Thomas and Haniff Hilaire v. Cipriani Baptiste (Trinidad and Tobago)

Thomas and Haniff Hilaire v. Cipriani Baptiste (Trinidad and Tobago) [1999] UKPC 13 (17th March, 1999)

Privy Council Appeal No. 60 of 1998

(1) Darrin Roger Thomas and

(2) Haniff Hilaire

Appellants

v.

(1) Cipriani Baptiste

(Commissioner of Prisons)

(2) Evelyn Ann Petersen (Registrar of the Supreme Court)

and

(3) The Attorney General

Respondents

FROM

THE COURT OF APPEAL OF

TRINIDAD

AND TOBAGO

---------------

REASONS FOR DECISION OF THE LORDS OF THE

JUDICIAL COMMITTEE

OF THE PRIVY COUNCIL,

OF THE 27TH JANUARY

1999, Delivered the

17th March 1999

------------------

Present at the hearing:-

Lord Browne-Wilkinson

Lord Goff of Chieveley

Lord Steyn

Lord Hobhouse of Woodborough

Lord Millett

[Majority Judgment to

which Lord Browne-Wilkinson, Lord Steyn and

Lord Millett are parties, delivered by Lord Millett]

------------------

1. These appeals are brought with the leave of the Court of

Appeal of Trinidad and Tobago from the dismissal of the appellants'

constitutional motions which claimed that in the events which had happened it

would be unlawful to carry out the sentences of death passed on them for murder.

On 27th January 1999 their Lordships announced their decision to grant a stay of

execution pending the determination of the appellants’ current petitions to an

international body. They now give their reasons for their decision, and for

their refusal to accede to the appellants’ claim that the death sentences be

commuted.

2. Two main issues arise for decision by their Lordships:

whether at the relevant time a condemned man under sentence of death had a

constitutional right to have his application to the Inter-American Commission on

Human Rights considered and determined before the sentence was carried out;

whether the carrying out of a death sentence lawfully imposed

can be rendered unconstitutional by the inhuman conditions in which the

condemned man has previously been detained and the manner in which he has been

treated while in detention.

The background.

3. The present Constitution of Trinidad and Tobago came into

force on the 1st August 1976. Among other things it affirms the right of the

individual to life, liberty, security of the person and enjoyment of property

and the right not to be deprived thereof "except by due process of

law" (section 4(a)). It also prohibits the imposition of "cruel and

unusual treatment or punishment" (section 5(2)(b)). Their Lordships observe

that the fundamental rights and freedoms enshrined in the Constitution (though

not section 4(a) which has an English and remoter ancestry) are framed in the

light of the Universal Declaration of Human Rights 1948 and the European

Convention for the Protection of Human Rights and Fundamental Freedoms 1953 (Cmd.

8969). They also observe that, like the previous Constitution, the 1976

Constitution proceeds on the assumption that the human rights and fundamental

freedoms which it affirms and entrenches were already secured to the people of

Trinidad and Tobago by the common law: see de Freitas v. Benny [1976] AC 239, 244.

4. The Government of Trinidad and Tobago ratified the

International Covenant on Civil and Political Rights ("the International

Covenant") in 1978. It acceded to the Optional Protocol to the

International Covenant in 1980. The International Covenant, which was adopted by

the General Assembly of the United Nations in 1966 and came into force in 1976,

constitutes a commitment by the States which are parties to the Covenant to

observe certain fundamental norms of conduct to be supervised by international

institutions. The United Nations Human Rights Committee ("the UNHRC")

is the institution charged with supervising the conduct of the State parties to

the Covenant. The Optional Protocol gave individuals right of access to the

UNHRC.

5. On 28th May 1991 the Government of Trinidad and Tobago

ratified the American Convention on Human Rights 1969 ("the

Convention"). The Convention established two institutions, the

Inter-American Commission on Human Rights ("the Commission") and its

judicial organ the Inter-American Court of Human Rights ("the IACHR")

to which the Commission could refer disputes. By ratifying the Convention the

Government of Trinidad and Tobago recognised the Commission's competence to

entertain petitions from individuals complaining of violations of the Convention

and to make reports and recommendations in respect thereof. It also recognised

the compulsory jurisdiction of the IACHR to give binding rulings on the

interpretation and application of the Convention. This was subject to a

reservation which was primarily designed to preserve the legitimacy of the death

penalty but which in other respects their Lordships are satisfied is not

material to these appeals.

In Pratt v. Attorney-General for Jamaica [1994]

2 A.C. 1 this Board held that to carry out a sentence of death after a delay of

14 years would constitute inhuman punishment and would be unconstitutional under

the law of Jamaica. The Board ruled at pages 34-35 that the aim should be to

hear a capital appeal in Jamaica within 12 months of conviction and to complete

the entire domestic appeal process within two years; that it should be possible

to complete applications to the UNHRC "with reasonable despatch" and

at the most within a further 18 months; and that where execution was to take

place more than five years after sentence there would be strong grounds for

believing that the carrying out of the sentence would constitute inhuman or

degrading punishment or other treatment contrary to the Constitution of Jamaica.

6. By 1997 a significant number of persons who had been

convicted of murder and sentenced to death in Trinidad and Tobago were

petitioning the UNHRC or the Commission complaining of violations of their

rights under the Convention. It appeared to the Government that the proceedings

of these institutions were being conducted with an insufficient degree of

urgency, and despite its attempts to do so it was unable to persuade the

international bodies to deal with complaints more speedily. The Government

became concerned that even if the petitions were dismissed they would not be

dealt with in time to allow the sentences to be carried out within the time

limits contemplated in Pratt.

7. Accordingly, on 13th October 1997 the Government published

"Instructions relating to applications from persons under sentence of

death" ("the Instructions"). These prescribed strict time limits

and procedures for applications by prisoners under sentence of death to the

UNHRC and the Commission. This was an attempt to achieve three objectives which,

as events later showed, proved to be irreconcilable. They were (i) to respect

the mandatory death sentence for murder under the law of Trinidad and Tobago

(ii) to comply with the time limits laid down in Pratt which also

formed part of the law of Trinidad and Tobago and (iii) to co-operate with the

international human rights institutions. The Instructions did not, however,

achieve the desired effect. There appeared to be no prospect of obtaining a

prompt response to petitions presented by persons awaiting execution in Trinidad

and Tobago. Accordingly on 26th May 1998 Trinidad and Tobago denounced the

American Convention on Human Rights (as it was entitled to do) with effect from

26th May 1999. At the same time it denounced the Optional Protocol to the

International Covenant with effect from 26th August 1998 and re-acceded to it

subject to a reservation in respect of anyone who had been condemned to death.

The appellants.

8. The appellant Darrin Roger Thomas was arrested on 12th

February 1993 and charged with murder. He remained in custody until trial. He

was convicted and sentenced to death on 15th November 1995. The Court of Appeal

of Trinidad and Tobago dismissed his appeal against conviction on 20th June

1997. His application for special leave to appeal to their Lordships' Board was

dismissed on 11th March 1998.

9. On 31st March 1998, that is to say after the publication of

the Instructions, Thomas lodged a petition with the Commission. In his petition

he alleged that his human rights had been violated (inter alia) by the

excessive delay in bringing him to trial, the inadequacy of his legal

representation at trial, and the inhuman conditions in which he had been

detained in prison both before and since conviction. By 1st May 1998, the latest

time provided for in the Instructions, the Commission had still not sought the

Government's response to Thomas' complaints. Accordingly the Advisory Committee

on the Power of Pardon ("the Advisory Committee") met on 12th June

1998. No reprieve was forthcoming, and on 25th June 1998 a warrant was read for

Thomas’ execution.

