power has been exceeded by the particular law. If, consistently with the Constitution, it is permissible for the Parliament to confer the discretion to determine the length of custodial sentences for criminal offences upon a body composed as the Review Board is, it would be equally permissible to a less well-intentioned Parliament to confer the same discretion upon any other person or body of persons not qualified to exercise judicial powers, and in this way, without any amendment of the Constitution, to open the door to the exercise of arbitrary power by the executive in the whole field of criminal law. In this connection their Lordships would not seek to improve on what was said by the Supreme Court of Ireland in Deaton v Attorney-General and the Revenue Commissioners  IR 170, 182-183, a case which concerned a law in which the choice of alternative penalties was left to the executive.
'There is a clear distinction between the prescription of a fixed penalty and the selection of a penalty for a particular case. The prescription of a fixed penalty is the statement of a general rule, which is one of the characteristics of legislation; this is wholly different from the selection of a penalty to be imposed in a particular case ... The legislature does not prescribe the penalty to be imposed in an individual citizen's case; it states the general rule, and the application of that rule is for the courts ... the selection of punishment is an integral part of the administration of justice and, as such, cannot be committed to the hands of the executive ...'
This was said in relation to the Constitution of the Irish Republic, which is also based upon the separation of powers. In their Lordships' view it applies with even greater force to constitutions on the Westminster model. They would only add that under such constitutions the legislature not only does not, but it can not, prescribe the penalty to be imposed in an individual citizen's case: Liyanage v The Queen  1 AC 259."
Reference was then made to The State v O'Brien  IR 50, in which a somewhat similar provision had been held to be unconstitutional. It was held ( AC 195 at pp 227H-228B) that the Jamaican provisions were inconsistent with the provisions of the Constitution relating to the separation of powers and so void by virtue of section 2 of the Constitution.
The second question: is section 29 immune from constitutional challenge?
The Board finds this a puzzling passage. It does not appear from the summary of the respondents' argument in Hinds as reported that they placed reliance on section 29(1) of the Juveniles Act which, as a pre-independence law, was obviously distinguishable from the post-independence statute in issue. More significantly, the effect of section 4 of the 1962 Order is not to preserve the validity of existing laws. As already pointed out in paragraph 10 above, its effect is to continue existing laws in force, for reasons there given. Far from protecting existing laws against constitutional challenge, section 4 recognises that existing laws may be susceptible to constitutional challenge and accordingly confers power on the courts and the Governor-General (among others) to modify and adapt existing laws so as "to bring them into conformity with the provisions of this Order". It was not suggested that "this Order" did not include the Constitution scheduled to it. Further, the Board cannot accept as accurate the statement "No law in force immediately before August 6, 1962, can be held to be inconsistent with the Constitution". Nowhere in the Order or the Constitution is there to be found so comprehensive a saving provision, which would indeed undermine the effect of section 2 of the Constitution. Section 26(8), as already noted, applies only to the provisions of Chapter III. Since the Board in Hinds was dealing with a post-independence statute, Lord Diplock's observations on the saving clauses in the Order and the Constitution were obiter, and in the opinion of the Board they cannot be supported. Section 4(1) of the Order cannot be relied on to defeat the respondent's challenge based on the separation of powers."Section 29(1) of the Juveniles Law and section 49 of the Criminal Justice (Administration) Law are of no assistance to the respondents' argument. They were passed before the law-making powers exercisable by members of the legislature of Jamaica by an ordinary majority of votes were subject to the restrictions imposed upon them by the Constitution – though they were subject to other restrictions imposed by the Colonial Laws Validity Act 1865. The validity of these two laws is preserved by section 4 of the Jamaica (Constitution) Order in Council. No law in force immediately before August 6, 1962, can be held to be inconsistent with the Constitution; and under section 26(8) of the Constitution nothing done in execution of a sentence authorised by such a law can be held to be inconsistent with any of the provisions of Chapter III of the Constitution. The constitutional restrictions upon the exercise of legislative powers apply only to new laws made by the Parliament established under Chapter V of the Constitution. They are not retrospective."
The third question: may the court modify or adapt section 29 and, if it may, should it do so and to what effect?
"[Section 21] does not, however, in my view, detract in any way from the power of a court either during the five-year period or afterwards to construe an existing law 'with such modifications, adaptations, qualifications, and exceptions as may be necessary' to bring it into conformity with the Constitution. At the same time the modifications, etc., must be such only as are necessary and a court must be wary of usurping the functions of Parliament by introducing new and possibly controversial legislation in the guise of a modification necessary to bring a particular law into conformity with the Constitution".
