1. This

is an appeal from a judgment of the Court of Appeal of the Commonwealth of

The Bahamas (The Honourable Acting Chief Justice Cyril Fountain sitting

ex-officio) dated 30th May 1995 dismissing an appeal from the refusal of the

Supreme Court (Mr. Justice Emmanuel Osadebay) to grant the petitioner a stay

of execution of the sentence of death passed upon the petitioner pending a

hearing of a Constitutional Motion to the Supreme Court of the Commonwealth

of The Bahamas which alleges that the carrying out of that sentence would be

unconstitutional.

2. On 4th May 1989 Thomas

Reckley (the petitioner) was charged with the offence of murder. On 7th

November 1990 he was convicted and sentenced to death. He appealed against

both conviction and sentence to the Court of Appeal which dismissed his

appeal on 3rd May 1991. He petitioned for special leave to appeal against

his conviction to this Board. His application for leave was dismissed by

their Lordships on 12th March 1992.

3. Article 90 of the Constitution

of the Commonwealth of The Bahamas confers on the Governor-General a power of

pardon. Articles 91 and 92 establish an Advisory Committee on the Prerogative of

Mercy ("the Advisory Committee"). Where an offender has been sentenced

to death the relevant Minister is bound to cause a written report of the case

from the trial judge "together with such other information derived from the

record of the case or elsewhere as the Minister may require" to be taken

into consideration at a meeting of the Advisory Committee. The Minister is not

bound to act in accordance with the advice of the Advisory Committee.

4. At the time of the dismissal

by their Lordships of the petitioner's petition for leave to appeal against

conviction there were constitutional proceedings pending before the Bahamian

courts, Larry Jones v. The Attorney General of the Commonwealth of The

Bahamas. In those proceedings, the plaintiffs (who were all under sentence

of death) were challenging the legality of the carrying out of the death

sentence in The Bahamas on three different grounds, none of which are directly

relevant to these proceedings. However, if the Larry Jones proceedings

had been successful they would have established that the carrying out of the

death sentence in The Bahamas was unlawful. As a result of those pending

proceedings in the Larry Jones case, the Attorney General indicated that

no death sentences would be carried out until the Larry Jones proceedings

had been determined. The Larry Jones proceedings ended on 11th April

1995, when Her Majesty in Council approved the Board's judgment delivered on 3rd

April 1995 that the appeal ought to be dismissed. In their judgment their

Lordships rejected the attack on the legality of carrying out the death sentence

in The Bahamas.

5. On 8th May 1992 the lawyers

acting for the petitioner wrote to the Advisory Committee inviting them to take

into account certain features of his case. They received no acknowledgment or

response to that letter, despite a reminder. In fact, the petitioner's case was

not referred to the Advisory Committee until after the dismissal of the appeal

in the Larry Jones case on 3rd April 1995 which led to the possibility of

a resumption of executions. The Advisory Committee met on 18th May 1995. On 25th

May 1995 a death warrant was signed by the Governor-General directing that the

sentence of death be carried out on 30th May 1995 at 8.00 a.m. The warrant was

read to the petitioner at 7.28 a.m. on the morning of Friday, 26th May 1995. At

that time he had still not been informed of the outcome of the proceedings

before the Advisory Committee or the Minister's advice to the Governor-General:

the certificate of the reading of the warrant records that he was under the

apprehension that his case was to be considered by the Advisory Committee. The

petitioner was not informed of the outcome until he received a letter, dated

25th May 1995, at approximately 6.00 p.m. on 26th May.

6. On 26th May 1995 the

petitioner launched a Constitutional Motion in the Supreme Court alleging that

the execution of the sentence of death would be a contravention of his

constitutional rights under Articles 15 to 27 of the Constitution including,

in particular, his right under Article 17 not to be subjected to inhuman or

degrading punishment or treatment. On 29th May, 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.

After a long hearing, the judge at about 10.10 p.m. on the same day refused to

grant any stay stating that he would give his written reasons in due course.

