The Decision in Pratt And Morgan Focusing on Its Key Legal and Organisational Implications - Essay Example

The responses to the privy council decision in the case of Pratt and Morgan v the attorney general of Jamaica (privy council appeal no. Of 1993) set in motion events that have consequences for the death penalty in the carribean. Highlight and discuss the clashes between the international human rights system on the one hand and the decision in Pratt and Morgan on the other, focusing on its key legal and organisational implications. Introduction The death penalty in the Caribbean is a tradition inherited under the British colonial rule. The Judicial Committee of the Privy Council (JCPC) was and remains the final court of the Appeal for the British Empire, although its reach has been gradually reduced.1 The JCPC has contributed a body of case law directing legislative bodies, governments and judiciaries as to their commitments under international human rights instruments.2 The JCPC’s decision in Pratt and Morgan v the AG of Jamaica3 drew attention to international human rights dimensions involved in procedural delay and this decision played out amidst reviews by the United Nations Human Rights Commission and the Inter-American Commission on Human Rights.4 Although, the decision in Pratt and Morgan was significant in establishing Jamaica’s commitments under international human rights instruments, it must be viewed as a fragmented part of the jurisprudence impacting death penalty laws in the Caribbean and the starting point for wider and more inclusive legal and organizational reform.5 This paper analyses the decision in Pratt and Morgan and its implications as a pace setter for shaping legal and organizational change relative to the death penalty in the Caribbean. The impact of international human rights laws and norms on the trajectory of death penalty policies, laws and practices in the Caribbean following the decision in Pratt and Morgan will also be analysed. The Decision of the JCPC in Pratt and Morgan v the AG of Jamaica In Pratt and Morgan, the JCPC noted that the appellants had been in custody for 16 years in connection with murder having been convicted and sentenced to death in 1979. An appeal was filed and dismissed by the Jamaican Court of Appeal in 1980 although an appeal had been filed 18 months earlier. Even so, the Court upon dismissing the appeal stated that it would publish its reason at a later date. However, it would take approximately four years before the Court would publish its reasons and only after a request by lawyers for the appellants.6 The JCPC also noted that although the Jamaican Constitution imposes upon the Governor General a duty to refer the matter to the JCPC, no such referral took place. In the meantime, one of the appellants filed an application before the Inter-American Commission on Human Rights (IACHR). Although the Commission rejected the appellant’s argument that his trial had not been fair, it recommended that his death sentence be commuted to life for “humanitarian reasons”.7 The JCPC commented that once this ruling was handed down, the Governor General ought to have referred the matter to the JCPC and inquired as to whether or not the death penalty should have been carried out.8 In 1986, one of the appellants filed an appeal to the JCPC however, that application was dismissed because it was out of time. The appellant then filed an appeal to the United Nations Human Rights Commission (UNHRC) who subsequently requested a stay until such time as it had an opportunity to review the case. A date for execution was set nonetheless. It was not until the last minute that a stay was granted and well after the appellants had been transferred to their death cells. It appears that the UNHRC intervened on behalf of the appellants and obtained a reprieve.9 In 1987, the appellants’ case was accepted by the JCPC and a second death warrant was published. Again the UNHRC obtained a last minute reprieve for the appellants. After a two year investigation the UNHRC concluded that the mere fact that the Court of Appeal of Jamaica took as long as it did to issue the reasons for dismissing the appeal is a contravention of Article 14 of the International Covenant on Civil and Political Rights and Optional Protocol 1966 (ICCPR).10 Article 14 guarantees a right to fair hearing without undue delay and the right to appeal a conviction.11 In this regard, undue delay occurred as a result of the Court of Appeal’s unreasonable delay in publishing the reasons for its dismissal of the appeal. The right to an appellate process was denied by this delay since the appellants could not appeal the Court of Appeal’s dismissal without knowing the reasons