R v Lovelace
| Jurisdiction | UK Non-devolved |
| Judge | Lord Kerr |
| Judgment Date | 15 June 2017 |
| Neutral Citation | [2017] UKPC 18 |
| Court | Privy Council |
| Docket Number | Appeal No 0066 of 2014 |
| Date | 15 June 2017 |
[2017] UKPC 18
Privy Council
From the Court of Appeal of the Eastern Caribbean
Supreme Court (St Vincent and the Grenadines)
Lord Kerr
Lord Wilson
Lord Reed
Lord Hughes
Lord Toulson
Appeal No 0066 of 2014
Appellant
Paul Bowen QC
Richard Thomas
(Instructed by Simon Muirhead & Burton LLP)
Respondent
Rowan Pennington-Benton
(Instructed by Charles Russell Speechlys LLP)
Heard on 8 November 2016
This is an appeal by Patrick Lovelace against the decision of the Eastern Caribbean Court of Appeal (Saint Vincent and the Grenadines) (Mario Michel JA), dismissing his application for an extension of time to apply for leave to appeal against sentence.
On 20 December 2004, Mr Lovelace had been convicted of the murder of Lokeisha Nanton and sentenced to death. The conviction was quashed on appeal on 9 October 2006 and a re-trial ordered. On 15 July 2009, following a re-trial before Bruce-Lyle J and a jury, the appellant was again convicted of murder. On 26 February 2010, he was again sentenced to death. An appeal against conviction — but not against sentence — was dismissed by the Court of Appeal on 27 February 2012. On 13 June 2012, the appellant filed in the Court of Appeal a Notice of Intention to Appeal "to the Privy Council against conviction and sentence in this matter". No such application was made.
His application to extend the time for appealing against sentence was then made on 20 January 2014, and it was this application which was refused by Mario Michel JA on 5 March 2014. An application for permission to appeal was filed with the Judicial Committee of the Privy Council on 5 June 2014. Leave was granted on 11 February 2015.
Various grounds of appeal were raised in the application to appeal to the Board but, on the hearing, only one of those grounds was pursued. It was that the Court of Appeal had erred in concluding it had no jurisdiction to grant an extension of time to apply for leave to appeal against sentence.
The circumstances of the murder of Miss Nanton were horrifying. She was 12 years old at the time of her death. She had been with a friend who was a few years older, a Miss Ramona Caruth. They were walking together to Miss Nanton's home, having left a street party. They were followed by the appellant, who was known to Miss Caruth. The appellant attacked Miss Nanton, knocked her to the ground and continued to assault her until she was unconscious. Despite Miss Caruth's attempts to stop the appellant, he raped Miss Nanton. He then threatened Miss Caruth and coerced her into helping him to hang Miss Nanton by the neck from a tree in order to simulate suicide. She died as a result of the hanging.
Sentencing the appellant on 26 February 2010, the judge said:
"The Prosecution has the burden of proving to me that the death sentence is appropriate; and that, they must do beyond all reasonable doubt. Having balanced the submissions made by the learned DPP (as against that of the defence) at this sentencing phase, I have no doubt at all in my mind that this case is one of the worst cases of murder any society can experience and I consider it one of the worst of the worst. The brutal rape of a young 12 years' old girl and leaving her to die, having been tied by the neck to a tree limb to me is palpably brutal and heinous. I am satisfied beyond all reasonable doubt that this is a matter for which Mr Patrick Lovelace deserves the ultimate sentence. Any lesser sentence in my view would be inappropriate in all the circumstances of this case."
In the order of Mario Michel JA of 5 March 2014, it was stated that "the court has no jurisdiction to grant an extension of time to file an appeal, having regard to section 48(1) & (2) of the Eastern Caribbean Supreme Court (Saint Vincent and the Grenadines) Act (c 18) and the decision of the Judicial Committee of the Privy Council in [ Pollard v The Queen [1995] 1 WLR 1591]". The application for an extension of time to file an appeal was therefore refused for want of jurisdiction.
Subsections (1) and (2) of section 48 provide:
"(1) Where a person convicted desires to appeal under this Act to the Court of Appeal or to obtain the leave of the court, he shall give notice of appeal or notice of his application for leave to appeal, in such manner as may be directed by rules of court, within 14 days of the date of conviction.
(2) Except in the case of a conviction involving sentence of death, the time within which notice of an application for leave to appeal may be given, may be extended at any time by the court."
In Pollard the appellant and a co-defendant were convicted in the Eastern Caribbean Supreme Court of murder. Both were sentenced to death. The appellant's notice of application for leave to appeal was taken to the registry for filing within the prescribed time but it was returned as defective because it had been signed by counsel rather than the appellant, as required by rule 44(1) of the West Indies Associated States Court of Appeal Rules 1968 ("the 1968 Rules"). When, after the expiry of the 14-day period, the co-defendant's appeal came on for hearing, the appellant applied to the court to extend the time for lodging his notice of application for leave to appeal. The Eastern Caribbean Court of Appeal held that, since section 48(2) of the Act did not permit an extension of the time limit for appeals where the convicted person was under sentence of death, it had no jurisdiction to hear the appeal. After making that ruling, the court heard the co-defendant's appeal. It quashed his conviction on the ground that the verdict was unsafe and unsatisfactory.
The Board considered that the appellant's appeal should be allowed. Rule 11 of the 1968 Rules gave the court power to proceed with an appeal in a criminal matter notwithstanding the appellant's accidental failure to comply with them. In an obiter observation Lord Jauncey, who delivered the opinion of the Board, said at p 1593:
"Given the unequivocal terms of section 48(2) of the Act their Lordships do not see that the Court of Appeal had any alternative but to refuse the defendant's application to extend the time for lodging a notice. Indeed there are very good reasons for imposing a rigid time limit on appeals in cases involving sentence of death: see Rex v Twynham (1920) 15 Cr App R 38, 39, per Lord Reading CJ."
Different times, different mores. Lord Reading CJ was dealing with section 7(1) of the Criminal Appeal Act 1907 which was in similar terms to section 48(1) and (2) of the Eastern Caribbean Supreme Court (Saint Vincent and the Grenadines) Act. He said, at p 39 of Twynham:
"There is a very good reason for the Legislature making this provision, because the mere giving of a notice of appeal or a notice of application for leave to appeal against a conviction of murder or high treason, has the effect of postponing the date of the execution. Once that notice has been given, the execution cannot take place until a certain time after the hearing of the appeal. If it were possible to extend the time, it would be open to a murderer, having failed in one appeal, to give notice asking for an extension of time in order to bring some other matter before the Court, or not give the notice until the last moment, in order to provide for a further extension of time."
Such stratagems, if they were relevant in the early part of the twentieth century, are irrelevant now. They would not be tolerated in the United Kingdom nor should they be in Saint Vincent and the Grenadines. Indeed, there is no reason to suppose that such ploys are used in that jurisdiction. No suggestion to that effect was made by the respondent. In any event, active case management should eliminate the pursuit of worthless appeals.
It does not appear that the Board was invited in Pollard to consider the possible unconstitutionality of section 48(2). That question was dealt with, however, in Cannonier v DPP HCRAP 2008/002 and HCRAP 2008/019 in relation to a similar provision in the Eastern Caribbean Supreme Court (St Christopher and Nevis) Act. In that case the court found that a restriction against extending time in death penalty cases in section 52 of the St Christopher and Nevis Act could not be upheld because it was contrary to the guarantee of protection of the law in section 10 of the Constitution of that country.
It is significant that the Eastern Caribbean Court of Appeal was...
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