An appeal against the refusal of the stay was heard by the Acting Chief

Justice of the Supreme Court, sitting ex-officio as a single judge of the

Court of Appeal, who, at 1.05 a.m. in the morning of 30th May 1995 dismissed

the appeal and declined to grant a stay of execution pending the hearing of an

appeal to the Board. On 30th May 1995 at approximately 6.00 a.m. Bahamas time

(11.00 a.m. London time) the Board made a conservatory order directing

that the petitioner be not executed pending the hearing of his petition of

appeal against the decision of the Chief Justice. That petition was heard by

the Board on Thursday, 8th June 1995.

7. The petitioner's case, both

before the courts in The Bahamas and before their Lordships, has been based on

the fact that Article 28 of the Constitution gives him a constitutional right

to bring proceedings in the Supreme Court alleging infringement of the basic

rights assured to him by Article 16 to 27 of the Constitution and a

constitutional right of appeal in such cases, if necessary to the Privy

Council. It is argued that in death penalty cases it must follow that a stay

of execution must be granted pending the disposal of the Constitutional Motion

(including all rights of appeal) since otherwise the constitutional right is

rendered nugatory.

8. Their Lordships accept that,

if the Constitutional Motion raises a real issue for determination, it must be

right for the courts to grant a stay prohibiting the carrying out of a

sentence of death pending the determination of the Constitutional Motion. But

it does not follow that there is an automatic right to a stay in all cases. If

it is demonstrated that the Constitutional Motion is plainly and obviously

bound to fail, those proceedings will be vexatious and could be struck out. If

it can be demonstrated to the court from whom a stay of execution is sought

that the Constitutional Motion is vexatious as being plainly and obviously ill

founded, then in their

9. Lordships' view it is right

for the court to refuse a stay even in death penalty cases. Since the decision

of their Lordships in Pratt and Morgan v. A.G. for Jamaica [1994] 2 A.C.

1 the postponement of the carrying out of the death penalty can have a profound

effect on the question whether it would be inhuman or degrading treatment or

punishment to execute the convicted man given the lapse of time since conviction

and sentence. As Pratt and Morgan itself makes clear, delay caused by

"frivolous and time wasting resort to legal proceedings" by the

accused provides no ground for saying that execution after such delay infringes

the constitutional right: see at pages 29-30. However, their Lordships would

emphasise that a refusal of a stay in a death penalty case is only proper where

it is plain and obvious that the Constitutional Motion must fail. In

cases where the Motion raises a fairly arguable point, even if the court hearing

the application for a stay considers the Motion is ultimately likely to fail,

the case is not appropriate to be decided under the pressures of time which

always attends applications for a stay of execution.

10. In the present case Osadebay

J. adopted an entirely correct approach to the application for a stay. After a

long hearing lasting until 10.00 p.m. at night he reached the conclusion that

the grounds on which it was alleged that the petitioner's rights had been

infringed were plainly bad: he accordingly refused the stay. Shortly stated the

two substantial grounds on which the petitioner relied and relies are as

follows. First (the Pratt and Morgan point) that given that 4 years has

elapsed since sentence of death was passed, to execute him now would conflict

with his right under Article 17 of the Constitution not to be subjected to

inhuman or degrading treatment. Second (the Advisory Committee point) that the

petitioner was entitled to be informed of the judge's report and other materials

put before the Advisory Committee and to make oral or written representations to

the Committee before it tendered its advice.

As to the Pratt and Morgan

point, their Lordships entirely agree with the judge's reasons for his decision.