for the dismissal.12 The UNHRC also ruled that although procedural delays would not constitute cruel and inhumane treatment pursuant to Article 7 of the ICCPR, capital punishment cases can in certain circumstances violate Article 7. In the present case, the appellants had received a reprieve approximately ten hours before they were removed from their death cells. In such cases, where the prospect of death hangs over the appellants head, this kind of a delay would amount to cruel and inhumane punishment and treatment.13 It was therefore recommended that the violations of Articles 14 and 7 entitled the appellants to some kind of remedy and the appropriate remedy would be a commutation of the death sentence.14 Although Jamaica was a party to the ICCPR and the Inter-American Human Rights instrument, they were not bound by the recommendations. Therefore he JCPC did not interfere with the Jamaican government’s decision to issue death warrants. In the meantime, the appellants obtained leave to appeal by the Supreme Court of Jamaica. This appeal was dismissed by the Court of Appeal with leave to appeal to the JC PC in 1992. The appeal was primarily based on the argument that to execute the death sentence at this late stage would be a contravention of Article 17 of the Jamaican Constitution against cruel and unusual treatment.15 The JCPC’s ruling was directed at procedural reform and this placed standards for compliance with the death penalty system. The JCPC ruled that when states decide not to abrogate the death sentence, they have a duty to ensure that the death sentence is executed without unreasonable delay allowing the condemned prisoner an opportunity for appealing the case and possibly obtaining clemency. The JCPC went on to rule: It is a 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 in to be attributed to the appellate system that permits such delay and not to the prisoner who takes advantage of it. 16 In this case, the appellants had been held in custody with the anguish of a death penalty hanging over their heads. The appellants had been transported in preparation of executing the death sentence at least three times. This was cruel and unusual treatment. Therefore the appeal was allowed with recommendations that the death sentence be commuted to life.17 The JCPC also stated that the delay between the time of conviction and the time of the appeal was particularly disturbing since death warrants had been issued at various times only to be withdrawn at the last minute.18 Moreover, the JCPC ruled that when dealing with death penalty cases, the hearing, sentencing and execution should be completed without delay. Following sentencing, the death sentence should be executed within two years to allow time for the appellate process to take its course. If the condemned prisoner pursues appeals to regional and international bodies, the delay should be no more than five years.19 The decision of the JCPC in Pratt and Morgan therefore highlighted the cruel and inhumane nature in which procedural rules functioned with respect to the death penalty in Jamaica. Attention was therefore directed at the administration’s role in the delay process and how the delays violated international human rights laws. The Consequences of the Decision in Pratt and Morgan v The AG of Jamaica One measurable outcome of the decision in Pratt and Morgan is the steady reduction of inmates on death row in Jamaica and throughout the Caribbean. When the JCPC delivered its ruling in Pratt and Morgan, it noted that the appellants were prisoners on Jamaica’s death row along with 23 prisoners who had been waiting for over ten years and 82 prisoners who had been waiting for more than five years for their death sentences to be carried out. However, according to a report by Amnesty International, only 7 prisoners were on Jamaica’s death row in 2011 and the last execution took place in 1988.20 Five of those 7 prisoners include death sentences handed down in Jamaica between 2008 and 2010.21 It has been clearly established that as a direct result of the JCPC’s decision in Pratt and Morgan, an unreasonable delay between sentence and execution is a mitigating factor since it contravenes international human rights law, specifically, protection against cruel and inhumane treatment and punishment. As a mitigating factor, the condemned prisoner is entitled to an effective remedy and this is usually expressed in terms of a reduction in sentence and in the case of a death sentence, a commutation to life imprisonment.22 According to Seetahal, during the decade of the 1980s, the Caribbean started a “virtual moratorium on executions” and a majority of those sentences were subsequently commuted to life sentences by