Pratt et Al v Attorney General et Al
| Jurisdiction | UK Non-devolved |
| Judge | Lord Griffiths |
| Judgment Date | 02 November 1993 |
| Judgment citation (vLex) | [1993] UKPC J1102-1 |
| Court | Privy Council |
| Date | 02 November 1993 |
| Docket Number | Appeal No. 10 of 1993 |
[1993] UKPC J1102-1
Present at the hearing:-
Lord Griffiths
Lord Lane
Lord Ackner
Lord Goff of Chieveley
Lord Lowry
Lord Slynn of Hadley
Lord Woolf
Privy Council
[Delivered by Lord Griffiths]
The appellants, Earl Pratt and Ivan Morgan, were arrested 16 years ago for a murder committed on 6th October 1977 and have been held in custody ever since. On 15th January 1979 they were convicted of murder and sentenced to death. Since that date they have been in prison in that part of Saint Catherine's prison set aside to hold prisoners under sentence of death and commonly known as death row. On three occasions the death warrant has been read to them and they have been removed to the condemned cells immediately adjacent to the gallows. The last occasion was in February 1991 for execution on 7th March; a stay was granted on 6th March consequent upon the commencement of these proceedings. The statement of these bare facts is sufficient to bring home to the mind of any person of normal sensitivity and compassion the agony of mind that these men must have suffered as they have alternated between hope and despair in the 14 years that they have been in prison facing the gallows. It is unnecessary to refer to the evidence describing the restrictive conditions of imprisonment arid the emotional and psychological impact of this experience, for it only reveals that which it is to be expected. These men are not alone in their suffering for there are now 23 prisoners in death row who have been awaiting execution for more than ten years and 82 prisoners who have been awaiting execution for more than five years. It is against this disturbing background that their Lordships must now determine this constitutional appeal and must in particular re-examine the correctness of the majority decision in Riley v. Attorney-General of Jamaica [1933] 1 A.C. 719.
The death penalty.
The death penalty in the United Kingdom has always been carried out expeditiously after sentence, within a matter of weeks or in the event of an appeal even to the House of Lords within a matter of months. Delays in terms of years are unheard of.
In earlier times execution for murder, as opposed to other capital offences, followed immediately after conviction. In 1752 An Act for better preventing the horrid Crime of Murder ( 25 Geo. 2, c.37) provided that all persons convicted of murder should be executed on the next day but one after sentence, unless convicted on Friday in which case they were to be executed on Monday and kept in solitary confinement upon bread and water until executed. The extreme rigour of this regime of immediate execution for murder was re-enacted in the Offences against the Person Act 1828 (9 Geo. 4, c.31) but was repealed by the Act of 1836 (6 Will. 4, c.30) "more effectually to preserve from an irrecoverable Punishment any Persons who may hereafter be convicted upon erroneous or perjured Evidence" and it was enacted that henceforth sentence of death in murder cases should be pronounced in the same manner and the judge should have the same powers as after convictions for other capital offences.
In England the practice in capital cases, henceforth including murder, was for the sheriff to fix a date of execution in the fourth week after the death sentence was passed. In Scotland, the date of execution was fixed by the court under section 2 of the Criminal Law (Scotland) Act 1830: if sentence was pronounced south of the Forth, it was fixed between 15 and 21 days hence, and if north of the Forth, between 20 and 27 days hence. In both England and Scotland the Court of Appeal heard an appeal in a capital case within three weeks of verdict. If the appeal was unsuccessful a revised execution date was set not less than 14 or more than 18 days after the day when the appeal was dismissed, in order to allow the Secretary of State time to decide whether the sentence should be commuted. The Report of the Royal Commission on Capital Punishment 1949-53 (Cmd. 8932) gave the average delay in 1950 as six weeks if there was an appeal and three weeks if there was not.