These are set out in an admirable judgment produced by him with exemplary speed

on 1st June 1995. The total lapse of time since conviction is now 4 years. The

process of exhausting the domestic rights of appeal, including an appeal to

their Lordships, was completed in 16 months. No possible complaint could be made

that this was unjustifiable delay being well within the two year target

envisaged in Pratt and Morgan: see pages 34H-35. After the dismissal of

the petitioner's petition for leave to appeal to their Lordships, following the

guidance in Pratt and Morgan the next step would normally have been the

prompt reference of the case to the Advisory Committee. However the decision in

Pratt and Morgan, at page 21, shows that it is not necessary to make such a

reference where "a decision is awaited in another case ... that may affect

the view of" the Advisory Committee. In the present case there was an even

better reason for not referring the matter to the Advisory Committee since,

until the Larry Jones case was finally decided, there was no question of

carrying out any death sentence in The Bahamas: the lawfulness of carrying out

the sentence of death was in question and the Attorney General had given an

undertaking or assurance that no executions would take place. Almost immediately

after the Larry Jones case had been resolved, prompt steps were taken to

refer the matter to the Advisory Committee. In the circumstances, there was no

possible blame attaching either to the legal system or to the Government for any

delay which has occurred. Moreover, even given the special circumstances, the

delay does not amount to the period of five years mentioned in Pratt and

Morgan. In their Lordships' view, as the judge held, the Pratt and Morgan

point is plainly hopeless.

11. As to the Advisory Committee

point, the judge held that the case advanced was rendered unarguable by the

decision of this Board in de Freitas v. Benny [1976] AC 239. That was

an appeal from Trinidad and Tobago, the Constitution of which contains

provisions as to the role of an Advisory Committee in relation to pardons

virtually identical with those contained in Articles 90-92 of the Constitution

of The Bahamas. This Board rejected a submission that the condemned man was

entitled to be shown the material placed before the Advisory Committee and to

be heard by that Committee at a hearing at which he was legally represented.

It was submitted that the functions of the Advisory Committee were

quasi-judicial and that accordingly any failure to grant the appellant the

rights claimed would contravene the rules of natural justice. Their Lordships

held that the function of the Advisory Committee and the Minister were purely

discretionary and not in any sense quasi-judicial. Therefore the condemned man

had no right either to see the materials or to make representations. Their

Lordships agree with the courts below that, so long as the law stated in de

Freitas remains unchanged, the Advisory Committee point advanced by the

petitioner in the present case was unarguable in the courts below.

12. However, a fresh point was

available to the petitioner before their Lordships. There is an appeal

pending before the Board from Trinidad and Tobago, Guerra v. Baptiste and

Others. That appeal is due to be heard at the end of June 1995. The

appellant in that case is contending that, in the light of the developments

in public law since 1976, the de Freitas case is no longer good law.

In particular it is said that the emergence of the ability to review the

exercise of prerogative powers and the decision of the

13. House of Lords in

R. v. Secretary of State for the Home Department,

Ex parte Doody

[1994] 1 AC 531 indicates that the condemned man does have legal rights to

know what material is being considered by the Advisory Committee and to make

representations. Their Lordships express no view on the merits of the

arguments to be advanced in the Guerra case. But if the appeal in that

case were to succeed, it would undoubtedly affect the merits of the

petitioner's Constitutional Motion in the present case. In the circumstances,

their Lordships are of the view that it would be wrong to permit the sentence

of death on the petitioner to be carried out until the outcome of the

Guerra appeal is known. Their Lordships will therefore direct that a

conservatory order be granted directing that the sentence of death be not

carried out on the petitioner until seven days after the determination of the

appeal in the Guerra case. Their Lordships will also stand over the

further hearing of this petition until after the determination of the

Guerra case.

14. Finally, their Lordships would

add a word as to the procedure to be adopted in cases where application is made

for a stay of execution in a death penalty case. If the first instance judge or

the Court of Appeal reach the view that the Constitutional Motion is so hopeless

that no stay should be granted, it does not follow that it is inappropriate to

grant a short stay to enable their decision to be challenged on appeal. In the

present case, great difficulty was encountered by the petitioner in convening a

Court of Appeal in The Bahamas and a Board of the Privy Council with sufficient

speed to deal with the appeals in the short time available before the time fixed

for execution. In the view of their Lordships, even if a court decides in such a

case not to grant a full stay until determination of the Constitutional Motion

itself, the court should grant a short stay (a matter of days) to enable its

decision to be tested on appeal. Execution of a death warrant is a uniquely

irreversible process. It is neither just nor seemly that a man's life should

depend upon whether an Appellate Court can be convened in the limited time

available.

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