Hinds et Al v The Queen; and Director of Public Prosecutions v Jackson

JurisdictionUK Non-devolved
JudgeViscount,Lord Diplock
Judgment Date28 July 1975
Docket Number4 & 5 of 1975
CourtPrivy Council
Date28 July 1975
Hinds et al
and
The Queen
Director of Public Prosecutions
and
Jackson

Lord Diplock; Viscount Dilhorne; Lord Simon of Claisdale; Lord Edmund-Davis; and Lord Fraser of Tullybelton.

4 & 5 of 1975

Privy Council

Constitutional law - Courts — Jurisdiction and Powers

1

(Majority Judgment delivered by Lord Diplock)

JUDGMENT OF THE COURT:
2

In 1974 the Parliament of Jamaica passed the Gun Court Act, 1974, as an ordinary Act of Parliament. It had not been preceded by legislation passed under the special procedure prescribed by s. 49 of the Constitution for an Act of Parliament to alter provisions of the Constitution, nor does the Gun Court Act itself contain any express amendment of those provisions. All that it purports to do is to establish a new court called the Gun Court with power to sit in three different kinds of Divisions: a Resident Magistrate's Division, a Full Court Division and a Circuit Court Division, and to confer on one or other of these Divisions jurisdiction to try certain categories of offenders for criminal offences of every kind. Prior to the passing of the Act and at the date of the coming into force of the Constitution these offences would have been a cognisable only in a Resident Magistrate's Court or in a Circuit Court of the Supreme Court of Jamaica. The Act also lays down the procedure to be followed in each kind of Division and, in particular, provides that all trials should be held in camera, and that for certain specified offences relating to the unauthorised possession, acquisition or disposal of firearm or ammunition, the Gun Court should impose a mandatory sentence of detention at hard labour from which the detainee can only be discharged at the direction of the Governor-General acting in accordance with the advice of the Review Board, a non-iudicial body established by the Act.

3

The five named individuals who are parties to the consolidated appeals to her Majesty in Council, four as appellants in the first appeal and one as respondent in the second appeal were each convicted by a Resident Magistrate's Division of the Gun Court of an offence which carried with it under the Act the mandatory sentence of detention at hard labour.

4

Each of them appealed to the Court of Appeal against his conviction and also against his sentence, upon the grounds that the Gun Court Act, 1974, or alternatively those provisions of the Act under which he had been tried and sentenced, are inconsistent with the Constitution of Jamaica and are therefore void under s. 2 of the Constitution. The appeals of the first four detainees were heard together and earlier than that of the fifth detainee. They came on before a court composed of Swaby J.A. and Zacca J.A. (Ag.) presided over by Luckhoo P. (Ag). Separate judgments were delivered by all three members of the court. Luckhoo P. (Ag) and Zacca J.A. (Ag) concurred in the result that the appeals should be dismissed although their reasons for doing so were not identical. Swaby J.A. dissented. He would have allowed the appeals. The appeal of the fifth detainee was heard a few months later by a court that was differently constituted, inasmuch as Graham-Perkins J.A. presided in place of Luckhoo P. (Ag).This was enough to tip the balance. Graham-Perkins J.A. and Swaby J.A. delivered a joint judgment allowing the appeal although upon a ground different from those relied upon the latter's earlier dissenting judgment Zacca J.A. (Ag) adhered to his previous opinion and was in favour of dismissing the appeal.

5

The unsuccessful parties to these appeals have now appealed to Her Majesty in Council under s. 110(1) (c) of the Constitution. It is common ground that the constitutional issues raised by the appeal that was the subject of the later judgments in the Court of Appeal are indistinguishable from those raised by the four appeals that were the subject of the earlier judgments. Before their Lordships' Board all the appeals have been consolidated and all five detainees have been treated as appellants in the consolidated appeal.

6

The question raised as to the true interpretation of Chapter VII of the Constitution which relates to “The Judicature” are of outstanding public importance. The attack upon the constitutional validity of those provisions of the Gun Court Act, 1974, under which the appellants were tried and sentenced by a Resident Magistrate's Division of the Gun Court can most conveniently be dealt with under four heads: jurisdiction, procedure, sentence and severability.

