The Queen v Peter Hughes
| Jurisdiction | UK Non-devolved |
| Judge | Lord Rodger of Earlsferry |
| Judgment Date | 11 March 2002 |
| Neutral Citation | [2002] UKPC 12 |
| Court | Privy Council |
| Docket Number | Appeal No. 91 of 2001 |
| Date | 11 March 2002 |
[2002] UKPC 12
Present at the hearing:-
Lord Bingham of Cornhill
Lord Hutton
Lord Hobhouse of Woodborough
Lord Millett
Lord Rodger of Earlsferry
Privy Council
[Delivered by Lord Rodger of Earlsferry]
On 27 July 1998 in the High Court of Saint Lucia the respondent, Peter Hughes, was convicted of the murder of Jason Jean. At his trial witnesses gave evidence that they had seen Hughes, following some remark by Jean, strike him with a piece of post and a stone and jump on him. Jean died from head injuries with extensive bleeding and from a chest injury with a contusion to the heart.
Section 178 of the Criminal Code of Saint Lucia as revised in 1992 is in these terms:
"Whoever commits murder is liable indictably to suffer death."
Section 1284 provides:
"Unless otherwise expressly provided, a Court may sentence any offender to any less punishment, other than death, than that prescribed."
Section 1291 provides:
"The sentence, to be pronounced upon a person who is convicted of an offence punishable with death, is that he be hanged by the neck until he is dead."
On the view that these provisions required that the death sentence be imposed on anyone convicted of murder, Hughes was sentenced to death by hanging.
He appealed against his conviction to the Eastern Caribbean Court of Appeal which dismissed the appeal on 8 February 1999. On 19 April 2000, however, their Lordships' Board granted Hughes special leave to appeal against the sentence of death passed on him and remitted the case to the Court of Appeal to decide whether (a) the mandatory sentence of death imposed on him should be quashed (and, if so, what sentence (including sentence of death) should be imposed) or (b) the mandatory sentence of death imposed on him should be affirmed.
Their Lordships pause at this point to notice that on 11 November 1998, after a retrial in the High Court of Saint Vincent, Newton Spence was convicted of murder. He was sentenced to death, by virtue of section 159 of the Criminal Code of Saint Vincent which makes the death sentence mandatory in cases of murder. On 19 April 2000, on the same day as it granted special leave in the case of Hughes, their Lordships' Board granted Spence special leave to appeal against both his conviction and sentence. The Board remitted the matter of sentence to the Eastern Caribbean Court of Appeal on the same basis as in the case of Hughes, but decided to hear Spence's appeal against conviction.
Before Spence's appeal against conviction could be heard, however, in December 2000 the Court of Appeal heard argument in the remits in the case of Hughes and the case of Spence. The issues in the two cases were exactly the same. On 2 April 2001 the Court of Appeal (Sir Dennis Byron CJ and Saunders JA (Ag), Redhead JA dissenting) held that the mandatory death sentence for murder constituted inhuman or degrading punishment or treatment in terms of section 5 of the Constitution of Saint Lucia as set forth in the Saint Lucia Constitution Order 1978 ( SI 1978 No 1901) ("the Saint Lucia Order"):
"No person shall be subjected to torture or to inhuman or degrading punishment or other treatment."
The Court of Appeal also held that the mandatory death penalty was inconsistent with the identically worded section 5 of the Constitution of Saint Vincent, as set forth in the Saint Vincent Constitution Order 1979 ( SI 1979 No 916) ("the Saint Vincent Order"). The Court of Appeal accordingly made orders quashing the sentences of death imposed on Hughes and Spence and remitting to the High Courts of Saint Lucia and Saint Vincent respectively to determine the appropriate sentence in each case.
Some months later, on 16 July 2001, the Board allowed Spence's appeal against conviction on the ground that one of the jurors had been wrongly discharged [2001] UKPC 35. The Board accordingly quashed his conviction and remitted the case to the Court of Appeal to consider whether there should be an order for a (second) retrial. The Court of Appeal has yet to make a decision on that matter. The position therefore is that, at present, Spence does not stand convicted of any crime and is not under sentence of death. But, in the event of a retrial being ordered and of his being convicted of murder for a third time, he would again, inevitably, be sentenced to death if the mandatory death penalty were to be regarded as being consistent with the Constitution of Saint Vincent.
