Death row delay breached prisoner's rights

LAW REPORT 15 November 1995

Guerra v Baptiste and other; Privy Council (Lord Keith of Kinkel, Lord Goff of Chieveley, Lord Nolan and Lord Nicholls of Birkenhead); 6 November 1995

The execution of a man after a substantial and unjustifiable period of delay in the disposal of his appeal was contrary to his rights under the constitution of Trinidad and Tobago.

The Privy Council allowed an appeal by the appellant, Lincoln Guerra, from the dismissal by the Court of Appeal and High Court of Trinidad and Tobago of his motion alleging infringements of constitutional rights, and commuted the appellant's death sentence to a sentence of life imprisonment.

In May 1989 the appellant was convicted of murder, sentenced to death and placed on death row. His appeal against conviction was heard in October 1993, nearly four and a half years after conviction. The principal cause of the delay was in furnishing the appellant's attorney with the trial judge's notes of evidence. The appeal was dismissed. His petition for leave to appeal to the Privy Council was dismissed on 21 March 1994.

The warrant for his execution was read to him at 1440 hours on 24 March for execution at 0700 hours on 25 March. The appellant filed a constitutional motion on 24 March alleging that his execution would constitute a violation of his constitutional rights.

The appellant relied on Pratt v Attorney General of Jamaica [1994] 2 AC 1, where it was held that to execute a man after a prolonged period of delay - five years in Pratt's case - could constitute inhuman punishment contrary to the Constitution of Jamaica. The constitutional motion was dismissed by the Court of Appeal in July 1994 who, having considered the administrative and other difficulties facing the judges of Trinidad and Tobago, decided the delay was within the time limit imposed in Pratt. The Privy Council granted a stay of execution pending his appeal on the constitutional motion.

The following issues arose before the Privy Council:

1) whether the lapse of four years and ten months had the effect that the execution of the appellant would breach his constitutional rights on the principle established in Pratt;

2) whether the short notice (17 hours) given to the appellant of his impending execution was in breach of his constitutional rights.

Philip Sapsford QC, Nicholas Blake QC and Tim Owen (Allen & Overy) for the appellant; Godfray Le Quesne QC, Nolan Bereaux, Deputy Solicitor General, Trinidad and Tobago and Peter Knox (Charles Russell) for the respondents.

Lord Goff said that the principles stated in Pratt were as applicable in Trinidad and Tobago as they were in Jamaica, the only difference being that in Jamaica a long-delayed execution would constitute inhuman punishment under its constitution, whereas in Trinidad and Tobago it would constitute cruel and unusual punishment under its constitution.

In Pratt the Privy Council stated that if capital punishment was to be retained it must be carried out with all expedition and the aim should be to hear a capital appeal within 12 months of conviction so that the entire domestic process should be completed within two years.

That applied to Trinidad and Tobago and demonstrated the limited extent to which regard could be had to problems facing the judicial system. Such problems could not be allowed to excuse long delays. The period of five years in Pratt was not specified as a time-limit and was not intended to provide a limit by reference to which individual cases should be considered.

In all the circumstances there had been a substantial and unjustifiable delay in the disposal of the appellant's appeal, a period which probably exceeded three years. To execute the appellant after such a lapse of time would constitute cruel and unusual punishment, contrary to his rights under the constitution.

Justice and humanity required that a man under sentence of death should be given reasonable notice of the time of his execution. There was a settled practice in Trinidad and Tobago for the reading of a death warrant on a Thursday for execution on the following Tuesday. The effect of the settled practice was that the warrant of execution must be read at a date which gave the condemned man the benefit of at least four clear days between the reading of the death warrant and his execution, and that those four clear days should include a weekend. The giving of less than 17 hours' notice to the appellant of his execution constituted a breach of his constitutional rights.

Ying Hui Tan, Barrister