7

The argument have been wide ranging — and necessarily so for when the constitutional validity of an Act passed by the Parliament of Jamaica is in issue, the problem cannot be solved by the Court's confining its attention to those specific provisions of the Act that are directly applicable to the particular case. Looked at in isolation from the legislative scheme embodied in the Act when taken as a whole it may be that these specific provisions, if separately enacted, would not have been inconsistent with the Constitution; but if other provisions of the Act are invalid a question of severability arises. The Court accordingly cannot avoid the task of examining the constitutional validity of the other provisions of the Act in order to see whether those which must be struck down as invalid form part of a single legislative scheme of which the specific provisions applicable to the particular case are also an integral and inseparable part.

8

The inseverability of the provisions of the Gun Court Act, 1974, which create the three Divisions of the Court was the main thrust of the appellants' challenge under the head of jurisdiction. This does not involve a direct attack upon the specific provisions of the Act, under which the appellants were tried and convicted by a Resident Magistrate, when looked at in isolation. What is attacked directly is the constitutional validity of those provisions of the Act which purport to confer jurisdiction to try offences upon the other two Divisions of the Gun Court — a Circuit Court Division and a Full Court Division. The next steps in the argument are: (1 The Gun Court Act, 1974, embodies a comprehensive legislative scheme for the establishment of a single court, the Gun Court, with power to sit in separate Divisions: and to confer upon the Gun Court jurisdiction to try certain categories of offenders for criminal offences of all kinds, (2) The jurisdiction exercisable by the Gun Court when sitting in a Resident Magistrate's Division is an integral and inseparable part of the jurisdiction intended to be conferred upon the Court. It cannot consistently with the legislative scheme of the Act survive the striking down of the jurisdiction exercisable by the other two Divisions. (3) A Gun Court consisting only of a Resident Magistrate' s Division would be a different kind of court from that which Parliament intended to create.

9

This was the argument on which the fifth detainee succeeded in his appeal to the Court of Appeal. It is, indeed, the only ground on which there is a majority judgment in the appellants' favour. In order to deal with it their Lordships cannot shirk the task of ruling upon the constitutional validity of those provisions of the Act which purport to confer jurisdiction to try offences upon the Circuit Court Division and upon the Full Court Division of the Gun Court. Such rulings, in their Lordships' view cannot be characterised as obiter dicta. They for necessary steps in any reasoning disposing of the appellants' case in so far as it is based upon inseverability.

10

That the appellants' contentions under each of the four heads, jurisdiction, procedure, sentence and severability, raise questions of constitutional law of considerable difficulty is evident from the conflicts of opinion particularly under the first head that are disclosed in the four closely reasoned judgments of those judges of the Court of Appeal who sat in one or both of the appeals. Their Lordships desire to express their indebtedness to those judgments and to the arguments addressed to them by counsel for the parties at the hearing by this Board.

11

A written constitution, like any other written instrument affecting legal rights or obligations, falls to be construed in the light of its subject-matter and of the surrounding circumstances with reference to which it was made. Their Lordships have been quite properly referred to a number of previous authorities dealing with the exercise of judicial power under other written constitutions established either by Act of the Imperial Parliament or by Order in Council made by Her Majesty in right of the Imperial Crown, whereby internal sovereignty or full independence has been granted to what were formerly colonial or protected territories of the Crown. These other constitutions differ in their express provisions from the Constitution of Jamaica, sometimes widely where, as in the case of Canada and Australia, they provide for a federal structure, but much less significantly in the case of the unitary constitutions of those states which have attained full independence in the course of the last two decades. In seeking to apply to the interpretation of the Constitution of Jamaica what has been said in particular cases about other constitutions, care must be taken to distinguish between judicial reasoning which depended on the express words used in the particular constitution under consideration and reasoning which depended on what, though not expressed, is nonetheless a necessary implication from the subject-matter and structure of the constitution and the circumstances in which it had been made. Such caution is particularly necessary in cases dealing with a federal constitution in which the question immediately in issue may have depended in part upon the separation of the judicial power from the legislative or executive power of the federation or of one of its...

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