the “respective Advisory Committees on Mercy”.23 The moratorium and subsequent commutations were a direct result of a number of constitutional challenges on the part of condemned prisoners alleging violations of international and domestic human rights laws inclusive of “cruel and unusual punishment occasioned by delay.”24 In response to the ruling in Pratt and Morgan, death sentences in which the prisoner was on death row for more than five years were commuted to life sentences. For example an article in the Nassau Guardian reported that the ruling in Pratt and Morgan resulted in: ...scores of condemned prisoners in the Bahamas have their death sentences commuted to life imprisonment due to delay.25 In response to the ruling in Pratt and Morgan, a number of administrative decisions were made throughout the English speaking Caribbean calculated to deal the issue of delay between sentencing and the execution of the death sentence.26 For example, shortly after the ruling in Pratt and Morgan, the government of Trinidad and Tobago issued Instructions Relating to Applications from Persons Under Sentence of Death. The instructions established strict deadlines guiding the appropriate administrators on the time it should take to deal with the appellate process and for exchanging information and cooperating with international appeals and review organizations. The purpose of the instructions was to ensure that the time between the sentencing of death and the execution did not exceed the times established by the JCPC in Pratt and Morgan.27 Following its decision in Pratt and Morgan, the JCPC reiterated the need for the reasonable dispatch of the execution of the death sentence and once again repeated that the lower end should be a two year delay but no more than five years.28However, the JCPC stated that when determining administrative decisions calculated to ensure that there was no unreasonable delay, the Wednesbury unreasonableness test would be applied. In other words, unless the decisions taken were so unreasonable that there was no other alternative but to quash the decision, the decision would not bar the execution of a death sentence. For example the Instructions published by the government of Trinidad and Tobago may have been entirely restrictive in terms of the condemned men pursing the appellate process as there was pressure of time operating. However, the Instructions were not unreasonable as they were proportionate to the goals intended to be met: the prevention of unreasonable delay between a death sentence and its execution.29 A dissenting judgment by Lord Steyn in Thomas and Hilaire is insightful as it adds a new dimension to what might render a delay unreasonable and therefore render the subsequent execution unlawful. According to Lord Steyn the period between 2 and 5 years can amount to an unreasonable delay and ultimately cruel and inhumane treatment and punishment given the conditions and treatment of the prisoners on death row in Trinidad and Tobago. In the case of Thomas and Hilaire, Lord Steyn noted that the condemned men were systematically denied the minimum standard of treatment required by international human rights law. The appellants were denied regular exercise in that one of the appellants only had access to exercise for short periods over two weeks at a time and the other appellant was denied exercise at all. There were also complaints of verbal abuse by the prison officers.30 According to Lord Steyn, the abuses by prison officers, together with the systematic denial of exercise and the crowded conditions in which the prisoners were subjected to all amounted to cruel and inhuman treatment and punishment. In the meantime, the mere conditions to which the prisoners were subjected to exacerbates a delay. The only remedy in such circumstances would be to overturn the death sentences.31 It therefore follows that the decision in Pratt and Morgan not only engaged an analysis of the human rights dimensions involved in unreasonable delays between sentencing and execution, but also engaged an analysis of aggravating factors and this includes institutional conditions in which the prisoners were subjected. Indeed the conditions at death row are relevant to any consideration relative to the human rights dimensions of unreasonable delay between the death sentence and its execution. As Hudson explains, in general, the conditions on any death row are such that death row is aptly referred to as an “institutionalized hell”.32 On death row, prisoners who are regarded as having “nothing to lose” are subjected to restrictions and conditions designed to reflect heightened security but usually leave the prisoner in conditions that are reflective of a “caged