10. On the following day Thomas filed a motion for constitutional

relief. On the same day the IACHR requested information in connection with his

petition and asked for his execution to be stayed. The constitutional motion

came before Jamadar J. on 27th June 1998. On 15th July he acceded to the motion,

vacated the sentence of death, and ordered that Thomas be held in custody during

the President's pleasure. The Court of Appeal allowed the respondents' appeal

and dismissed the constitutional motion. The effect was to reinstate the

sentence of death.

11. The appellant Haniff Hilaire was arrested on 14th February

1991 and charged with murder. He remained in custody until trial. He was

convicted and sentenced to death on 29th May 1995. The Court of Appeal dismissed

his appeal against conviction on 7th November 1996.

12. On 7th October 1997 Hilaire lodged a petition with the

Commission. This was premature, as the Commission is incompetent to entertain a

petition until the petitioner has exhausted his domestic remedies. Without

withdrawing his petition to the Commission, Hilaire then proceeded to file a

petition for special leave to appeal to their Lordships’ Board, which was

dismissed on 6th November 1997, that is to say, after the Instructions had been

published. Thereafter the Commission accepted his petition without requiring it

to be re-submitted. Their Lordships are unable to accept a submission on behalf

of Hilaire that the Instructions were applied retrospectively to his petition.

It is true that, at the date when the Instructions were published, he had

decided not to pursue any further domestic remedy. But, as later events showed,

he was free to change his mind and did so. In these circumstances, it is

self-evident that Hilaire had not exhausted his domestic remedies and was not in

a position to lodge an effective petition with the Commission before the date on

which the Instructions were published.

13. By 11th June 1998, the latest time provided for in the

Instructions, the Commission had not reported on Hilaire's petition and had not

referred it to the IACHR. Accordingly the Advisory Committee met on 6th July

1998. No reprieve was forthcoming, and on 9th July 1998 a warrant was read for

Hilaire's execution.

14. On the following day Hilaire filed a motion for

constitutional relief. The constitutional motion came before Kangaloo J. and was

dismissed by him on 23rd July 1998. Hilaire's appeal was dismissed by the Court

of Appeal on 4th August 1998.

15. The IACHR has made orders requiring the Government of

Trinidad and Tobago to refrain from carrying out the death sentences pending its

determination of the petitions. Despite this the Government proposes to carry

out the death sentences in defiance of these orders.

The Instructions.

16. The Government's case does not depend on the validity of the

Instructions, but on the absence of any legal basis for the appellants' claim to

be entitled to proceed with their applications to the Commission and to have

them determined before sentence of death is carried out. The invalidity of the

Instructions is, however, crucial to the success of the appellants' arguments,

and it is convenient to deal with this question first.

17. Their Lordships are satisfied that the Instructions were

unlawful. This is not because they were calculated to put Trinidad and Tobago in

breach of the International Covenant or the Convention, for these had not been

incorporated into and did not form part of the law of Trinidad and Tobago. But

they were unlawful because they were disproportionate. They contemplated the

possibility of successive applications to the Commission and the UNHRC (which

was possible though unlikely), and laid down a series of successive time limits

for the taking of the several steps which would be involved in the making of

successive applications to both international bodies.

18. In their Lordships' view it was reasonable for the Government

of Trinidad and Tobago to take action to ensure that lawful sentences passed by

its Courts should not be frustrated by events beyond the Government's control.

It was reasonable to provide some outside time limit within which the

international appellate processes should be completed. The Instructions had the

object of introducing an appropriate element of urgency into the international

appellate processes. This object was in conformity with the policy laid down by

the Board in Pratt v. Attorney-General for Jamaica [1994] 2 A.C. 1, 33

that:-

"a state that 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 … 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 part of our jurisprudence."

19. The Government of Trinidad and Tobago, which is concerned to

maintain public confidence in the criminal justice system in Trinidad and

Tobago, was entitled to take appropriate measures to ensure that the

international appellate processes did not prevent lawful sentences passed by the

courts from being carried out.

20. In their Lordships' view it was also reasonable to provide

for the possibility of successive applications to the same or different bodies.

They are, however, satisfied that the Instructions were disproportionate because

they curtailed petitioners' rights further than was necessary to deal with the

mischief created by the delays in the international appellate processes. It

would have been sufficient to prescribe an outside period of (say) 18 months for

the completion of all such processes. This could apply whether the petitioner

made only one application or applied successively to more than one international

body or made successive applications to the same body. It was unnecessary and

inappropriate to provide separate and successive time limits for each

application and for each stage of each application. This had the effect of

drastically and unnecessarily curtailing the time limits within which the first

such body could complete its processes.

Due process.

21. The due process clause in the Constitution of Trinidad and

Tobago can be traced back to the confirmation of Magna Carta by Edward III in

1354, when the expression "due process of law" replaced "the law

of the land" in Article 39 of the original version. Coke regarded the two

expressions as synonymous. They protected the subject from absolute monarchy and

the exercise of arbitrary executive power. This interpretation may have been

appropriate in the absence of either a written constitution or a doctrine of the

separation of powers and at a time when a sovereign legislature was in the habit

of passing Acts of Attainder. But such expressions mean different things to

different ages. The words "due process of law" were introduced into a

New York statute in 1787 for the purpose of protecting the individual from being

deprived of life, liberty or property by act of the legislature alone. Madison

had the same object in 1791 when he drafted what became the Fifth Amendment to

the Constitution of the United States of America. The due process clauses in the

Fifth and Fourteenth Amendments underpin the doctrine of the separation of

powers in the United States and serve as a cornerstone of the constitutional

protection afforded to its citizens. Transplanted to the Constitution of

Trinidad and Tobago, the due process clause excludes legislative as well as

executive interference with the judicial process.

22. But the clause plainly does more than this. It deliberately

employs different language from that found in the corresponding provisions of

the Universal Declaration of Human Rights and the European Convention on Human

Rights. They speak merely of "the sentence of a court of competent

jurisdiction". The due process clause requires the process to be judicial;

but it also requires it to be "due". In their Lordships’ view

"due process of law" is a compendious expression in which the word

"law" does not refer to any particular law and is not a synonym for

common law or statute. Rather it invokes the concept of the rule of law itself

and the universally accepted standards of justice observed by civilised nations

which observe the rule of law: see the illuminating judgment of Phillips J.A. in

Lassalle v. Attorney-General (1971), 18 W.I.R. 379 from which

their Lordships have derived much assistance.

23. The clause thus gives constitutional protection to the

concept of procedural fairness. Their Lordships respectfully adopt the

observation of Holmes J. in Frank v. Mangum (1915) 237 U.S.

309, 347:-

"Whatever disagreement there may be as to the scope

of the phrase ‘due process of law’, there can be no doubt that it

embraces the fundamental concept of a fair trial, with opportunity to be

heard."

24. Whether alone or in conjunction with section 5(2) their

Lordships have no doubt that the clause extends to the appellate process as well

as the trial itself. In particular it includes the right of a condemned man to

be allowed to complete any appellate or analogous legal process that is capable

of resulting in a reduction or commutation of his sentence before the process is

rendered nugatory by executive action.

