Henfield v Attorney General of the Commonwealth of The Bahamas ; Farrington v Minister of Public Safety and Immigration and Others

JurisdictionUK Non-devolved
JudgeLord Goff of Chieveley
Judgment Date14 October 1996
Judgment citation (vLex)[1996] UKPC J1014-1
CourtPrivy Council
Docket NumberAppeals Nos. 26 and 37 of 1996
Date14 October 1996

[1996] UKPC J1014-1

Privy Council

Present at the hearing:-

Lord Keith of Kinkel

Lord Goff of Chieveley

Lord Browne-Wilkinson

Lord Steyn

Lord Hope of Craighead

Appeals Nos. 26 and 37 of 1996
Dwight Lamott Henfield
Appellant
and
The Attorney General of the Commonwealth of The Bahamas
Respondent
and
Ricardo Farrington
Appellant
and
The Minister of Public Safety and Immigration

and Others

Respondents
1

[Delivered by Lord Goff of Chieveley]

2

Introduction

3

There are before their Lordships two appeals from the Court of Appeal of The Bahamas, by Dwight Lamott Henfield and Ricardo Farrington respectively. Each case raises the question whether, on the principles stated by the Privy Council in Pratt and Another v. Attorney-General for Jamaica [1994] 2 A.C. 1, the appellant's sentence to death for murder should be commuted to life imprisonment on the ground that delay which has elapsed since he was sentenced to death has had the effect that his execution would constitute inhuman punishment, contrary to Article 17(1) of the Constitution of The Bahamas. The two appeals shared certain common features, and as a result were heard together.

4

It is necessary for their Lordships to set out the chronologies of these two cases; but before they do so they should record that another case has had an impact on the issue of delay in the present appeals. This was the case concerned with a constitutional motion brought in The Bahamas by Larry Raymond Jones and others, in which the applicants claimed ( inter alia) a declaration that the death penalty was contrary to the Constitution of The Bahamas. These consolidated proceedings led to a decision by the authorities not to carry out any executions pending the decision on the question whether the death penalty was unlawful. The proceedings in the first of the consolidated motions began on 21st June 1989, and final judgment was not given by the Privy Council until 3rd April 1995 (see Jones and Others v. Attorney-General of the Commonwealth of The Bahamas [1995] 1 W.L.R. 891) so that the proceedings occupied a total period of 5 years and 10 months. The decision not to carry out any executions pending the outcome of these proceedings had an impact on both cases now before their Lordships.

5

In this connection, it is necessary also to refer to another case from The Bahamas, Reckley v. Minister of Public Safety and Immigration [1995] 2 A.C. 491. In that case the applicant, who had been convicted and sentenced to death for murder, was granted a stay of execution by the Privy Council on 13th June 1995 to enable him to pursue a claim that he was entitled to be heard by the Advisory Committee on the Prerogative of Mercy, and for that purpose to see material available to the Committee. That claim which, if accepted, required that the earlier decision of the Privy Council in de Freitas v. Benny [1976] A.C. 239 should be departed from, was rejected by the Privy Council on 5th February 1996; see Reckley v. Minister of Public Safety and Immigration (No. 2) [1996] A.C. 527. In the case of Reckley, as in the case of Jones, the authorities in The Bahamas ordered a suspension of executions pending the outcome of the proceedings; and this decision had some impact upon the delay in the case of Farrington. Their Lordships wish to place on record that it was entirely proper for the authorities in The Bahamas to order these suspensions of executions, in the interests of all those men who were then under sentence of death or might thereafter be sentenced in the meanwhile.

6

Their Lordships propose now to set out the chronologies in the two cases before them in tabular form.

7

(1) Henfield

26th May 1988

Conviction and sentence to death.

24th February 1989

Appeal against conviction dismissed by Court of Appeal.

18th September 1989

Warrant read for execution on 24th October.

11th October 1989

Stay of execution pending appeal to Privy Council.

28th July 1993

Petition for leave to appeal to Privy Council.

16th December 1993

Petition dismissed by Privy Council.

3rd February 1995

Proceedings begun claiming execution unlawful on principle in Pratt.

3rd April 1995

Privy Council dismisses appeal in Jones.

12th July 1995

Thorne J. commutes Henfield's sentence to life imprisonment.

15th April 1996

Court of Appeal allows appeal from Thorne J.'s decision.

