John Junior Higgs and Another v The Minister of National Security
| Jurisdiction | UK Non-devolved |
| Judge | Lord Hoffmann,Lord Steyn,Lord Cooke of Thorndon |
| Judgment Date | 14 December 1999 |
| Judgment citation (vLex) | [1999] UKPC J1214-1 |
| Court | Privy Council |
| Docket Number | Appeal No. 45 of 1999 |
| Date | 14 December 1999 |
and Others
[1999] UKPC J1214-1
Present at the hearing:-
Lord Steyn
Lord Hoffmann
Lord Cooke of Thorndon
Lord Hobhouse of Woodborough
Mr. Justice Henry
Privy Council
[Majority Judgment delivered by Lord Hoffmann]
The appellants are held at Fox Hill Prison in The Bahamas under sentence of death for murder. They have exhausted the right to appeal against their convictions. But they have brought constitutional motions claiming that the execution of the death sentences would violate their fundamental rights and freedoms under the Constitution. There are two principal grounds. The first is that each has pending before the Inter-American Commission on Human Rights ("the Commission") a petition complaining that their executions would violate their human rights. The Commission, which is an organ of the Organisation of American States ("OAS") of which The Bahamas is a member, has not yet dealt with the petitions. The appellants say that an execution before the decision of the Commission has been received and considered by the Government of The Bahamas would be contrary to due process of law and would violate their right to life under article 16 of the constitution. The second ground is that having regard to the length of time for which the appellants have been held in prison, both before and after conviction, the conditions in which they have been held and the treatment they have received, the executions would be "inhuman or degrading treatment or punishment" contrary to article 17(1) of the Constitution.
1. The Commission.
The Commission has a role in respect both of member states of the OAS which are parties to the American Convention on Human Rights 1969 ("the Convention") and member states, such as the Bahamas, which are not. In relation to states in the former category, it is charged with enforcing the Convention, if necessary by proceedings before the Inter-American Court of Human Rights ("the Court"). The Convention gives individuals and non-governmental organisations a right to petition the Commission to complain of violations and the Commission, if it is unable to arrive at a satisfactory settlement, may submit the matter to the Court, which has sole jurisdiction to interpret the Convention. The procedure was recently discussed in the judgment of the Board in Briggs v. Baptiste ( The Times 3rd November 1999) an appeal from Trinidad and Tobago.
In relation to states which are not parties to the Convention, the Commission has a general duty to promote the observance of the human rights set out in the American Declaration of the Rights and Duties of Man 1948 ("the Declaration"). There is no right of individual petition as such, but the Commission has under article 20(b) of its Statute power:-
"to examine communications submitted to it and any other available information, to address the government of any member state not a Party to the Convention for information deemed pertinent by this Commission, and to make recommendations to it, when it finds this appropriate, in order to bring about more effective observance of fundamental human rights."
The "communications" received by the Commission under this article tend in practice to be complaints by individuals of the violation of their rights under the Declaration. The Commission has in fact made procedural regulations which assimilate the preliminary procedures for dealing with such communications with those for petitions under the Convention. For example, it is a condition of the admissibility of both Convention petitions and non-Convention communications that the petitioner should have exhausted his domestic remedies: see article 37 of the Regulations of the Inter-American Commission on Human Rights. But the outcome of the proceedings in non-Convention cases is that the Commission sends its "decision" in the form of a report to the member state concerned, including any recommendations it may make in accordance with article 20(b) of the Statute. Being recommendations, they are not binding upon the member state as a matter of treaty law or in any other way.