25. The appellants contend that their constitutional right to due

process would be infringed if they were to be executed while their current

petitions to the Commission were still pending. They seek a stay of execution

until the petitions have been determined and the rulings of the Commission and

IACHR have been considered by the authorities in Trinidad and Tobago. To this

the Government make several objections. They invoke the fundamental principle

that legal rights are neither created nor destroyed by executive action, and

contend that the due process clause does not incorporate into domestic law

rights created by an unincorporated treaty such as the Convention. They insist

that rights granted by the executive may be withdrawn by the executive. They

also rely on the principles, well settled by decisions of this Board, that

constitutional protection does not extend to rights created after the

Constitution came into force, and that it is limited to the rights set out in

section 5(2) or rights analogous thereto: see de Freitas v. Benny [1976] AC 239; Maharaj v. Attorney-General of Trinidad and Tobago (No. 2) [1979] AC 385; Thornhill v. Attorney-General of Trinidad and Tobago [1981] AC 61. They point out that the Commission's only function is to make a Report which

the Advisory Committee may but is not obliged to take into account when

recommending whether there should be a reprieve. They submit that the appellants

cannot have a constitutional right to complete an international appellate or

analogous process which merely leads to a Report which the Government of

Trinidad and Tobago is not under any legal obligation to take into

consideration.

26. Their Lordships recognise the constitutional importance of

the principle that international conventions do not alter domestic law except to

the extent that they are incorporated into domestic law by legislation. The

making of a treaty, in Trinidad and Tobago as in England, is an act of the

executive government, not of the legislature. It follows that the terms of a

treaty cannot effect any alteration to domestic law or deprive the subject of

existing legal rights unless and until enacted into domestic law by or under

authority of the legislature. When so enacted, the Courts give effect to the

domestic legislation, not to the terms of the treaty. The many authoritative

statements to this effect are too well known to need citation. It is sometimes

argued that human rights treaties form an exception to this principle. It is

also sometimes argued that a principle which is intended to afford the subject

constitutional protection against the exercise of executive power cannot be

invoked by the executive itself to escape from obligations which it has entered

into for his protection. Their Lordships mention these arguments for

completeness. They do not find it necessary to examine them further in the

present case.

27. In their Lordships’ view, however, the appellants claim

does not infringe the principle which the Government invoke. The right for which

they contend is not the particular right to petition the Commission or even to

complete the particular process which they initiated when they lodged their

petitions. It is the general right accorded to all litigants not to have the

outcome of any pending appellate or other legal process pre-empted by executive

action. This general right is not created by the Convention; it is accorded by

the common law and affirmed by section 4(a) of the Constitution. The appellants

are not seeking to enforce the terms of an unincorporated treaty, but a

provision of the domestic law of Trinidad and Tobago contained in the

Constitution. By ratifying a treaty which provides for individual access to an

international body, the Government made that process for the time being part of

the domestic criminal justice system and thereby temporarily at least extended

the scope of the due process clause in the Constitution.

28. Their Lordships note that a similar argument was rejected in Fisher

v. Minister of Public Safety and Immigration (No. 2) [1999] 2 WLR 349. They observe, however, that the Constitution of The Bahamas which was under

consideration in that case does not include a due process clause similar to that

contained in Article 4(a) of the Constitution of Trinidad and Tobago.

29. Their Lordships accept the general proposition that the

executive may withdraw rights which it has granted. But this principle is not

without exception. Executive action may give rise to a settled practice, and

this in turn may found a constitutional right which cannot lawfully be withdrawn

by executive action alone. Even when executive action falls short of this, as it

does in the present case, it may confer a right for the time being which cannot

be withdrawn retrospectively without infringing the due process clause. Their

Lordships do not doubt the right of the Government of Trinidad and Tobago to

denounce the Convention, for even if the Convention formed part of the domestic

law of Trinidad and Tobago the right to invoke it would be subject to the power

of denunciation. They are content to assume, without deciding, that the

Government is entitled to curtail such rights of access or prescribe conditions

for their exercise for the future. But they are satisfied that section 4(a) of

the Constitution prevents the Government from doing so retrospectively so as to

affect existing applications. In the present case the Instructions were

published before either appellant lodged a competent petition, but the

invalidity of the Instructions means that the Government cannot rely on them to

justify carrying out the death sentences.

30. This disposes of the argument that section 4(a) does not

extend to rights created after the enactment of the Constitution. All depends on

the level of abstraction at which the right claimed is described. A Constitution

embodies fundamental rights and freedoms, not their particular expression at the

time of its enactment. The due process clause must therefore be broadly

interpreted. It does not guarantee the particular forms of legal procedure

existing when the Constitution came into force; the content of the clause is not

immutably fixed at that date. But the right to be allowed to complete a current

appellate or other legal process without having it rendered nugatory by

executive action before it is completed is part of the fundamental concept of

due process.

31. Their Lordships see much force, as did the Court of Appeal,

in the Government's objection that the Advisory Committee is not bound to take

account of any report which the Commission may make when considering whether or

not to recommend a reprieve. This is not a legal process and is not subject to

the constitutional requirement of due process: see de Freitas v. Benny

[1976] AC 239; Reckley v. Minister of Public Safety and Immigration

(No. 2) [1996] AC 527. The Government submit that the appellants

can have no legal right to complete a process which merely leads to the making

of a report which the Government is not bound to take into account. This

submission, however, disregards the fact that the petitions may be referred by

the Commission to the IACHR. The appellants are contending that their trials

were unfair, and hope in due course to obtain binding rulings from the IACHR

that their convictions should be quashed or their sentences should be commuted.

For the Government to carry out the sentences of death before the petitions have

been heard would deny the appellants their constitutional right to due process.

32. Their Lordships note for completeness an alternative argument

advanced by the appellants based on section 5(2)(b) of the Constitution. This

asserted that to execute a condemned man while his petition to the Commission

was still outstanding would amount to cruel and unusual treatment or punishment.

The argument has no merit; a similar argument was firmly rejected by the Board

in Fisher v. Minister of Public Safety and Immigration (No. 2) (supra).

In any case it is difficult to see how the argument can help the appellants.

If they succeed on due process they do not need to rely on section 5(2)(b);

while if they fail on due process they must necessarily fail on section 5(2)(b)

for the same reasons.

33. It follows that the executions should be stayed until the

appellants' petitions are finally disposed of and the rulings of the Commission

and the IACHR have been considered by the relevant authorities.

Legitimate expectation.

34. The appellants contend that the Government's ratification of

the Convention gave rise to a legitimate expectation on the part of the

appellants that they would not be executed before their petitions to the

Commission were finally determined. The contention is an alternative to the

argument based on the due process clause, and accordingly can be disposed of

quite shortly.

35. The Government advance a number of reasons for rejecting the

appellants' contention. They claim, for example, that ratification is a private

process which is not attended by public notice and that the ratification of the

Convention was a transaction between the Government of Trinidad and Tobago and

the Organisation of American States. There was no public statement that the

Government had ratified the Convention and the appellants were not informed of

the fact. They submit that ratification of an unincorporated treaty is incapable

of raising a legitimate expectation that the Government will comply with the

provisions of the treaty; or that it raises at best a legitimate expectation

that the Government will introduce appropriate legislative measures to give

effect to the treaty.

36. The short answer to this is that the appellants do not rely

on the Government's ratification of the Convention alone. They rely on the fact

that the Government implemented the Convention, which did not need the

introduction of any legislative measures to bring it into operation. Condemned

men were allowed to petition the Commission; the Government responded to the

Commission's requests for information; and confirmed the position by publishing

the Instructions.

