First capital punishment case
CCJ dismisses Barbados appeal against commuted sentences
By Andre Haynes
Stabroek News
November 9, 2006
The Caribbean Court of Justice (CCJ) yesterday dismissed an appeal by the Barbados government challenging the commuted sentences given to two convicts on death row.
In the first capital punishment case for the regional appellate court, the Barbados government challenged the decision by its Court of Appeal to substitute the death sentences of Lennox Boyce and Jeffrey Joseph with life imprisonment. The judges dismissed Bridgetown's appeal since the re-imposition of the sentences would breach the five-year limit for their execution established by the UK Privy Council's 1993 decision in Pratt and Morgan. They also recognised the protection offered by 2001's Neville Lewis v Attorney General of Jamaica, which allows for the right to petition an international human rights body before execution in territories where such treaties have been ratified. It also requires that a death sentence be stayed until the convicted person's petition to the human rights body has been finally disposed of, and the report of that body is available for consideration by the State authority charged with exercising the prerogative of mercy.
But at least four of the seven judges who sit in the Port of Spain, Trinidad-based court did point to the legal "dilemma" the two cases have created for countries in the region. In a joint judgement, President of the Court Justice Michael de la Bastide and Justice Adrian Saunders both found that the result is that through no fault of its own the state may be unable to carry out the constitutionally sanctioned death penalty because of the conjoint effect of the decisions in Pratt and Morgan and Lewis. Further, while they dismissed the appeal and reaffirmed the decisions in both cases they said they would have been inclined to consider that where the relevant international human rights process initiated by a condemned man exceeds 18 months, the time taken in excess of that period be disregarded in computing time for the purpose of determining compliance with Pratt and Morgan. Alternatively, they suggested that such excess must be added to the five-year limit prescribed by Pratt and Morgan. "This is all on the premise that the additional time taken is not attributable to delays in the process for which the Government concerned is responsible," they explained in their judgement. Justice Jacob Wit also described Lewis as a "Catch 22," while observing that no Caribbean State could escape as it requires them to choose between "a rock and a hard place" or "the devil and the deep blue sea." In his judgement, Justice Rolston Nelson also noted what he termed the "ambivalence of the statutory and constitutional provisions."
In its appeal, the Barbados government contended that its Court of Appeal erred on the basis that the convicted men had no access to adequate funding to effectively pursue any further rights they may have. However, the state also conceded that it could not ask for the re-imposition of the sentences owing to the precedent in Pratt and Morgan.
The judges dealt with and resolved the two major issues that were argued before them. The first concerned the reviewability of the exercise of the prerogative of mercy by the Barbados Privy Council, pursuant to the provisions of the island's Constitution. It was the unanimous view of the court that the exercise of the prerogative of mercy is reviewable although a section of the Constitution seems to preclude the court from inquiring whether the functions have been properly performed.
The second issue was whether the failure of the Barbados Privy Council to await the outcome of the proceedings instituted by the men in the Inter-American system was a contravention of their right to the protection of the law. The judges unanimously held that the go-ahead given by the Council for the men's execution shortly after they had initiated the proceedings before the Inter-American commission was a contravention of the right to the protection of the law. They ruled that the Court of Appeal was bound to follow the precedent set by the Privy Council, which established that the state is under a duty to await the outcome of the process before human rights bodies, at least for a reasonable period.
Boyce and Joseph were charged along with two others with the murder of Marquelle Hippolyte, who was beaten to death. All four accused were given the option of pleading guilty to the lesser charge of manslaughter. Boyce and Joseph declined the offer and stood trial for murder and they were convicted and subsequently sentenced to death.
When their appeals to the Court of Appeal and the Privy Council were dismissed, they petitioned the Inter-American Commission for Human Rights, on the claim that the state violated its obligations under the American Conven-tions on Human Rights. However, the Barbados Privy Council confirmed its previous decision not to commute their sentences and deaths warrants were read to the two men.
The men went to Barbados' Court of Appeal contending that it was a breach of their constitutional right to execute them while they were awaiting a final report from the Inter American Commission for Human Rights. Their sentences were commuted to life imprisonment by the court in June last year, based on the Privy Council's ruling in Pratt and Morgan. The judges had noted that the five-year period was less than eight months away and the two-year delay before the appeals of Boyce and Joseph went to the Judicial Committee of the Privy Council pushed the time for the completion of those appeals over the limit. As a result, a report from the Inter-American Human Rights Committee could not be compiled and reviewed by the Privy Council within the specified time. The court ruled that the delay was not the fault of the appellants and in view of the time frame and the circumstances of the case, the proper order would be to commute the sentences.