animal”.33 When these ordinary conditions described by Hudson are put together with the extraordinary conditions exposed by Lord Steyn in Thomas and Hilaire and excessive delays exposed in Pratt and Morgan, a case can be made that waiting on death row contravention of international human rights laws prohibiting torture. In fact Hudson argues that the conditions on any death row can “easily lead to physical and mental deterioration” with “some prisoners” being “reduced to little more than the living dead”.34 As Hudson states, subjecting prisoners to the conditions on death row for an inordinate period of time is incompatible with the purposes of a death sentence: to punish the prisoner by death and not “torture followed by death”.35 The decision in Pratt and Morgan therefore led the way to an examination of the human rights dimensions of death row and subsequently invited a judicial examination of factors that go beyond the cruel and inhumane treatment associated with delay. Conditions on death row also raised the possibility that a stay on death row alone amounts to cruel and inhumane treatment. One of the immediate consequences and responses flowing from Pratt and Morgan was a spate of quicker trials in murder charges.36 For example in Nankissoon Boodram v Baptiste (No. 2), the appellants were executed by hanging in Trinidad and Tobago shortly after the Privy Council ruled that hanging itself, although painful did not amount to cruel and inhumane treatment.37 It has been argued that the decision in Pratt and Morgan set off a chain reaction in which challenges to the constitutionality of the death penalty came under increasing attention in Jamaica and throughout the Caribbean, with the result that the laws were changed to take account of the death penalty’s incompatibility with both national constitutions and international human rights laws.38One particular issue that arose in the aftermath of Pratt and Morgan was the propriety of the mandatory death sentence.39 In R v Hughes an appeal to the JCPC considered whether or not the mandatory death penalty in St. Lucia was inconsistent with that country’s Constitution. Again, in line with the decision in Pratt and Morgan, the JCPC concluded that the mandatory death sentence not only contravened St. Lucia’s Constitution but also contravened international human rights laws in that it amounted to cruel and inhumane treatment and punishment. The JCPC was particularly concerned with the fact that the law as it stood with respect to the mandatory death penalty did not permit the sentencing judge to take account of what might amount to mitigating circumstances. Mitigating factors might include factors relating to the offender or to the offence itself. Therefore, the JCPC recommended that the mandatory death sentence be replaced with a discretionary sentencing system.40 Essentially, the mandatory death sentence is regarded as cruel and inhumane treatment and punishment because it deprives the prisoner of a right to have the court take into account mitigating circumstances that might reduce the heinous nature of the crime.41 Moreover, the United Nations Human Rights Committee also stated that the imposition of the death penalty was inconsistent with the provisions contained in the Universal Declaration of Human Rights.42 In particular, Universal Declaration of Human Rights 1948 emphasizes the dignity of all human beings.43 In addition, the UN Universal Declaration of Human Rights confers upon all individuals “the right to life, liberty, and security of the person”.44 Arguably, the denial of the right to submit evidence in mitigation is the denial of the right to life as it involves the exclusion of factors related to the liberty and security of the person. Likewise, by virtue of Article 5 of the Universal Declaration of Human Rights: ...no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.45 The cruelty and inhumane and degrading nature of a mandatory death sentence is almost self-explanatory. There may be mitigating circumstances in which a death sentence may not be a proportionate form of punishment and the mere fact that he courts may not take these factors into account renders the resulting punishment cruel and inhumane and therefore inconsistent with international human rights law. It is the cruel and inhumane aspect of the death penalty that Pratt and Morgan drew attention to with the decision that inordinate delays can amount to cruel and inhumane treatment and punishment. Thus other dimensions of the death penalty in the Caribbean were open to inspection. The mandatory death sentence was bound to attract attention. Giving the ruling by the United Nations Human Rights Committee, a number of jurisdictions in the