Henfield v. Attorney General of the Commonwealth of The Bahamas (Bahamas)

Introduction

There are before their Lordships two appeals

from the Court of Appeal of The Bahamas, by Dwight Lamott Henfield and Ricardo

Farrington respectively. Each case

raises the question whether, on the principles stated by the Privy Council in Pratt

and Another v. Attorney-General for Jamaica [1994] 2 A.C. 1, the

appellant's sentence to death for murder should be commuted to life

imprisonment on the ground that delay which has elapsed since he was sentenced

to death has had the effect that his execution

would constitute inhuman

punishment, contrary to Article

17(1) of the Constitution of The Bahamas.

The two appeals shared certain common features, and as a result were

heard together.

1. It is necessary for their Lordships to set out

the chronologies of these two cases; but before they do so they should record

that another case has had an impact on the issue of delay in the present

appeals. This was the case concerned

with a constitutional motion brought in The Bahamas by Larry Raymond Jones and

others, in which the applicants claimed (inter alia) a declaration that

the death penalty was contrary to the Constitution of The Bahamas. These consolidated proceedings led to a

decision by the authorities not to carry out any executions pending the

decision on the question whether the death penalty was unlawful. The proceedings in the first of the

consolidated motions began on 21st June 1989, and final judgment was not given

by the Privy Council until 3rd April 1995 (see Jones and Others v.

Attorney-General of the Commonwealth of The Bahamas [1995] 1 W.L.R. 891) so

that the proceedings occupied a total period of 5 years and 10 months. The decision not to carry out any executions

pending the outcome of these proceedings had an impact on both cases now before

their Lordships.

2. In this connection, it is necessary also to

refer to another case from The Bahamas, Reckley v. Minister of Public Safety

and Immigration [1995] 2 A.C. 491.

In that case the applicant, who had been convicted and sentenced to

death for murder, was granted a stay of execution by the Privy Council on 13th

June 1995 to enable him to pursue a claim that he was entitled to be heard by

the Advisory Committee on the Prerogative of Mercy, and for that purpose to see

material available to the Committee.

That claim which, if accepted, required that the earlier decision of the

Privy Council in de Freitas v. Benny [1976] AC 239 should be departed

from, was rejected by the Privy Council on 5th February 1996; see Reckley v.

Minister of Public Safety and Immigration (No. 2) [1996] AC 527. In the case of Reckley, as in the

case of Jones, the authorities in The Bahamas ordered a suspension of

executions pending the outcome of the proceedings; and this decision had some

impact upon the delay in the case of Farrington. Their Lordships wish to place on record that it was entirely

proper for the authorities in The Bahamas to order these suspensions of executions,

in the interests of all those men who were then under sentence of death or

might thereafter be sentenced in the meanwhile.

3. Their Lordships propose now to set out the

chronologies in the two cases before them in tabular form.

(1)Henfield

26th May 1988Conviction and sentence to death.

24th February 1989Appeal against conviction

dismissed by Court of Appeal.

18th September 1989Warrant read for execution

on 24th October.

11th October 1989Stay of execution pending

appeal to Privy Council.

28th July 1993Petition for leave to appeal to

Privy Council.

16th December 1993Petition dismissed by Privy

Council.

3rd February 1995Proceedings begun claiming

execution unlawful on principle in Pratt.

3rd April 1995Privy Council dismisses appeal in

Jones.

12th July 1995Thorne J. commutes Henfield's

sentence to life imprisonment.

15th April 1996Court of Appeal allows appeal

from Thorne J.'s decision.

N.B. The delay which elapsed between Henfield's conviction and sentence on

26th May 1988 and the launching of his constitutional proceedings on 3rd

February 1995 was 6 years and 6 months.

(2)Farrington

30th November 1992Conviction and sentence to

death.

28th April 1994Appeal against conviction

dismissed by Court of Appeal.

3rd April 1995Privy Council dismisses appeal in

Jones.

13th June 1995Privy Council adjourns Reckley's

application for stay of execution.

7th September 1995Petition for leave to appeal

filed with Privy Council on behalf of Farrington.

3rd January 1996Supplemental petition filed.

5th February 1996Privy Council dismisses Reckley's

application.

