Pinder v The Queen
| Jurisdiction | UK Non-devolved |
| Judge | Lord Millett,Lord Nicholls of Birkenhead,Lord Hope of Craighead |
| Judgment Date | 23 September 2002 |
| Neutral Citation | [2002] UKPC 46 |
| Court | Privy Council |
| Docket Number | Appeal No. 40 of 2001 |
| Date | 23 September 2002 |
[2002] UKPC 46
Present at the hearing:-
Lord Nicholls of Birkenhead
Lord Hoffmann
Lord Hope of Craighead
Lord Hobhouse of Woodborough
Lord Millett
Privy Council
[Majority judgment delivered by Lord Millett]
On 15 July 2002 their Lordships agreed humbly to advise Her Majesty that the case ought to be remitted to the Court of Appeal of the Commonwealth of The Bahamas to complete any lacuna in the sentence as regards the instrument to be used for the flogging of the appellant; and otherwise that the appeal ought to be dismissed. Their Lordships recommended that the respondent should assist the appellant with the costs of the appeal. They said that they would give their reasons later. This they now do.
On 28 July 1997 the appellant pleaded guilty in the Supreme Court in Nassau to two counts of armed robbery and one of attempted robbery. He asked for six other offences of armed robbery and one of possessing a firearm while committing a specified offence to be taken into consideration. He was 24 years old and a man of previously good character. He was sentenced to two consecutive terms of 15 years' imprisonment on the two counts of armed robbery and to a concurrent sentence of 15 years' imprisonment on the count of attempted armed robbery. On the second of the two counts of armed robbery he was also sentenced to be flogged, the flogging to be administered in two instalments of three strokes each.
The appellant appealed against sentence to the Court of Appeal of The Bahamas. The Court of Appeal of its own motion granted the appellant legal aid and appointed counsel to argue the discrete ground that the sentence of flogging provided for by Part II of the Criminal Law (Measures) Act 1991 ("the 1991 Act") was unconstitutional. The appeal was heard by a full court of five. By a majority of 3 to 2 (Gonsalves-Sabola P, George and Zacca JJA; Carey and Hall JJA dissenting), the Court held that the sentence was not unconstitutional. While all five members of the Court held or were content to assume that a sentence of flogging constituted inhuman and degrading treatment within the meaning of article 17(1) of the Constitution, the majority held that the effect of article 17(2) was to render the sentence passed on the appellant immune from constitutional challenge under that article. The Court unanimously dismissed the appeal against sentence, holding that in the particular circumstances of the case it was not excessive.
The principal issue in the present appeal is whether a sentence of corporal punishment today is unconstitutional in The Bahamas. The Penal Code which was in force when the Constitution came into effect on 10 July 1973 authorised a sentence of flogging to be passed upon an adult male who was convicted of one of a number of serious offences including armed robbery. But it was widely though not universally acknowledged to be inhuman and degrading and out of keeping with the values of a modern and democratic society. It had previously been abolished in the United Kingdom in 1948 (except for offences committed while the offender was in prison where it was abolished in 1953), though it remained in force in parts of the British Isles until very recently. It was abolished in The Bahamas by the Penal Code (Amendment) Act 1984 ("the 1984 Act"). A subsequent increase in the level of serious crime, however, led to a change of mind. By the 1991 Act the legislature, responding, no doubt, to popular demand, sanctioned a substantial increase in the penalties for serious crimes. At the same time it took the opportunity to reintroduce corporal punishment in the same terms and for the same offences as under the Penal Code before the 1984 Act. The appellant contends that the reintroduction of flogging was a reversion to barbarism and beyond the powers of the legislature under the Constitution.
