UKPC 29
Privy Council Appeal No 0050 and 0051 of 2012
Selassie (Appellant) v The Queen (Respondent)
Pearman (Appellant) v The Queen (Respondent)
From the Court of Appeal of Bermuda
Dame Sian Elias
JUDGMENT DELIVERED BY
8 October 2013
Heard on 20 June 2013
John Perry QC
(Instructed by Simons Muirhead & Burton)
(Director of Public Prosecutions)
Howard Stevens QC
(Deputy of Public Prosecutions)
(Instructed by Charles Russell LLP)
John Perry QC
(Instructed by Simons Muirhead & Burton)
"Any person who is convicted of premeditated murder shall be sentenced to imprisonment for life without eligibility for release on licence until the person has served twenty-five years of the sentence."
Mr Selassie contends that the effect of the subsection is that the direction for his ineligibility for release on licence could not extend beyond his service of 25 years of his sentence.
"Provided that where any person is sentenced under this section, such person shall, before any application for his release on licence may be entertained or granted by the Parole Board established by the Parole Board Act 2001, serve at least fifteen years of the term of his imprisonment."
Mr Pearman contends that the effect of the proviso is that the direction for his ineligibility for release on licence could not extend beyond his service of 15 years of his sentence. It is convenient to speak compendiously of ineligibility for release even though, as the terms of the proviso show, the ineligibility extends not only to release itself but also to the entertainment of an application for release.
"A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender."
It also noted that the fixing of the period prior to eligibility for release on licence was part of the sentencing process. This was uncontroversial: in R (Anderson) v Secretary of State for the Home Department  UKHL 46,  1 AC 837, the House of Lords had held, in the words of Lord Bingham at paras 20 and 24, that "the fixing of the tariff of a convicted murderer is legally indistinguishable from the imposition of sentence". The Court of Appeal held that, as a matter of construction, section 54 was not overridden by the proviso in section 288(1). But it did not proceed to hold that the proviso was overridden by – in other words, should be read subject to – section 54. That would have been a way of construing the proviso so as not to disable the court from fixing a period of less than 15 years prior to eligibility. Instead the Court of Appeal construed the proviso as disabling the court from doing so but proceeded to strike down that part of it as being unconstitutional.
"Any colonial law which is or shall be in any respect repugnant to the provisions of any Act of Parliament extending to the colony to which such law may relate, or repugnant to any order or regulation made under authority of such Act of Parliament, or having in the colony the force and effect of such Act, shall be read subject to such Act, order, or regulation, and shall to the extent of such repugnancy, but not otherwise, be and remain absolutely void and inoperative."
The Constitution of Bermuda is set out in Schedule 2 to the Bermuda Constitution Order 1968 made by the Crown pursuant to the Bermuda Constitution Act 1967 enacted by the UK Parliament. The Constitution is therefore part of an order made under authority of a UK Act of Parliament and, pursuant to section 2 of the 1865 Act, any colonial law which is repugnant to it is "to the extent of such repugnance, but not otherwise" void. Section 5(1)(a) of the Constitution provides that
"No person shall be deprived of his personal liberty save as may be authorised by law in any of the following cases:
(a) in execution of the sentence or order of a court...in respect of a criminal offence of which he has been convicted..."
So the sentence has to be passed by a court and it has to be linked to a particular offence. Although at para 18 the Court of Appeal also referred to section 1 of the Constitution and to article 5(1) of the European Convention on Human Rights ("the ECHR"), the Board considers its central conclusion to have been that, in purporting to disable the court from fixing a period of less than 15 years prior to eligibility for release, the proviso in section 288(1) of the 1907 Act was repugnant to section 5(1)(a) of the Constitution. It held, in para 18, that the section was unconstitutional "insofar as it purports to impose a minimum 'tariff' period of 15 years for all cases of murder, regardless of the circumstances of the individual case and offender".
(a) stressed at para 8 that it was not concerned with the effect of section 286A(2) of the 1907 Act;
(b) observed at para 14 – presumably as a matter of construction – that it was not clear whether the proviso in section 288(1) entitled the court to increase the period of 15 years; and
(c) stated at para 19 that the effect of its conclusion was not that the whole of the proviso was void.
"10. For the appellant it was submitted that the wording of the proviso in section 286A is different from the wording of the proviso in section 288. We do not agree. The meaning of the words is not dissimilar.
11. It was also submitted that the reference to twenty-five years is intended to be a maximum term and therefore the sentence of 35 years conferred by the learned Chief Justice cannot be supported.
12. Our view is that the fixed period (25 years) in section 286A(2) of the 1907 Act has to be regarded as unconstitutional in light of the decision in Robinson under section 288(1) (15 years).
13. We reject the argument that the term 25 years is intended to be a maximum period. First, it would be unsatisfactory to hold that the fixed periods are unconstitutional for one purpose but invalid for another. Secondly, we do not believe that the analogy with a maximum sentence is correct."
It is not entirely clear whether the court there held that, as a matter of construction, the sections did not specify maximum periods or whether it held that, as a matter of construction, they did specify maximum periods and were unconstitutional in so specifying. In the light of the argument before the Board, it is possible that the Court of Appeal did not receive all the assistance which it might have expected in this regard.