Bowe and another v The Queen
| Jurisdiction | UK Non-devolved |
| Judge | Lord Bingham of Cornhill |
| Judgment Date | 08 March 2006 |
| Neutral Citation | [2006] UKPC 10 |
| Court | Privy Council |
| Docket Number | Appeal No 44 of 2005 |
| Date | 08 March 2006 |
[2006] UKPC 10
Present at the hearing:-
Lord Bingham of Cornhill
Lord Nicholls of Birkenhead
Lord Hope of Craighead
Lord Rodger of Earlsferry
Lord Brown of Eaton-under-Heywood
Privy Council
[Delivered by Lord Bingham of Cornhill]
By an order made on 11 April 2005, special leave was granted to the appellants to appeal against a judgment of the Court of Appeal of the Commonwealth of the Bahamas dated 10 April 2003, "but only in respect of (a) the jurisdiction of the Court of Appeal (b) the constitutional history in the Bahamas as it differs from that of other Caribbean states and (c) the constitutionality of the executive act of carrying out a mandatory death sentence". Those are the issues the Board must resolve in these appeals.
The first-named appellant was convicted on 25 February 1998 of murdering Deon Patrick Roache on 23 October 1992. He was sentenced to death. His appeal against conviction was dismissed by the Court of Appeal on 23 October 1998, and on 10 April 2001 his appeal to the Board against conviction was dismissed.
The second-named appellant was convicted on 13 December 1999 of murdering Jerrad Ferguson. He also was sentenced to death. His appeal against conviction was dismissed by the Court of Appeal on 24 July 2000 for reasons given on 31 October 2000. The Board refused him leave to appeal on 17 July 2001.
On 21 October 2002 both appellants again petitioned the Board seeking leave to challenge the constitutionality not of the sentences of death passed upon them, the death penalty being explicitly recognised and preserved in successive constitutions of the Bahamas, but of the mandatory requirement that sentence of death be passed on adults (other than pregnant women) convicted of murder. The Crown consented to the grant of leave, and on 20 November 2002 the Board granted the appellants special leave to appeal. The Board further directed that the hearing of the petitions be treated as the hearing of the appeals, that the orders of the Court of Appeal affirming the appellants' sentences (but not the sentences themselves) be set aside and that the cases be remitted to the Court of Appeal of the Bahamas for reconsideration of the matter of sentence. It was recognised that the cases raised important constitutional questions which had not been raised in the Bahamas before and which ought first to be considered by the Court of Appeal.
The issues were not however considered by the Court of Appeal, which on 10 April 2003 held by a majority (Sawyer P, Churaman, Ibrahim and Osadebay JJA, Ganpatsingh JA dissenting) that it had no jurisdiction to entertain the appeals. It was that ruling which led to the grant of special leave on 11 April 2005 on the terms already recited. Those terms were framed so as to preclude re-argument of the points decided by the Board in Matthew v State of Trinidad and Tobago [2004] UKPC 33, [2005] 1 AC 433, Boyce v The Queen [2004] UKPC 32, [2005] 1 AC 400 and Watson v The Queen (Attorney General for Jamaica intervening) [2004] UKPC 34, [2005] 1 AC 472.
Jurisdiction of the Court of Appeal
In argument before the Board, counsel for the Crown did not, consistently with his consent when leave was granted in November 2002, seek to support the judgment of the Court of Appeal on the jurisdiction issue. Since the appellants adhered to their submission, advanced unsuccessfully in the Court of Appeal, that that court did have jurisdiction, there was accordingly no live issue on this matter before the Board. But the matter is too important to be resolved by concession, and any misunderstanding should be dispelled.
The decision of the Court of Appeal majority was based, in the judgment of Sawyer P, on the following major propositions:
It was suggested, in reliance on Walker v The Queen [1994] 2 AC 36, that the Board itself had no jurisdiction to grant leave and remit in the present cases.
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(1) Subject to exceptions in the case of those under the age of 18 at the time of the killing or pregnant at the date of sentence, section 312 of the Penal Code of the Bahamas (now section 291) requires sentence of death to be passed on any defendant convicted of murder.
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(2) The Court of Appeal has no jurisdiction to entertain an appeal against a mandatory sentence.