2. The Commission and The Bahamas
Although The Bahamas has been a member of the OAS since 1982, it does not appear that until quite recently anyone availed himself of the power of the Commission to receive communications and make inquiries about alleged violations of human rights there. The government was in fact unaware that the assistance of the Commission could be invoked by an individual through this route. In Henfield v. Attorney-General of the Commonwealth of The Bahamas [1997] A.C. 413 counsel for the government, on instructions, accepted the submission of counsel for the appellants that citizens of The Bahamas had no individual access to the United Nations Human Rights Committee (which was correct) or any other international human rights body (which was not). The context in which the question arose was whether this made any difference to the five year period which the Board had said in Pratt v. Attorney-General for Jamaica [1994] 2 A.C. 1, 35 was the period after sentence after which there would normally be "strong grounds for believing" that an execution would be inhuman or degrading punishment. The period of five years had been an attempt to strike a balance between the cruelty of a long delayed execution and the need to allow time for completion of the available appellate processes. In the case of Jamaica, which was party to both the International Covenant on Civil and Political Rights (with its Protocol giving a right of petition to the U.N. Human Rights Committee) and the American Convention on Human Rights, the Board in calculating the time reasonably required for appeals allowed a period of 18 months for petitions to one or other international body. In Henfield it decided that since neither form of petition existed in The Bahamas, three and a half years was the appropriate period within which an execution could normally be expected to be carried out.
The error was corrected in Fisher v. Minister of Public Safety and Immigration [1998] A.C. 673 (which, in view of a subsequent appeal by the same appellant, their Lordships will call "Fisher No. 1"). In that case the appellant Mr. Fisher had presented a petition to the Commission which was pending at the date of the hearing before the Board. Sir Godfray Le Quesne Q.C., as counsel for the government, informed the Board that the government recognised the power of the Commission to receive communications from citizens of The Bahamas complaining of violations of their human rights. He said at page 685A that "it was the intention of the government that the applicable regulations should be duly respected".
3. The appellants' cases.
Their Lordships must now set out some of the chronology of the proceedings against the appellants. First, Mr. Higgs. He murdered his wife in July 1993 and was arrested a few days later. He was committed for trial on 26th November 1993 but there was a technical defect in the committal as a result of which it was quashed on 12th July 1994. On 14th November 1994 he was committed again and on 2nd October 1995 found guilty and sentenced to death. On 16th April 1996 the Court of Appeal allowed his appeal on the grounds of excessive interventions by the judge and ordered a retrial. On 6th August 1996 he was again convicted and sentenced to death. The Court of Appeal dismissed a second appeal on 2nd May 1997 and a petition for special leave to appeal to Her Majesty in Council was dismissed on 6th November 1997. On the following day he lodged his petition with the Commission. On 21st October 1998 the government wrote to the Commission stating that it considered that 18 months would be a reasonable period to allow for the Commission to reach its decision and make its recommendations. Neither the government nor the Commission sent a copy of this letter to Mr. Higgs. The period expired on 7th May 1999. His execution was fixed for 10th August 1999 and the warrant read to him on 3rd August 1999, but a stay of execution was granted on 9th August 1999 pending the hearing of this constitutional motion. It came before Marques J. and was dismissed on 12th August. An appeal to the Court of Appeal was dismissed on 17th August. From that decision Mr. Higgs now appeals to the Privy Council.
Mr. Mitchell's case has followed a rather simpler course. On 9th May 1994 he murdered a couple in their home by stabbing them to death. He was arrested on the same day and on 24th November 1994 he was convicted and sentenced to death. His appeal to the Court of Appeal was dismissed on 2nd October 1995 (with reasons given on 27th October 1995) and (after special leave had been granted) his appeal to the Privy Council was dismissed on 21st January 1998: see Mitchell v. The Queen [1998] A.C. 695. On 27th January 1998 he lodged his petition with the Commission. In October 1998 the government wrote a similar letter to that in Mr. Higgs's case, informing the Commission that the period of 18 months would expire on 27th July 1999. Thereafter, Mr. Mitchell's execution was fixed for 10th August 1999, the same day as Mr. Higgs, and the warrant was read to him. He brought his constitutional motion on 5th August 1999 and this led to stays of execution being granted to both him and Mr. Higgs. Since then their cases have proceeded together.
Both appellants have been in Fox Hill Prison since their respective arrests. For Mr. Higgs, this has been six and a half years. For Mr. Mitchell it has been five and a half. Their Lordships will return later, when they consider the question of whether execution would be an inhuman or degrading punishment, to the question of the conditions in which they have been held...
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