Caribbean were required to revise their laws to ensure that the death penalty was reserved for “the worst of the worse defendants”.46 The JCPC has consistently ruled since the decision in Pratt and Morgan that it is the judge’s responsibility to determine the appropriate sentence.47 For the purpose of according the defendant due process, a decision as to sentence could not be fairly made until after each side made submissions and evidence was presented to the court.48 In fact since 1976, the U.S. Supreme Court has made similar findings to those of the JCPC relative to the constitutionality of mandatory death sentences and has systematically found that state statutes making the death sentence mandatory unlawful unless they specified circumstances in which the death penalty was mandatory.49 Likewise, Reyes v R, the Privy Council decided that the mandatory death sentence in prescribed circumstances in Belize was unconstitutional in that it was inconsistent with that country’s Constitution nor its laws. Moreover, Belize’s attempt to prescribe the circumstances in which the mandatory death sentence would apply was insufficient because it did not distinguish clearly enough between the different categories of murder.50 In Forrester Bowe et. al. v R. the JCPC ruled that Section 312 of the Bahamian Penal Code which states that anyone who commits the offence of murder is liable to be sentenced to death, did not impose upon the court a duty to mandatorily sentence the defendant to death, despite the tendency to interpret the section in this way. In any event, giving the Bahamas’s obligations under the United Nations’ Universal Declaration of Human Rights and the various parts of the Bahamian Constitution providing for due process, and other human rights, Section 312 of the Penal Code should be read in a way that allows for a discretionary sentencing process relative to the crime of murder.51 The ruling in Forrester Bowe, et. al. appears to be inconsistent with an earlier ruling by the JCPC in Jones v AG of Bahamas which dealt with whether or not Section 312 of the Bahamas Penal Code could be interpreted to render the imposition of the death penalty mandatory. According to the JCPC, the use of the term “liable to suffer” death in respect of a murder conviction within the meaning of Section 312 of the Bahamas Penal Code is ambiguous and not altogether clear. Therefore, a simple reading of the provision would leave one with the impression that the imposition of the death sentence was a discretionary task on the part of the sentencing authority. However, when read together with the other statutes and practices in the Bahamas is was clear that legislators intended to make the death penalty mandatory and therefore the word “liable” must be construed to read “shall”.52 The JCPC defended its decision in Jones v AG of the Bahamas in its ruling in Forrester Bowe, et. al. According to the JCPC the case of Jones did not involve a constitutional issue as neither side to the case raised the issue of the constitutionality of Section 312 as it had in Forrester Bowe, et. al.53Therefore the JC PC did not consider whether or not the mandatory death penalty was constitutional or inconsistent with international human rights in its decision in Jones. The JCPC merely ruled on the correct interpretation of Section 312 of the Penal Code. In considering Section 312 of the Penal Code in Forrester Bowe, et. al., the JCPC had to consider the constitutional implications of the interpretation of the provision since the constitutionality of the mandatory death penalty was an issue raised in the case. Yorke argues however, that the JCPC’s defence of its pervious decision in Jones was entirely weak. The JCPC is a constitutional court and should have explored the issue of the constitutionality of a provision that was raised at a time when it was considering a barrage of cases involving the cruel and inhumane nature of the death penalty in the Caribbean.54 Essentially, once seized of the issue of the cruel and inhumane nature of the mandatory death sentence, the JCPC ruled in uncertain terms that the mandatory death sentence was inconsistent with the idea of due process and the constitutions and human rights laws of the various Caribbean states that use it.55 The result of the rulings by the JCPC which were set off after its initial ruling in Pratt and Morgan, is that all of the English speaking states in the Caribbean with the exception of Trinidad and Tobago have abrogated the mandatory death sentence. Trinidad and Tobago has managed to retain the mandatory death sentence by placing reservations with the United Nations Universal Declaration on Human Rights and has withdrawn from the Inter-American Commission