Law Report: Jamaican death row appeals barred

Walker and others v The Queen.

Privy Council (Lord Griffiths, Lord Lane, Lord Ackner, Lord Goff of Chieveley, Lord Lowry, Lord Slynn of Hadley and Lord Woolf).

2 November 1993.

The Judicial Committee of the Privy Council had no jurisdiction to hear appeals by prisoners convicted of murder against the imposition of the death sentence in Jamaica, notwithstanding that their execution after many years' delay might be unconstitutional, because the appellants had not yet exhausted their potential domestic remedies.

The Judicial Committee of the Privy Council dismissed appeals by Trevor Walker, Lawson Richards, Derrick Douglas and Henry Glanville, against decisions of the Court of Appeal in Jamaica in 1984, 1985 and 1987, dismissing their appeals against convictions for murder.

As the convictions carried mandatory death sentences, there were no appeals against sentence; but having regard to the large numbers held on death row in Jamaica, and to the circumstances referred to in Pratt v Attorney-General for Jamaica (The Independent, 3 November 1993), their Lordships gave special leave to appeal, despite the lapse of time, in order to examine whether they had jurisdiction to deal directly with these cases by way of an appeal against sentence.

Peter Thornton QC, Edward Fitzgerald, Keir Starmer and Frank Panford (Mishcon de Reya, Simons Muirhead & Burton, and Edwin Coe) for the appellants; James Guthrie QC (Charles Russell) for the Crown.

LORD GRIFFITHS, delivering the committee's judgment, said their Lordships were not invited to hold that the Court of Appeal decisions were wrong.

The present jurisdiction of the Judicial Committee of the Privy Council was an appelate jurisdiction. These proceedings were not, in truth, appeals against the judgments of the Court of Appeal. There was no appeal against the sentence of death passed by the judges, and if there had been the Court of Appeal would have had no jurisdiction to alter the mandatory death sentence: see section 13(1)(c) of the Jamican Judicature (Appelate Jurisdiction) Act. But the appellants had adopted the arguments of the appellants in Pratt v AG, and sought to have their sentences set aside on constitutional grounds, based upon the delay that had occurred following the Court of Appeal's decisions (ie, that to hang them now would be to subject them to a an inhuman or degrading punishment, contrary to section 17 of the Constitution of Jamaica).

Their Lordships were being invited to decide this question not as a matter of appeal but as a court of first instance; and this they had no jurisdiction to do because the question whether execution would now infringe the appellants' constitutional rights had not yet been considered by a Jamaican court.

The appellants submitted that the Privy Council's jurisdiction, which was originally founded on the Royal Prerogative, was wide enough to cover these cases and declare that execution would infringe section 17.

But whatever the Privy Council's original powers, they were now governed by the Judicial Committee Acts of 1833 and 1844, which superseded the Royal Prerogative: see A-G v De Keyser's Royal Hotel Ltd (1919) 2 Ch 197, (1920) AC 508. There was power under section 4 of the 1833 Act for matters other than appeals to be referred to the Privy Council, but no such reference had been made here. In the absence of such reference, the Privy Council was confined to acting as an appellate court.

The case of Ong Chuan v Public Prosecutor (1981) AC 648, in which the Privy Council permitted appellants, appealing against the mandatory death sentence for drug trafficking in Singapore, to argue that the Misuse of Drugs Act 1973 in Singapore conflicted with the presumption of innocence guaranteed by the Constitution, and that the mandatory death sentence was in breach of the Constitution, was clearly distinguishable from the present case, where the attack was not on the lawful judgment of the court but on executive action occurring years later.

The appeals must therefore be dismissed. It was nevertheless apparent, in the light of their Lordships' decision in Pratt v A-G, that unless the sentences of these appellants were commuted to life imprisonment they had every prospect of making a successful constitutional application to the Jamaican Supreme Court.

Paul Magrath, Barrister