Law Report: Delayed execution unconstitutional: Pratt and another v Attorney-General for Jamaica and another - Privy Council (Lord Griffiths, Lord Lane, Lord Ackner, Lord Goff of Chieveley, Lord Lowry, Lord Slynn of Hadley, Lord Woolf), 2 November 1993

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A state which wished to retain capital punishment must ensure that execution followed as swiftly as practicable after sentence, allowing a reasonable time for appeals. To execute a prisoner years later, after long delays caused by his legitimate use of all the appellate procedures available, was to subject him to an inhuman or degrading punishment.

The Judicial Committee of the Privy Council allowed an appeal by Earl Pratt and Ivan Morgan against the decision of the Court of Appeal in Jamaica on 8 June 1992, and ruled that their death sentences should be commuted to life imprisonment.

Geoffrey Robertson QC, Lloyd Barnett, Phillip Sapsford QC, Denis Daly FC, Anthony Bradley and Anthony Metzer (Simons Muirhead & Burton) for the appellants; Kenneth Rattray QC, Solicitor-General, Lennox Campbell and Lackston Robinson (Charles Russell) for the Attorney-General for Jamaica; Glen Andrade QC, Director of Public Prosecutions, and Lloyd Hibbert (Charles Russell) for the Superintendent of Prisons.

LORD GRIFFITHS, delivering the board's judgment, said the appellants were convicted of murder and sentenced to death on 15 January 1979. Since that date they had been in prison in what what was commonly known as death row. The appellants' primary submission was that to hang them after so many years would be inhuman and in breach of section 17 of the Constitution of Jamaica, which provided:

'(1) No person shall be subjected to torture or to inhuman or degrading punishment or other treatment. (2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question authorises the infliction of any description of punishment which was lawful in Jamaica immediately before the appointed day.'

In Riley v Attorney-General of Jamaica (1983) 1 AC 719, the Privy Council by a majority construed section 17(2) as authorising execution by hanging for murder no matter how long the delay between the passing of the sentence and the execution (see per Lord Bridge at p726). But that construction had focused on the act of punishment and proceeded on the assumption that the legality of a long delayed execution could never have been questioned before independence.

Their Lordships did not accept that such a challenge could not have been made; applying the English common law, judges in Jamaica then would have had the power to stay a long delayed execution, to enable the prerogative of mercy to be exercised and the sentence commuted to one of life imprisonment. Their Lordships preferred the construction adopted by the minority in Riley, who held that the scope of section 17(2) was limited to authorising the passing of a judicial sentence of a description of punishment lawful in Jamaica before independence, and that it was not concerned with the act of the executive in carrying out the punishment.

Section 17(2) did not address the question of delay. Their Lordships were unwilling to adopt a construction of the Constitution that deprived Jamaican citizens of the protection from being executed after an unconscionable delay, which they would have had before independence.

A state that wished to retain capital punishment must ensure execution followed as swiftly as practicable after sentence, allowing a reasonable time for appeal and consideration of reprieve. A condemned man would take every opportunity to save his life through the use of an appellate procedure. If he was able to prolong the appellate hearings over years, the fault lay with the appellate system and not to the prisoner who took advantage of it.

The various applications and appeals pursued by these appellants over the years were not frivolous procedures disentitling them to ask their Lordships to look at the whole period of delay in this case, amounting to nearly 14 years, which was shocking. There was no doubt that an execution now would be an infringement of section 17(1) of the Jamaican Constitution.