4th March 1996Farrington's petition for leave

dismissed.

27th March 1996Warrant read for execution on

9th April.

3rd April 1996Ex parte application for stay of

execution on principle in Pratt.

4th April 1996Osadebay J. refuses stay.

29th April 1996Court of Appeal dismisses appeal

from Osadebay J.

N.B. The delay which elapsed between Farrington's sentence on 30th November

1992 and the launching of his application for a stay of execution on 3rd April

1996 was 3 years and 4 months.

The applicable principles

These were stated in the leading case of Pratt

[1994] 2 A.C. 1. The judgment in that

case was founded upon section 17(1) of the Constitution of Jamaica, which

provides that "No person shall be subjected to torture or to inhuman or

degrading punishment or treatment".

The essential question in the case was whether the execution of a man

following a long delay after his sentence to death could amount to inhuman

punishment contrary to section 17(1).

The Privy Council, departing from the previous decision of the Board in Riley

v. Attorney-General for Jamaica [1983] AC 719, held that such delay was

capable of having that effect. This was

because (see page 29G):-

"There is an instinctive revulsion against

the prospect of hanging a man after he has been held under sentence of death

for many years. What gives rise to this

instinctive revulsion? The answer can

only be our humanity; we regard it as an inhuman act to keep a man facing the

agony of execution over a long extended period of time."

4. Furthermore the Board held that parts of this

time occupied in legitimate resort by the convicted man to appellate procedures

should not be left out of account in computing the relevant period of

delay. In reaching this conclusion the

Board, invoking in particular the decision of the European Court of Human

Rights in Soering v. United Kingdom (1989) 11 EHRR 439, explicitly

repudiated the death row phenomenon which has developed in certain states of

the United States of America, where men may be executed after a prolonged

period of time which has elapsed while their lawyers pursue a multiplicity of

appellate procedures. The Board

expressed its conclusion on the point in the following passage (see page

33B-D):-

"In their Lordships' view a state which

wishes to retain capital punishment must accept the responsibility of ensuring

that execution follows as swiftly as practicable after sentence, allowing a

reasonable time for appeal and

consideration of

reprieve.

It is part of the human condition that a condemned man will take every

opportunity to save his life through use of the appellate procedure. If the appellate procedure enables the

prisoner to prolong the appellate hearings over a period of years, the fault is

to be attributed to the appellate system that permits such delay and not to the

prisoner who takes advantage of it.

Appellate procedures that echo down the years are not compatible with

capital punishment. The death row

phenomenon must not become established as a part of our jurisprudence."

In Pratt itself the Board was faced with

applications by two convicted men who had been held on death row for over 14

years, and it was plain that their death sentences must be commuted to

sentences of life imprisonment under section 25(2) of the Jamaican

Constitution. However the Board was

conscious that many other prisoners had been held on death row in Jamaica for

long periods of time, and that their position would have to be dealt with as a

matter of urgency following the outcome of the appeal in Pratt. They therefore reviewed the relevant

considerations (at pages 34-35) and concluded that in any case in which

execution was to take place more than five years after sentence there would be

strong grounds for believing that the delay was such that execution thereafter

would constitute inhuman punishment contrary to section 17(1). Following that guidance, the Jamaican

authorities were enabled to act expeditiously in commuting the death sentences

on a substantial number of prisoners on death row to sentences of life

imprisonment; and other Caribbean states, whose constitutions contained

provisions similar or identical to section 17(1), did likewise.

The five year period

The question of the effect of prolonged delay

following sentence of death normally arises in the context of the domestic

appellate system. In considering the

effect of such delay, attention has been concentrated on the 5 year period

specified in Pratt. This period

has been treated as the overall period which, in ordinary circumstances, must

have passed since sentence of death before it can be said that execution will

constitute cruel or inhuman punishment.

It has not however been regarded as a fixed limit applicable in all

cases, but rather as a norm which may be departed from if the circumstances of

the case so require. This is shown by

two contrasting cases, Guerra v. Baptiste [1996] AC 397, from

Trinidad, and Reckley v. Minister of Public Safety and Immigration (No. 2)

[1996] AC 527, from The Bahamas. In Guerra,

the notes of the evidence given at his trial were not made available until over

4 years after he had been sentenced to

death.

