Ricardo Farrington v The King

This is an appeal brought by Ricardo Farrington against the order of the Court of Appeal dated 17th December 2018 dismissing his application for constitutional redress. It is also an application by him to the Board to reconsider its earlier advice in 1996 proffered to Her Majesty as to the constitutional redress which was then to be afforded to him: see Henfield and Farrington v Attorney-General of the Commonwealth of The Bahamas [1997] A.C. 413. The Board will refer to the earlier advice as “the Board's 1996 advice”. Accordingly, Ricardo Farrington is both the appellant and the applicant. For ease of exposition, the Board will refer to him as the appellant or as Mr Farrington.

The central issue on the application is whether there was a serious breach of procedural fairness when the Board's 1996 advice to Her Majesty included imposing on the appellant a life sentence, in substitution for a death sentence, without affording the appellant an opportunity to be heard on the question of the appropriate substitute sentence. Some 28 years after the Board's 1996 advice and because of what the appellant contends was a serious breach of procedural fairness, the appellant submits that the Board should now advise His Majesty to quash the life sentence and to remit the matter to the Supreme Court for resentencing. The response given by the Attorney General, in the respondent's written case before the Board, was that the Attorney General would not object if the Board were to reconsider its earlier advice in 1996 by now advising His Majesty that the matter be remitted to the Court of Appeal or to the Supreme Court to review the sentence so that a lower court could vary or substitute the life sentence with whatever sentence it considered appropriate taking into account all relevant matters. Mr Stevens KC, on behalf of the Attorney General, went further in oral submissions stating that the Attorney General would be content for the life sentence to be quashed and the matter of resentencing to be remitted to a lower court, provided this was done on the basis of an application to the Board, pursuant to its inherent jurisdiction, to rescind or vary its earlier advice: see R v. Bow Street Metropolitan Stipendiary Magistrate, Ex p Pinochet Ugarte (No 2) [2000] 1 A.C. 119 (“ Pinochet”) and Attorney General v. Crosland [2021] U.K.S.C. 58; [2022] 1 W.L.R. 367, paras 35 and 36 (“ Crosland”). Mr Stevens also informed the Board that the Attorney General would be content for the Board to grant bail to the appellant so that he could be released prior to resentencing by the lower court.

The same central issue arises on the appeal namely, whether there was a serious breach of procedural fairness in the process adopted in 1996 in that the appellant ought to have been, but was not, afforded an opportunity to be heard on the question of the appropriate substitute sentence.

In relation to the central issue, the appellant and the respondent, in effect, were agreed as to the outcome, namely that the Board should advise His Majesty to quash the life sentence and order that resentencing should be remitted to a lower court. Also, in effect, it was agreed that the Board should grant the appellant bail to secure his immediate release from prison and that the only condition of bail be that he wear an electronic monitoring brace to ensure his attendance for resentencing. Whilst an agreement between the appellant and the respondent is of assistance, it is for the Board to determine the advice to be tendered to His Majesty as to whether there has been a serious breach of procedural fairness so that the life sentence should be quashed and the matter remitted to a lower court for resentencing. It is also for the Board to determine whether to grant bail pending resentencing. At the conclusion of the hearing on 10th December 2024, the Board, having considered the factual and procedural background and the written and oral submissions, announced that it would advise His Majesty, with reasons to follow, that an order should be made: (a) quashing the life sentence imposed on the appellant in 1996; and (b) remitting resentencing of the appellant to a lower court. The Board now gives its reasons for so advising His Majesty.

At the conclusion of the hearing on 10th December 2024, the Board also announced that the appellant was entitled to his liberty in advance of His Majesty considering the advice of the Board. Accordingly, by order dated 13th December 2024, the Board, exercising its inherent power to admit an appellant before it to bail (see Çukurova Finance International Ltd v. Alfa Telecom Turkey Ltd (Nos 3 to 5) [2013] U.K.P.C. 25; [2016] A.C. 923, para 17; and Washington v. The King [2024] U.K.P.C. 34 at [12]) directed that the appellant be released on bail subject to the condition that he wear an electronic monitoring brace.

Whilst the appellant and the Attorney General, in effect, were agreed on the outcome and were agreed that it was only the Board which had jurisdiction to vary its earlier advice, there was disagreement as to: (a) the procedural route to be taken to bring the matter before the Board; (b) the jurisdictional basis for arriving at the outcome; and (c) whether resentencing should be remitted to the Court of Appeal or to the Supreme Court.

In relation to the procedural route, the Attorney General submitted that an application could and should have been made by the appellant directly to the Board to rescind or vary its 1996 advice as to the constitutional redress then to be afforded to the appellant. The Attorney General submitted that there was no requirement for the appellant to bring any new constitutional proceedings before the lower courts to challenge the Board's 1996 advice. On behalf of the appellant, Ms Clift-Matthews accepted that an application could have been made directly to the Board and she made that application. However, she submitted that in addition an application could be made, and in fact had been made, to the Supreme Court for constitutional redress under article 28 of the Constitution of the Commonwealth of The Bahamas as scheduled to The Bahamas Independence Order 1973 (SI 1973 No 1080) (“the Constitution”). She submitted that if constitutional redress was not available in the Supreme Court by virtue of the principle that the advice of the Board, the highest appellate court, and the order of Her Majesty were final, then the matter could be appealed to the Court of Appeal. Again, if constitutional redress was not available in the Court of Appeal, by virtue of the principle of finality, then the matter could be appealed to the Board and the Board it was suggested could then make an order under article 28 of the Constitution.

In relation to the jurisdictional basis, the Attorney General submitted that the correct jurisdiction was the inherent jurisdiction of the Board in appropriate cases to rescind or vary its earlier advice. The Board will term this jurisdictional basis “the Pinochet jurisdiction.” However, Ms Clift-Matthews on behalf of the appellant, whilst accepting that the jurisdictional basis included the Pinochet jurisdiction, contended that there was also a parallel jurisdiction by virtue of the new constitutional proceedings which had been initiated in the Supreme Court challenging the Board's 1996 advice. The Board will term this proposed jurisdictional basis, which relies on new constitutional proceedings, as “the constitutional jurisdiction based on new proceedings.”

In relation to the constitutional jurisdiction based on new proceedings, Ms Clift-Matthews submitted that the earlier advice of the Board was in breach of, for instance, article 20(1) of the Constitution. Article 20(1), in so far as relevant, provides that “[i]f any person is charged with a criminal offence, then … the case shall be afforded a fair hearing ….” Accordingly, she submits that, as the appellant was not afforded a fair hearing before the Board in 1996, he could apply, pursuant to article 28(1) of the Constitution, to the Supreme Court for redress. Article 28(1), in so far as relevant, provides:

“If any person alleges that any of the provisions of Articles 16 to 27 (inclusive) of this Constitution has been … contravened in relation to him then, Without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the Supreme Court for redress.” (Emphasis added.)

It is convenient at this stage to note that the right to apply for redress is “without prejudice to any other action with respect to the same matter which is lawfully available.” The right to apply directly to the Board to reconsider its 1996 advice is such a lawfully available action. It is also convenient at this stage to set out the proviso to article 28(2) which provides that:

“… the Supreme Court shall not exercise its powers under this paragraph if it is satisfied that adequate means of redress are or have been available to the person concerned under any other law.”

Accordingly, the power under article 28(2) of the Constitution for the Supreme Court to make, for instance, such orders as are appropriate for the purpose of enforcing the protections in article 20(1) is subject to the proviso that it shall not exercise its powers if it is satisfied that adequate means of redress are available to the person concerned under any other law.

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