37. In their Lordships' view, however, the appellants' arguments

based on legitimate expectation face an insurmountable obstacle. Even if a

legitimate expectation founded on the provisions of an unincorporated treaty may

give procedural protection, it cannot by itself, that is to say unsupported by

other constitutional safeguards, give substantive protection, for this would be

tantamount to the indirect enforcement of the treaty: see Minister for

Immigration and Ethnic Affairs v. Teoh (1995) 183 C.L.R. 273. In this

sense legitimate expectations do not create binding rules of law; see Fisher

v. Minister of Public Safety and Immigration (No. 2) (supra) at p.

356B-D. The result is that a decision-maker is free to act inconsistently with

the expectation in any particular case provided that he acts fairly towards

those likely to be affected. But mere procedural protection would not avail the

present appellants. Any legitimate expectation that their execution would be

delayed until their petitions were heard, however long it might take, cannot

have survived the publication of the Instructions. By the time they lodged

petitions which the Commission was competent to entertain, they knew that they

were subject to strict time limits which might expire before their petitions

were determined: see Fisher v. Minister of Public Safety and Immigration (No.

2) (supra) at p. 356E. The appellants sought to answer this by

relying on the fact that the Instructions were unlawful. Their Lordships do not

think that this is an answer. The question is not whether their legitimate

expectations were lawfully disappointed, but whether they were in fact

disappointed.

Cruel and unusual treatment or punishment.

38. The appellants, of course, would not be content with a stay

of execution alone. They seek to have the sentences commuted. For this purpose,

they invoke section 5(2)(b) of the Constitution, which prohibits the infliction

of cruel and unusual treatment or punishment. They rely on the length of time

during which they have been kept in prison, both before and after conviction,

and on the conditions in prison, both separately and cumulatively. In addition

Thomas submits that it was inhumane and accordingly unconstitutional for the

Court of Appeal to reinstate the sentence of death after it had been commuted by

Jamadar J.

Delay

39. Thomas spent 2 years and 8 months in custody before

conviction and a further 2 years and 7 months after it, making a total of 5

years and 3 months before the warrant was read. Hilaire spent 4 years and 3

months in custody before conviction and a further 3 years and 2 months after it,

making a total of 7 years and 5 months before the warrant was read. These

periods can be compared with those in Fisher v. Minister of Public Safety and

Immigration (No. 1), [1998] AC 673, where the Board held that pre-trial

delay could not be taken into account save in exceptional circumstances. In that

case the Board affirmed the sentence despite the passage of 3 years and 5 months

from arrest to conviction and a further 2 years and 6 months after it, making a

total of 5 years and 11 months.

40. Their Lordships do not accept that the periods of

detention with which they are concerned have been so prolonged that it would now

be unconstitutional to carry out the death sentence in the case of either

appellant. Taking post-conviction delay first, in neither case was the 31/2

year period allowed for in Pratt exceeded. By the time the death

warrants were read Thomas had spent about the same time on death row as Fisher,

and Hilaire only a few months more. As for the pre-trial delay, Thomas' trial

was not unreasonably delayed, and the total time which he spent in custody was

less than that spent by Fisher. Hilaire's trial by contrast was unduly delayed,

and no explanation for the delay has been forthcoming. Their Lordships are,

however, constrained to repeat what was laid down by the Board in D.P.P. v.

Tokai [1996] AC 856 that the Constitution of Trinidad and Tobago

affords the accused a right to a fair trial but not a right to a speedy trial or

to a trial within a reasonable time. Where the delay would render the trial

unfair the trial judge has power to stay the proceedings; and where he does not

do so he is bound to direct the jury with regard to all matters arising from the

delay which are favourable to the defence. Any failure on his part to do so may

be corrected on appeal, constitutional redress being reserved for the

exceptional case where the measures available to the trial judge, including his

power to order a stay, are insufficient to ensure the fairness of the trial.

There is no evidence that the long delay in bringing Hilaire to trial made his

trial unfair, and accordingly it is impossible to conclude that it contravened

his constitutional rights.

In Fisher v. Minister of Public Safety and Immigration

the Board drew attention to the logical difficulty in simply aggregating the

periods of delay before and after trial when the state of mind of the accused is

different during the two periods. Their Lordships add that, if pre-trial delay

is ever relevant to the inhumanity of carrying out the death sentence, it must

nevertheless be because of the total period that has elapsed before and after

conviction. This in itself is sufficient to dispose of this issue on the facts

of the present case.

41. In allowing only 18 months to complete the international

processes, the Board can with hindsight be seen to have been unduly optimistic

in Pratt. Their Lordships have considered whether a longer period should

be substituted, but have come to the conclusion that this would not meet the

case. Indeed, it might even encourage delays in the process in the hope that the

time limits would be exceeded. Their Lordships observe that the ratio of Pratt,

that a state which wishes to retain capital punishment must accept

responsibility for ensuring that the appellate system is not productive of

excessive delay, is not appropriate to international legal processes which are

beyond the control of the state concerned. Prompt determination by human rights

bodies of applications from men condemned to death is more likely to be achieved

if delay in dealing with them does not automatically lead to commutation of the

sentence.

Prison conditions.

42. The appellants were detained in cramped and foul-smelling

cells and were deprived of exercise or access to the open air for long periods

of time. When they were allowed to exercise in the fresh air they were

handcuffed. The conditions in which they were kept were in breach of the Prison

Rules and thus unlawful. It does not follow that they amounted to cruel and

unusual treatment. (It is rightly accepted that they did not amount to

additional punishment). In a careful judgment de la Bastide C.J. found that they

did not.

43. The expression is a compendious one which does not gain by

being broken up into its component parts. In their Lordships view, the

question for consideration is whether the conditions in which the appellants

were kept involved so much pain and suffering or such deprivation of the

elementary necessities of life that they amounted to treatment which went beyond

the harsh and could properly be described as cruel and unusual. Prison

conditions in third world countries often fall lamentably short of the minimum

which would be acceptable in more affluent countries. It would not serve the

cause of human rights to set such demanding standards that breaches were

commonplace. Whether or not the conditions in which the appellants were kept

amounted to cruel and unusual treatment is a value judgment in which it is

necessary to take account of local conditions both in and outside prison. Their

Lordships do not wish to seem to minimise the appalling conditions which the

appellants endured. As the Court of Appeal emphasised, they were and are

completely unacceptable in a civilised society. But their Lordships would be

slow to depart from the careful assessment of the Court of Appeal that they did

not amount to cruel and unusual treatment.

44. Even if the prison conditions in themselves amounted to cruel

and unusual treatment, however, and so constituted an independent breach of the

appellants' constitutional rights, commutation of the sentence would not be the

appropriate remedy. Pratt did not establish the principle that

prolonged detention prior to execution constitutes cruel and unusual treatment.

It is the carrying out of the death sentence after such detention which

constitutes cruel and unusual punishment. This is because of the additional

cruelty, over and above that inherent in the death penalty itself, involved in

carrying it out after having exposed the condemned man to a long period of

alternating hope and despair. It is the circumstances in which it is proposed to

carry out the sentence, not the fact that it has been preceded by a long period

of imprisonment, which renders it cruel and unusual. The fact that the

conditions in which the condemned man has been kept prior to execution infringe

his constitutional rights does not make a lawful sentence unconstitutional.