His appeal against conviction was not heard and dismissed until 6 months

later, and leave to appeal to the Privy Council was refused 4 months later; as

a result the total delay amounted to 4 years and 10 months. The Privy Council held that, following such

delay, execution would constitute cruel and unusual punishment and so be

unlawful. In so holding the Board had

regard to the serious delay which had occurred and to the cause of that delay,

and to the fact that, as a result, the overall lapse of time since sentence of

death was close to the 5 year period.

That case should be contrasted with Reckley. He was sentenced to death on 7th November

1990, and had exhausted his rights of appeal by 12th March 1992. At that time there was in force the decision

not to carry out any executions pending the outcome of the proceedings in Jones,

in which the constitutional motion was ultimately dismissed on 3rd April

1995. After a warrant for Reckley's

execution had been read to him on 26th May 1995, a constitutional motion was

issued on his behalf claiming that his execution would be unlawful on two

grounds, first that having regard to the time which had elapsed since his

sentence (viz. 4 years and 6 months) his execution would be unlawful on the

principle in Pratt; and second that he had been denied the opportunity

of being heard by the Advisory Committee on Mercy, or of seeing the material

before the Committee relating to his case.

This latter contention required that the decision of the Privy Council

in de Freitas v. Benny [1976] AC 239 should be departed from. A stay of execution was refused by the

Bahamian courts, but the Privy Council allowed his appeal and granted a

stay. The delay which had occurred

arose from the suspension of executions pending the outcome of Jones,

but no criticism was made on this score.

Understandably at that time, the argument on the point of delay was

advanced with reference to the 5 year period, on the basis that, having regard

to the period of 4 years and 6 months which had elapsed since sentence of

death, this should be regarded as a borderline case in which it would be right

to hold that the threshold had been passed.

The Board felt unable to accept this argument, and indeed rejected an

application for a stay on this ground as hopeless. However a stay was granted to await the decision on the Advisory

Committee point in Guerra, in which that point had been taken. Unfortunately the point was held not to

arise for decision in Guerra, in which judgment was given on 6th

November 1995. An application for the

continuation of the stay of Reckley's execution was made to the Board on 9th

November 1995, two days after the expiry of the 5 year period in his case. In the exceptional circumstances of the

case, the Board extended the stay of execution to enable the argument on the

Advisory Committee point, though not the point on delay, to be advanced. The argument was heard in December but was

rejected, judgment being given on 5th February 1996. A further

application for a

stay was made to the Board on 13th

5. March on the ground of delay, but was again

rejected. In this case too, therefore,

the 5 year period was treated as the period which, in ordinary circumstances,

must be passed before the principle in Pratt can be invoked; but since

the stay took the form of a respite to enable the Advisory Committee point to

be argued on Reckley's behalf, the effect was to extend, rather than to reduce,

the 5 year period for that purpose.

Farrington

This appeal raises issues more complex than

those raised in the case of Henfield.

Moreover, the conclusion reached by their Lordships on one of the issues

in Farrington will have an impact on the outcome in Henfield. Their Lordships will therefore turn first to

consider the appeal in Farrington.

6. As appears from the chronology set out earlier

in this judgment, the period of time which elapsed between sentence of death

and the application for a stay of execution which is the subject of

Farrington's appeal was 3 years and 4 months.

This is substantially less than the 5 year period specified in Pratt. Of this period, 1 year and 5 months elapsed

between sentence and the dismissal of Farrington's appeal by the Court of

Appeal, which is 5 months longer than the target period specified in Pratt. The principal cause of the delay was however

the further period of 1 year and 4 months which elapsed between the decision of

the Court of Appeal, and the filing of Farrington's petition for leave to

appeal to the Privy Council, which was dismissed 5 months later. At first sight, it is not easy to see why

execution after this lapse of time should, on the accepted principles,

constitute inhuman punishment.

7. However Mr. O'Connor, in a powerful argument,

submitted that this would indeed be so.

