Thomas and Another v Baptiste and Others

[Majority Judgment to which Lord Browne-Wilkinson, Lord Steyn and Lord Millett are parties, delivered by Lord Millett]

These appeals are brought with the leave of the Court of Appeal of Trinidad and Tobago from the dismissal of the appellants' constitutional motions which claimed that in the events which had happened it would be unlawful to carry out the sentences of death passed on them for murder. On 27th January 1999 their Lordships announced their decision to grant a stay of execution pending the determination of the appellants' current petitions to an international body. They now give their reasons for their decision, and for their refusal to accede to the appellants' claim that the death sentences be commuted.

Two main issues arise for decision by their Lordships: whether at the relevant time a condemned man under sentence of death had a constitutional right to have his application to the Inter-American Commission on Human Rights considered and determined before the sentence was carried out;

whether the carrying out of a death sentence lawfully imposed can be rendered unconstitutional by the inhuman conditions in which the condemned man has previously been detained and the manner in which he has been treated while in detention.

The background.

The present Constitution of Trinidad and Tobago came into force on the 1st August 1976. Among other things it affirms the right of the individual to life, liberty, security of the person and enjoyment of property and the right not to be deprived thereof "except by due process of law" (section 4(a)). It also prohibits the imposition of "cruel and unusual treatment or punishment" (section 5(2)(b)). Their Lordships observe that the fundamental rights and freedoms enshrined in the Constitution (though not section 4(a) which has an English and remoter ancestry) are framed in the light of the Universal Declaration of Human Rights 1948 and the European Convention for the Protection of Human Rights and Fundamental Freedoms 1953 (Cmd. 8969). They also observe that, like the previous Constitution, the 1976 Constitution proceeds on the assumption that the human rights and fundamental freedoms which it affirms and entrenches were already secured to the people of Trinidad and Tobago by the common law: see de Freitas v. Benny[1976] A.C. 239, 244.

The Government of Trinidad and Tobago ratified the International Covenant on Civil and Political Rights ("the International Covenant") in 1978. It acceded to the Optional Protocol to the International Covenant in 1980. The International Covenant, which was adopted by the General Assembly of the United Nations in 1966 and came into force in 1976, constitutes a commitment by the States which are parties to the Covenant to observe certain fundamental norms of conduct to be supervised by international institutions. The United Nations Human Rights Committee ("the UNHRC") is the institution charged with supervising the conduct of the State parties to the Covenant. The Optional Protocol gave individuals right of access to the UNHRC.

On 28th May 1991 the Government of Trinidad and Tobago ratified the American Convention on Human Rights 1969 ("the Convention"). The Convention established two institutions, the Inter-American Commission on Human Rights ("the Commission") and its judicial organ the Inter-American Court of Human Rights ("the IACHR") to which the Commission could refer disputes. By ratifying the Convention the Government of Trinidad and Tobago recognised the Commission's competence to entertain petitions from individuals complaining of violations of the Convention and to make reports and recommendations in respect thereof. It also recognised the compulsory jurisdiction of the IACHR to give binding rulings on the interpretation and application of the Convention. This was subject to a reservation which was primarily designed to preserve the legitimacy of the death penalty but which in other respects their Lordships are satisfied is not material to these appeals.

In Pratt v. Attorney-General for Jamaica [1994] 2 A.C. 1 this Board held that to carry out a sentence of death after a delay of 14 years would constitute inhuman punishment and would be unconstitutional under the law of Jamaica. The Board ruled at pages 34-35 that the aim should be to hear a capital appeal in Jamaica within 12 months of conviction and to complete the entire domestic appeal process within two years; that it should be possible to complete applications to the UNHRC "with reasonable despatch" and at the most within a further 18 months; and that where execution was to take place more than five years after sentence there would be strong grounds for believing that the carrying out of the sentence would constitute inhuman or degrading punishment or other treatment contrary to the Constitution of Jamaica.

By 1997 a significant number of persons who had been convicted of murder and sentenced to death in Trinidad and Tobago were petitioning the UNHRC or the Commission complaining of violations of their rights under the Convention. It appeared to the Government that the proceedings of these institutions were being conducted with an insufficient degree of urgency, and despite its attempts to do so it was unable to persuade the international bodies to deal with complaints more speedily. The Government became concerned that even if the petitions were dismissed they would not be dealt with in time to allow the sentences to be carried out within the time limits contemplated in Pratt.

Accordingly, on 13th October 1997 the Government published "Instructions relating to applications from persons under sentence of death" ("the Instructions"). These prescribed strict time limits and procedures for applications by prisoners under sentence of death to the UNHRC and the Commission. This was an attempt to achieve three objectives which, as events later showed, proved to be irreconcilable. They were (i) to respect the mandatory death sentence for murder under the law of Trinidad and Tobago (ii) to comply with the time limits laid down in Pratt which also formed part of the law of Trinidad and Tobago and (iii) to co-operate with the international human rights institutions. The Instructions did not, however, achieve the desired effect. There appeared to be no prospect of obtaining a prompt response to petitions presented by persons awaiting execution in Trinidad and Tobago. Accordingly on 26th May 1998 Trinidad and Tobago denounced the American Convention on Human Rights (as it was entitled to do) with effect from 26th May 1999. At the same time it denounced the Optional Protocol to the International Covenant with effect from 26th August 1998 and re-acceded to it subject to a reservation in respect of anyone who had been condemned to death.

The appellants.

The appellant Darrin Roger Thomas was arrested on 12th February 1993 and charged with murder. He remained in custody until trial. He was convicted and sentenced to death on 15th November 1995. The Court of Appeal of Trinidad and Tobago dismissed his appeal against conviction on 20th June 1997. His application for special leave to appeal to their Lordships' Board was dismissed on 11th March 1998.

On 31st March 1998, that is to say after the publication of the Instructions, Thomas lodged a petition with the Commission. In his petition he alleged that his human rights had been violated ( inter alia) by the excessive delay in bringing him to trial, the inadequacy of his legal representation at trial, and the inhuman conditions in which he had been detained in prison both before and since conviction. By 1st May 1998, the latest time provided for in the Instructions, the Commission had still not sought the Government's response to Thomas' complaints. Accordingly the Advisory Committee on the Power of Pardon ("the Advisory Committee") met on 12th June 1998. No reprieve was forthcoming, and on 25th June 1998 a warrant was read for Thomas' execution.

On the following day Thomas filed a motion for constitutional relief. On the same day the IACHR requested information in connection with his petition and asked for his execution to be stayed. The constitutional motion came before Jamadar J. on 27th June 1998. On 15th July he acceded to the motion, vacated the sentence of death, and ordered that Thomas be held in custody during the President's pleasure. The Court of Appeal allowed the respondents' appeal and dismissed the constitutional motion. The effect was to reinstate the sentence of death.

The appellant Haniff Hilaire was arrested on 14th February 1991 and charged with murder. He remained in custody until trial. He was convicted and sentenced to death on 29th May 1995. The Court of Appeal dismissed his appeal against conviction on 7th November 1996.

On 7th October 1997 Hilaire lodged a petition with the Commission. This was premature, as the Commission is incompetent to entertain a petition until the petitioner has exhausted his domestic remedies. Without withdrawing his petition to the Commission, Hilaire then proceeded to file a petition for special leave to appeal to their Lordships' Board, which was dismissed on 6th November 1997, that is to say, after the Instructions had been published. Thereafter the Commission accepted his petition without requiring it to be re-submitted. Their Lordships are unable to accept a submission on behalf of Hilaire that the Instructions were applied...