TEN YEARS OF ADJUDICATION IN THE CARIBBEAN COURT OF JUSTICE AND REFLECTIONS ON A DECADE OF CARIBBEAN JURISPRUDENCE 1. PROLOGUE

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1 TEN YEARS OF ADJUDICATION IN THE CARIBBEAN COURT OF JUSTICE AND REFLECTIONS ON A DECADE OF CARIBBEAN JURISPRUDENCE 1. PROLOGUE 1.1 The countries of the Caribbean suffered the brutality of slavery for three and a half centuries. Several of the English-speaking territories of the Region endured imperial domination for three centuries. In this period the supervisory authority of the Crown was manifested by the role played by imperial institutions of which the Privy Council was one. 1.2 Appeals to the Crown on a variety of matters, including legal disputes by virtue of the royal prerogative, were part of the imperial regime. In England, while original civil jurisdiction was assumed by the Court of Chancery, criminal matters were relegated to the Star Chamber. The Privy Council became the supervisory administrative authority and the final appellate court for what was termed the plantations, primarily in the Western Hemisphere In 1675 the Crown decided to exert strict control over the colonial administration and appointed a Special Committee of the Privy Council to assume the functions of the Council for Trade and Plantations. This Committee proceeded to interfere with the legislative functions of the colonial legislatures. The principles of self-determination and incipient doctrine of constitutionalism manifested itself in the American revolutionary experience so that in 1763 Patrick Henry challenged the right of the Privy Council to disallow the Virginia Two Penny Act Prior to 1696 appeals to the King in Council were referred to the Council for Trade and Plantations and later the judicial functions of this Council were transferred to a Special Committee called the Committee For Appeals, comprising the Lord Chancellor, former Lord Chancellors and persons who had held high judicial offices. 1.5 Almost simultaneously with the abolition of slavery, a more regulated system was established and a Special Judicial Committee constituted. 3 For the first time a legal requirement was imposed that all members of this Special Committee should possess legal qualifications and judicial status. The traditional informality of the Privy Council was diminished by the provisions of the Judicial Committee Act of 1 Sir Kenneth Roberts-Wray, Commonwealth and Colonial Law (1966), p Bernard Schwartz, History of the Supreme Court (1993) 3 Judicial Committee Act, 1833 (3&4W4, c. 4) 1 P a g e

2 which required Her Majesty to provide by Order in Council for the administration of appeals to Her Majesty in Council while retaining the extraordinary power to grant special leave to appeal in circumstances not provided for by the constitutional or statutory instruments of the colonial territories. 1.6 In its operations during the dark days of slavery and crown colony governments in the Region, the Privy Council s predecessor, the Council for Trade and Plantations, had upheld the legislative autonomy of the legislatures of Barbados and Jamaica, which resisted all efforts to introduce measures for the amelioration of the parlous condition of the black majorities. 1.7 From the inception the Royal Proclamation relating to the future constitutional framework for Jamaica had stated: all the children of our natural born subjects of England to be born in Jamaica, shall from their respective births be reputed to be, and shall be, free denizens of England, and shall have the same privileges to all intents and purposes as our free-born subjects of England. Right reason, which is the common law of England, is esteemed and of force amongst us, together with Magna Charta and the ancient statutes of England, so far as they are practicable. 5 Nevertheless, the Privy Council repeatedly held that the child of a male white English settler and a black female slave had the status of a slave and could not be treated as other than a new item of property It is therefore surprising that against this historical background, when the former British colonies of the Caribbean emerged from their colonial status they elected to retain the Privy Council as their final appellate court. While it is true that in the last century, the Privy Council in its reformed judicial manifestation has provided high quality judicial service to the Caribbean members of the Commonwealth, it is remarkable that unlike the vast majority of former colonies, having less historical justification, we have to a large extent insisted on clinging to its overreaching jurisdiction. 4 7&8V.C.69 5 See L. G. Barnett, The Constitutional Law of Jamaica (1977), p Edwin Watkins, A History of the Legal System of Jamaica (Ph.D., Laws, University of London)(1968), pp P a g e

