Trevor Nathaniel Pennerman Fisher v The Minister of Public Safety and Immigration and Others
| Jurisdiction | UK Non-devolved |
| Judge | Lord Lloyd of Berwick,Lord Slynn of Hadley,Lord Hope of Craighead |
| Judgment Date | 05 October 1998 |
| Judgment citation (vLex) | [1998] UKPC J1005-1 |
| Court | Privy Council |
| Docket Number | Appeal No. 35 of 1998 |
[1998] UKPC J1005-1
Present at the hearing:-
Lord Slynn of Hadley
Lord Lloyd of Berwick
Lord Hoffmann
Lord Hope of Craighead
Lord Hutton
Privy Council
[Majority Judgment delivered by Lord Lloyd of Berwick]
The background to this appeal is set out in a previous decision of the Board Fisher v. Minister of Public Safety and Immigration (" Fisher No. 1") reported at [1998] 3 W.L.R. 201. It is unnecessary to do more than repeat the salient facts. On 4th October 1990 the appellant was arrested for the murder of Durventon Daniels. On 25th March 1994 he was convicted and sentenced to death. His appeal against conviction was dismissed by the Court of Appeal on 10th October 1994. On 10th February 1996 he petitioned for leave to appeal to the Privy Council. On 23rd May 1996 his petition was dismissed. On 7th June 1996 he petitioned the Inter-American Commission on Human Rights ("IACHR") stating that he had exhausted his domestic remedies, and was at imminent risk of being executed. On 23rd September 1996 the Government wrote to the Commission confirming that the appellant had exhausted his domestic remedies. It was not until 5th May 1998 that the appellant's petition was declared admissible. The latest information is that his case will be considered at the next session of the Commission to be held in Washington D.C. between 28th September and 16th October 1998, nearly two and a half years after the petition was received. It is not known whether the Commission will then be in a position to issue its final Report, or whether there will be further delay.
Meanwhile on 5th September 1996 a warrant had been read for the execution of the appellant on 12th September 1996. On 10th September 1996 he filed an originating motion claiming constitutional redress. The main issue raised by the appellant related to the period of three years and four months during which he had been detained in prison prior to his trial. It was argued that this period should be added to the period of two years and six months since the trial, so as to arrive at a total period of over five years' delay, thus rendering the appellant's execution inhuman on the principles stated in Pratt and Another v. Attorney-General for Jamaica (" Pratt and Morgan") [1994] 2 A.C. 1.
In addition to his main ground of complaint, the appellant relied on other grounds. He argued (i) that it would be unlawful to execute him having regard to the inhuman conditions in which he had been detained, (ii) that the mandatory death sentence in The Bahamas was unconstitutional and (iii) that he had a legitimate expectation that he would not be executed while his petition to the IACHR was outstanding. Osadebay J. rejected all these grounds, and his decision was upheld in the Court of Appeal.
When the case came before the Board there does not appear to have been any argument in support of the three additional grounds. As to the main ground, the Board held that while the pre-trial delay might, in exceptional circumstances, be taken into account, there were no exceptional circumstances in the present case. It was not permissible for the purpose of invoking the principle in Pratt and Morgan simply to add pre-trial delay to post-conviction delay.
But a further subsidiary issue was raised for the first time before the Board. It was destined to become the germ of the current proceedings. In Henfield v. Attorney-General of the Commonwealth of The Bahamas [1997] A.C. 413 it had been argued that the 18 month period allowed in Pratt and Morgan for presenting a petition to the United Nations Human Rights Committee ("UNHRC") should be deducted from the five years indicated in that case, since The Bahamas is not a signatory to the International Covenant on Civil and Political Rights or the Optional Protocol, so that a citizen of The Bahamas has no right of individual access to UNHRC. This argument was accepted by the Board, though not in precisely the same terms as it was advanced. What had to be done was to identify an overall period which was not only sufficient to allow for appellate procedures, but was also of such a length as to render subsequent execution inhuman treatment. Applying that approach the Board arrived at an overall period for The Bahamas of three and a half years.