45. It would be otherwise if the condemned man were kept in

solitary confinement or shackled or flogged or tortured. One would then say:

"enough is enough". A state which imposes such punishments forfeits

its right to carry out the death sentence in addition. But the present cases

fall a long way short of this.

46. Their Lordships are unwilling to adopt the approach of the

IACHR, which they understand holds that any breach of a condemned man's

constitutional rights makes it unlawful to carry out a sentence of death. In

their Lordships' view this fails to give sufficient recognition to the public

interest in having a lawful sentence of the court carried out. They would also

be slow to accept the proposition that a breach of a man's constitutional rights

must attract some remedy, and that if the only remedy which is available is

commutation of the sentence then it must be adopted even if it is inappropriate

and disproportionate. The proposition would have little to commend it even in

the absence of section 14(2) of the Constitution, but it is clearly precluded by

that section.

Reinstatement of the death sentence.

47. The appellants submit that it was beyond the power of the

Court of Appeal to reinstate the death sentence in Thomas' case. Alternatively

they claim that it was formerly the convention in England to exercise the

prerogative of mercy in such circumstances; and they rely on Director of

Public Prosecutions v. Smith [1961] A.C. 290 for evidence of this

practice.

In Smith the Court of Appeal set aside a

conviction of murder and sentence of death and substituted a conviction of

manslaughter and a term of 10 years imprisonment. The House of Lords allowed an

appeal by the prosecution and restored the conviction for murder and the

sentence of death. In the course of the hearing counsel for the prosecution told

the House that, if the appeal were allowed, the Crown would grant a reprieve.

48. The case does not support Thomas, since the House of Lords

did reinstate the death sentence. It had no power to do anything else, since it

was restoring a conviction for an offence for which the death sentence was

mandatory. It is no answer for Thomas to say that a Court hearing a

constitutional motion is in a different position from a court hearing a criminal

appeal. Thomas was convicted of murder and sentenced to death. He brought a

constitutional motion. The Court of Appeal held that there was no basis for the

motion, set aside the Judge’s order which commuted the sentence, and dismissed

the motion. With the constitutional challenge thus disposed of, the sentence

passed by the trial judge stood. Although the effect of the Court of Appeal’s

order was to restore the sentence of death, the Court of Appeal did not

"impose" or "reinstate" it. The sentence is still the

mandatory sentence passed by the trial judge, the order vacating it having been

set aside in turn.

49. The fact that sentence of death was passed and commuted

before being restored may, however, be thought to be a powerful ground for

exercising the prerogative of mercy. Their Lordships respectfully draw this

factor to the attention of the authorities in Trinidad and Tobago, while

emphasising that this must be a matter for them.

Conclusion.

50. Their Lordships have accordingly stayed the execution of the

appellants until their current petitions to the Commission have been determined

and any report of the Commission or ruling of the IACHR has been considered by

the authorities of Trinidad and Tobago. Subject thereto they dismiss the appeals

of both appellants.

51. Similar considerations will apply in relation to other

persons under sentence of death in Trinidad and Tobago who have lodged petitions

with the Commission or the UNHRC. The Advisory Committee may, of course, take

into account the delay occasioned by the slowness of the international bodies in

dealing with such petitions. But in their Lordships view such delays should not

prevent the death sentence from being carried out. Where, therefore, more than

18 months elapses between the date on which a condemned man lodges a petition to

an international body and its final determination, their Lordships would regard

it as appropriate to add the excess to the period of 18 months allowed for in Pratt.

____________________________

Dissenting judgment in favour of dismissing the appeals

delivered by Lord Goff of Chieveley and

Lord Hobhouse of Woodborough

52. These

appeals raise a question of the construction of the Constitution of the Republic

of Trinidad and Tobago of 1976 and, in particular, section 4(a) of the

Constitution which affirms (inter alia) the right of individuals to life,

and the right not to be deprived thereof "except by due process of

law". In this judgment we will for convenience refer to the Republic of

Trinidad and Tobago as the Republic. As appears from the judgment prepared by

Lord Millett, the majority of their Lordships would allow the appeals to the

extent of granting a limited stay of execution on the ground that these

appellants have a constitutional right to have their applications to the

Inter-American Commission on Human Rights considered and determined before the

sentences of death properly passed upon them are carried out. It is on this

aspect of the case that we find ourselves unable to agree with the majority

judgment. We agree that the carrying out of the death sentences will not be

unconstitutional by reason of the conditions in which the appellants have been

held or their treatment in custody. (Fisher v. Minister of Public Safety and

Immigration (No. 1) [1998] AC 673). We also agree that the doctrine of

legitimate expectation is of no assistance to the appellants on the facts of the

present cases. The points which we have to address are therefore limited to

those directly bearing upon the issue arising under section 4(a).

53. The appellants’ actions are brought under section 14 of the

Constitution which provides a specific remedy by way of originating motion in

the High Court for any contravention of the provisions of Chapter 1 of the

Constitution and requires the High Court to grant appropriate relief for the

purpose of enforcing or securing the enforcement of any of the provisions of the

Chapter to the protection of which the appellants are entitled. That is the

jurisdiction which the appellants have invoked. Similarly the jurisdiction of

their Lordships’ Board in this matter is derived solely from the provisions of

the Constitution, section 109 in Chapter 7. This Board is sitting as a court of

the Republic. It is the laws of the Republic alone which their Lordships are

under a duty and at liberty to apply. It is upon those laws alone which the

appellants are entitled to rely in support of their motions under section 14 of

the Constitution. The appellants are not entitled to rely upon any broader

principle unless it has been recognised by and forms part of the law of the

Republic.

54. The Constitution follows what has come to be called the

"Westminster model". It provides, inter alia, for the

separation of powers (Hinds v. The Queen [1977] AC 195, 212 et seq.).

Thus the Constitution vests the Executive power in the President as Head of

State (Chapters 3 and 5) and a cabinet and ministers answerable to the

Parliament (sections 75 and following). The Legislative power is vested in the

Parliament (Chapter 4). The Judicial power is vested in the Judicature (Chapter

7). It thus adopts the familiar scheme that only the Parliament can make and

unmake laws. The treaty making power is an Executive power but its exercise does

not alter the law of the Republic unless and until Parliament chooses to make

laws which do so. The position is the same as it was in the United Kingdom

before the passing of the European Communities Act 1972. (J.H. Rayner

(Mincing Lane) Ltd. v. Department of Trade and Industry [1990] 2 A.C. 418,

in particular per Lord Oliver of Aylmerton at pp. 499-500; Reg. V. Secretary

of State for the Home Department, Ex parte Brind [1991] 1 AC 696, in

particular per Lord Bridge of Harwich at p. 747.)

55. The Republic was, at the start of 1998, a party to the

International Covenant on Civil and Political Rights, including the Optional

Protocol, and the American Convention on Human Rights. The Republic’s

ratification of these treaties post-dated the enactment of the Constitution. On

26th May 1998 the Republic denounced these treaties. In the case of the Optional

Protocol the denunciation took effect from 26th August the same year but in the

case of the Inter-American Convention it did not take effect until 26th May

1999.

56. These treaties included undertakings by the Republic that it

would respect and give effect within its territory to the individual rights set

out in the treaties. The treaties also set up international agencies to provide

mechanisms whereby the individuals intended to be protected could lodge

complaints asserting that their states had not fulfilled their undertakings and

obtain declarations to that effect which the states then further undertook to

recognise and honour. These international structures do not as such give rise to

problems if the state parties to the treaties comply with their undertakings to

give effect to the treaty provisions in their municipal legal systems. But, if a

state does not do so, there will inevitably exist a divergence between, on the

one hand, the international obligations of the state under the treaties and the

"rights" which are so provided for and, on the other hand, the

obligations of the organs of the state within its own municipal and

constitutional law.