3 1.9 It is now 800 years since the proclamation of Magna Charta, 350 years since its adoption in the Caribbean, 200 years after the abolition of slavery, 150 years after the Morant Bay Rebellion, 100 years after The Daily Gleaner called for the establishment of a regional final court of appeal, over 50 years since Independence and 40 years since the Jamaican Delegation to a CARICOM Heads of Government Conference tabled a proposal for the establishment of a regional final Court of Appeal. In February 2001, 10 Caribbean States signed the Agreement for the establishment of the Caribbean Court of Justice. They all declared in the Preamble to that Agreement that they were: CONVINCED that the Caribbean Court of Justice, (hereinafter referred to as the Court ), will have a determinative role in the further development of Caribbean jurisprudence through the judicial process; 1.10 There is no rational reason for the repudiation of that declaration. There is now 10 years of evidence in the judgments of the Court as to the quality of its jurisprudence. I invite you now to consider an essential part of that evidence relating to the exercise of its appellate jurisdiction. 2. ACCESS TO APPELLATE JUSTICE 2.1 To ordinary citizens, the existence of a third tier jurisdiction assumes practical value if it is accessible. This means not only that there is a legal avenue by which they are able to go beyond the first level of appeal but it is physically and financially within their reach. Although the discussions on adopting the appellate jurisdiction of the Privy Council have focussed on this latter aspect, where the evidence in favour of the CCJ is clear and irrefutable, there is another important aspect and that is whether the Court will not only be legally able and willing to entertain their challenges but will also provide them with a real opportunity to have their matters reconsidered. 2.2 The provisions of Article XXV of the Constituent Agreement with respect to the appellate jurisdiction of the Court as well as the statutory provisions of the States which have adopted its appellate jurisdiction follow closely on the pattern of the preexisting provisions for appeals to the Privy Council, with additional transitional arrangements. In Barbados Rediffusion Service Ltd. v. Mirchandani et al [2005] CCJ 1(AJ), which had the distinction of being the first appeal to be taken to the CCJ, the Court stated that in shaping the principles by which it would be guided in determining whether to grant or refuse special leave to appeal it would: pay attention to the practice adopted by the Judicial Committee, but we will not feel bound to adhere strictly to it. We will also pay attention to the practice and principles adopted by final courts of appeal in other 3 P a g e

4 4 P a g e Commonwealth countries, but we will develop our own jurisprudence in this area incrementally on an as needed basis. [Para. 35] 2.3 On the threshold question of jurisdiction, the CCJ stated: One should therefore avoid a construction of the new legislation which would lead to the result that a party is deprived of a right to make or pursue an application for leave to appeal to the Judicial Committee without at the same time acquiring a corresponding right to apply for leave to appeal to this Court. It must be assumed that in all those cases in which the effect of the legislation was to abrogate an existing right of appeal to the Judicial Committee whether that right was qualified or unqualified, it intended to confer a corresponding right of appeal, similarly qualified or unqualified, to the Caribbean Court of Justice. Otherwise persons would be penalized under a doubtful law. [Para. 25] 2.3 This was essentially a procedural appeal in which the background facts concerned the striking out of the applicant s defence for disobedience of an unless order and there was an issue as to whether or not he had complied. The CCJ stated that: It has been said that the Judicial Committee will grant special leave to appeal if there has been either an egregious error of law or a substantial miscarriage of justice. In this case there is no egregious error of law involved, but the question does arise whether in the circumstances of this case there exists a real risk that allowing the order barring the applicant from defending this action to stand, without being exposed to further scrutiny by this Court, will result in a serious miscarriage of justice. The sanction imposed on the applicant is a drastic one as it denies it the opportunity to defend the action on its merits. The applicant has always manifested a serious intention to contest liability in this action and there is at least the possibility that if liability is established, the damages in this action will be substantial. [Para. 43] 2.4 The CCJ expressed its conclusion as follows: We are certainly not in a position to hold, and do not hold, that the sanction imposed was wrongly imposed. We have, however, come to the conclusion that in the circumstances of this case the possibility that it may have been wrongly or unfairly imposed is significant enough to warrant the issue being fully and finally ventilated before this Court. [Para. 44]

5 The Court accordingly granted special leave to appeal. 2.5 In Brent Griffith v. Guyana Revenue Authority and the Attorney-General, CCJ App. No. 1 of 2006, Nelson, J.A., in giving the judgment of the CCJ, stated: 5 P a g e But this court may also in the exercise of its inherent jurisdiction grant special leave when the Court of Appeal has wrongly refused leave (either in an as-of-right case or one where the conditions for leave under section 7 are satisfied) or has granted leave subject to conditions which it had no power to impose. The same inherent jurisdiction is in our view also exercisable when no application for leave has been made to the Court of Appeal. [Para. 23] 2.6 In Elizabeth Ross v. Coreen Sinclair [2008] CCJ 4 (AJ), the issues surrounded the purchase of a condominium by a blind and penurious person. The Court of Appeal of Guyana had refused to grant her leave to appeal to the CCJ as a poor person so as to exempt her from the payment of security for costs. She had lost the benefit of a conditional leave to appeal granted her by the Court of Appeal of Guyana by reason of her failure to pay the security for costs ordered. The CCJ held that it had an independent power to grant special leave to appeal and taking into account the circumstances including the difficult legal questions raised by the appeal decided to grant her leave to appeal and added: We are also satisfied that the applicant is genuinely unable to provide security for costs and, therefore, if required to do so as a condition of her appeal proceeding, her right of appeal will have been rendered nugatory. We appreciate that the respondent is similarly circumstanced and in all probability cannot afford to pay for legal representation at the hearing of this appeal. Fortunately, both parties have had the benefit of the services of competent and public-spirited attorneys who have no doubt provided them on a pro bono basis. Hopefully, their generosity will not be exhausted before the final determination of this matter. [Para. 25] 2.7 In Mohammed Yasseen v. The Attorney-General of Guyana [2008] CCJ3 (A.J.) the CCJ had to consider whether the appellant had a right of appeal under the Caribbean Court of Justice Act which conferred jurisdiction on the Court. He had been dismissed from the Guyana Police Force without being given an opportunity to be heard. He instituted proceedings in the High Court claiming damages for wrongful dismissal and a declaration that his removal from the Force was unconstitutional and of no effect. The trial Judge found that he was unlawfully dismissed and awarded him

6 damages for wrongful dismissal but did not allow him to amend his claim to include compensation and benefits appropriate to someone who had been compulsorily retired. On appeal to the Court of Appeal he contended that since his dismissal was null and void he was still in effect a member of the Force and entitled to his salary up to the date of his retirement and his pension thereafter. The Court of Appeal upheld this judgment of the trial Judge and held that he was right to take into account the failure of the appellant to mitigate his losses. The Court of Appeal found that the Statement of Claim could not have transformed a private law action for unlawful dismissal to a constitutional matter as what was alleged was not an infringement of any fundamental right but a breach of natural justice. 2.8 On appeal to the CCJ, the appellant claimed that the proceedings were concerned with redress for contravention of the provisions of the Constitution relating to the protection of fundamental rights. 2.9 The CCJ held that the claim had not been presented as a claim for breach of a fundamental right and stated: The basic contention here was that his termination was wrongful because of the Police Commissioner s disregard of the principles of natural justice. The right to institute the action on that ground existed independently of the Constitution and did not depend on, and was not concerned with, establishing the contravention of any provision of the Constitution for the protection of fundamental rights. [Para. 13] 2.10 The CCJ then stated: Even if the appellant were to allege - and we must not necessarily be taken as supporting either of these propositions - that his right to be heard constituted a fundamental right protected by the Constitution or that his job was property the enjoyment of which was protected by the Constitution, there is no principle of constitutional law which would have required the Court, in assessing compensation due to him for breach of either or both of those assumed rights, to treat his employment as notionally continuing until his retirement age and to ignore his capacity to take up alternative employment and earn an income from it. [Para. 14] 6 P a g e

7 2.11 And then added: Put another way, there is no basis in principle or in decided cases for treating the policy which the courts have traditionally followed of not ordering specific performance of contracts of service as inapplicable to a contract of service which has been terminated in breach of a fundamental right protected by the Constitution. [Para. 14] and concluded: In the circumstances there is nothing in this case that turns on it being treated as a claim under any of the relevant constitutional provisions. [Para. 15] The Court added: In the absence of any technical rule requiring the Court to regard the employment of the appellant as being in existence until he attained the retirement age, there is no possible basis on which we could have treated the compensation he has actually been awarded as unfair or inadequate. [Para. 16] 2.12 Thus, the appeal was struck out. While clearly the Appellant had failed to plead the constitutional breach, the CCJ regrettably appeared to have repeated the rather restrictive formulation of the principle governing the approach to the vindication of fundamental rights which had been exemplified in Khemragh Harrikissoon v. Att- Gen 7. and Jaroo v. Att-Gen 8. However this obiter dictum is not truly representative of the CCJ s approach to claims for constitutional redress in other cases It is to be noted that in Nankissoon Boodram v. Att-Gen (1994) 47 W.I.R. 459, the Court of Appeal of Trinidad and Tobago had distinguished Harrikissoon on the issue of whether to resort to constitutional claim for fundamental rights abuse was fatal because a common law remedy exists. Sharma, J.A. at page 483 stated: two things are very clear. Firstly, it is the right of every citizen to have unimpeded access to the courts to vindicate his constitutional rights and, secondly, the courts under their inherent jurisdiction and section 14(2) of the Constitution have the right to exercise their coercive powers. To 7 (1979) 32 W.I.R (2002) 59 W.I.R P a g e

8 these I might add a third, that the right to seek constitutional redress is without prejudice to any other action with respect to the same matter which is lawfully available to him. That this is so, is made clear by section 14 of the Constitution itself In Seepersad v. AG (2012) 80 W.I.R.463, the Privy Council also adopted the more liberal approach and distinguished Harrikisoon and Jaroo by holding that: The availability of the remedy of judicial review did not render the present proceedings an abuse of process or otherwise unsustainable. Whilst the right to apply to the High Court under s. 6 of the Constitution for redress when any human right or fundamental freedom was or was likely to be contravened was an important safeguard of those rights and freedoms, its value would be diminished if it was allowed to be misused as a general substitute for the normal procedures for invoking judicial control of administrative action. In the instant case, the issues that the appellants raised were truly issues of a constitutional nature The restrictive dictum in Mohammed Yassen was obiter and probably encouraged by the weakness of the claim to constitutional relief and fortunately does not represent the overall approach of the CCJ to the availability of access to the Court for the vindication of human rights abuses In Singh & Singh v. Att-Gen of Guyana 2012 CCJ 2(AJ), the Court answered the question as to how it should deal with ex parte applications for an order nisi for a certiorari writ to be issued, taking account of the nature of such an application and the nature of the writ against the background of the Guyanese Constitution which as the CCJ pointed out in its Preamble emphasises the importance of a system of governance that promotes, inter alia, fundamental human rights and the rule of law. The CCJ stated that the main purpose of certiorari, indeed, is to quash unlawful conduct of public bodies which can very well cause interference with fundamental rights which include constitutional rights to property in the Constitution and freedom of association. Rules of Court should thus be purposively construed so as to foster the fundamentals of the Constitution. The Applicants having been denied their right of appeal below, the CCJ stated: In these very exceptional circumstances this Court considers that no court could properly refuse an application for an extension of time for appealing that 29 December order. Order II, rule 3, paragraphs (4) to (7) of the Court of Appeal Rules enable the Court of Appeal to grant extensions of time for appeals and under s 3 of the Caribbean Court of Justice Act No 16 of 2004 giving effect to Article 8 P a g e

9 XXV.6 of The Agreement Establishing the CCJ, this Court has all the powers of the Court of Appeal. (para. 41) 2.17 In Knox v. Deane [2012] CCJ 4(AJ), Orders for costs had been made against Mrs. Knox and had not been paid and the Respondents commenced garnishee proceedings over her share of Kingsland Estate s dividends. On the issue of security for costs, the CCJ stated that the awards of security for costs must, in the final analysis, be just in all the circumstances. In this respect the courts are anxious to preserve access to justice for persons resident abroad or impecunious who are brought before the courts to defend litigation and are desirous of continuing their defence, so to speak, by way of appeal. More especially is this so because both at first instance and on appeal nowadays foreignness and poverty are no longer per se automatic grounds for ordering security for costs. [Para. 40] Nelson, J., CCJ said, both the single Justice of Appeal and the Court of Appeal should have in their written reasons: (i) identified the special circumstances justifying an award of security for costs on appeal; (ii) taken into account the lack of a skeleton bill of costs with a realistic estimate of the costs of the appeal as opposed to an unsubstantiated or wholly erroneous estimate in excess of the maximum permitted costs in enforcement proceedings; (iii) considered the ability of the Appellant to pay the costs of the appeal not only from her resources but from sources supporting her in the litigation rather than her alleged impecuniosity alone; and (iv) assessed whether it was just to order security for costs in all the circumstances against the Appellant/Defendant, whether foreign or impecunious or both, who was brought into court and wished to continue her defence by way of appeal. [Para. 32] 2.18 In Lashley & Campagne v. Singh (2014) CCJ 3 (AJ), the applicants applied to the CCJ for special leave to appeal on the grounds that: 1. that the First Applicant s constitutional right to be present at his trial was violated; 2. that due to the incompetence of counsel, the Applicants received an unfair trial; 3. that the treatment of evidence during trial was prejudicial to the Applicants case; and 4. that the sentences were excessive. 9 P a g e

10 The CCJ held that: The most cogent and compelling ground for granting special leave to appeal was the claim by the Applicants that the ineffective conduct of their trial by counsel rendered the trial unfair and the conviction unsafe. Among other things it was argued that Counsel did not at the trial put specific statements made by the Applicants to the Prosecution witnesses. The Court notes that the Magistrate herself had stated in her reasons for decision that the unsworn statements by the Applicants were at variance with the questions put to the prosecution witnesses In Systems Sales Ltd. v. Browne-Oxley [2014] CCJ 16(AJ) the CCJ affirmed that the standard it would apply in granting special leave to appeal is that the applicant should show that the proposed appeal has a realistic chance of success or if as a matter of public importance a definitive reasoned judgment on the issue is required from the Court The reality of the accessibility of appellate justice before the CCJ is illustrated by its approach to concurrent findings of fact in the Courts below. In Lachana v. Arjune [2008] CCJ 12(AJ) stated: [11] Counsel for the Arjunes referred us to the well known case of Devi v Roy where the Privy Council codified their (utter) reluctance to review the evidence for the third time where there are concurrent findings of two courts on a pure question of fact. This decision was the culmination of a long line of cases in which the Privy Council developed a rather rigid practice of non-intervention with the facts of the case including those facts that were mere inferences from the primary facts. Even when there was a dissentient in the appellate court or where different reasons were given by the judges in arriving at the same findings of fact, the Privy Council was loath to interfere. It would do so in case of some miscarriage of justice or violation of some principle of law or procedure. Although the Privy Council stated in Devi v Roy, and has repeatedly said so in later cases, that this practice is not a cast -iron one, it would seem that its approach has been more rigid than the practice of other final courts in the Commonwealth. We would in this context expressly refer to recent statements in the High Court of Australia which clearly show a tendency toward more flexibility. 10 P a g e

11 [12] We do not think that it is proper for us to adopt wholesale the practice followed by the Privy Council if only because the position of our Court is quite different from that of the Privy Council. When their Lordships decided Devi v Roy they were at the judicial apex of an empire that spanned all five Continents. In a way they still are, although the empire has dwindled substantially. The point is that their Lordships are both geographically and culturally far removed from the countries that still retain the Privy Council as their final appellate court. They are, quite understandably, unfamiliar with local situations and customs, and therefore have to tread very carefully and cautiously with the facts as they emerge from the findings of the local courts. The disadvantages of that situation have become clear with some regularity. To take a recent example, in Panday v Gordon their Lordships expressly opted to defer to the findings of the lower courts even though it meant depriving the appellant of a fresh look at the factual substratum of the case. The difference with our Court is obvious. We are a regional Court and thus much closer to home as it were. Our closeness to the region and our greater familiarity with its social and cultural dimensions make it easier for us to descend into the facts of the case, especially where the facts do not turn on the credibility of the witnesses or where they are the result of inferences from primary facts. [13] Furthermore, it would seem to us that a policy of rigid judicial restraint with regard to concurrent findings of fact might be much more appropriate in appeals with special leave where a final court has a broad discretion whether to hear a case or not than in appeals as of right. We note, however, that the Privy Council has maintained its practice even in those appeals (see Benoit Leriche v Leon Cherry). [14] It is against this background that we intend to develop our own practice, for the time being on a case by case basis. As this is an appeal as of right and only deals with factual findings we will, for now, deal with the issues before us as fully as necessary On the basis of these rulings, it can be stated with some confidence that the CCJ will provide all reasonable means of access to its appellate jurisdiction and will be particularly concerned to ensure that onerous financial obstruction is not placed in the way of poor persons who have genuine grounds for wishing to access its jurisdiction. 11 P a g e

12 3. PROTECTION OF HUMAN RIGHTS 3.1 The second area in which average citizens are deeply concerned is the need for confidence that the final appellate court will give effective protection to their constitutional guarantees of fundamental rights and freedoms. Arguably, the best test of this is where the person who claims the protection of the rights is morally undeserving or is despised by the society. Not surprisingly, the first test of the Court s reliability in this area is a capital punishment case. 3.2 The death penalty has for many years been arguably the most challenging issue of human rights law in the Caribbean. Judicial executions by their very nature create strong philosophical and ethical reactions as well as impose immense burdens on judicial reasoning. The Constitution-makers of several countries implicitly accepted that the death penalty is in conflict with fundamental principles of human rights and their own protestations of support for international conventions which proceed on that basis. Accordingly, in several Constitutions a specific savings clause was introduced to safeguard the death penalty against judicial condemnation. In the discussions about the abolition of appeals to the Privy Council and the adoption of the appellate jurisdiction of the CCJ some politicians even gave as their reason for supporting this move, the presumed tendency of the Privy Council to circumscribe the use of the death penalty. 3.3 It was therefore a matter of immense interest to observe how this issue would be addressed by the CCJ. That opportunity arose in 2006 in the case of Attorney- General of Barbados et al v. Joseph & Boyce [2006] CCJ 3 (AJ). The facts as summarised by the Court are that the respondents and two other men were charged jointly with the murder of a young man who was beaten to death. All four accused were given the option of pleading guilty to the lesser charge of manslaughter. The other two accused accepted this offer and were sentenced to 12 years imprisonment for manslaughter. The respondents, however, declined the offer and stood trial for murder. They were convicted and sentenced to death. Their appeals to the Court of Appeal and the Privy Council were dismissed. 3.4 The respondents then petitioned the Inter-American Commission for Human Rights, alleging violations by the State of Barbados of its obligations under the American Convention on Human Rights. Shortly after the filing of these petitions, however, the Barbados Privy Council confirmed its previous decision not to recommend commutation of their sentences. As a result, death warrants were read to the respondents and they instituted these proceedings claiming that the threatened execution was in contravention of their constitutional rights. 12 P a g e

13 3.5 Counsel for the Crown in addressing the CCJ conceded that he could not ask for the re-imposition of the death sentences as more than five years had run since these sentences were imposed so that to carry them out then would be in breach of the decision in Pratt and Morgan. The CCJ stated that: This concession was in our view rightly made. Over five years had elapsed since their conviction and sentence and the Crown made no attempt to challenge the applicability to them of the time-limit for carrying out the death penalty laid down in Pratt and Morgan. [Para. 15] 3.6 The CCJ was concerned with three broad issues: 1. Whether the exercise by the Governor-General of his powers under section 78 of the Constitution of Barbados is justiciable and if so, to what extent. 2. In what manner, if at all, may unincorporated international human rights treaties which give a right of access to international tribunals affect the rights and status of a person convicted of murder and sentenced to the mandatory punishment of death by hanging. 3. Whether section 24 of the Constitution authorises the Court to commute a death sentence and, if so, whether in all the circumstances it was appropriate for the Court of Appeal to take into account the matters that it did in deciding whether to commute or give other relief. [Para. 11] 3.7 President de la Bastide and Justice Saunders gave a joint judgment and the other five judges (Justices Nelson, Pollard, Bernard, Wit and Hayton gave separate judgments but they were all unanimous in the ultimate and essential answers, as indicated by the Summary of the Judgments: It is the unanimous view of the Court that the exercise of the prerogative of mercy is reviewable notwithstanding section 77(4) of the Constitution which purports on the face of it to preclude the court from inquiring whether the BPC's functions under section 78 have been properly performed. The grounds for and review are not exhaustively catalogued in the judgments, but they are held to include procedural unfairness. the go-ahead given by the BPC for the execution of the respondents shortly after they had initiated proceedings before the Inter-American 13 P a g e

14 Commission for Human Rights was a contravention of the right to the protection of the law. 3.8 Referring to the speculation which had accompanied the establishment of the Court with respect to the approach it would take in death penalty cases, Justices de la Bastide and Saunders began by outlining some basic features of the approach it would adopt in addressing these issues and declared: The main purpose in establishing this court is to promote the development of a Caribbean jurisprudence, a goal which Caribbean courts are best equipped to pursue. In the promotion of such a jurisprudence, we shall naturally consider very carefully and respectfully the opinions of the final courts of other Commonwealth countries and particularly, the judgments of the JCPC which determine the law for those Caribbean states that accept the Judicial Committee as their final appellate court. In this connection we accept that decisions made by the JCPC while it was still the final Court of Appeal for Barbados, in appeals from other Caribbean countries, were binding in Barbados in the absence of any material difference between the written law of the respective countries from which the appeals came and the written law of Barbados. Furthermore, they continue to be binding in Barbados, notwithstanding the replacement of the JCPC, until and unless they are overruled by this court. Accordingly we reject the submission of counsel for the appellants that such decisions were and are not binding in Barbados. [Para. 18] 3.9 Justices de la Bastide and Saunders further remarked: We recognise that the death penalty is a constitutionally sanctioned punishment for murder and falls within internationally accepted conduct on the part of civilised States. The death penalty, however, should not be carried out without scrupulous care being taken to ensure that there is procedural propriety and that in the process fundamental human rights are not violated. Death is a punishment which is irrevocable. Amidst deep and continuing controversy over the death penalty, it must be acknowledged that several court decisions in the Caribbean over the last two or three decades have done much to humanise the law and to improve the administration of justice in this area. [Para. 19] 14 P a g e

15 3.10 They declared with respect to the judicial review of the exercise of the power of commutation: We agree with those who regard the power to confirm or commute a death sentence, particularly a mandatory one, as far too important to permit those in whom it is vested freedom to exercise that power without any possibility of judicial review even if they commit breaches of basic rules of procedural fairness. Rooted though they be in language and literature, conceptual differences between mercy and justice cannot justify denying to a man under sentence of death, an enforceable right to have the decision whether he is to live or die arrived at by a procedure which is fair. [Para. 39] 3.11 The Court held very importantly that it has an implied or inherent power to give redress where it finds that there was a breach of the guarantee of due process. [para. 41] 3.12 On the relevance of international human rights conventions, which have been acceded to but not incorporated into domestic law, and the approach taken by the JCPC in Pratt & Morgan, the CCJ: We respectfully endorse without reservation the proposition that the practice of keeping persons on death row for inordinate periods of time, is unacceptable and infringes constitutional provisions that guarantee humane treatment. In this respect, Pratt has served as an important reminder to all that the Constitution affords even to persons under sentence of death, rights that must be respected and that the true measure of the value of those rights is not just how well they serve the law-abiding section of the community, but also, how they are applied to those for whom society feels little or no sympathy The Court held that procedural fairness is an elementary principle and therefore, a condemned man has a constitutional right to procedural fairness as part of his right to protection of the law. Correspondingly, the courts have an inherent jurisdiction, and a duty, to grant an appropriate remedy for any breach of that right. Justices de la Bastide and Saunders held that due process related only to domestic and not international law (not following Thomas v. Baptiste [1999] 3 WLR 249(262-3) and Lewis & Others v. The Attorney-General [2001] 2 A.C. 50. They however embraced the opportunity to review the conflicting case law on the application of the principle of legitimate expectation in this context and pointed out: 15 P a g e

16 16 P a g e The frequency and force of the dissents and the high incidence of reversals by the JCPC of its own recent decisions demonstrate very forcefully the fact that this branch of the law is in an unsettled state and is still evolving. Novel and difficult questions of law are involved here. Judges all over the world are struggling to give form and coherence to ideas that only began to engage their attention in fairly recent times. In the judgments examined above there is a divergence of opinion and approach, not only as between different courts but as between judges of the same court. The range is from the very assertive and activist positions of the Indian Supreme Court to the more conservative approach of the House of Lords. [Para. 103] 3.14 The judges stated with respect to the widening human rights jurisprudence that: Citizens are now at liberty to press for the observance of these rights at both levels. At the domestic level, the jurisprudence of international bodies is fully considered and applied. In determining the content of a municipal right, domestic courts may consider the judgments of international bodies. Likewise, on the international plane, the judgments of domestic courts assist in informing the manner in which international law is interpreted and applied. There is therefore a distinct, irreversible tendency towards confluence of domestic and international jurisprudence. [Para. 106] 3.15 They concluded that, in giving the advice to proceed with the appellant s execution: the BPC defeated the legitimate expectation of the respondents and deprived itself of any opportunity of considering the Commission s report or if the matter was referred to the Inter-American Court, that Court s judgment. The reading of the death warrants on the 15 th September 2004 constituted an infringement of the respondents right to the protection of the law. [Para. 128] 3.16 On the approach that should be taken in future by the BPC the CCJ provided some valuable guidelines, which we will not here examine but which are predicated on the principle that Moreover, the role of the BPC in a mandatory death penalty regime is critical to the individualising of the sentence, an essential feature

