Reckley v The Minister for Public Safety and Immigration et Al
| Jurisdiction | UK Non-devolved |
| Judge | Lord Goff of Chieveley |
| Judgment Date | 05 February 1996 |
| Judgment citation (vLex) | [1996] UKPC J0205-1 |
| Date | 05 February 1996 |
| Docket Number | Privy Council Appeal No. 2 |
| Court | Privy Council |
[1996] UKPC J0205-1
Privy Council
Present at the hearing:-
Lord Keith of Kinkel
Lord Goff of Chieveley
Lord Browne-Wilkinson
Lord Hoffmann
Sir Michael Hardie Boys
[Delivered by Lord Goff of Chieveley]
The petitioner, Thomas Reckley, was charged with murder on 4th May 1989. He was tried before Mrs. Justice Sawyer and a jury, and on 7th November 1990 he was sentenced to death. He appealed to the Court of Appeal against both conviction and sentence. His appeal was dismissed on 3rd May 1991. He petitioned for special leave to appeal to the Privy Council; but his petition was dismissed on 12th March 1992. On 8th May 1992 lawyers acting for the petitioner wrote to the Advisory Committee on the Prerogative of Mercy established under Article 91 of the Bahamian Constitution, drawing their attention to certain features of the petitioner's case. They received no acknowledgement of the receipt of that letter, or answer to it.
At the time when the petitioner's petition to the Privy Council for leave to appeal was dismissed, there were pending before the Constitutional Court in the Bahamas proceedings ( Jones v. Attorney-General of the Commonwealth of The Bahamas) in which a number of persons under sentence of death were claiming that the death sentence was contrary to the Bahamian Constitution and so unlawful. The Attorney-General indicated that no death sentence would be carried out until after the determination of those proceedings. The proceedings were finally determined on 11th April 1995, when the Privy Council [1995] 1 W.L.R. 891 dismissed an appeal from the decision of the Bahamian courts rejecting the challenge to the lawfulness of the death penalty.
The Advisory Committee met to consider the petitioner's case on 18th May 1995, and following that meeting the Minister decided to advise the Governor-General that the law should be allowed to take its course. On 25th May 1995 a warrant for the execution of the petitioner was signed by the Governor-General directing that the execution should take place at 8.00 a.m. on Tuesday, 30th May 1995. The warrant was read to the petitioner at 6.30 a.m. on Friday, 26th May. The warrant contained a statement to the effect that the petitioner's case had been considered by the Advisory Committee, and there is no evidence to suggest that the relevant paragraph was not read to him; but it appears that he may not have appreciated the contents of that paragraph, since it is recorded in manuscript at the foot of the warrant that he said that he had been told that they were going to consider his case in the Committee. Apart from the reading of the warrant of execution itself, the petitioner was not himself directly informed of the fact that the Advisory Committee had considered his case until he received a letter from the Ministry of Public Safety and Immigration at about 10.00 a.m. on Monday, 29th May which, though delivered at the prison on the evening of Friday, 26th May, was not delivered to him until the Monday morning.
However there is evidence that the contents of the letter in question were communicated to the petitioner's legal advisers on the evening of Thursday, 25th May; and on Friday, 26th May proceedings were commenced on behalf of the petitioner in the form of a constitutional motion in the Supreme Court, claiming that his execution pursuant to the warrant would be contrary to his constitutional rights. Two points were taken. First, it was said that, having regard to the time which had elapsed since the death sentence was passed upon him, to execute him would constitute inhuman and degrading punishment contrary to Article 17 of the Bahamian Constitution, on the principle stated by the Privy Council in Pratt v. Attorney-General for Jamaica [1994] 2 A.C. 1. Second, it was claimed that the petitioner had not been afforded the right to see the judge's report and other material placed by the Minister before the Advisory Committee, and to make representations to the Committee with reference to that material before they tendered their advice to the Minister; their Lordships will refer to this as "the Advisory Committee point".