57. In a liberal democracy such as the Republic (and other states

using the "Westminster model" constitution), the making of law is the

exclusive right and capacity of the elected Legislature. The Executive has no

right or capacity to make law (save through powers properly and expressly

delegated by the Legislature). Similarly the law which the Judicature is under a

duty to apply is exclusively the law made by the Legislature. Law purportedly

made by the Executive (save under delegated powers) is not law. The law which

the courts of the state are obliged to apply is properly termed municipal law in

order to distinguish it from the unincorporated international law created by

treaties. It will thus be seen that the references to law in the Constitution of

the Republic must be and are references to municipal law. Many cases have been

decided on this basis: de Freitas v. Benny [1976] AC 239, Thornhill

v. Attorney-General of Trinidad and Tobago [1981] AC 61, Attorney-General

of Trinidad and Tobago v. Whiteman [1991] 2 A.C. 240, Fisher v. Minister

of Public Safety and Immigration (No. 2) [1999] 2 WLR 349, 355-356.

Because the Constitution of 1976 was in continuation of earlier constitutional

provisions, it contains definitions which continue the laws previously in force,

but this in no way alters the fact that the law referred to is the municipal

law: sections 3 and 6. The phrase "due process of law" is a reference

to the law of the Republic as provided for in the Constitution, that is to say

the municipal law of the Republic as in force at the date of the Constitution or

enacted by Parliament since that date.

58. It follows that in principle the terms of the two

unincorporated human rights treaties (and the protocol) to which the Republic is

a party were not capable of conferring upon the appellants any rights which the

courts of the Republic were obliged or at liberty to enforce at the suit of the

appellants. The treaties cannot as such be invoked by the appellants as a basis

for alleging an infringement of the Constitution. We accept that treaty

obligations assumed by the Executive are capable of giving rise to legitimate

expectations which the Executive will not under the municipal law be at liberty

to disregard. (Minister for Immigration and Ethnic Affairs v. Teoh 183

C.L.R. 273; Reg. v. Secretary of State for the Home Department, Ex parte

Ahmed and Others, (unreported), 30th July 1998, Court of Appeal; Fisher

No. 2 (supra)). But in the present case there was not at the material

time any legitimate expectation. On this we agree with what is said in the

judgment of the majority.

59. As has been observed in previous decisions of this Board upon

the Westminster model, Chapter 1 of the Constitution is drafted in a particular

way. Section 4 is a declaration of the rights which already exist and are to

continue to exist in the Republic. Section 5 prohibits the making of any law

which would abrogate, abridge or infringe those rights and by subsection (2)

specifically precludes the Legislature from passing new laws having the effect

listed in any of the paragraphs (a) to (h) of the subsection. (See Maharaj v.

Attorney-General of Trinidad and Tobago (No. 2) [1979] AC 385, 395.) The

existing law of the Republic included provision for what should constitute the

crime of murder and how those charged with criminal offences shall be tried; by

section 4 of the Offences against the Person Act the punishment for those

convicted of murder shall be death. Appellate procedures, including the right to

petition their Lordships’ Board, are provided for. The appellants have been

tried in accordance with the law of the Republic: they have been convicted of

murder under that law: they have been condemned to death under that law: they

have fully exercised and exhausted their rights of appeal under that law. There

has been no want of due process of law. All that has occurred has been in

accordance with the due process of law.

60. The phrase "due process of law" has a long history,

being first found in English legislation some six and a half centuries ago. It

is derived from the use of the words in Article 39 of the Magna Carta: "but

by the lawful judgment of his peers or by the law of the land". The

expression "due process of law" came to be used as a synonym for the

expression "law of the land". Thus "due process of law" was

used instead in later legislation and Coke in his Institutes, Part 2, volume 1,

(1641) treated the two expressions as interchangeable. (Chapter 29 of 25 Edw. 1)

Due process of law was also the expression used in various charters granted to

the American colonies in the 17th and 18th centuries and it is by that route

that it then came to be used in the constitutional documents of the United

States of America and its constituent states. The United States courts have

continued to make clear that it has the same meaning as according to the

"law of the land". (Walker v. Sauvinet (1875) 92 U.S. 90; Hurtado

v. State of California (1883) 110 U.S. 516, particularly at p. 521 et

seq.) It is the law of the land which gives the concept of due process its

broader meaning - for example, the principles of natural justice, burden of

proof etc. (Holden v. Hardy (1897) 169 U.S. 366) - and shows that it does

not necessarily preclude reference in cross-examination to previous convictions.

(Adamson v. State of California (1946) 332 U.S. 46). This approach of the

courts of the United States is fully consistent with the approach adopted by the

Constitution of the Republic and those of other Caribbean countries. The due

process of law provision fulfills the basic function of preventing the arbitrary

exercise of Executive power and places the exercise of that power under the

control of the Judicature. It also limits the power of the Legislature to

legislate so as to derogate from that requirement: the Hurtado and Adamson

cases provide instances of this, as did the Trinidadian case to which we were

referred Lassalle v. Attorney-General (1971) 18 W.I.R. 379. In this last

case, Phillips J.A. summarised the requirement as being "(i) reasonableness

and certainty in the definition of criminal offences; (ii) trial by an

independent and impartial tribunal, [and] (iii) observance of the rules of

natural justice" (p. 391). The authorities show that the requirement is

that rights and liabilities, criminal and civil, be determined in accordance

with the law of the land as a matter of both substance and procedure. The laws

of the Republic apply this principle. The understanding that the law referred to

is the municipal law is confirmed to be correct: indeed, no authority has been

cited to contradict this. The rights which are protected are those set out in

the Constitution, including those previously existing in the law of the

Republic. This does not include (without more) expectations raised by treaties

entered into by the Executive which have not been incorporated into the law of

the Republic, though in such cases the municipal law doctrine of legitimate

expectation may, where appropriate, be invoked by individual citizens.

61. This conclusion will disappoint those who contend for the

application of unincorporated international human rights conventions in

municipal legal proceedings so that such rights will be directly enforced

in national courts as if they were rights existing in municipal law. The widest

possible adoption of humane standards is undoubtedly to be aspired to. But it is

not properly to be achieved by subverting the constitutions of states nor by a

clear misuse of legal concepts and terminology; indeed, the furthering of human

rights depends upon confirming and upholding the rule of law. Suppose that an

international treaty declares certain conduct to be criminal wherever committed

(and such examples exist), unless and until the Legislature of a state party to

the treaty has passed a law making such conduct criminal under its municipal

law, it would be contrary to due process (and in the Republic, contrary to

section 4 of the Constitution) for the Executive of the state to deprive any

individual of his life, liberty or property on the basis of the international

treaty. It would be a clear breach of that individual's constitutional rights.

An unincorporated treaty cannot make something due process: nor can such a

treaty make something not due process unless some separate principle of

municipal law makes it so.

