1. On this application for leave to appeal as a
poor person an important question regarding the proper construction of section
104(2) of the Constitution of the Commonwealth of The Bahamas arose. At the conclusion of the hearing their
Lordships agreed humbly to advise Her Majesty that the petitioner ought to be
granted special leave to appeal. They
now record their decision and reasons on the point of construction.
2. In May 1990 the applicant was arrested and
charged with murder. In August 1990 he
was committed for trial. On 30th
November 1992 the applicant was convicted of murder in the Supreme Court,
Nassau. The trial judge sentenced the
applicant to death. In April 1994 the
Court of Appeal of the Commonwealth of The Bahamas dismissed an appeal by the
applicant against conviction. In March
this year the Judicial Committee of the Privy Council dismissed the applicant's
petition and supplemental petition for special leave to appeal. The Advisory Committee on the Prerogative of
Mercy then considered the applicant's case.
The advice was that the law should take its course. On 27th March a warrant for execution was
read to the applicant and a time for execution was set at 8.00 a.m. on 9th
April.
3. On 3rd April the applicant submitted a motion
under article 28 of the Constitution claiming, on the principle established in Pratt
v. Attorney General for Jamaica [1994] 2 A.C. 1, that the delay in carrying
out the execution in his case contravened his fundamental right to protection
from inhuman and degrading treatment guaranteed by Article 17(1) of the
Constitution. At the same time the
applicant applied for an order staying his execution pending determination of
his constitutional motion. Osadebay J.
dismissed the application for a stay pending determination of the
constitutional motion but granted a short stay pending appeal. In written reasons dated 9th April the judge
concluded that the applicant's motion was "plainly and obviously bound to
fail, `being plainly and obviously ill-founded'". For this reason he dismissed the application. The applicant appealed. On 29th April the Court of Appeal dismissed
the appeal. In written reasons dated
6th May the Court of Appeal treated the applicant's constitutional motion as
doomed to fail since "the period of three years and four months spent by
the Appellant on death row does not on the Pratt principle
raise a presumption of inhuman or degrading treatment or punishment". Nevertheless the Court of Appeal granted a
short stay pending the submission of a petition for special leave to appeal to
the Privy Council. That is the
background against which the application for leave to appeal as a poor person
came before their Lordships.
4. It is now necessary to turn to Article
104. It provides as follows:-
"(1) An appeal to the Court of Appeal
shall lie as of right from the final decisions of the Supreme Court given in
exercise of the jurisdiction conferred on the Supreme Court by Article 28 of
this Constitution (which relates to the enforcement of fundamental rights and
freedoms).
(2) An
appeal shall lie as of right to the Judicial Committee of Her Majesty's Privy
Council or to such other court as may be prescribed by Parliament under Article
105(3) of this Constitution from any decision given by the Court of Appeal in
any such case."
5. There was a debate as to whether an appeal lies
as of right in the present case.
Counsel for the applicant contrasted the right of appeal under Article
104(1) to the Court of Appeal against "the final decision of the
Supreme Court" with the right of appeal under Article 104(2) from
"any decision given by the Court of
6. Appeal in any such case". That wording, he argued, was wide enough to
cover any decision whether final or interlocutory. Their Lordships reject that literal interpretation. It would be unworkable since it would
involve an appeal as of right, for example, on a decision to adjourn the
proceedings for further enquiries to be made.
In their Lordships' view Article 104(2) contemplates a decision
determining a constitutional motion.
7. On behalf of the Attorney General it was
submitted that there is no right of appeal since the decision of the Court of
Appeal was interlocutory in character.
Counsel said that it makes no relevant difference whether the
consequence of the refusal of a stay may result in the execution of the
applicant. Counsel argued that the
focus must be on the technical character of the order made. And no formal order had been made dismissing
the constitutional motion. This is too
formalistic an approach to the interpretation of the provisions of Article
104(2). It is well settled that
constitutional provisions must be generously construed. And it is clear that both the judge and the
Court of Appeal ruled that the constitutional motion was doomed to fail. At both levels it was decided that there was
nothing to try on the constitutional motion.
Both courts treated the constitutional motion as if it were struck
out. In substance and effect the
constitutional motion was adversely determined to the applicant.
8. It follows that there is an appeal as of
right. If the applicant were not a poor
person he would require no special leave.
He is, however, a poor person and accordingly seeks special leave to
appeal as such.
9. Having decided to grant special leave to the
applicant their Lordships propose to say nothing about the merits or demerits
of the appeal. On the other hand, for
the avoidance of doubt their Lordships make clear that even in a case where an
appeal lies as of right their Lordships consider that it would be inappropriate
to grant special leave to appeal as a poor person where it is plain beyond
rational argument that the appeal is doomed to fail.
CROWN
COPYRIGHT as at the date of judgment.