He advanced the following particular submissions:

(1)He first relied on the fact that The

Bahamas, unlike Jamaica, were not signatories of the Optional Protocol to the

U.N. Covenant on Human Rights. He

submitted that the 5 year period specified in Pratt took into account

the possibility of an application to the U.N. Human Rights Committee, for which

a target period of 18 months was allowed; and he drew the conclusion that in

The Bahamas there should be substituted a period of 3 years and 6 months, in

place of the 5 year period applicable in Jamaica, from which there may be

inferred strong grounds for believing that there has been such delay as will

render execution unlawful.

(2)He next submitted that the delay in the case

of Farrington arose from the fact that it occurred in the shadow of the

decision by the authorities not to carry out any executions pending the

outcome of the constitutional proceedings in Jones. While those proceedings were continuing, no

executions could be carried out; and those proceedings were prolonged by reason

of the failure of the respondent authorities to take steps to curtail the

serious delays in the applicants' conduct of the proceedings. If it had not been for this failure on the

part of the authorities, he submitted, the proceedings in Jones would

have occupied a far shorter time. The

dismissal of Farrington's appeal by the Court of Appeal would have been rapidly

followed by a reference to the Advisory Committee and the issue of a warrant

for his execution, so that his petition for leave to appeal to the Privy

Council would have been filed as rapidly as possible in order to obtain a stay

of execution, and thereafter would have been disposed of without delay. It followed that the failure of the

authorities to curtail the delays in Jones was the cause of a

substantial part of the delay which occurred in the case of Farrington

and in all the circumstances his execution would constitute inhuman punishment.

(3)He relied on two other matters as relevant

to the issue of delay, viz. (a) the fact that Farrington had been held in

prison for 22 years before his trial, and (b) the conditions in which he was

held on death row following his sentence.

He submitted that if either or both of these factors were taken into

account, a significantly shorter period of delay after his sentence was sufficient

to render Farrington's execution unlawful.

It is right to record that, as far as their

Lordships are aware, none of these points has previously been raised before the

Privy Council on appeals concerned with the principle in Pratt.

(1)Does the 5 year period apply in The

Bahamas?

It was the submission of Mr. O'Connor that,

since the Commonwealth of The Bahamas was not a signatory to the International

Covenant on Civil and Political Rights and to the Optional Protocol, so that

citizens of The Bahamas had no access to the U.N. Human Rights Committee, it

followed that, in ascertaining the length of period which constituted

inordinate delay in relation to executions in The Bahamas, no time should be

allowed for petitions to the U.N. Committee.

He further submitted that, when formulating the 5 year period in Pratt,

the Board allowed a period of 18 months for such petitions. It followed, the submission ran, that for

The Bahamas the 5 year period should be reduced to a period of 32 years.

8. There is no doubt that in Pratt the

Board, when formulating the 5 year period, did indeed make an allowance of 18

months in respect of petitions to the U.N. Committee. But simply on this account to reduce the 5 year period applicable

in Jamaica to a 32 year period for The Bahamas would, in their Lordships'

opinion, be too simplistic a reaction.

9. Their Lordships start with the fundamental

principle that the reason why execution following the lapse of a prolonged

period of time after sentence of death would constitute inhuman punishment is

that the condemned man has suffered the agony of mind of facing the prospect of

execution over that period (see Pratt at page 29G-H). Moreover, although part of that period will

have been occupied with appellate procedures, it is the lapse of the whole

period which is relevant to the question whether there has been an inordinate

delay. This is because the agony of

mind is the same, whatever the cause of the delay (see Pratt at pages

30-33). It was on this basis that the

death row phenomenon in the United States was rejected.

10. It is against this background that the

formulation of the 5 year period in Pratt is to be understood. It is true that, in formulating that period,

the Board made allowances both for domestic appeals (2 years) and for petitions

to the U.N. Committee (18 months), the basic function of doing so being to

ensure that the period so chosen accommodated target periods for both of

these. But it is the whole period of 5

years, not just the balance of 18 months, which constitutes the inordinate

delay; and the choice of 5 years indicates that that period was chosen as being

long enough, in the Jamaican context, to accommodate the relevant appellate

procedures, but also as being (special cases apart) long enough, in that

context, to constitute inordinate delay.

