Bernard Coard and Others John Anthony Ventour and Others v Attorney General
| Jurisdiction | UK Non-devolved |
| Judge | Lord Hoffmann |
| Judgment Date | 07 February 2007 |
| Neutral Citation | [2007] UKPC 7 |
| Court | Privy Council |
| Docket Number | Appeal No 10 of 2006 |
| Date | 07 February 2007 |
[2007] UKPC 7
Present at the hearing:-
Lord Bingham of Cornhill
Lord Hoffmann
Lord Phillips of Worth Matravers
Lord Carswell
Lord Brown of Eaton-under-Heywood
Privy Council
[Delivered by Lord Hoffmann]
On 4 December 1986 the 13 appellants were convicted by Byron J and a jury of the murders of Maurice Bishop and 10 others and sentenced to death. Mr Bishop was at the time Prime Minister of Grenada, having come to power as a result of a revolution which ousted the previous constitutional government in 1979. In 1983 the revolutionary party split into two factions led by Mr Bishop and the appellant Mr Coard respectively. On 19 October 1983 there was a violent confrontation in which Mr Bishop and the others were executed by Mr Coard's supporters. A week later Grenada was occupied by the armed forces of the United States and other Caribbean islands and constitutional government under the Governor-General restored. Elections for a new Parliament were held in December 1984.
Until the 1979 revolution Grenada shared a Supreme Court with 5 other Associated States pursuant to the West Indies Associated States Supreme Court (Grenada) Act, which gave effect in Grenada to the West Indies Associated States Supreme Court Order SI 1967. The Act was repealed by People's Law No 4 of 25 March 1979, which established instead a Supreme Court of Grenada, consisting of a High Court and Court of Appeal.
The West Indies Associated States (Appeals to the Privy Council)(Grenada) Order 1967 SI 1967 No 224 contained machinery for an appeal to the Privy Council from the Court of Appeal established under the West Indies Associated States Supreme Court Order. Section 3 provides that—
"An appeal shall lie to Her Majesty in Council from decisions of the Court given in any proceedings originating in a State in such cases as may be prescribed by or in pursuance of the Constitution of that State."
Section 104 of the 1973 Constitution of Grenada conferred a right of appeal to the Privy Council, as of right in some cases and with special leave in any case. But People's Law No 84 of 1979 abolished appeals to the Privy Council with effect from 13 March 1979. The first Act of the restored Parliament (Act 1 of 1985) confirmed the validity of all laws made by the revolutionary government. Thus at the time that the appellants were indicted on 28 September 1984 the Grenada judicial system consisted of a High Court and Court of Appeal established under People's Law No 4 of 1979. The appellants brought a constitutional motion challenging the validity and jurisdiction of the High Court but this was dismissed. An appeal to the Court of Appeal was likewise dismissed. The appellants then petitioned the Privy Council for special leave to appeal but leave was refused in July 1985 on the ground that the right of appeal had been abolished by People's Law No 84 of 1979: see Mitchell v Director of Public Prosecutions [1986] AC 73.
At the trial, the appellants withdrew instructions from their counsel and took no part. In fact they behaved disruptively and from time to time had to be removed from the court room. Although they gave no evidence, they made what they called "indicative statements" from the dock, saying what they would have said in their defence if they had been minded to do so. The jury convicted them. Section 230 of the Criminal Code, which has remained in force at all material times, provides that the mandatory sentence for murder is death. The appellants were sentenced accordingly.
After conviction and sentence, the appellants appealed to the Grenada Court of Appeal. The appeal was heard over a lengthy period during 1990 and the appellants raised such matters as the unfavourable publicity at the time of the trial, the selection and attitude of the jury, the circumstances in which confessions were obtained, non-disclosure of material in the hands of the prosecution and alleged defects in the summing up. The Court of Appeal dismissed the appeals in July 1991. It appears that detailed oral judgments were given over a period of three days. No written judgment has been provided and it appears that no transcript or written note of the oral judgments was made.
Section 74(1) of the Constitution provides that where any person has been sentenced to death, the Minister designated for the purpose must refer the case to the Advisory Committee on the Prerogative of Mercy and, after obtaining its advice, "decide in his own deliberate judgment" whether to advise the Governor-General to exercise his powers under section 72(1), on behalf of Her Majesty, to (among other things) "grant a pardon, either free or subject to lawful conditions" or to "substitute a less severe form of punishment." By section 72(2), these powers must be exercised in accordance with the advice of the Minister.
On 15 August 1991 the Governor-General signed warrants in respect of each of the appellants which recited that the Minister had decided to advise the Governor-General to commute the sentence of death to one of life imprisonment. The warrant then said that the Governor-General, in accordance with that advice, granted the appellant a pardon "on condition that [he] shall be kept in custody to hard labour for the remainder of his natural life."
Since then, the appellants have remained in custody. During that period, there have been developments in the law. On 2 April 2001 the Eastern Caribbean Court of Appeal, presided over by Byron CJ (who had been the trial judge in this case), held in an appeal from St Lucia that the mandatory death penalty was an "inhuman or degrading punishment" and unconstitutional. This decision was affirmed by the Privy Council on 11 March 2002: see Regina v Hughes [2002] 2 AC 259. In consequence, the appellants filed a constitutional motion on 23 September 2002, claiming that the sentences imposed upon them had been unlawful. It followed that the warrants of commutation under which they were held in custody had no legal basis and were likewise unlawful.
