LAW REPORT : Stay of death sentence was appropriate

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The Independent Online
Reckley v Minister of Public Safety and Immigration; Privy Council (Lord Goff of Chieveley, Lord Browne- Wilkinson and Lord Hoffmann) 13 June 1995

In death penalty cases, although a petitioner has no automatic right to a stay of execution pending the disposal of his constitutional motion alleging contraventions of his constitutional rights, a stay should be granted if the petitioner raises an issue on the constitutional motion which is fairly arguable and, even if the court decides that the motion is hopeless, a short stay should be granted to enable the decision to be tested in appellate courts.

The Judicial Committee of the Privy Council granted an order directing that the sentence of death be not carried out on the petitioner, Thomas Reckley, until seven days after the determination of the appeal in Guerra v Baptiste and that the further hearing of the petition was stood over until after the determination of the Guerra case.

The petitioner was convicted of murder and sentenced to death in 1990. Death sentences in the Bahamas were not carried out pending a decision of the Privy Council which was given in April 1995 and led to the resumption of executions. The petitioner launched a constitutional motion the day before his execution was to be carried out, alleging that carrying out the death sentence would contravene his constitutional rights.

The Supreme Court and Court of Appeal of the Bahamas refused to grant a stay of the death sentence until the determination of the constitutional motion. The Privy Council directed that the petitioner be not executed pending the hearing of his appeal.

Timothy Straker (Clifford Chance) for the petitioner; Sir Godfray Le Quesne QC and Bernard Turner, assistant director of legal affairs, the Bahamas (Charles Russell) for the prosecution.

Lord Browne-Wilkinson said that, if the constitutional motion raised a real issue for determination, it must be right for the courts to grant a stay prohibiting the carrying out of a sentence of death pending the determination of the constitutional motion. But it did not follow there was an automatic right to a stay in all cases.

If it was demonstrated that the constitutional motion was plainly and obviously bound to fail, those proceedings would be vexatious and could be struck out. If it could be demonstrated to the court from whom a stay of execution was sought that the constitutional motion was vexatious as being plainly and obviously ill-founded, then it was right for the court to refuse a stay even in death-penalty cases.

It was emphasised that a refusal of a stay in a death- penalty case was only proper where it was plain and obvious that the constitutional motion must fail. In cases where the motion raised a fairly arguable point, even if the court hearing the application for a stay considered the motion was ultimately likely to fail, the case was not appropriate to be decided under the pressures of time which always attended applications for a stay of execution.

In the present case there was no possible blame attaching to either the legal system or the Government for any delay which had occurred. However a fresh point affecting the merits of the petitioner's constitutional motion was pending in the Privy Board in the case of Guerra which raised the rights of a petitioner to make representations. It would be wrong to permit the death sentence on the petitioner to be carried out until the outcome of the Guerra appeal was known.

Finally, as to the procedure where application was made for a stay of execution in a death penalty case, if the first- instance judge or the Court of Appeal reached the view that the constitutional motion was so hopeless that no stay should be granted, it did not follow that it was inappropriate to grant a short stay to enable their decision to be challenged on appeal. In the present case great difficulty was encountered by the petitioner in convening a Court of Appeal in the Bahamas and a Board of the Privy Council with sufficient speed to deal with the appeals in the short time available before the time fixed for the execution.

Even if a court decided not to grant a full stay until determination of the constitutional motion, the court should grant a short stay (a matter of days) to enable its decision to be tested on appeal. Execution of a death warrant was a uniquely irreversible process. It was neither just nor seemly that a man's life should depend upon whether an appellate court could be convened in the limited time available.

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