Unfortunately it was not appreciated when Henfield was decided that although citizens of The Bahamas have no right of individual access to UNHRC, they have right of access to IACHR. Accordingly the Board in Fisher No. 1 was asked by the respondents to reconsider the three and a half years established as the norm for The Bahamas in Henfield, and to revert to the five years indicated as the norm in Pratt and Morgan.
The Board expressed some concern in considering a question which did not arise directly for decision. Nevertheless the Board thought it right to hold that the decision on this point in Henfield was per incuriam. The Board took into account an assurance given by Sir Godfray Le Quesne Q.C. on behalf of the Government of The Bahamas that the Government would "respect the applicable regulations" under the Convention, and that it "fully intended to honour its obligations in this respect". The Board was also influenced by the fact that the Government had already responded to communications from the Commission in this very case.
The Board's decision in Fisher No. 1 was announced on 16th December 1997. On 26th March 1998 the warrant of execution was read for the second time. Three days later the appellant filed a further motion for constitutional relief. The motion was dismissed by Longley J. on 3rd April, but a conservatory order was granted until 14th April. The Court of Appeal dismissed the appeal on that day, and granted a further conservatory order to enable a petition to be lodged. On 8th May 1998 the Board gave leave, and granted a conservatory order pending the determination of this appeal.
The ground on which the new constitutional motion was argued before Longley J. was that the Government having given an undertaking through Sir Godfray Le Quesne that it would abide by the IACHR Regulations, the appellant had a legitimate expectation that the Government would allow a reasonable time for the completion of the process. It was submitted that a reasonable time in the circumstances was not less than 18 months commencing on 16th December 1997.
Longley J. and the Court of Appeal rejected this argument for the following reasons. The appellant had filed his petition on 7th June 1996. It had therefore been under consideration by the Commission for 21 months when the execution warrant was read for the second time on 26th March 1998. No doubt the Commission was entitled to a reasonable time to consider the decision of the Privy Council in Fisher No. 1. But two months from 16th December 1997 was long enough for that. The Government was therefore justified in writing to the Commission, as they did on 29th December 1997, inviting it to complete its consideration of the case by 15th February 1998, and in so informing the appellant's solicitors by letters dated 2nd January 1998 and 30th January 1998. In the event over three months had elapsed before the execution warrant was read on 26th March 1998.
When the case came on for hearing before their Lordships, Mr. Owen Davies argued that even if (contrary to his submissions) time began to run when the petition was filed on 7th June 1996 the time allowed by the Government was insufficient for the Commission to consider and report on the petition. He relied on Sir Godfray's undertaking given in the course of Fisher No. 1. The appellant's case "only came alive" as a consequence of that undertaking. Mr. Davies specifically disclaimed any argument that the Government was obliged to wait indefinitely.
Sir Godfray, for his part, accepted that the Government had said, and meant, that it would allow a reasonable time for the completion of the Commission's enquiries. There were therefore two questions for decision, namely, (i) whether a reasonable time had expired by 26th March 1998 and, if not, (ii) whether the law provides the appellant with a remedy, by way of constitutional redress or otherwise.
As to the first question, Sir Godfray pointed out that the time limits allowed under Article 34(5) and (7) of the Regulations for the initial processing of petitions in a non-urgent case is 90 days and 30 plus 30 or 60 days respectively. The time allowed under Article 44(3) between the completion of the investigation and the announcement of the decision is 180 days, making 330 days or 11 months in all. If one then allows seven months for the intermediate stages, one arrives at a total of 18 months. This, said Sir Godfray, suggests that the norm established in Pratt and Morgan for petitions to international human rights bodies is not far wrong. Furthermore, the Commission was in possession of all the material it required by 7th April 1997. On 12th August and 21st November 1997 the Government wrote to the Commission asking it to give the case its urgent attention. On 29th December 1997 the Government wrote as follows:-
"As you are aware Excellency, more than 18 months have elapsed since Mr. Fisher filed his Petition with the Commission and in this regard, despite reminders the petition has not been dealt with. I am sure, Excellency, you will appreciate that the Government of The Bahamas cannot wait indefinitely for the Commission to deal with this Petition. Consequently unless the Commission makes its final decision by the 15th day of February, 1998, the Government of The Bahamas will be obliged to take such steps as it deems necessary and...
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