62. In the face of these difficulties, the appellants have also

presented their argument in a modified form. They submit that due process of law

should be construed so as to encompass any remedy provided by the state

whereby the individual obtains the opportunity of achieving a commutation by

executive act under domestic law: or, more seductively, by arguing that by

ratifying a treaty which provides for individual access to an international

body, the government, that is to say the Executive, made that process for the

time being part of the domestic criminal justice system of the Republic and

thereby temporarily at least extended the scope of the phrase due process of law

in section 4 of the Constitution. Whilst it is of course correct that the

content of what is due process of law may change from time to time (e.g.,

the reduction or the extension of the right to trial by jury), the change must

derive from a change in the law of the Republic. If the "remedy" or

"process" was one derived from the law of the Republic or was

recognised by the Constitution, the conclusion might follow. But for the

Executive to interfere with the proper implementation of the law of the land is

not an option open to the Executive: the Executive is bound by the law of the

land as is the Judicature. It is the Legislature that has the power to change

the law.

63. The alternative argument therefore disguises but does not

remove the flaw in the primary argument. The alternative argument is also not

assisted by the invocation of an analogy between the rights of appeal granted by

municipal law and the right under the international treaty to complain to the

relevant Human Rights Commissions. There is an analogy. But, as with all

analogies, they are only valid and useful if the points of similarity and

difference are apt to the purpose for which the analogy is being used. The

procedural right being asserted has to be a legal right otherwise it has no

relevant existence for the purpose of section 4. The appellants may be at liberty

to complain to the Human Rights Commissions but they have no right to do so. If

the treaty purports to confer such a right, it has only done so for the purpose

of international law and not for the purpose of the law of the Republic. (Fisher

No. 2 at p. 359) It is accordingly our opinion that, in asserting that the

right which the appellants invoke is the right not to have the outcome of any

pending appellate or other legal process pre-empted by executive action, the

majority are, with all respect, assuming what they have to prove, viz.

that the opportunity to invoke the jurisdiction of the UNHRC and the IACHR

constitutes a legal right and therefore part of the legal process of the

Republic.

64. Here again, the argument of the appellants has involved a

disguised but unacceptable contradiction. The very points upon which the

appellants wish to rely before the Inter-American Commission are points upon

which they relied or were entitled to rely when they previously petitioned their

Lordships’ Board. The Board ruled upon them and decided that the convictions

should be upheld. For the purposes of the Constitution and the law of the

Republic, that decision is conclusive and determinative of the rights of the

appellants. But suppose that the appellants were relying upon some ground which

was not open to them before the Court of Appeal or the Board, that would by

definition be a ground which provided no legal basis for setting aside the

convictions or sentences. The claimed assertion of a constitutional right turns

out to be a contradiction of the constitutional right.

65. In our opinion therefore the appellants’ appeals should be

dismissed. But there is a further point, essential to the success of their

appeals, to which we must briefly refer. The Instructions of 13th October 1997

were an attempt by the Government of the Republic to address the consequences of

the decision of their Lordships’ Board in Pratt v. Attorney-General for

Jamaica [1994] 2 A.C. 1 having regard to the delays experienced when those

sentenced to death sought to take advantage of the procedures of the two Human

Rights Commissions. The Republic, in common with other Caribbean countries,

found itself in an impossible position. The Privy Council had decided that delay

in carrying out a sentence of death on a man beyond a certain time rendered his

subsequent execution inhuman punishment and was therefore unconstitutional. Lord

Griffiths delivering the judgment of the Board said, at p. 35:-

"The final question concerns applications by

prisoners to the IACHR and UNHRC. Their Lordships wish to say nothing to

discourage Jamaica from continuing its membership of these bodies and from

benefiting from the wisdom of their deliberations. It is reasonable to allow

some period of delay for the decisions of these bodies in individual cases

but it should not be very prolonged. The UNHRC does not accept the complaint

unless the author ‘has exhausted all available remedies’."

66. The good faith of those drafting and issuing the Instructions

is not questioned. But it is submitted that in contemplating that the relevant

person under sentence of death would wish to obtain the support of both bodies

and recognising that the applications to them had to be successive not

simultaneous and, therefore, subdividing the appropriate permissible period into

two sub-periods for such successive applications, the Cabinet acted unlawfully

and therefore invalidated the whole of the Instructions so that they have to be

disregarded altogether. The principle invoked is proportionality. It is true

that, with the benefit of hindsight, it might have been better to have

allocated a single undivided period within which the relevant person could make

such use as he could of the procedures of either or both bodies. But there were

at the time arguments favouring the approach adopted by the draftsman which

included a structure of responses within a detailed time table by the

authorities in the Republic. It can now be seen that the attempt to reconcile

the law as laid down in Pratt and reiterated in Guerra v. Baptiste

[1996] AC 397, 413 with the practices of the Commissions will rarely be

successful. The Commissions espouse a policy of discouraging capital punishment

wherever possible and, in accordance with that policy, appear to see

postponement of an execution for as long as possible as an advantage since it

may improve the chances of commuting the sentence or quashing the conviction.

(See also Johnson v. Jamaica (1996) 1 B.H.R.C. 37.) There is thus a

direct conflict between the policy of the Commissions and the enforcement of the

law of the Republic. The Commissions appear to be unable or unwilling to alter

their practices to accommodate the countries’ requests for more speedy

procedures.

67. But to proceed from this conclusion to the conclusion that

the Instructions were unlawful and disproportionate is in our view seriously

mistaken. The Government of the Republic could not ignore Pratt. What it

did was consistent with a loyal attempt to do what Lord Griffiths had suggested.

To hold the Instructions unlawful would in truth be a disproportionate response

to the failure of the Government’s attempt to reconcile the treaties and the

law. In our opinion the Instructions were not unlawful. Our view is also in

harmony with the decision in Fisher No. 2, at p. 356, that the decision

there under attack was not Wednesbury unreasonable.

68. For these reasons, it is our opinion that these appeals

should be dismissed and the stay refused.

____________________________

Dissenting judgment delivered by Lord Steyn

On commutation of the death sentences

69. In my

view the correct disposal in law of the appeals of Thomas and Hilaire would be

to commute the death sentences and to substitute terms of life imprisonment.

The purpose of this dissenting judgment is to state briefly my reasons for

this view, leaving unaffected my concurrence in the remainder of the majority

judgment delivered by Lord Millett, and in particular my concurrence in their

Lordships’ decision that the execution of the death sentences imposed on

Thomas and Hilaire be stayed pending the determination of their appeals by the

Inter-American Court of Human Rights and consideration of the reports of the

IACHR by the relevant authorities in Trinidad and Tobago.

The governing principle

70. More than 400 years ago in his famous essay on Cruelty

Montaigne wrote:-

"As for me, even in the case of Justice itself,

anything beyond the straightforward death penalty seems pure cruelty, and

especially in us Christians who ought to be concerned to dispatch men’s

souls in a good state, which cannot be so when we have driven them to

distraction and despair by unbearable tortures."

71. Something like this idea is to be found in the Constitution

of Trinidad and Tobago which was framed against the backcloth of the Universal

Declaration of Human Rights 1948 and the European Convention for the

Protection of Human Rights and Fundamental Freedoms 1953. Under the

Constitution the sentence of death by hanging for murder is preserved. But by

section 5(2)(b) of the Constitution the infliction of cruel and unusual

treatment or punishment is prohibited. It follows that the state may not

superimpose upon the inevitable consequences of a death sentence inhuman

treatment in the sense of additional unnecessary and avoidable agony and

suffering. Pratt v. Attorney-General for Jamaica [1994] 2 A.C. 1 is the

most frequently encountered application of this principle: adding to the agony

of the condemned man by inordinate post-conviction delay may justify

commutation. But as I attempted to show in some detail in my dissenting

judgment in Fisher v. Minister of Public Safety and Immigration [1998] AC 673, 686 other circumstances may have to be taken into account. I

concluded at page 691:-

"Echoing language of Lord Griffiths in Pratt v.

