Pratt v Attorney General et Al; Morgan v Attorney General et Al

• Jurisdiction: Jamaica
• Judge: Wolfe, J.
• Judgment Date: 14 June 1991
• Court: Supreme Court (Jamaica)
• Docket Number: No. C.L. P049 of 1991 and C.L. M132 of 1991
• Date: 14 June 1991

Supreme Court

Wolfe, J.

No. C.L. P049 of 1991 and C.L. M132 of 1991

Pratt

and

Attorney General et al

Morgan

and

Attorney General et al

Appearances:

Dr. Lloyd Barnett, Richard Small and Mrs. Sandra Minott Phillips for Earl Pratt.

Noel Edwards Q.C., Dennis Daly Q.C. and Jack Hines for Ivan Morgan, Lennox Campbell, Miss Denier Lyttle and Lackston Robinson for the defendants.

Constitutional law - Constitution of Jamaica ss. 17(1) and 20(1) — Right not to be subjected to torture or to inhuman or degrading punishment or other treatment — Whether long delay in executing death penalty violated rights under ss. 17(1) and 20(1).

Constitutional law - Judicial review — Prerogative of mercy — Whether its exercise as a power of the sovereign subject to judicial review — Prerogative not subject to legal rights and never attracted to itself the operation of the trial process and therefore condemned person has no right to appear or make representations before the Privy Council.

Wolfe, J.

1 Earl Pratt and Ivan Morgan have both invoked the Jurisdiction of the court under section 25(1) of the Jamaica (Constitution) Order in Council 1962.

2 Section 25(1) states as follows:

“Subject to the provisions of subsection (4) of this section, if any person alleges that any of the provisions of sections 14 to 24 (inclusive) of this Constitution has been, is being or is likely to be contravened in relation to him, then, without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the Supreme Court for redress”.

3 Section 25(2)

“This Supreme Court shall have original jurisdiction to hear and determine any application made by any person in pursuance of subsection (1) of this section and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing, or securing the enforcement of any of the provisions of the said sections 14 to 24 (inclusive) to the protection of which the person concerned is entitled : provided that the Supreme Court shall not exercise its powers under this subsection if it is satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned under any other law”.

4 Both plaintiffs alleged that their rights under sections 17(1) and 20(1) of the Constitution have been breached.

5 Section 17(1) states;

“No person shall be subjected to torture or to inhuman or degrading punishment or other treatment.”

6 Section 17(2) states:

“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”.

7 Section 20(1) states:

“Whenever any person is charged with a criminal offence he shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.”

8 Dr. Barnett arguing for both plaintiffs posited the following:

“Although the applicants challenge the proposed imposition of the death penalty on them and seek a reduction of their sentence, the issue raised is not the constitutionality of capital punishment but the constitutionality of the infliction of the death penalty on them at this stage and in the circumstances of their case and the validity of the decision that they should in those circumstances be subjected to capital punishment.”

9 The applicants contention is two fold:

• 1. On a proper interpretation of the constitution the delays and repeated issuing of death warrants and their withdrawals at a time when applicants had undergone agony of impending execution, coupled with the hope given them, from time to time, of reprieve constitute inhuman and degrading treatment.

• 2. The refusal of the Govern General in Privy Council to commute the death sentence is an unreasonable exercise of the constitutional power within the Wednesbury Principles and/or arrived at in breach of principles of natural justice and constitutional rights to a fair and proper hearing.”

10 Delay being an element contributing to the inhumane and degrading treatment which the plaintiffs complain it is appropriate to set out the chronological sequence of events since the date of the offence to the present time in respect of each plaintiff.

11 Earl Pratt

1

Date of offence - October 16th, 1977. 2. Date of trial - January 10th - 15th, 1979 3. Application for leave To appeal to Jamaican Court of appeal filed - January 1979. 4. Appeal heard - On drivers dates between September 30th, 1980 and December 5th, 1980. 5. Petition to Inter American Commission on Human Rights - June 12th, 1981 6. Reason for refusal of Application for leave to appeal delivered - September 24th, 1984 7. Inter-American Committee on Human Rights rejected petition - October 3rd, 1984 8. Appealed to the United Nations Human Rights Committee under the International Government on Civil and Political Rights - January 28th, 1986 9. Notice of Intention to Petition for special leave to appeal to Judicial Committee of the Privy Council - Dated Marcy 12th, 1986 and lodged in the Court of Appeal on March 13th, 1986 10. Application for special Leave to appeal to the Judicial Committee of the Privy Council dismissed - July 17th, 1986 11. United Nations Human Rights Committee requested stay of Execution - July 21st, 1986 12. First warrant issued - February 13th, 1987 Advising execution on - February 24th, 1987 13. Stay of execution - February 21st, 1987 14. Inter American Committee on Human Rights reviewed decision handed down October 3rd, 1984 - July 9th, 1987

