Director of Public Prosecutions v Mollison (No. 2)

JurisdictionUK Non-devolved
JudgeLord Bingham of Cornhill
Judgment Date22 January 2003
Neutral Citation[2003] UKPC 6
CourtPrivy Council
Docket NumberAppeal No. 88 of 2001
Date22 January 2003
The Director of Public Prosecutions
Appellant
and
Kurt Mollison (No. 2)
Respondent

[2003] UKPC 6

Present at the hearing:-

Lord Bingham of Cornhill

Lord Slynn of Hadley

Lord Clyde

Lord Hutton

Lord Walker of Gestingthorpe

Appeal No. 88 of 2001

Privy Council

[Delivered by Lord Bingham of Cornhill]

1

On 16 March 1994, when he was aged 16, Kurt Mollison (the respondent) murdered Leila Brown in the course or furtherance of a robbery. This was a capital murder under the law of Jamaica. He stood trial before Langrin J and a jury, was convicted on 21 April 1997 (aged 19) and on 25 April 1997 was sentenced under section 29(1) of the Juveniles Act 1951 as amended to be detained during the Governor-General's pleasure. On 16 February 2000 the Court of Appeal refused his application for leave to appeal against conviction, but the court was concerned whether the sentence imposed on the respondent was compatible with the Constitution of Jamaica. That issue was adjourned to a separate hearing, and on 29 May 2000 the Court of Appeal (Downer and Bingham JJA, Walker JA dissenting) allowed the respondent's appeal: the sentence of detention during the Governor-General's pleasure was set aside and a sentence of life imprisonment substituted, with a recommendation that the respondent be not considered for parole until he had served a term of 20 years' imprisonment dated from 25 July 1997. The Director of Public Prosecutions appeals to the Board (with leave of the Court of Appeal) against the setting aside of the sentence of detention during the Governor-General's pleasure. The respondent seeks to uphold that order, but cross-appeals against the sentence of life imprisonment which was substituted. At the heart of the appeal lie two main issues (sub-divided below): whether the sentence of detention during the Governor-General's pleasure authorised by section 29(1), conferring on the Governor-General as an officer of the executive the power to determine the measure of punishment to be inflicted on an offender, is compatible with the Constitution; and, if it is not, whether the terms of the Constitution protect it against effective challenge.

2

Without objection by the Director, leave to intervene was given by the Board to seven additional parties with a direct interest in the outcome of these proceedings. Each of these parties, when aged between 14 and 17, committed a crime of capital murder on a date between September 1980 (at the earliest) and November 1996 (at the latest). They were convicted on dates between January 1982 and March 2000. Each of them was sentenced (either at trial or on appeal) to be detained during the Governor-General's pleasure, save in the latest of the cases (that of Andrew Hunter) who was sentenced to life imprisonment. All the intervening parties are now confined in adult correctional centres. Four of the intervening parties have applied to the Supreme Court of Jamaica for writs of habeas corpus; the applications have been adjourned pending the outcome of this appeal.

Section 29 of the Juveniles Act 1951

3

Section 3 of the Offences against the Person Act 1864, as amended, provides that every person convicted of capital murder shall be sentenced to death. But special provision has been made for those who commit this crime when aged under 18. Following a number of amendments made pursuant to section 4 of the Jamaica (Constitution) Order in Council 1962 (SI 1962/1500), section 29 of the Juveniles Act 1951 now provides, so far as material to the main issue in this appeal, as follows:

"(1) Sentence of death shall not be pronounced on or recorded against a person convicted of an offence if it appears to the Court that at the time when the offence was committed he was under the age of eighteen years, but in place thereof the court shall sentence him to be detained during Her Majesty's pleasure, and, if so sentenced, he shall, notwithstanding anything in the other provisions of this Law, be liable to be detained in such place (including, save in the case of a child, an adult correctional centre) and under such conditions as the Minister may direct, and while so detained shall be deemed to be in legal custody.

(4) The Governor-General may release on licence any person detained under subsection ( 1) or (3) of this section. Such licence shall be in such form and contain such conditions as the Governor-General may direct, and may at any time be revoked or varied by the Governor-General. Where such licence is revoked the person to whom it relates shall return forthwith to such place as the Governor-General may direct, and if he fails to do so may be arrested by any constable without warrant and taken to such place."