Attorney-General for Jamaica I would say that a state that wishes to

retain capital punishment must accept the responsibility of ensuring that

condemned men are confined in conditions that satisfy a minimum standard

of decency. In considering whether a lesser period than the five-year or 31/2-year

norms may be sufficient to render a proposed execution unlawful it must be

permissible to take into account that the anguish of the condemned man has

been greatly increased by his incarceration in appalling conditions. Our

humanity permits no other answer to this question."

72. In the same case at page 682E the majority were unwilling

to impose "any hard and fast limit on the matters to be taken into

account" and to exclude "the possibility that pre-trial delay, if

sufficiently serious in character, may be capable of being taken into

account". The reason for these reservations is obvious. There are

irreducible minimum standards of treatment of condemned men which a state must

observe. Those obligations fall into two categories. First there are negative

obligations. Thus prisoners may not be assaulted. Secondly, there are positive

obligations. Thus there is an obligation on the State to ensure that even a

condemned man is afforded necessary medical care. A clear breach would be the

placing of a condemned man on a starvation diet or depriving him of reasonable

supplies of water. Adding to the torment of condemned men by such inhuman

treatment is prohibited by the Constitution of Trinidad and Tobago. To the

extent that such inhuman treatment inflicted on condemned men substantially

increases their torment it must be relevant to the question whether a lesser

period than the 5 year or 31/2 year norms may be

sufficient to render a proposed execution unlawful.

The facts: Thomas

73. From the date of the imposition of the death sentence on

Thomas he was persistently deprived of his legal right to exercise in the open

air daily. The Prison Rules require that condemned men should be allowed to

take exercise in the open air daily for an hour. This provision confers legal

rights on such prisoners. Jamadar J. held that the purpose of the provision

was to protect the health of the prisoners. The judge was faced with a

conflict of evidence as to the extent to which Thomas was deprived of his

right to exercise. He rejected the evidence of the Acting Commissioner of

Prisons as "just not true". The judge accepted the evidence of

Thomas, which was supported by an Occurrence Book for the period January to

June 1998. The judge found that except when rarely Thomas was allowed to be

"aired" or exercised Thomas was confined in a cell 6’ in width 12’

in length and 11’7" in height for 24 hours a day. There was no internal

sanitation in the cell: it always had a foul smell. The judge found that on

average Thomas was permitted only 1 hour of exercise (or access to fresh air)

every two weeks. Sometimes Thomas was not allowed any exercise or access to

fresh air for long periods. One such period lasted 3 months. The judge

concluded that "This has gone on for 2 years and 7 months", i.e. for

the entire period since Thomas was sentenced to death. Moreover, the judge

found that Thomas was unnecessarily and arbitrarily handcuffed on every

occasion that he was allowed to exercise or given access to fresh air. The

judge concluded that the prolonged detention of Thomas in such circumstances

amounted to cruel and unusual punishment or treatment. He quashed the death

sentence imposed on Thomas.

74. In restoring the death penalty the Court of Appeal placed

some reliance on the evidence of a prison doctor that he found "no record

of any complaints made by him of suffering from depression, nervousness or

claustrophobia". It is unsurprising that Thomas, circumstanced as he was,

did not suggest that he was suffering from such clinical symptoms. Moreover,

given that the judge had refused to admit psychiatric evidence about the

mental state of Thomas, the weight placed on the prison doctor’s statement

does not seem fair or warranted. In any event, this item of evidence was

before the judge. And the primary facts as to the way in which the prison

authorities deprived Thomas of his right to exercise are not in doubt. The

Court of Appeal further observed that the judge was wrong to describe the

conditions as tantamount to solitary confinement. This is no more than a

semantic point: it does not affect the primary findings of fact. The Court of

Appeal also observed that substantial numbers of people in Trinidad and Tobago

live in very cramped and overcrowded conditions. Since the people concerned

(unlike condemned men) are free to take exercise in open air as they wish,

this observation does not meet the finding that Thomas was systematically

deprived of the right to exercise. Contrary to the view of the Court of Appeal

there is no tenable argument based on cultural relativism. There was a

fundamental breach of irreducible minimum standards of treatment of prisoners

recognised among civilised nations. And I count Trinidad and Tobago among

those nations.

75. The Chief Justice observed that a new maximum security

prison has now been built. He said that "when it is commissioned [it]

will serve to relieve much of the overcrowding and the understaffing that

exists now in the prison system". Jamadar J. found, however, that no

reasons were advanced to justify the persistent breach of the Prison Rules.

Indeed the Acting Commissioner of Prisons said that Thomas "should have

had more opportunities to be ‘aired’". The persistent failure to

allow Thomas to take daily exercise is the more lamentable since on 29th July

1987 a High Court judge in two cases severely criticised the prison

authorities for failing to allow condemned men to exercise in accordance with

the Prison Rules: Thomas (Andy) v. State of Trinidad and Tobago,

(unreported), Nos. 6346 and 6347 of 1985. There was no appeal against that

decision. The irreducible minimum standards of treatment of prisoners have

therefore been recognised in Trinidad and Tobago.

76. The result of the decision of the Court of Appeal is that

in law and in fact a condemned man has no effective remedy for a complete or

virtually complete denial of his rights to take exercise for one hour daily.

The relevant provision in the Prison Rules is plainly motivated by a desire to

protect health and welfare standards even of condemned men. It was not

included in the rules so that the prison authorities could decide whether to

obey the rules or not as they preferred. That is exactly what they have done:

the approach has been "We are the law here". The time has come to

make clear that the law extends even to condemned men. It needs to be

demonstrated that unlawful behaviour by prison authorities towards condemned

men in countries maintaining the death sentence will not be tolerated. Thomas

had legal rights under the Prison Rules. By denying Thomas the opportunity to

exercise those rights, the prison authorities have subjected Thomas to cruel

and unusual treatment. Given that Thomas was subjected to such inhuman

treatment over a prolonged period the only effective redress is now to quash

the sentence of death. In my judgment the trial judge was right to quash the

sentence of death and the Court of Appeal erred in reversing his decision.

Hilaire

77. In this case Kangaloo J. has not made the necessary

findings of fact. A possible course is to remit the matter for findings of

fact. I do not, however, think this is necessary. The evidence was that all

death row prisoners are treated in the same way. The judge did not reject

Hilaire’s evidence. Indeed he reminded the authorities that the Prison Rules

are there to be obeyed. And it will be recollected that in the case of Thomas

Jamadar J. had rejected the evidence of the Acting Commissioner of Police. One

can safely assume that during more than 3 years on death row Hilaire was also

deprived of his rights under the Prison Rules in the same way as Thomas.

Disposal of the appeals

78. It is, of course, true that these are not cases of torture.

I also accept that no additional punishment was inflicted. But the protection

afforded by the Constitution is much wider. I have no doubt that prolonged

"cruel and unusual treatment" was imposed on these two men. Given

the extreme facts of the inhuman treatment inflicted on these men, the

additional agony and torment suffered by them as a result of the unlawful and

unconstitutional behaviour of the prison authorities must have been enormous.

They have committed terrible crimes. But they are entitled as a matter of law

to the full measure of the protection of the Constitution. The only

appropriate remedy is to quash the sentences of death.

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