12 Jamaica government advised as follows:

“The fact that the Jamaican Court of Appeal issued its decision on December 5 ^th, 1980 but did not issue the reasons for that decision until four (4) years later September 24 ^th, 1984 was tantamount to cruel inhuman and degrading treatment because during that four years delay the petitioner could not appeal to the privy council and had to suffer four (4) years on death's row awaiting execution.”

• 15. Second warrant issued - February 21 ^st, 1988

• Advising execution on - March 8 ^th, 1988

• 16. Stay of execution granted - March 1 ^st, 1988

• 17. View of United Nations Human Rights Committed handed down - April 6 ^th, 1989

• 18. Third warrant issued - February 21 ^st, 1991

• Advising execution on - March 7 ^th, 1991

• 19. Constitutional redress sought by notice of motion filed - February 28 ^th, 1991

• 20. Stay of execution granted - March 6 ^th, 1991.

13 Ivan Morgan

1

Date of Offence - October 16th, 1977 2. Dates of Trial - January 10th - 15th, 1979 3. Application for leave to Appeal to Jamaican Court of appeal filed - January, 1979 4. Appeal heard - on divers dates between September 30th, 1980 and December 5th, 1980. 5. Reasons for refusal of application for leave to appeal delivered - September 24th, 1984 6. Notice of Intention to Petition for special leave to appeal to the Judicial Committee of the Privy Council - Dated April 13th, 1985 lodged in the Court of Appeal on March 13th, 1980. 7. Application for special leave to appeal to the Judicial Committee of the Privy Council dismissed - July 17th, 1986 8. First warrant issued - February 13th, 1987 Advising execution on - February 24th, 1987 9. Stay of execution granted - February 21st, 1987 10. Appealed to the United Nations Human Rights Committee under the International Covenant on Civil and Political Rights - March 12th, 1987 11. Recommendation of Inter American Committee on Human Rights - July 9th, 1987 12. Second warrant issued - February 21st, 1988 Advising execution on - March 8th, 1988 13. Stay granted - March 1st, 1988 14. Views of United Nations Committee on Human Rights handed down - April 6th, 1989 15. Third warrant issued - February 21st, 1991 Advising execution on - March 7th, 1991 16. Constitutional redress sought by notice of motion filed - February 28th, 1991 17. Stay of execution granted - March 6th, 1991.

14 Both matters were commenced by notice of motion. The court brought to the attention of counsel appearing for the plaintiffs, The Judicature (Constitutional Redress) Rules, 1963. The relevant portions of section 3 of the said rules state:

• 3(1) An application to the court pursuant to section 25 of the constitution for redress by any person who alleges that any of the provisions of sections 14 to 24 inclusive, of the constitution has been or is being contravened in relation to him, may be made by motion to the court supported by affidavit.

• (ii)An application to the court pursuant to section 25 of the constitution for redress by any person who alleges that any of the provisions of sections 14 to 24 inclusive of constitution has been, is being or is likely to be contravened in relation to him, may be made by filing a writ of summons claiming a declaration of rights and/or praying for an injunction or other appropriate order. (Emphasis supplied)

• (iv) The provision of the Judicature (Civil Procedure Code) Law shall apply to all proceedings under these rules with such variations as circumstances may require.

15 The very question of whether or not matters of this nature should be by writ of summons instead of by notice of motion was urged by the Solicitor General appearing on behalf of the Attorney General in Bell v Director of Public Prosecutions and Another (1985) 32 W.I.R. p. 317. Lord Templeman delivering the opinion of the board at page 322 said:

“The Solicitor-General who appeared on behalf of the Attorney General of Jamaica now submits that the application to the Supreme Court should have been made by writ and not by notice of motion. Without entering into a consideration of the rules of procedure which apply in Jamaica and are best...