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(3) Any challenge to the constitutionality of the mandatory life sentence laid down by section 312 could not be relied on by a defendant in the criminal proceedings but must be the subject of a separate constitutional motion in the Supreme Court.
The first of these propositions is correct and was not challenged in argument. It is plain from the history briefly summarised in Jones v Attorney-General of the Bahamas [1995] 1 WLR 891, 894-895, that the common law rule which required sentence of death to be passed on a defendant convicted of murder was given effect in The Bahamas in 1799, 1865 and 1927. The wording of section 312, providing that "Whoever commits murder shall be liable to suffer death", although ambiguous, was held to impose a mandatory sentence of death. The appellants accepted that Jones requires section 312 to be so interpreted, subject to any modification required or permitted by any relevant constititution. But they pointed out, correctly, that the issue in Jones related to the interpretation of section 312 and not to its constitutionality, which was not challenged.
For its second proposition the Court of Appeal majority relied primarily on section 11 of the Court of Appeal Act. This provides in subsection (1)(c) that
"A person convicted on information in the Supreme Court may appeal to the court under the provisions of this Act?–
(c) with the leave of the court against the sentence passed on his conviction unless the sentence is one fixed by law.
Attention was also drawn to section 12(3):
"On an appeal against sentence the court shall, if it thinks that a different sentence ought to have been passed, quash the sentence passed at the trial, and pass such other sentence warranted in law by the verdict (whether more or less severe) in substitution therefor as the court thinks ought to have been passed, and in any other case shall dismiss the appeal."
Thus, the court reasoned, where the law lays down a mandatory penalty on conviction, the court is denied jurisdiction to review the sentence and plainly cannot substitute any other sentence. Where the court's premise is met, the Board would accept that these conclusions must follow. But the appellants' challenge is directed to the premise. Their contention is that section 312, as interpreted in Jones, is inconsistent with the Constitutions of 1963 and 1969, considered below, and that the section must be modified so as to conform with those constitutions by prescribing a discretionary instead of a mandatory sentence of death. The merits of this argument must be considered at some length hereafter. But for purposes of jurisdiction the incorrectness of the argument cannot be assumed, and if the argument is correct the Court of Appeal's reasoning breaks down, for it is not reviewing a sentence fixed by law and there is no objection to its substituting a lesser sentence for a discretionary sentence of death. In somewhat similar circumstances appeals against apparently mandatory sentences were entertained in Reyes v The Queen [2002] UKPC 11, [2002] 2 AC 235, Fox v The Queen [2002] UKPC 13, [2002] 2 AC 284, and R v Hughes [2002] UKPC 12, [2002] 2 AC 259. At this point the court fell into error.
The Court of Appeal's third proposition rested in the main on article 28 of the 1973 Constitution scheduled to the Bahamas Independence Order 1973 ( SI 1973/1080). This Constitution contained in Chapter III provisions for the protection of certain fundamental rights and freedoms of the individual, which were the subject of specific provision in articles 15-27. These articles were followed by article 28, directed to the enforcement of the rights previously specified. Article 28 provides:
"28.—(1) If any person alleges that any of the provisions of Articles 16 to 27 (inclusive) of this Constitution 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 which is lawfully available, that person may apply to the Supreme Court for redress.
(2) The Supreme Court shall have original jurisdiction—
(a) to hear and determine any application made by any person in pursuance of paragraph (1) of this Article; and
(b) to determine any question arising in the case of any person which is referred to it in pursuance of paragraph (3) of this Article,
and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of any of the provisions of the said Articles 16 to 27 (inclusive) to the protection of which the person concerned is entitled:
Provided that the Supreme Court shall not exercise its powers under this paragraph if it is satisfied that adequate means of redress are or have been available to the person concerned under any other law.
(3) If, in any proceedings in any court established for The Bahamas other than the Supreme Court or the Court of Appeal, any question arises as to the contravention of any of the provisions of the said Articles 16 to 27 (inclusive), the court in which the question has arisen shall refer the question to the Supreme Court.
(4) No law shall make provision with respect to rights of appeal from any determination of the Supreme Court in pursuance of this Article that is less favourable to any party thereto than the rights of appeal from determinations of the Supreme Court that are accorded generally to parties to civil proceedings in that...
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