On 24 July 2001, the Board granted the Crown special leave to appeal against the decision of the Court of Appeal quashing the death sentence imposed on Hughes. At the hearing of the appeal Sir Godfray Le Quesne QC appeared for the Crown. At this stage his argument may be sketched in this way. First, Sir Godfray submitted that paragraph 10 of schedule 2 to the Saint Lucia Order ("paragraph 10") prevented any court from holding that the mandatory death penalty was inconsistent with section 5 of the Constitution since the mandatory death penalty for murder had been lawful in Saint Lucia immediately before 1 March 1967. Paragraph 10 is in these terms:
"Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of section 5 of the Constitution to the extent that the law in question authorises the infliction of any description of punishment that was lawful in Saint Lucia immediately before 1 March 1967 (being the date on which Saint Lucia became an associated state)."
A similar argument would apply to the case of Spence by virtue of paragraph 10 of schedule 2 to the Saint Vincent Order which made the same provision in relation to laws in effect before 27 October 1969 when Saint Vincent became an associated state. Secondly, even if he were wrong on the application of paragraph 10, Sir Godfray contended that the imposition of the mandatory death penalty could not be regarded as inhuman or degrading punishment or treatment in terms of section 5 of the Constitution. In particular he argued that the Constitution contained a specific mechanism for the individuation of the sentence in cases of murder. Even though the judge had to impose a death sentence, under section 76 the Minister was required to obtain a report from the judge and to place it before the Committee on the Prerogative of Mercy who had to consider it along with any other relevant material. Their advice to the Governor General on the exercise of the royal prerogative of mercy was binding (section 74(2)). As the Board had observed in Lewis v Attorney-General of Jamaica [2001] 2 AC 50, 77F, "the act of clemency [was] to be seen as part of the whole constitutional process of conviction, sentence and the carrying out of the sentence". By this composite process, involving both the judge and the Committee, the appropriate sentence was determined. The validity of that approach had been recognised by the Court of Appeal of Belize in Lauriano v Attorney-General [1995] 3 Bz LR 77.
In reply, Mr Fitzgerald QC rejected these arguments. He submitted, first, that section 178 of the Criminal Code of Saint Lucia did not provide that the death penalty was mandatory in the case of murder. Even if that submission were wrong, however, the Court of Appeal had been right to hold that the mandatory death penalty was inconsistent with section 5 of the Constitution. They had also been right to hold that they were not prevented from reaching that conclusion by paragraph 10. He further submitted that the mandatory death penalty was inconsistent with the respondent's right to life under sections 1 and 2 of the Constitution. That contention was unaffected by paragraph 10 which would at most apply only to a challenge based on section 5. The argument based on sections 1 and 2 had been accepted by the Chief Justice in the Court of Appeal but Saunders JA (Ag) had found it unnecessary to deal with it.
In so far as there might be any live issue in the case of Spence, Mr Guthrie QC adopted Mr Fitzgerald's submissions. Before the hearing the attorneys-general of a number of countries had been given leave to intervene. In the event no separate submissions were made on their behalf. Although Mr Guthrie assisted the Board by presenting certain material in relation to those states, it is not in fact necessary to examine it. As can be seen, the focus of the arguments before the Board was on the present appeal and their Lordships will address the issues in that context too.
Immediately after hearing this Crown appeal, the Board went on to hear the appeal by Berthill Fox against the death sentence imposed on him by the High Court of Saint Christopher and Nevis. The issues in that appeal are similar to those in this case and their Lordships' conclusion on that appeal is similar to their conclusion in the present case. They have, however, prepared a brief separate opinion containing their advice in the appeal by Fox: Fox v The Queen [2002] UKPC 13.
After the case of Fox the Board heard the appeal by Patrick Reyes against the death sentence imposed upon him by the High Court of Belize. Mr Fitzgerald appeared for that appellant also and, again, his contention was that the mandatory death sentence was inhuman or degrading punishment or treatment, this time in terms of section 7 of the Constitution of Belize 1981. He also submitted that the mandatory death sentence was inconsistent with the appellant's right to life under sections 3 and 4 of that Constitution. In these respects, the issues in the case of Reyes were similar to the issues in the present case. There was one significant difference, however. The Constitution of Belize contains no exact equivalent of paragraph 10 in schedule 2 to both the Saint Lucia and the Saint Vincent Orders. The nearest equivalent –...
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