on Human Rights.56 It therefore follows that as long as Caribbean nations have obligations under international conventions and treaties relative to the protection and human rights, the revision of the death penalty laws, procedures and practices, were necessary to bring it within the parameters of international human rights standards particularly with respect to the prohibition against cruel and inhumane treatment and punishment. Conclusion Although the ruling in Pratt and Morgan appeared to cover a narrow scope relative to the death penalty in the Caribbean, a closer examination of the ruling indicates that the ruling engaged a much wider inspection of the constitutionality of the death penalty’s process in the Caribbean. At the heart of the JCPC’s ruling was the issue of cruel and inhumane treatment under international law and this opened the door for a string of constitutional and human rights challenges to the death penalty process in the Caribbean. Eventually, the once fragmented death penalty process in the Caribbean began to make amendments and changes to institutional and administrative practices so that there is in general a Caribbean wide practice in which delays are no longer as problematic as before, death row is no longer overcrowded and for the most part, the death penalty is no longer mandatory. Research Diary: The research began with a reading of the case Pratt and Morgan. This was followed by a key word search for online journals and articles. The key words used were “Pratt and Morgan”, “human rights”, “death penalty in the Caribbean”. A number of hits came up at Justor.com and using the information obtained in those articles I was directed to other cases and journal articles in hard print. Bibliography Textbooks Fitzgerald, Edward, QC and Starmer, Keir, QC. A Guide to Sentencing in Capital Cases. (London, UK: The Death Penalty Project, Ltd., 2007). Hood, Roger and Hoyle, Carolyn. The Death Penalty: A Worldwide Perspective, (Oxford, UK: Oxford University Press, 2008). Seetahal, Dana, S. Commonwealth Caribbean Criminal Practice and Procedure. (Oxon, UK: Routeledge, 2011, 3rd Ed.). Schabas, W. The Abolition of the Death Penalty in International Law, (Cambridge, UK: Cambridge University Press, 2002). Yorke, Jon. Against the Death Penalty: International Initiatives and Implications. (Surrey, England: Ashgate Publishing Limited, 2008). Journal Articles Balbo, Andrea. ‘Death After Life: the Future of New York’s Mandatory Death Penalty for Murders Committed by Life-Term Prisoner,’ (1985)XII Fordham Urban Law School, 597- 638. Gifford, Lord Anthony. ‘The Death Penalty: Developments in Caribbean Jurisprudence,’ (2009) 37(2) International Journal of Legal Information, 196-203. DeMerieux, Margaret. ‘Thomas and Hilaire v Baptiste and the Attorney-General of Trinidad and Tobago: Rights Arising after the Promulgation of Fundamental Right and Freedoms,’ (April 2000) 49(2) The International and Comparative Law Quarterly, 463-466. Highet, K. Kahale, G. and Phillips, B. ‘Pratt & Morgan v Attorney General for Jamaica,’ (October 1994) 88(4) The American Journal of International law, 775-783. Hudson, Patrick. ‘Does the Death Row Phenomenon Violate a Prisoner’s Human Rights under International Law?’ (2000)11(4) European Journal of International Law, 833-856. Tittemore, B. D. ‘The Mandatory Death Penalty in the Commonwealth Caribbean and the Inter-American Human Rights System: An Evolution in the Development and Implementation of International Human Rights Protection.’ (2004) 13 William & Mary Bill of Rights Journal, 445-520. Vasciannie, S. ‘The Decision of the Judicial Committee of the Privy Council in the Lambert Watson Case from Jamaica on the Mandatory Death Penalty and the Question of Fragmentation.’ (2009) 41 International Law and Politics, 837-869. Reports Amnesty International. “Death Penalty in the English-Speaking Caribbean Human Rights Issue.” (2012) London, UK: Amnesty International Ltd., 1-40. Cases Forrester Bowe et. al. v R. [2006] PC Appeal No. 44. Guerra v Baptiste [1995] 4 All ER 583. Jones v AG of Bahamas [1995] 1 WLR 891. Nankissoon Boodram v Baptiste (No. 2) [1999] 55 WLR 404. Pratt and Morgan v the AG of Jamaica [1993] UKPC 1. Reyes v R [2002] 60 WIR 42. R v Hughes [2001] 60 WIR 156. Thomas and Hilaire v Baptiste and the Attorney-General of Trinidad and Tobago [1999] 3 WLR 249. Statutes International Covenant on Civil and Political Rights and Optional Protocol 1966. Universal Declaration of Human Rights 1948. Internet Sources Sears, Alfred. ‘Constitutional Reform, Pt. 10”. (25th October 2012) The Nassau Guardian. http://www.thenassauguardian.com/index.php?option=com_content&view=article&id=34945&Itemid=86 (Accessed 8th May, 2013). Read More