11. It is against this background that a simple

mathematical deduction of 18 months for The Bahamas appears simplistic. Let it be supposed that consideration is

being given to the appropriate period for a country which has only one

appellate court. On the mathematical

approach, the period selected would be 22 years (1 year for appeals to the

Court of Appeal plus 18 months). It is

not, in their Lordships' opinion, self-evident that, even in these

circumstances, such a period would be sufficiently long to constitute

inordinate delay for present purposes.

It follows that the identification of an inordinate period of delay is

not achieved by simply adding 18 months to the target period for appeals. What has to be done is to identify an

overall period which not only accommodates the target periods for the relevant

appellate procedures, but is in itself so prolonged as to render subsequent

execution inhuman punishment.

12. It follows that the question in the present

case is whether the 5 year period applicable in Jamaica as being sufficiently

prolonged for that purpose should be applicable in The Bahamas, where no time

has to be allowed for petitions to the U.N. Committee. If it was so applied, however, it would have

the effect that only after a delay of 3 years beyond the target periods for

appeals (2 years) would an inordinate period have elapsed. In their Lordships' opinion, such a period

of delay would be disproportionately long.

On the other hand, as the example just given in respect of a country

which has only one appellate court demonstrates, simply to add a period of 12

years to the target periods for the relevant appeals may not be apt to produce

an appropriate overall period for inordinate delay; and where the relevant

target periods are relatively short, a longer period may have to be added for

that purpose. Their Lordships have

considered whether the appropriate period for The Bahamas should be a period of

4 years, in place of the 5 year period applicable in Jamaica. However, taking all the relevant

considerations into account, they are satisfied that, in the context of a legal

system in which the target period for appeals is 2 years, the lapse of an

overall period of time of 32 years following sentence of death is indeed an

inordinate time. Accordingly they

accept Mr. O'Connor's submission on this point.

(2)Impact of the suspension of executions

Their Lordships have already observed that the

overall lapse of time between the sentence of death on Farrington (30th

November 1992) and his application for a stay of execution (3rd April 1996) was

3 years and 4 months. It was therefore

within the period of 32 years applicable in The Bahamas.

13. However their Lordships turn to consider the

impact on Farrington of the suspension of executions arising from the

constitutional motion in Jones.

This was in force at the date when Farrington was sentenced to death,

and remained in force until 3rd April 1995 (to be followed after a short

interval by the suspension of executions arising from Reckley, which

remained in force until 5th February 1996).

It was submitted on behalf of Farrington that, if steps had been taken

by the authorities to keep the proceedings in Jones under control, they

would have been disposed of before Farrington's appeal was dismissed by the

Court of Appeal on 28th April 1994. If

so, his case would then have been referred to the Advisory Committee (in

accordance with the judgment in Pratt, delivered on 2nd November 1993)

and a warrant for his execution would have been issued soon after. The effect of this would have been that

Farrington's advisers would have had to apply for a stay of execution, and

would for that purpose have had to proceed with expedition with his petition

for leave to appeal to the Privy Council, which would have been dismissed a few

months later. In the result, it was

submitted, the delay in his execution which subsequently occurred did not

finally end until after the outcome of the case of Reckley on 5th

February 1996.

14. This submission does not however alter the fact

that in

Farrington the 32 year period applicable in The Bahamas had not been exceeded at

the time of his application for a stay of execution on 3rd April 1996. As will be seen, in this respect Farrington

differs from Henfield, where 32 years had already passed; and the

question then arose whether, by reason of the suspension of executions

following the constitutional proceedings in Jones, the running of the 32

year period was so interrupted as to lead to the result that the period had not

been exceeded. No such question arises

in Farrington; and the only way in which reliance can here be placed

upon the failure by the authorities to curtail the delay in Jones is to

argue, on the basis of Guerra, that the effect of that failure was to

cause such delay that his execution thereafter would constitute inhuman

punishment, despite the fact that the 32 year period had not been exceeded.