To this central submission, Mr Fitzgerald QC on behalf of the appellants added further grounds of complaint. Their Lordships will briefly deal with these before returning to the substantial point in the appeal.
First, he submitted that, as much of the trial took place in the absence of the appellants (they having been removed because they were attempting to disrupt it), section 8(2) of the Constitution precluded the imposition of a sentence of death or imprisonment. The relevant part of this section reads:
"…except with his own consent the trial shall not take place in his absence unless he so conducts himself as to render the continuance of the proceedings in his presence impracticable and the court has ordered him to be removed and the trial to proceed in his absence:
Provided that, in such circumstances as may be prescribed by law, the trial may take place in the absence of the person charged so long as no punishment of death or imprisonment (other than imprisonment in default of payment of a fine) is awarded in the event of his conviction."
Their Lordships do not think that there is anything in this point. The structure of the provision is that the first part lays down a rule (no trial in the absence of the accused) subject to two exceptions (consent and disruption). The whole of the first part is then subject to a proviso allowing legislation under which people may be tried in their absence for minor offences. In this case, the trial did not infringe the rule because it fell within one of the exceptions. It follows that there was no need for it to come within the proviso. The appellants' construction would produce the absurd result that anyone charged with a serious offence could avoid imprisonment by disrupting the proceedings.
Secondly, Mr Fitzgerald said that whatever might be said about the legality of the sentence of death, the warrant of commutation was itself invalid. It recited that the Minister had advised commutation to a sentence of life imprisonment, but the warrant then purported to grant a conditional pardon, which was something different. Furthermore, the condition – that the appellants be imprisoned for the rest of their "natural lives" – was unknown to the law and would be an inhuman punishment because it would preclude any account being taken of individual circumstances or progress in prison.
Their Lordships consider that if the condition attached to the pardon is read literally, there is much in what Mr Fitzgerald says. But the document should be construed on the assumption that the Governor-General intended to do what he was constitutionally required to do, namely, to give effect to the advice of the Minister. The fact that he (or whoever drafted the instrument) may have had an imperfect understanding of what a sentence of life imprisonment would entail or did not realise that it took effect under section 72(1)(c) of the Constitution rather than section 72(1)(a) should not deflect the court from applying this principle of construction. Their Lordships therefore interpret the warrants as having been intended to do no more than substitute a sentence of life imprisonment.
Next, Mr Fitzgerald says that appellants' constitutional rights have been infringed because they have not been supplied with a written copy of the judgments delivered by the Court of Appeal in July 1991. This is said to infringe section 8(3):
"When a person is tried for any criminal offence, the accused person or any person authorised by him in that behalf shall, if he so...
To continue reading
Request your trial
-
Yong Vui Kong v Public Prosecutor and another matter
...person shall be subjected to torture or to inhuman or degrading treatment or punishment”; Bernard Coard and others v The Attorney General [2007] UKPC 7, which concerned the stipulation in s 5(1) of the Constitution of Grenada that “[n]o person shall be subjected to torture or to inhuman or ......
-
Louis Smith v Director of Public Prosecutions
...ought not to be “constrained or shackled” by procedural rules. Reliance was placed on Coard and ors v The Attorney General for Grenada [2007] UKPC 7, Hughes v R; Spence v R [2002] 2 LRC 531 and R v Secretary of State for the Home Department ex parte Ruddock and ors [1987] 1 WLR 1987 (‘ ex......
- Letitia Bosman v Public Prosecutor
-
Lendore and Others v Attorney General of Trinidad and Tobago
...U.K.P.C. 33; [2005] 1 A.C. 433 — Attorney General for Barbados v. Boyce (2006) 69 W.I.R. 10 – Coard v. Attorney General of Grenada [2007] UKPC 7. – Hunte v. State of Trinidad and Tobago [2015] U.K.P.C. 33 – Bowe v. The Queen [2006] U.K.P.C. 10; [2006] 1 W.L.R. 1623 – Liyanage v. The Qu......
-
Bibliography
...[2017] UKPC 12. Bribery Commissioner v Ranasinghe [1965] AC 172. Campbell v Hall (1774) 1 Cowp. 204, 98 ER 1045. Coard v Attorney General [2007] UKPC 7. Esther Perreira vs The Chief Election Officer and Others. In the High Court of the Supreme Court of Judicature Petition Questioning An Ele......
-
Privy Council
...have done so from a local perspective.Graeme BroadbentGrenada: Mandatory Death Penalty; ConstitutionalityCoard v Attorney-General [2007] UKPC 7In 1986, Coard and 12 others were convicted of the murders of PrimeMinister Maurice Bishop and 10 other members of his government.They were sentence......
-
The Supremacy of Parliament and the Supremacy of the Constitution
...H.M.S.O., 1973). 31. Mitchell v Director of Public Prosecutions , 725 E to G. 32. See note 27 above. 33. Coard v Attorney General [2007] UKPC 7. 34. Ibid., paras. 20–21. ...