4

Section 29 as originally enacted was amended in 1964 to substitute "Minister" for "Governor" in subsection (1) and "Governor-General" for "Governor" in each of the four references originally made to the Governor in subsection (4). In 1975 subsection (1) was further amended to make plain, reversing the effect of Baker v The Queen [1975] AC 774, that the statutory prohibition on pronouncement of the death sentence applied to those appearing to be aged under 18 at the time when they had committed the offence, not at the time of sentence. In 1985, the reference to "an adult correctional centre" was substituted for the previous reference to "a prison". The enacted reference to "Her Majesty's pleasure" has not, however, been amended, no doubt because section 68(2) of the Constitution of Jamaica provides that the executive authority of Jamaica may be exercised on behalf of Her Majesty by the Governor-General. In recognition of this constitutional reality, it appears to be the practice where section 29(1) applies, as was done in this case, to call the sentence one of detention during the Governor-General's pleasure, and in this opinion that usage will be adopted.

5

The sentence of detention during Her Majesty's pleasure originated in the United Kingdom for reasons which are not in doubt. In the course of time it came to be seen as inhumane to punish as if they were adults those who had, when committing their crimes, been children or young persons, not (in the eyes of the law) fully mature adults. The nature of the sentence also is not open to doubt. It has, of course, a punitive purpose, appropriately enough where a person above the age of criminal responsibility has been convicted of a very grave crime committed with the intent necessary to support conviction of murder. But a punitive purpose would usually be served by a determinate term of confinement, whether longer or shorter, and a key feature of this sentence is its indeterminacy: because the sentence is indeterminate, account may be taken of the youthful detainee's progress and development as he or she matures, by means of periodic reviews, and regard may be paid not only to retribution, deterrence and risk but also to the welfare of the young offender. If authority be needed for these uncontroversial observations it may be found in The State v O'Brien [1973] IR 50 at 72; R v Secretary of State for the Home Department, Ex p Venables [1998] AC 407 at 498-500, 519-524, 530-532; Browne v The Queen [2000] 1 AC 45 at 47-49; V v United Kingdom (1999) 30 EHRR 121, para 110. It was a sentence of this character which was transplanted from the United Kingdom to Jamaica, and there is nothing to suggest that the amendments made to section 29 as originally enacted on the effective substitution of the Governor-General for Her Majesty were intended to alter the character of the sentence.

6

It is also a key feature of this sentence in Jamaica (although no longer in the United Kingdom) that the decision on release is entrusted to the Governor-General as a member of the executive. Section 29(4) of the Juveniles Act as amended has that express effect. This feature also has been clearly recognised: see The State v O'Brien [1973] IR 50 at 59-60, 64, 71-72; R v Secretary of State, Ex p Venables [1998] AC 407 at 498-499, 519-524, 530-532; Browne v the Queen [2000] 1 AC 45 at 48; V v United Kingdom (1999) 30 EHRR 121, paras 110-111. Thus while, in a case falling within section 29(1), the judge sitting in court passes sentence, it falls to the executive to determine the measure of punishment which an individual detainee will undergo: Hinds v The Queen [1977] AC 195 at 227-228. It is clear that such determination is for all legal and practical purposes a sentencing exercise: see R (Anderson) v Secretary of State for the Home Department [2002] 3 WLR 1800, pp 1812, 1822-1823, 1830, [2002] UKHL 46, paras 24, 52, 74 and the authorities there cited.

The Constitution

7

On 6 August 1962 Jamaica became an independent state within the Commonwealth upon the coming into force of the Constitution scheduled to the Jamaica (Constitution) Order in Council 1962 (SI 1962/1550). Jamaica thereupon became subject to a new legal order. Section 2 of the Constitution summarised its effect:

"Subject to the provisions of sections 49 and 50 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."

Thus, subject to its terms, the Constitution was to be the supreme law of Jamaica. Section 49 lays down long and detailed conditions for the amendment of the Constitution. Section 50 lays down conditions, although less exacting conditions, for the amendment of sections 13-26 inclusive of the Constitution, being the sections which make up Chapter III.

8

It is unnecessary to repeat the detailed commentary on the Constitution given by Lord Diplock in Hinds v The Queen [1977] AC 195 at 211-214. The Constitution is divided into chapters, several of these governing the composition, powers and operation of different organs of government. Among these are Chapter IV,...

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