Privy Council
| Published date | 01 April 2003 |
| Date | 01 April 2003 |
| DOI | http://doi.org/10.1177/002201830306700205 |
| Subject Matter | Article |
Privy
Council
Bahamas:
Whether
Corporal
Punishment
Unconstitutional
PindervThe
Queen
[2002] UKPC
46
The appellant pleaded guilty to
two
counts of armed robbery
and
one
of
attempted robbery. He was sentenced to 15 years' imprisonment on
each of
the
armed
robbery counts, to
run
consecutively,
and
afurther 15
years for
the
attempted robbery, to
run
concurrently. He was also
sentenced
to
flogging in relation to
the
second
armed
robbery. This was
under
the
Criminal Law (Measures) Act 1991, which
had
reintroduced
this penalty,
and
the
court imposed six strokes, to be carried
out
in
two
instalments of
three
strokes each. The Court of Appeal of
the
Bahamas
dismissed his appeal, holding, by a majority of 3:2,
that
the
1991 Act was
not
unconstitutional. The appellant appealed further to
the
Privy Coun-
cil contending
that
the
sentence was unconstitutional.
HELD,
DISMISSING
THE
APPEAL
(BY
A
MAJORITY
OF
3:2),
Article 17(2)
of
the
Constitution permitted
the
reintroduction of punishments
that
would
have
been
lawful before 10 July
1973
notwithstanding
that
they
would otherwise
have
violated Article 17
(I).
However, as a choice of
approved instruments to inflict
the
punishment
was available
and
the
court
had
not
specified which was to be used,
the
sentence was in-
complete
and
the
case would be remitted to the Court of Appeal for
determination of this matter.
COMMENTARY
Corporal punishment, like capital punishment, continues to attract
energetic debate in a
number
of fora, of which
the
courts are
but
one.
The framework for legal debate in countries in the Caribbean revolves
around
the
specific constitutional provisions applicable in each state
and
judicial assessment of
whether
such practices contravene, in Article
17
(I)
of
the
Constitution of
the
Bahamas,
the
familiar prohibition: 'No
person shall be subjected
to
torture or to
inhuman
or degrading treat-
ment
or
punishment:
The substantive issue has
been
considered else-
where
in
the
region,
where
the
constitutionality or otherwise of
corporal
punishment
has
been
determined: see, for example,
Hobbs
and
Mitchell vR
(1992)
46
WIR 42
where
the Court of Appeal of Barbados
held
that
whipping
with
acat-o'-nine-tails was
inhuman
and
degrading,
contrary to s. 15 of the Constitution of Barbados.IHowever, each of
the
constitutions must be taken on its
own
wording which may set such
common
terms in a different context.
Taking Article 17(1) in isolation, the
matter
would have been swiftly
despatched, for it was
'common
ground' (at [5])
that
flogging was
1 See also R. M. B. Antoine,
'The
Reintroduction of
the
Cat-o'-Nine-Tails in Barbados:
A Tale of Woe' (1991) 1Caribbean LR 26.
121
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