Boyce et Al v R
| Jurisdiction | UK Non-devolved |
| Judge | Lord Hoffmann,Lord Bingham of Cornhill,Lord Nicholls of Birkenhead,Lord Steyn,Lord Walker of Gestingthorpe |
| Judgment Date | 07 July 2004 |
| Neutral Citation | [2004] UKPC 32 |
| Court | Privy Council |
| Docket Number | Appeal No. 99 of 2002 |
| Date | 07 July 2004 |
[2004] UKPC 32
Present at the hearing:-
Lord Bingham of Cornhill
Lord Nicholls of Birkenhead
Lord Steyn
Lord Hoffmann
Lord Hope of Craighead
Lord Scott of Foscote
Lord Rodger of Earlsferry
Lord Walker of Gestingthorpe
Mr. Justice Edward Zacca
Privy Council
[Majority judgment delivered by Lord Hoffmann]
Summary
The issue in these appeals is the constitutionality of the mandatory death penalty in Barbados. The relevant provisions of the constitution are sections 1, 15(1) and 26. Section 1 says that the constitution shall be the supreme law of Barbados and that any other law shall "to the extent of the inconsistency, be void". Section 15(1) says that no person shall be subject to "an inhuman or degrading punishment". But section 26 says that no existing law "shall be held to be inconsistent with or in contravention of any provision of sections 12 to 23". The law decreeing the mandatory death penalty was an existing law at the time when the constitution came into force and therefore, whether or not it is "an inhuman or degrading punishment", it cannot be held inconsistent with section 15(1). It follows that despite section 1, it remains valid.
The language and purpose of section 26 are so clear that whatever may be their Lordships' views about the morality or efficacy of the death penalty, they are bound as a court of law to give effect to it. As Lord Bingham of Cornhill said in Reyes v The Queen [2002] 2 AC 235, 246, "The court has no licence to read its own predilections and moral values into the constitution". And their Lordships do not understand Mr Starmer QC, who ably represented the appellants, to dispute that if one simply reads the constitution, there is no basis for holding the mandatory death penalty invalid for lack of consistency with section 15(1).
This is a very important point. It is not suggested that there is any ambiguity about the constitution itself. It is accepted that it is simply not susceptible to a construction, however enlightened or forward-looking, which would enable one to say that section 26 was merely a transitional provision which somehow and at some point in time had become spent. It stands there protecting the validity of existing laws until such time as Parliament decides to change them.
Recognising this difficulty, Mr Starmer's main argument is that a provision in the United Kingdom order in council which brought the constitution into effect but did not form part of the constitution itself requires the existing law so far as possible to be modified to conform to section 15(1) and that such conformity can be achieved by deeming the death penalty to be discretionary.
For reasons upon which their Lordships will expand at greater length, they regard this argument as completely untenable. It is incompatible with the status of the constitution as the supreme law of Barbados, arbitrary to the point of absurdity in its results and would have been ultra vires the statutory powers under which the order in council was made. It follows that it must be rejected.
The result is that although the existence of the mandatory death penalty will not be consistent with a current interpretation of section 15(1), it is prevented by section 26 from being unconstitutional. It will likewise not be consistent with the current interpretation of various human rights treaties to which Barbados is a party. Their Lordships have anxiously considered whether there is some possible construction of the constitution which would avoid these results and have concluded that none exists. Their Lordships naturally respect the views of the minority who see more merit in Mr Starmer's argument but since their opinion does not deal with the objections which their Lordships regard as insuperable, they remain unpersuaded. It follows that the decision as to whether to abolish the mandatory death penalty must be, as the constitution intended it to be, a matter for the Parliament of Barbados.
The appeals
On 2 February 2001 in the Supreme Court of Barbados, Lennox Boyce and Jeffrey Joseph were convicted of the murder of Marquelle Hippolyte and sentenced to death. On 27 March 2002 the Court of Appeal of Barbados dismissed their appeals against conviction and sentence. They appeal to Her Majesty in Council against sentence only. The only ground of appeal is that the judge wrongly thought that the sentence of death was mandatory.