Three matters are common ground. First, it is accepted that flogging is an inhuman and degrading punishment and, unless protected from constitutional challenge under some other provision of the Constitution, is rendered unconstitutional by article 17(1). Secondly, had it not been abolished by the 1984 Act but continued to be authorised by the Penal Code as it stood when the Constitution came into effect in 1973, flogging would be protected from constitutional challenge by articles 17(2) and 30(1) of the Constitution. Thirdly, the protection afforded by article 30(1) does not extend to the 1991 Act, which was not a law which was in force when the Constitution came into effect ("a pre-existing law"). What is in dispute is whether the protection afforded by article 17(2) does so. The question is whether, having once abolished flogging because, although permitted by the Constitution, it was acknowledged to be an inhuman and degrading punishment, the legislature of The Bahamas had power to restore it without first amending the Constitution.
The Constitution.
The Constitution of The Bahamas came into force on 10 July 1973 pursuant to The Bahamas Independence Order 1973 ( SI 1973/1080). Article 1 of the Constitution declares the Commonwealth of The Bahamas to be a sovereign democratic state. Article 2 declares the Constitution to be the supreme law of the state and provides that, subject to the provisions of the Constitution, if any other law is inconsistent with the Constitution then the Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void (emphasis added).
The word "law" is defined in the Constitution in the widest terms and unless otherwise provided includes any instrument having the force of law and any unwritten rule of law. In article 2 it includes both pre-existing and future laws. It is this article which entrenches the fundamental rights and freedoms of the individual by protecting them not only against unlawful executive action but also against lawful actions which may be authorised by future acts of the legislature. But article 2 expressly subjects this protection to the provisions of the Constitution, thus giving advance warning that the Constitution itself contains provisions limiting the extent to which it fetters the power of the legislature to introduce new laws which are inconsistent with it.
Chapter III (articles 15-31) sets out the fundamental constitutional rights and freedoms which the Constitution guarantees to the individual. The scheme of the Chapter is ordered and logical. Articles 16-27 describe in detail the particular rights and freedoms in question. Many, though not all, of these articles contain provisos which define the extent to which laws which are inconsistent with the particular article in question are nevertheless to be protected from constitutional challenge. Each of these provisos employs the same formula:
"Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this Article to the extent that …"
Article 17(2) is just such a proviso.
The scope of each proviso is tailored to the particular article of which it forms part. In other articles the proviso invokes some countervailing consideration, such as public order or the rights of others, which needs to be balanced against the constitutional right with which the article is concerned. It is left to the legislature to perform the balancing exercise. Article 17(2) is different. It affords protection to what would otherwise be unconstitutional by reference to the pre-existing law. No balancing exercise is required. Instead, a comparison must be made between the law under challenge and the pre-existing law. Drawing the comparison is a judicial exercise.
This fasciculus of articles is followed by article 30. This confers on all pre-existing written laws a general immunity from constitutional challenge under articles 16-27. Article 30(1) reads as follows:
"30(1). Subject to paragraph (3) of this Article, nothing contained in or done under the authority of any written law shall be held to be inconsistent with or in contravention of any provision of Articles 16 to 27 (inclusive) of this Constitution to the extent that the law in question -
(a) is a law (in this Article referred to as 'an existing law') that was enacted or made before 10 July 1973 and has continued to be part of the law of The Bahamas at all times since that day;
(b) repeals and re-enacts an existing law without alteration; or
(c) alters an existing law and does not thereby render that law inconsistent with any provision of the said Articles 16 to 27 (inclusive) in a manner in which, or to an extent to which, it was not previously so inconsistent."
It is evident that article 30(1) is in very different terms from any of the preceding articles. Its scope is narrow: it applies to written laws only, that is to say primary and delegated legislation, and only to such laws as were in existence immediately before 10 July 1973 and then only if they have remained continuously in force without interruption since that date. It is thus a transitional provision which ceases to preserve the validity of a pre-existing law once it is repealed. But while it does apply its effect is comprehensive. It grants pre-existing written laws immunity from challenge under any of the preceding articles (including article 17) and to the fullest extent possible.
Article 17(2).
Article 17 reads as follows:
"17.-(1) No person shall be subjected to torture or to inhuman or degrading treatment or punishment.
(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this Article to the extent that the law in question authorises the infliction of any description of punishment that was lawful in the Bahama...
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