Lendore and Others v Attorney General of Trinidad and Tobago
| Jurisdiction | UK Non-devolved |
| Judge | Lord Hughes |
| Judgment Date | 31 July 2017 |
| Neutral Citation | [2017] UKPC 25 |
| Court | Privy Council |
| Docket Number | Privy Council Appeals No 0055 of 2015 and 0086 of 2015 |
| Date | 31 July 2017 |
and others
Trinity Term [2017] UKPC 25
Lord Mance
Lord Kerr
Lord Sumption
Lord Reed
Lord Hughes
Privy Council Appeals No 0055 of 2015 and 0086 of 2015
From the Court of Appeal of the Republic of Trinidad and Tobago
Criminal appeal - Death sentence — Power of pardon — Whether the President has any power to exercise the power of pardon and substitution in cases of delay — Whether there is an entitlement to judicial substitution of sentence — Interpretation of section 70 of the Criminal Procedure Act — Whether section 70 of the Criminal Procedure Act should be modified so that it provides the court with the power to vary the substituted sentence ordered by the President as a condition of the pardon — Powers of the High Court on constitutional motion — The legal requirements for the process of considering the exercise of the power of pardon — Correct legal analysis of the substituted terms attached to the pardon — Requirements for periodic review of prisoners subject to life sentences — Whether the substituted terms of imprisonment amount to cruel and unusual punishment on the grounds that they are irreducible life sentences — Jurisprudence of the Strasbourg court — Collective determination of substitute sentences — Remedy — Sections 5(2), 14, 25 and 87 of the Constitution — Section 70 of the Criminal Procedure Act — Prison Rules 281, 282 and 285 — Pratt and Morgan v. Attorney General of Jamaica [1993] U.K.P.C. 37 — Reyes v. The Queen [2002] U.K.P.C. 11 — Tyrer v. United Kingdom (1978) 2 EHRR 1.
Pratt and Morgan v. Attorney General for Jamaica [1993] U.K.P.C. 37; [1994] 2 A.C. 1 – Matthew v. State of Trinidad and Tobago [2004] U.K.P.C. 33; [2005] 1 A.C. 433 — Attorney General for Barbados v. Boyce (2006) 69 W.I.R. 10 – Coard v. Attorney General of Grenada [2007] UKPC 7. – Hunte v. State of Trinidad and Tobago [2015] U.K.P.C. 33 – Bowe v. The Queen [2006] U.K.P.C. 10; [2006] 1 W.L.R. 1623 – Liyanage v. The Queen [1967] 1 A.C. 259 – Reyes v. The Queen [2002] U.K.P.C. 11; [2002] 2 A.C. 235 – R (Lumba v. Secretary of State for the Home Department (JUSTICE intervening) [2011] U.K.S.C. 12; [2012] 1 A.C. 245 – R (I) v. Secretary of State for the Home Department [2002] E.W.C.A. Civ 888; [2003] I.N.L.R. 196 – Lewis v. Attorney General of Jamaica [2001] 2 AC 50; [2000] U.K.P.C. 35— Kafkaris v. Cyprus [2008] E.C.H.R. 143 – Vinter v. United Kingdom [2013] E.C.H.R. 645— Magyar v. Hungary [2014] E.C.H.R. 1456 – Trabelsi v. Belgium [2014] E.C.H.R. 893 – Murray v. The Netherlands [2016] E.C.H.R. 408 – Hutchinson v. United Kingdom (App No. 57592/08) (17 January 2017) – Harris v. Attorney General of Belize Claim 339 of 2006
Sections 4, 5(2)(b), 14, 87, 88 and 89 of the Constitution of Trinidad and Tobago – Sections 69 and 70 of the Criminal Procedure Act of Trinidad and Tobago – section 70 of the Criminal Procedure Act of Trinidad and Tobago – Prison Rules: 281, 282 and 285
Appellants
Edward Fitzgerald QC
Ruth Brander
Amanda Clift-Matthews
Gregory Delzin
Mark Seepersad
Theresa Hadad-Maraj
(Instructed by Simons Muirhead and Burton LLP)
Respondent
Peter Knox QC
Navjot Atwal
(Instructed by Charles Russell Speechlys LLP)
Heard on 26 and 27 April 2017
In Pratt and Morgan v Attorney General for Jamaica [1993] UKPC 37; [1994] 2 AC 1 (“ Pratt & Morgan”) this Board, sitting as an expanded bench of seven, held that undue delay in carrying out the execution of a prisoner lawfully sentenced to death rendered it unlawful to proceed to the implementation of that penalty. Ordinarily, it held, a period of more than five years would amount to such undue delay, so that the prisoner could no longer be executed. The Board was well aware, in giving the judgment which it did, that it would be applicable also in states other than Jamaica, and that there was likely to be a significant number of prisoners to whom it would apply. It gave considered guidance as to how its decision might be implemented. After setting out advice as to the management of the post-conviction process so as to improve expedition, Lord Griffiths, giving its judgment, said this at 35G:
“These considerations lead their Lordships to the conclusion that in any case in which execution is to take place more than five years after sentence there will be strong grounds for believing that the delay is such as to constitute ‘inhuman or degrading punishment or other treatment.’ If, therefore, rather than waiting for all those prisoners who have been in death row under sentence of death for five years or more to commence proceedings pursuant to section 25 of the Constitution, the Governor-General now refers all such cases to the [Jamaican Privy Council] who, in accordance with the guidance contained in this advice, recommend commutation to life imprisonment, substantial justice will be achieved swiftly and without provoking a flood of applications to the Supreme Court for constitutional relief pursuant to section 17(1).”