On Monday, 29th May, an application was made to Mr. Justice Emmanuel Osadebay for an order preventing the implementation of the sentence of death until final determination of the constitutional motion. In the evening of the same day, he refused the stay. His reasons for so doing (which were delivered on 1st June) were in brief as follows. First, since the delay in the petitioner's execution was due to the de facto moratorium imposed pending the outcome of the proceedings in Jones (supra), his execution following such delay would not constitute a breach of constitutional rights, on the principle in Pratt. Second, the Advisory Committee point was contrary to decisions of the Privy Council, including de Freitas v. Benny [1976] A.C. 239. Later in the evening of Monday, 29th May, an appeal from the decision of Osadebay J. was heard by Fountain C.J. (Ag) sitting as a single judge of the Court of Appeal. Early on the following morning he dismissed the appeal, and refused to grant a stay of execution pending a petition for leave to appeal to the Privy Council; but on the same day, Tuesday, 30th May, the Judicial Committee granted a stay of execution pending the hearing of a petition for leave to appeal. On Tuesday, 13th June, after a hearing on Thursday, 8th June, the Judicial Committee [1995] 2 A.C. 491, while expressing the opinion that there were no arguable grounds for an appeal on the Pratt point, nevertheless extended the stay of execution until after the hearing and determination of the appeal in the Trinidadian case of Guerra v. Baptiste and Others [1995] 3 W.L.R. 891, in which the Privy Council was being invited to reconsider the decision in de Freitas v. Benny. Judgment in the case of Guerra was delivered on 6th November 1995, but their Lordships in that case decided that the Advisory Committee point did not arise for decision and so declined to deal with it. As a result the petition for leave to appeal from the refusal of a stay of execution in the present case was restored before the Privy Council on 9th November, when it was further adjourned for hearing on 4th December, the argument to be limited to two points, viz. (1) the Advisory Committee point; and (2) a second point, arising out of the decision in Guerra, that the period of notice of execution given to the petitioner was so short as to constitute a breach of his constitutional rights. Their Lordships declined to permit any further argument on the Pratt and Morgan point. The stay of execution was extended until after the hearing and determination of the petition for leave.
On 4th December the petition for leave was restored for hearing before their Lordships, when argument was addressed to them on the two points. Their Lordships can deal with the second point briefly, since they are satisfied that there was no substance in it.
In Guerra the Privy Council decided that justice and humanity require that a man under sentence of death should be given reasonable notice of the time of his execution. Such notice was required "to enable a man to arrange his affairs, to be visited by members of his intimate family before he dies, and to receive spiritual advice and comfort to enable him to compose himself, as best he can, to face his ultimate ordeal" (see [1995] 3 W.L.R. 891 at page 905); and also to "provide him with a reasonable opportunity to obtain legal advice and to have resort to the courts for such relief as may at that time be open to him" (at page 907). It was also held in that case, restoring on this point the decision of Davis J. in Andy Thomas v. The State 29th July 1987 (unreported), that there was a settled practice in Trinidad and Tobago at the date when the Constitution came into force that a reasonable time for this purpose should be at least four clear days, including a weekend; and that, on the principle stated by Lord Diplock in Thornhill v. Attorney-General of Trinidad and Tobago [1981] A.C. 61 at page 71, such a settled practice was binding under the Constitution.
These were the principles which Mr. Tattersall Q.C. sought to invoke on behalf of the petitioner in the present case. His first submission was that there was a settled practice in The Bahamas that a condemned man should be given no less than 21 days notice of his execution. This submission however failed on the evidence before their Lordships, which provided no basis for any such settled practice. Certainly there was none before the coming into force of the Constitution in 1963. During that time, the evidence before their Lordships showed that the periods of notice of execution varied from 1 clear day (in 1955) to 13 clear days (in 1957). There appear to have been only two executions between 1963 and the Constitution of 1969; nothing of value can be derived from them. Since 1969, there were variations between 7 days (for two cases in 1974, both concerned with the service of a second warrant) and 37 days (in 1981). No settled practice can be inferred from evidence such as this. Mr. Tattersall briefly attempted to retrieve his case on this point by recasting it as one of legitimate expectation; but their Lordships can see no substance in this argument.
Mr. Tattersall's alternative submission was that the period of notice given to the petitioner was in any event unreasonable. The period of notice given was in fact between 6.30 a.m. on Friday, 26th May and 8.00 a.m. on Tuesday, 30th May. This period was less than the 4 clear days which was the subject of the settled...
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