Reckley (No 2) and the Prerogative of Mercy: Act of Grace or Constitutional Safeguard?
| Author | Christopher Gelber |
| Published date | 01 July 1997 |
| Date | 01 July 1997 |
| DOI | http://doi.org/10.1111/1468-2230.00100 |
Reckley (No 2) and the Prerogative of Mercy: Act of
Grace or Constitutional Safeguard?
Christopher Gelber*
On 5 February 1996, the Judicial Committee of the Privy Council handed down its
decision in Reckley vMinister of Public Safety and Immigration (No 2),
1
a case on
appeal from the Bahamas. The petitioner’s main claim was that his execution
would be unconstitutional by reason of a denial of natural justice during the
process leading to the refusal by the Governor-General to exercise the prerogative
of mercy in his favour.
2
The petition was ultimately unsuccessful, and the
execution has since been carried out.
3
The decision of the Privy Council is
significant for its restrictive approach to the amenability of the prerogative power
of mercy to judicial review. It will be submitted that the decision is open to
criticism, both in light of recent developments in relation to the reviewability of the
prerogative of mercy and in view of the implications of the judgment for the rule of
law. It will also be submitted that an alternative ground was available on the basis
on which fairness could impute to the petitioner the procedural entitlements
sought, independently of the amenability to review of the prerogative of mercy.
Background and constitutional context
The petitioner was convicted of murder on 7 November 1990 and sentenced to
death. In due course he exhausted his rights of appeal in the Bahamian courts, and
the Privy Council dismissed his petition for special leave to appeal against his
conviction on 12 March 1992. Under the Bahamian Constitution, all death sentence
cases are required to be considered by an advisory committee,
4
which advises the
designated minister, who in turn advises the Governor-General in relation to the
exercise of the prerogative of mercy.
5
The designated minister is responsible for
ensuring that the committee has before it a written report from the trial judge and
‘such other information derived from the record of the case or elsewhere as the
Minister may require.’
6
The minister, in tendering his recommendation to the
Governor-General, is expressly not obliged to act in accordance with the advisory
The Modern Law Review Limited 1997 (MLR 60:4, July). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA.572
* Department of Law, City University.
I am grateful to David Herling for his comments on an earlier draft of this note. All errors and omissions
are, of course, mine alone.
1 [1996] 1 AC 527 (‘Reckley (No 2)’).
2 The petitioner’s second claim, that the notice he had been given of his intended execution was so
unreasonably short as to constitute a breach of his constitutional rights under the principle enunciated
in Guerra vBaptiste [1996] 1 AC 397, was dismissed by their Lordships on the facts. That claim is
not relevant to this note.
3 Thomas Reckley was hanged on 13 March 1996.
4 Article 92, Constitution of the Bahamas.
5 Exercised under Article 90.
6 Art 92(1). The advisory committee is constituted by the Attorney-General, the designated minister
and from three to five other persons appointed by the Governor-General: Art 91.
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