An executive power of pardon, in terms essentially identical to the Jamaican one there referred to, is contained in the Constitution of Trinidad and Tobago. Section 87 of that Constitution provides:
“87(1) The President may grant to any person a pardon, either free or subject to lawful conditions, respecting any offences that he may have committed. The power of the President under this subsection may be exercised by him either before or after the person is charged with any offence and before he is convicted thereof.
(2) The President may —
(a) grant to any person convicted of any offence against the law of Trinidad and Tobago a pardon, either free or subject to lawful conditions;
(b) grant to any person a respite, either indefinite or for a specified period, from the execution of any punishment imposed on that person for such an offence;
(c) substitute a less severe form of punishment for that imposed by any sentence for such an offence; or
(d) remit the whole or any part of any sentence passed for such an offence or any penalty or forfeiture otherwise due to the State on account of such an offence.
(3) The power of the President under subsection (2) may be exercised by him in accordance with the advice of a Minister designated by him, acting in accordance with the advice of the Prime Minister.”
Sections 87(3), 88 and 89 go on to provide for the President to act on ministerial advice, and for an Advisory Committee to advise both the minister and the President on the exercise of this power. These arrangements and the Advisory Committee (also known as the Mercy Committee) are considered at (E) below. Section 70 of the Criminal Procedure Act (set out at (C) below) provides for a substituted sentence imposed as a condition of a pardon to be made an order of the court.
The several appellants in this case were all convicted of murder in Trinidad and Tobago. In that country, the statutory sentence for murder is (except in the case of felony-murder) a mandatory sentence of death which is saved from constitutional invalidity because it was an existing law preserved at the time when the Constitution was adopted in 1962 (see Matthew v State of Trinidad and Tobago [2004] UKPC 33; [2005] 1 AC 433). Accordingly, sentence of death was passed on the appellants, as was lawfully required of the court. In the cases of all of them, either more than five years passed after they were sentenced to death, or that period was approaching. In most cases that period had already passed when Pratt & Morgan was decided. In others, time ran subsequently.
Following the procedure suggested by the Board in Pratt & Morgan, the Presidential power of pardon was exercised for each of the appellants by commuting the death sentence to one of imprisonment. That was an exercise of the precise power provided by section 87(2)(a) and (c) of the Constitution. Those decisions were made by the President, or Acting President, for a number of prisoners at a time, and without distinction between the different members of the group dealt with at the same time. The first group, which was of 47 prisoners who included five of the appellants, received such conditional pardons on or shortly after 31 December 1993. Their death sentences were commuted to life imprisonment with hard labour for the rest of their natural lives. The second group, of five prisoners including the appellant Lendore, were granted similar pardons on 23 April 1998. In their cases the death sentences were commuted to sentences of 75 years imprisonment with hard labour.
These are test cases. The appellants, like others, have lodged motions for constitutional relief under section 14 of the Constitution. Their cases, in essence, challenge the substituted sentences attached as conditions to the grants of pardon from the death sentences originally imposed on them. The several bases of that challenge have, however, shifted significantly over the course of the litigation, including after the decision of the Court of Appeal. Some refinement of argument is only to be expected and is the common coin of the progress of a case through successive layers of court, but in this case the changes of stance went further than this, and have included the argument of grounds which were not advanced before the judge or Court of Appeal. The obvious general importance for other cases of the issues raised, and the realistic readiness of the State to advance its submissions despite the alterations in stance, led the Board to permit these arguments to be advanced, although on some issues, as appears below, it would have preferred to have the benefit of the informed views of the local courts.
As the argument was developed before the Board, the issues...
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