Judicial Committee of the Privy Council
| Published date | 01 July 1976 |
| Date | 01 July 1976 |
| DOI | 10.1177/002201837604000306 |
| Subject Matter | Article |
Judicial Committee of the
Privy Council
Comments
on
Cases
SENTENCING IS A
JUDICIAL
PROCESS
Hinds
v.
The
Queen
The
appeal
from
Jamaica
in Hinds v. The Queen
(1976,1
All
E.R.
353)
raised several
constitutional
issues,
but
gave rise
to
one
important
pronouncement
on
the
nature
of
sentencing.
The
appellants
were
convicted
of
possession
of
firearms
by
a
court
established
by
the
Gun
Court
Act,
1974.
That
Act
established
a
Gun
Court,
capable
of
sitting
in
three
divisions,
"to
deal
particularly
with
firearms
offences".
The
majority
of
the
Privy Council
decided
that
the
statutory
powers
conferred
on
three
magistrates to exercise
what
had
hitherto
been
the
functions
of
the
higher
judiciary
were
unconstitu-
tional.
They
further
held
that
it was
equally
unconstitutional
to
transfer
from
the
judiciary
to
an
exectutive
body
a
complete
discretion
to
determine
the
severity of
the
punishment
to
be
inflicted
on
a
certain
class
of
offender.
This
latter
conclusion
arose
out
of
the
provision in
the
Act
that
a
person
convicted
by
the
court
of
afirearms
offence
was
subject
to
a
mandatory
sentence
of
hard
labour.
This
was
not
to
be discharged
except
at
the
direction
of
the
Governor-General
acting
in
accordance
with
the
advice
of
a
review
board
consisting
of
five persons
appointed
by
him,
only
one
of
whom
was a
judge
who
had
been
appointed
to
judicial
office
in
accordance
with
the
terms
of
the
constitution.
The
appellants
in
the
instant
case
complained
that
this
meant
that
the
length
of
their
sentence
was in
effect
determined
by
persons
most
of
whom
were
not
constitutionally
appointed
to
exercise
judicial
powers.
Since
sentencing
was a
judicial
function,
(they
argued),
they
had
been
sentenced
by
persons
who
had
no
power
to
do so.
The
net
issue
was,
therefore,
whether
a
convicted
person
has a right
to
have his
sentence
determined
by
"a
court".
Lord
Diplock
(speaking on his
own
behalf
and
on
that
of
Lord
Simon
and
Lord
Edmund-Davies)
held
that,
although
Parliament
may
impose
afixed
sentence
(thus
limiting
judicial
discretion)
or leave
the
sentence
to
the
judges,
"What
Parliament
cannot
do,
consistently
with
the
separation
of powers, is
to
transfer
from
the
judiciary
to
any
executive
body
whose
members
are
not
appointed
[constitutionally],
a
discretion
to
determine
the
severity
of
the
punishment
to
be inflicted
on
an individual
member
167
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