The mandatory death penalty.
Since the island of Barbados was colonised by the English in the seventeenth century, death has been the mandatory sentence for the crime of murder. That was the common law of England and it became the law of Barbados. In the nineteenth century it was codified in English statutes dealing with offences against the person: see section 3 of the Offences Against the Person Act 1828 (9 Geo. 4 c.31) and section 1 of the Offences Against the Person Act 1861. Each of these statutes was followed a few years later by a similar statute in Barbados. Section 2 of the Barbados Offences Against the Person Act 1868 provided, as section 1 of the English Act of 1861 had done, "whosoever shall be convicted of murder shall suffer death as a felon".
In the United Kingdom the death penalty was confined by Part II of the Homicide Act 1957 to certain kinds of murder which the Act designated "capital". The Murder (Abolition of Death Penalty) Act 1965 abolished altogether its imposition for murder and section 1 of the Offences Against the Person Act 1861 was repealed. But no similar legislation was enacted in Barbados and the old law remained in force when Barbados became independent on 30 November 1966. Since then, section 2 of the 1868 Act has been replaced by section 2 of the Offences Against the Person Act 1994: "Any person convicted of murder shall be sentenced to, and suffer, death".
The Constitution.
When Barbados became independent, it adopted a written constitution. The Constitution was made by the representatives of the people of Barbados gathered at a conference in London. It derived formal legitimacy from an Order in Council made under powers conferred by the Barbados Independence Act 1966, passed by the Parliament of the United Kingdom, the outgoing sovereign power in the Island. But once the Constitution had come into effect, its British origins became no more than a matter of historical interest. The Constitution became and remained the supreme law of Barbados because it was accepted by the people of Barbados as the instrument which they had chosen to regulate their government and society.
Section 1 declared the constitution to be the supreme law of Barbados:
"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."
Chapter V established a Parliament (consisting of Her Majesty, a Senate and an House of Assembly) with power to make laws for the peace, order and good government of Barbados. These included the power to alter the Constitution, provided that Parliament complied with certain conditions in section 49 which were intended to make constitutional amendments more difficult to pass than ordinary legislation. No law could amend the constitution unless it expressly said that it was intended to do so (subsection (6)). Any amendment had, at the least, to be supported by a majority of all members of each House (not merely a majority of those who voted) and certain specified provisions in the Constitution were so entrenched as to require an amendment to have the support of not less than two-thirds of the members of each House: subsection (2).
Among the entrenched provisions was Chapter III, headed "Protection of Fundamental Rights and Freedoms of the Individual". This chapter began (in section 11) with a declaration that "every person in Barbados is entitled to the fundamental rights and freedoms of the individual" including "life, liberty and security of the person" and a list of other human rights familiar from international human rights instruments starting with the Universal Declaration of Human Rights adopted by the General Assembly of the United Nations in 1948. Section 11 went on to say that the following provisions of Chapter III were to have effect for "affording protection to those rights and freedoms".
Sections 12 to 23 then set out in detail the extent of the protection which the Constitution afforded to the specified rights and freedoms, together with limitations "designed to ensure that the enjoyment of the said rights and freedoms by any individual does not prejudice the rights and freedoms of others or the public interest". The drafting of these sections was strongly influenced by the terms of the European Convention on Human Rights. So, for example, section 12(1) of the Constitution ("No person shall be deprived of life intentionally save in execution of the sentence of a court in respect of a criminal offence under the law of Barbados of which he has been convicted") is obviously derived from Article 2 of the Convention. Likewise, section 15(1) ("no person shall be subject to torture or to inhuman or degrading punishment or other treatment") is much the same as Article 3.
The European Convention had in fact applied to Barbados while it was a colony. In 1953 the United Kingdom government made a declaration pursuant to the Convention, extending its application to Barbados and other colonies. So it was perhaps natural that similar phraseology should be used in Chapter III of the Constitution. But the effect of having it in the Constitution was of course very different. The Convention bound the United Kingdom, in respect of its government of Barbados, only as a matter of international law....
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