Farrington v. The Queen (Bahamas)

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.