Liverpool JA (at p 86) spoke to similar effect:
In Vasquez v The Queen  1 WLR 1304, finding an inconsistency between the Criminal Code and the Constitution of Belize relating to the burden of proving or disproving provocation, the Board relied on section 134(1) to rectify the anomaly. The issue in Browne v The Queen  1 AC 45 was very similar to that in the present case. The Saint Christopher and Nevis Constitution Order 1983 contained, in paragraph 2(1) of Schedule 2, a provision similar in effect to section 134(1) of the Belize Constitution. Section 3(1) of the Offences against the Person Act (cap 56) 1873 (as amended) provided that a person convicted of committing a murder, if aged under 18 when committing the offence, should be sentenced to detention during the Governor-General's pleasure. The Board held that sentencing provision to be incompatible with the Constitution, as infringing the separation of powers, and, in the absence of any general provision saving the validity of existing laws, exercised the power conferred by paragraph 2(1) to hold (at page 50G) that the sentence which the appellant "should have received was detention during the court's pleasure". Reference should finally be made to Roodal v The State (unreported) (17 July 2002) (CRA No 64 of 99), a case before the Court of Appeal of Trinidad and Tobago concerning the constitutionality of the mandatory death penalty, although, since leave to appeal against the Court of Appeal's decision has been granted, the Board would not wish to be understood to express any view on the decision itself. Section 5(1) of the Constitution of the Republic of Trinidad and Tobago Act 1976 was in terms somewhat similar to section 4(1) and other comparable provisions considered above, and in a judgment of the court de la Bastide CJ reviewed all the authorities mentioned above (and others), giving a summary which fully merits quotation:"Section 134(1) of the Constitution is explicit in its requirement that existing laws must be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with the Constitution; and it is acknowledged that the Land Acquisition (Public Purposes) Act is an existing law. In my view, the permitted modifications transcend those of nomenclature, reaching matters of substance and stopping only where the conflict between the existing law and the Constitution is too stark to be modified by construction."
"Having made this review of the authorities, we are now in a position to assess the purport and effect of section 5(1) of the 1976 Act. The first thing we can say about that section is that though it speaks of existing laws being 'construed', the type of 'construing' which is involved is not the examination of the language of existing laws for the purpose of abstracting from it their true meaning and intent nor is it attributing to existing laws a meaning which, though not their primary or natural meaning, is one that they are capable of bearing. In fact, the function which the court is mandated to carry out in relation to existing laws under this section, goes far beyond what is normally meant by 'construing'. It may involve the substantial amendment of laws, either by deleting parts of them or making additions to them or substituting new provisions for old. It may extend even to the repeal of some provision in a statute or a rule of common law. Mr. Daly's submission that the section should be regarded as conferring very limited powers is, I am afraid, a brave but unavailing attempt to turn the clock back."
In the light of this authority the Board concludes, in agreement with the majority of the Court of Appeal, that section 4(1) gives the court power to modify section 29 so as to bring it into conformity with the constitution. This is not a case (and the Director did not contend that it was) in which no modification could be made which would produce an acceptable and workable solution or which, as was held to be the case in Roodal, would amount to an inappropriate exercise of legislative authority in a field offering several policy choices. The nature and purpose of the sentence of detention during the Governor-General's pleasure are clear, as explained above. The only question is who should decide on the measure of punishment the detainee should suffer. Since the vice of section 29 is to entrust this decision to the executive instead of the judiciary, the necessary modification to ensure conformity with the Constitution is (as in Browne v The Queen  1 AC 45) to substitute "the court's" for "Her Majesty's" in subsection (1) and "the court" for each reference to "the Governor-General" in subsection (4).
The fourth question: should the sentence of life imprisonment stand?
Section 29(3) of the Juveniles Act 1951
"(3) Where a young person is convicted of an offence specified in the Third Schedule and the court is of opinion that none of the other methods in which the case may legally be dealt with is suitable, the court may sentence the offender to be detained for such period as may be specified in the sentence. Where such a sentence has been passed the young person shall, during that period notwithstanding anything in the other provisions of this Act, be liable to be detained in such place (including an adult correctional centre) and on such conditions as the Minister may direct and while so detained shall be deemed to be in legal custody."
The terms of this subsection are closely modelled on, but are not identical to, those of section 53(2) of the (British) Children and Young Persons Act 1933 as originally enacted. For purposes of both subsections "young person" was defined to mean a person who has attained the age of 14 years and was under the age of 17 (section 107(1) of the 1933 Act, section 2 of the 1951 Act). Under each statute it is the age at date of conviction which is relevant; the amendment made to section 29(1) following Baker v The Queen  AC 774 was not made to section 29(3). But there is one significant difference between the two subsections. Section 53(2) was inapplicable to any offence the sentence of which was fixed by law. By contrast, section 29(3) was expressed to apply to any offence specified in the Third Schedule to the Act. One of the offences so specified was murder, for which section 29(1) would appear (unless qualified by section 29(3)) to require imposition of a sentence of detention during Her Majesty's pleasure, a sentence fixed by law. Since the respondent was aged 19 when sentenced, section 29(3) cannot apply to him, and in the absence of full argument the Board is unwilling to express a final conclusion. It would however appear that if a defendant is convicted of murder and is aged 14-16 at the time of conviction, the trial judge may either impose a sentence of detention during the court's pleasure under section 29(1) or a sentence of detention for a specified period under section 29(3). This was the construction put upon section 29(3) by Downer JA at p 34 of his judgment. It would not seem that this choice was available in the case of any of the intervening parties, all of whom the Board understands to have been over 17 at the date of conviction.