In 1947 there was great public disquiet that men convicted of a murder on the Gold Coast had been under sentence of death for two years. The matter was debated in Parliament and the Colonial Secretary gave an assurance to the House that the rules and practice to be adopted in the Colonies should be quite sufficient to prevent a repetition of the happenings in the Gold Coast. The concern expressed by members of Parliament in the course of the debate reflected the expectation that the Colonies would follow the long established practice in this country that execution would not be long delayed after sentence. Mr. Winston Churchill expressed the sentiment of the House when he said "people ought not to be brought up to execution, or believe that they are to be executed, time after time whether innocent or guilty, however it may be, whatever their crime. That is a wrong thing".
The rules and practice referred to by the Colonial Secretary were those that laid down a strict timetable for appeals to the Judicial Committee of the Privy Council and provided that execution would only be stayed so long as the timetable was adhered to. Such rules were in force in Jamaica before independence and were adopted after independence by the Governor-General in Privy Council on 14th August 1962; it will in due course be necessary to consider why they were not followed in this case.
Delay of the character which has occurred in this case had never happened in Jamaica before independence. Appendix C of the appellants' case contains a schedule showing the time that elapsed between the date of conviction, appeal and execution in 40 capital cases immediately after independence between the years 1962 and 1970. The time is never more than 18 months and usually considerably shorter. The Solicitor-General felt unable to accept the accuracy of this schedule, but no figures were submitted to contradict it, and their Lordships accept it as showing that the delays that are now being encountered in the execution of the death penalty are of fairly recent origin.
It is difficult to envisage any circumstances in which in England a condemned man would have been kept in prison for years awaiting execution. But if such a situation had been brought to the attention of the court their Lordships do not doubt that the judges would have stayed the execution to enable the prerogative of mercy to be exercised and the sentence commuted to one of life imprisonment. Prior to independence, applying the English common law, judges in Jamaica would have had the like power to stay a long delayed execution, as foreshadowed by Lord Diplock in Abbott v. Attorney-General of Trinidad and Tobago [1979] 1 W.L.R. 1342 when he said at page 1348:-
"In such a case, which is without precedent and, in their Lordships' view, would involve delay measured in years, rather than in months, it might be argued that the taking of the condemned man's life was not 'by due process of law'."
And as was asserted by Lord Templeman in Bell v. D.P.P. [1985] A.C. 937 where at page 950 he said:-
"Their Lordships do not in any event accept the submission that prior to the Constitution the law of Jamaica, applying the common law of England, was powerless to provide a remedy against unreasonable delay."
The Chronology.
It is now necessary to consider and comment upon the course of events that has resulted in the inordinate delay that has occurred in this case.
The murder was committed on 6th October 1977 and the appellants were sentenced to death on 15th January 1979. Their application for leave to appeal was dismissed by the Court of Appeal on 5th December 1980 who said that they would hand down their reasons later. Although notice of application for leave to appeal was given within three days of the conviction on 18th January 1979, it took almost two years to arrange a hearing by the Court of Appeal. Making every allowance for the pressure of work on the Jamaican courts this does seem a long time to arrange a hearing in a capital case which one would have expected to have been expedited. On their application for leave to appeal the appellants both asked that the Court of Appeal should assign legal aid to them. The appeal was listed for hearing before the appellants had been assigned legal aid and had to be taken out of the list on their application on 28th May 1980 so that they might be legally represented. On the following day, 29th May 1980, a legal aid certificate was issued and counsel were assigned to the appellants. It appears therefore that at least part of the delay in hearing the appeal was attributable to the failure to issue a legal aid certificate at a much earlier date.
On 7th January 1981, a month after their application for leave to appeal was dismissed, the appellants wrote to the Registrar of the Court of Appeal requesting that the necessary papers be made available to their Attorneys-at-law so that whenever they wished they could take the case to the Judicial Committee of the Privy Council. On 30th January the Registrar replied to say she had spoken to their Attorney-at-law, Mr. Eric Frater, who had advised her that he was endeavouring to take their matter to the Privy Council in England.
It was at this stage, after the dismissal of their application by the Court of Appeal, that their Lordships would have expected the Governor-General to refer the case to the Jamaican Privy Council (JPC) to advise him whether or not the men should be executed in accordance with sections 90 and 91 of the Constitution which provide:-
"90.-(1) The...
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