Privy Council

Published date01 May 2007
Date01 May 2007
Subject MatterPrivy Council
Privy Council
Bahamas: Mandatory Death Penalty; Constitutionality
Bowe vThe Queen; Davis vThe Queen [2006] UKPC 10, [2006] 1 WLR
The appellants had been convicted of murder, in separate proceedings,
and sentenced to death. They had appealed, unsuccessfully, to the Court
of Appeal of the Bahamas. They petitioned the Privy Council to be
allowed to challenge the requirement that the death penalty was a
mandatory sentence following a conviction for murder. The Privy Coun-
cil remitted the case to the Court of Appeal for reconsideration of the
sentences in respect of each defendant.
The Court of Appeal took the view that s. 312 of the Criminal Code
imposed a mandatory sentence of death for those accused of murder,
subject to exceptions which were not applicable in this case. The Court
of Appeal viewed this as a sentence fixed by law and, as s. 11 of the
Court of Appeal Act excluded appeals where the sentence was fixed by
law, it had no jurisdiction to entertain an appeal against the mandatory
death sentence. Further, the Court of Appeal took the view that it had
no jurisdiction to consider whether the imposition of a mandatory death
penalty was unconstitutional because Article 28 of the 1973 Constitu-
tion provided for a constitutional challenge to be by a separate appli-
cation to the Supreme Court, and not in the course of criminal
proceedings. The appellants were given special leave to appeal against
this judgment.
.The appeals process could be
used to consider a constitutional issue: a separate application on a
constitutional motion was not an exclusive procedure, as Article 28(1)
provides that an application to the Supreme Court is ‘without prejudice
to any other action with respect to the same matter which is lawfully
available’. If the sentence was, on a proper reading of the law, discre-
tionary rather than mandatory, then the court would not be considering
a sentence fixed by law. Further, determining whether the mandatory
death sentence was constitutional was reviewing the basis on which the
sentence was passed (the interpretation of it as mandatory) rather than
the sentence itself.
The provision in s. 312 of the Criminal Code had to be read in the light
of the law as it stood in July 1973, when the new constitution came into
force. On a proper construction of the law, the mandatory death penalty
was unconstitutional prior to the coming into force of the Constitution
in 1973, as it conflicted with the prohibition in the constitution on
inhuman treatment in that its mandatory nature meant that it applied
disproportionately. It was not saved as an existing law because under the
previous constitutions of 1963 and 1969 it was unconstitutional insofar
as it imposed a mandatory death penalty on those convicted of murder.

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT