The Judicial Committee of the Privy Council Decisions

Privy Council Appeal

 

Ricardo FarringtonPetitioner

v.

The Queen Respondent

 

FROM

 

THE COURT OF APPEAL OF THE

COMMONWEALTH OF THE BAHAMAS

 

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REASONS FOR REPORT OF THE LORDS OF THE

JUDICIAL COMMITTEE OF THE PRIVY COUNCIL

UPON A PETITION FOR SPECIAL LEAVE TO APPEAL

AS A POOR PERSON OF THE 22nd May 1996,

Delivered the 17th June 1996

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Present at the hearing:-

Lord Keith of Kinkel

Lord Jauncey of Tullichettle

Lord Steyn

  ·[Delivered by Lord Keith of Kinkel]

 

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1. On this application for leave to appeal as a poor person an important question regarding the proper construction of section 104(2) of the Constitution of the Commonwealth of The Bahamas arose.  At the conclusion of the hearing their Lordships agreed humbly to advise Her Majesty that the petitioner ought to be granted special leave to appeal.  They now record their decision and reasons on the point of construction.

 

2. In May 1990 the applicant was arrested and charged with murder.  In August 1990 he was committed for trial.  On 30th November 1992 the applicant was convicted of murder in the Supreme Court, Nassau.  The trial judge sentenced the applicant to death.  In April 1994 the Court of Appeal of the Commonwealth of The Bahamas dismissed an appeal by the applicant against conviction.  In March this year the Judicial Committee of the Privy Council dismissed the applicant's petition and supplemental petition for special leave to appeal.  The Advisory Committee on the Prerogative of Mercy then considered the applicant's case. The advice was that the law should take its course.  On 27th March a warrant for execution was read to the applicant and a time for execution was set at 8.00 a.m. on 9th April.

 

3. On 3rd April the applicant submitted a motion under article 28 of the Constitution claiming, on the principle established in Pratt v. Attorney General for Jamaica [1994] 2 A.C. 1, that the delay in carrying out the execution in his case contravened his fundamental right to protection from inhuman and degrading treatment guaranteed by Article 17(1) of the Constitution.  At the same time the applicant applied for an order staying his execution pending determination of his constitutional motion.  Osadebay J. dismissed the application for a stay pending determination of the constitutional motion but granted a short stay pending appeal.  In written reasons dated 9th April the judge concluded that the applicant's motion was "plainly and obviously bound to fail, `being plainly and obviously ill-founded'".  For this reason he dismissed the application.  The applicant appealed.  On 29th April the Court of Appeal dismissed the appeal.  In written reasons dated 6th May the Court of Appeal treated the applicant's constitutional motion as doomed to fail since "the period of three years and four months spent by the  Appellant on death row does not on the Pratt principle raise a presumption of inhuman or degrading treatment or punishment".  Nevertheless the Court of Appeal granted a short stay pending the submission of a petition for special leave to appeal to the Privy Council.  That is the background against which the application for leave to appeal as a poor person came before their Lordships.

 

4. It is now necessary to turn to Article 104.  It provides as follows:-

"(1) An appeal to the Court of Appeal shall lie as of right from the final decisions of the Supreme Court given in exercise of the jurisdiction conferred on the Supreme Court by Article 28 of this Constitution (which relates to the enforcement of fundamental rights and freedoms).

 

  (2) An appeal shall lie as of right to the Judicial Committee of Her Majesty's Privy Council or to such other court as may be prescribed by Parliament under Article 105(3) of this Constitution from any decision given by the Court of Appeal in any such case."

 

5. There was a debate as to whether an appeal lies as of right in the present case. Counsel for the applicant contrasted the right of appeal under Article 104(1) to the Court of Appeal against "the final decision of the Supreme Court" with the right of appeal under  Article  104(2)  from "any decision given by the Court of

6. Appeal in any such case".  That wording, he argued, was wide enough to cover any decision whether final or interlocutory.  Their Lordships reject that literal interpretation.  It would be unworkable since it would involve an appeal as of right, for example, on a decision to adjourn the proceedings for further enquiries to be made. In their Lordships' view Article 104(2) contemplates a decision determining a constitutional motion.

 

7. On behalf of the Attorney General it was submitted that there is no right of appeal since the decision of the Court of Appeal was interlocutory in character. Counsel said that it makes no relevant difference whether the consequence of the refusal of a stay may result in the execution of the applicant.  Counsel argued that the focus must be on the technical character of the order made.  And no formal order had been made dismissing the constitutional motion.  This is too formalistic an approach to the interpretation of the provisions of Article 104(2).  It is well settled that constitutional provisions must be generously construed.  And it is clear that both the judge and the Court of Appeal ruled that the constitutional motion was doomed to fail.  At both levels it was decided that there was nothing to try on the constitutional motion. Both courts treated the constitutional motion as if it were struck out.  In substance and effect the constitutional motion was adversely determined to the applicant.

 

8. It follows that there is an appeal as of right.  If the applicant were not a poor person he would require no special leave. He is, however, a poor person and accordingly seeks special leave to appeal as such.

 

9. Having decided to grant special leave to the applicant their Lordships propose to say nothing about the merits or demerits of the appeal.  On the other hand, for the avoidance of doubt their Lordships make clear that even in a case where an appeal lies as of right their Lordships consider that it would be inappropriate to grant special leave to appeal as a poor person where it is plain beyond rational argument that the appeal is doomed to fail.

 

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