15. The decision in Guerra reflected the

fact that the 5 year period has been treated not as a limit but as a norm, from

which the courts may depart if it is appropriate to do so in the circumstances

of the case. In that case, owing to a

very serious delay in producing the notes of evidence for the Court of Appeal,

a delay of 3 years occurred, as a result of which an overall period of 4 years

and 10 months had elapsed since his sentence of death - only 2 months short of

the 5 year period. The Board thought it

right to order that Guerra's sentence should be commuted, notwithstanding that

the 5 year period had not elapsed. In the

present case, the delay affecting Farrington's case was a little under 18 months

which, though not as great as in Guerra's case, was still substantial. Moreover this delay was the product of a

much more lengthy delay in the case of Jones which, although it cannot

on the evidence before their Lordships be precisely quantified, must be counted

in years rather than months, and which was bound to have the effect of delaying

the cases of those men who, like Farrington, would be affected by the

suspension of executions pending the outcome of Jones. In all the circumstances, having regard to

the fact that the time which has passed since sentence of death was passed on

Farrington is only two months short of the applicable period, their Lordships

consider it appropriate to apply the principle in Guerra in his

case. It follows that his appeal must

be allowed, and his sentence commuted to life imprisonment.

(3)Relevance of (a) imprisonment before

trial and (b) conditions of imprisonment after sentence of death

In view of their conclusions on the first and

second of Mr. O'Connor's submissions, neither of these points arises and their

Lordships need not consider them.

16. They wish however to record that both points

were raised for the first time before their Lordships, neither having been

taken before the courts below. This

created a most unsatisfactory situation.

First, these are points upon which findings of fact by the judge of

first instance are essential. Second,

in the case of both points an assessment both by the judge of first instance

and by the Court of Appeal, taking full advantage of their knowledge and

experience of local conditions, would have been of the greatest assistance to

their Lordships. In the present case,

therefore, their Lordships were faced with the prospect of having to remit the

case to the Bahamian courts. Not only

would this have involved much wasted expenditure in costs, but it would

necessarily have entailed a further lapse of time while the appellant was in

prison awaiting execution.

17. Their Lordships trust that, if either of these

points is taken in future in a case of this kind, it will have been taken at

first instance in the ordinary way so that, if the case should come before the

Privy Council, it will do so in proper form.

Henfield

In the case of Henfield, as already recorded,

the total lapse of time between sentence of death (26th May 1988) and the

launch of his constitutional proceedings raising the issue of delay on the

principle in Pratt (3rd February 1995) was 6 years and 8 months. The appeal against his conviction was

dismissed within 9 months. Following

the reading of the warrant for his execution, a stay of execution was obtained

on 11th October 1989 pending a petition for leave to appeal to the Privy

Council. It was at about that time that

the decision to suspend executions pending the outcome in Jones was

announced. It was no doubt as a result

of that announcement that Henfield's petition for leave was not filed until

28th July 1993; it was dismissed 5 months later on 16th December 1993. His constitutional motion invoking the

principle in Pratt was launched 2 months before the Privy Council gave

judgment in Jones on 3rd April 1995.

In the result there was a total delay between sentence of death and the

start of the constitutional proceedings of 6 years and 8 months.

18. The principal delay took place between

dismissal of his appeal against conviction in February 1989 and the launching

of his constitutional motion in February 1995, with a short interlude of 5

months in 1993 occupied by his unsuccessful petition for leave to appeal to the

Privy Council. There can be no doubt

that the reason for this long delay lay in the suspension of executions pending

the outcome of Jones. It is with

the effect of that suspension that this appeal is concerned. No importance can be attached to the long

delay in the filing of Henfield's petition for leave to appeal to the Privy

Council, since that can be attributed

to the continuing impact of the suspension of

executions; had that not been in place, there can be no doubt that, following

the reading of the warrant for Henfield's execution on 18th September 1989, a

stay of execution would have been sought and, if obtained, would have been

followed by the prompt filing of Henfield's petition to the Privy Council.

19. The effect of such a suspension of executions

was not directly addressed by the Board in Pratt, although the analogous

case of a political moratorium was briefly discussed (at page 34E). It was there suggested that a respite

pending the outcome of such a moratorium would, if it resulted in "delay

running into several years", lead to a breach of the condemned man's

constitutional right not to be subjected to cruel or inhuman punishment. The implication was that the interposition

of a moratorium could have the effect of extending the period of 5 years applicable in Jamaica in

favour of condemned men. This must be

on the basis that the interest of condemned men that such a moratorium should

be declared pending any reconsideration of the death penalty justifies the

extension of the relevant period, though only for a limited time. If that is right, the same should apply to a

suspension of executions pending the outcome of constitutional proceedings by

another person.