8

N.B. The delay which elapsed between Henfield's conviction and sentence on 26th May 1988 and the launching of his constitutional proceedings on 3rd February 1995 was 6 years and 6 months.

9

(2) Farrington

30th November 1992

Conviction and sentence to death.

28th April 1994

Appeal against conviction dismissed by Court of Appeal.

3rd April 1995

Privy Council dismisses appeal in Jones.

13th June 1995

Privy Council adjourns Reckley's application for stay of execution.

7th September 1995

Petition for leave to appeal filed with Privy Council on behalf of Farrington.

3rd January 1996

Supplemental petition filed.

5th February 1996

Privy Council dismisses Reckley's application.

4th March 1996

Farrington's petition for leave dismissed.

27th March 1996

Warrant read for execution on 9th April.

3rd April 1996

Ex parte application for stay of execution on principle in Pratt.

4th April 1996

Osadebay J. refuses stay.

29th April 1996

Court of Appeal dismisses appeal from Osadebay J.

10

N.B. The delay which elapsed between Farrington's sentence on 30th November 1992 and the launching of his application for a stay of execution on 3rd April 1996 was 3 years and 4 months.

11

The applicable principles

12

These were stated in the leading case of Pratt [1994] 2 A.C. 1. The judgment in that case was founded upon section 17(1) of the Constitution of Jamaica, which provides that "No person shall be subjected to torture or to inhuman or degrading punishment or treatment". The essential question in the case was whether the execution of a man following a long delay after his sentence to death could amount to inhuman punishment contrary to section 17(1). The Privy Council, departing from the previous decision of the Board in Riley v. Attorney-General for Jamaica [1983] A.C. 719, held that such delay was capable of having that effect. This was because (see page 29G):-

"here is an instinctive revulsion against the prospect of hanging a man after he has been held under sentence of death for many years. What gives rise to this instinctive revulsion? The answer can only be our humanity; we regard it as an inhuman act to keep a man facing the agony of execution over a long extended period of time."

13

Furthermore the Board held that parts of this time occupied in legitimate resort by the convicted man to appellate procedures should not be left out of account in computing the relevant period of delay. In reaching this conclusion the Board, invoking in particular the decision of the European Court of Human Rights in Soering v. United Kingdom (1989) 11 E.H.R.R. 439, explicitly repudiated the death row phenomenon which has developed in certain states of the United States of America, where men may be executed after a prolonged period of time which has elapsed while their lawyers pursue a multiplicity of appellate procedures. The Board expressed its conclusion on the point in the following passage (see page 33B-D):-

"In their Lordships' view a state which wishes to retain capital punishment must accept the responsibility of ensuring that execution follows as swiftly as practicable after sentence, allowing a reasonable time for appeal and consideration of reprieve. It is part of the human condition that a condemned man will take every opportunity to save his life through use of the appellate procedure. If the appellate procedure enables the prisoner to prolong the appellate hearings over a period of years, the fault is to be attributed to the appellate system that permits such delay and not to the prisoner who takes advantage of it. Appellate procedures that echo down the years are not compatible with capital punishment. The death row phenomenon must not become established as a part of our jurisprudence."

14

In Pratt itself the Board was faced with applications by two convicted men who had been held on death row for over 14 years, and it was plain that their death sentences must be commuted to sentences of life imprisonment under section 25(2) of the Jamaican Constitution. However the Board was conscious that many other prisoners had been held on death row in Jamaica for long periods of time, and that their position would have to be dealt with as a matter of urgency following the outcome of the appeal in Pratt. They therefore reviewed the relevant considerations (at pages 34-35) and concluded that in any case in which execution was to take place more than five years after sentence there would be strong grounds for believing that the delay was such that execution thereafter would constitute inhuman punishment contrary to section 17(1). Following that guidance, the Jamaican authorities were enabled to act expeditiously in commuting the death sentences on a substantial number of prisoners on death row to sentences of life imprisonment; and other Caribbean states, whose constitutions contained provisions similar or identical to section 17(1), did likewise.

15

The five year period

16

The question of the effect of prolonged delay following sentence of death normally arises in the context of the domestic appellate system. In considering the effect of such delay, attention has been concentrated on the 5 year period specified in Pratt. This period has been treated as the overall period which, in ordinary circumstances, must have passed since sentence of death before it can be said that execution will constitute cruel or inhuman...

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