Berthill Fox v The Queen
| Jurisdiction | UK Non-devolved |
| Judge | Lord Rodger of Earlsferry |
| Judgment Date | 11 March 2002 |
| Neutral Citation | [2002] UKPC 13 |
| Court | Privy Council |
| Docket Number | Appeal No. 66 of 2000 |
| Date | 11 March 2002 |
[2002] UKPC 13
Present at the hearing:-
Lord Bingham of Cornhill
Lord Hutton
Lord Hobhouse of Woodborough
Lord Millett
Lord Rodger of Earlsferry
Privy Council
[Delivered by Lord Rodger of Earlsferry]
On 22 May 1998 the appellant, Berthill Fox, was convicted in the High Court of Saint Christopher and Nevis of the murders of his fiancée and her mother. He was sentenced to death in terms of section 2 of the Offences Against the Person Act 1873 ("the 1873 Act") which provides:
"Whosoever is convicted of murder shall suffer death as a felon."
Fox appealed against his conviction and sentence to the Eastern Caribbean Court of Appeal. On 10 May 1999 the Court of Appeal dismissed his appeal. On 4 October 1999 their Lordships' Board granted Fox special leave to appeal against both his conviction and his sentence, the basis of his appeal against sentence being that the mandatory death penalty in section 2 of the 1873 Act was unconstitutional. On 2 October 2001 the Board dismissed Fox's appeal against conviction: Fox v The Queen [2001] UKPC 41. The judgment of the majority of the Board delivered by Lord Hoffmann contains a full account of the relevant facts of the case and of the issues relating to the appeal against conviction. Their Lordships refer to that opinion for the background to the present appeal.
The Constitution of Saint Christopher and Nevis is set out in schedule 1 to the Saint Christopher and Nevis Constitution Order 1983 ( SI 1983 No 881) ("the Order"). The supremacy of the Constitution is secured by section 2 which is in these terms:
"This Constitution is the supreme law of Saint Christopher and Nevis and, subject to the provisions 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."
Section 3 of the Constitution recites that every person in Saint Christopher and Nevis is entitled to certain fundamental rights and freedoms. It goes on to enact that the provisions of Chapter II of the Constitution are to have effect for the purpose of affording protection to those rights and freedoms, subject to the limitations contained in those provisions.
Section 4(1) says that no one is to be deprived of his life intentionally
"save in execution of the sentence of a court in respect of a criminal offence of treason or murder under any law of which he has been convicted."
Section 7 provides:
"A person shall not be subjected to torture or to inhuman or degrading punishment or other like treatment."
Section 18(1) of the Constitution, so far as relevant for present purposes, is to this effect:
"If any person alleges that any of the provisions of sections 3 to 17 (inclusive) 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 that is lawfully available, that person … may apply to the High Court for redress."
As their Lordships explained when giving their judgment in The Queen v Hughes [2002] UKPC 12, the appellant's challenge to the death penalty really involves two contentions. First, he contends that section 2 of the 1873 Act, in so far as it provides for a mandatory death sentence in the case of all murders, is inconsistent with his right not to be subjected to inhuman or degrading punishment or treatment under section 7 of the Constitution. Section 2 of the 1873 Act is, therefore, void by reason of section 2 of the Constitution. Secondly, the appellant contends that, since section 2 of the 1873 Act is void, the death...
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