20. Their Lordships do not however have to explore

the effect of suspension of executions in any depth in the present case because

in their opinion there is here a short answer to the point. If a suspension of executions is to have

such an effect, it can only do so to the extent that it is causative of the

relevant delay. In the opinion of their

Lordships, the suspension cannot be so causative in so far as the relevant

proceedings are prolonged by reason of failure on the part of the respondent

authorities to take steps open to them to curtail or prevent any delay by the

applicant in the progress of the proceedings.

21. The constitutional proceedings in Jones

occupied the extraordinarily long period of 5 years and 10 months. Moreover, despite enquiries in the course of

the hearing, no explanation for this delay was given to their Lordships. They have however been able to examine the

records in the Privy Council; and there is every indication that a substantial

part of the delay at that stage was due to slowness on the part of the

applicants, which the respondent had failed to take active steps to

reduce. It is not to be forgotten that

the judgment in Pratt was not delivered until 2nd November 1993; and

until then it may not have appeared to the authorities in The Bahamas that

there was any need for them to take active steps to curtail delay by the

applicant in proceedings of this kind.

Their Lordships are left with the overwhelming impression that the time

occupied in Jones was far

longer than was necessary, and that the delay

could indeed have been substantially curtailed by the respondents in that case.

22. In the present appeal, the period which elapsed

between Henfield's sentence of death and his constitutional motion on the

principle in Pratt was 6 years and 8 months. On the evidence before them, their Lordships are satisfied that

this lapse of time far exceeds the period of 32 years extended by such further

period as would have been appropriate to allow for the suspension of executions

following Jones if proper steps had been taken to curtail the time

occupied by that case. For these

reasons the appeal of Henfield must be allowed, and his sentence of death

commuted to life imprisonment.

23. The Court of Appeal felt constrained by the

judgment of the Privy Council in Reckley [1995] 2 A.C. 491 to reach a

different conclusion. Their Lordships

wish however to record that the argument in that case was advanced on the basis

of the 5 year period then understood to be applicable in The Bahamas, and that

that period had not expired at the time of his constitutional motion on the

principle in Pratt.

Postscript

Their Lordships are conscious that the

conclusion which they have reached regarding the period of 32 years applicable

in the case of these two appeals may cause some concern among those responsible

for the administration of justice in The Bahamas. They are very much aware of the problems in certain countries in

the Caribbean which have given rise to unacceptable delays in execution, which

in their turn have inevitably led to the establishment of the principle in Pratt. However their Lordships are also aware of

the energetic steps which are being taken to bring these delays under control

and to prevent their repetition in future.

If the appeal against conviction in these cases can be disposed of

within the target period of 1 year and (if the appeal is dismissed) the case

can then be referred to the Advisory Committee as recommended in Pratt,

there should be no further delay. For,

if it is decided that the law should take its course, a warrant of execution

can be issued and all further steps will require a stay of execution which

should ensure that there is thereafter no delay on the part of those

representing the condemned man; and there should in any event be no delay on

the part of the authorities, such as the failure to curtail the delay which

occurred in Jones. Seen in this

context it is to be hoped that, the setting of 32 years as the norm for

inordinate delay should present no serious problems for those responsible for

the administration of justice in The Bahamas.

But in any event their Lordships have had to form a judgment as to the

period which should be held

to constitute that norm and,

having given the

matter careful consideration, have concluded,

taking into account an appropriate period of time for the domestic appeals

available to condemned men in their own interest, that a period of 32 years in

prison awaiting execution, with all the agony of mind which that entails, would

in all the circumstances be so prolonged a time as to render execution cruel or

inhuman punishment.

24. Their Lordships will accordingly humbly advise

Her Majesty that both appeals ought to be allowed and that there ought to be

substituted for the sentence of death a sentence of life imprisonment in each

case.

CROWN

COPYRIGHT as at the date of judgment.