17 of any civilised justice system. We have seen from time to time in relation to a refusal to exercise the prerogative of mercy in favour of a condemned man, the expression that one is allowing the law to take its course. Somehow, mercy is in some quarters perceived as a deviation from the normal course of the law. This is a most unfortunate way of viewing the prerogative of mercy, especially in a mandatory death penalty regime. Mercy and justice are not mutually exclusive concepts and the course of the law includes the principled intervention of the BPC. [Para. 140] 3.17 The CCJ held that the Barbados Court of Appeal was bound on the latter issue to follow the decisions of the Privy Council in Thomas v. Baptiste and in Lewis v. The Attorney-General of Jamaica which established that the State is under a duty to await the outcome of the process before human rights bodies, at least for a reasonable period. Asserting its independence the CCJ in its Summary of the Judgments stated: This Court unlike the Court of Appeal, is free to depart from those decisions, and while we agree with the result produced in those cases, we do not agree with the reasoning by which that result was reached Justice Nelson agreed with Justices de la Bastide and Saunders that the decision of the BPC in clemency cases are reviewable for errors of law such as alleged breaches of the Constitution, procedural unfairness [para. 23]. Nelson J.A. also held that these decisions are reviewable on grounds of illegality, irrationality, procedural impropriety and proportionality [para. 24]. He concluded that legitimate expectation constituted an exception to the rule that international law and municipal law travel along distinct, non-tangential paths [para. 28]. Nelson, J.A. concluded that: a breach of the right to the protection of the law occurred when the BPC made its decisions not to recommend clemency before the respondents could obtain any material for its consideration from the international bodies they had petitioned, thus impairing the fairness of the hearing. This breach brought into play the full range of remedies under the redress clause. [Para. 34] 3.19 Justice Pollard, on the issue of justiciability of the exercise of the prerogative of mercy, agreed that the prerogative of mercy should be exercised by procedures which are fair and proper and to that end are subject to judicial review. 17 P a g e

18 3.20 Justice Desiree Bernard, concurring with the decision of Justices de la Bastide and Saunders, stated: 18 P a g e The whole concept of mercy is complex depending as it does on the exercise of a discretion inherent in some person or authority designated to dispense it. It appeals to instinctive values of conscience and fair play even in societies within the Caribbean where the incidence of criminal activity is beyond acceptable limits. In carrying out their mandates statutory mercy tribunals are expected to facilitate the process by procedures that are fair in all respects both to the public at large as well as to the condemned person. [para. 30] In light of the principles of fairness enumerated by Lord Mustill in Doody I reiterate that fairness required that the Respondents be given an opportunity to make written representations to the Barbados Privy Council as was their right so to do, and having regard to the particular circumstances of a lapse of two years since the first warrant for their executions was read. [para. 32] With respect to delays in carrying out execution, Justice Bernard stated: I endorse the guidance and suggested time limits of Pratt, and commend them to the other jurisdictions of which this Court is currently the final appellate court. Delays which reach unacceptable levels can deny a condemned person the constitutional protection of the law which is the Gibraltarian rock on which every judicial system is built, and in which confidence of the public resides. This must not be confined only to the post-conviction stage of trials, but efforts must be made to expedite the pre-conviction process which in most constitutions guarantees to an accused person protection of the law. [para. 36] 3.21 These judgments were thoroughly analysed by Mr. David Batts (now Mr. Justice Batts) in an article entitled The CCJ Proving Detractors Wrong or Flattering to Deceive?, Caribbean Rights Journal, Vol. 1. His concluding remarks are worth quoting: In the final analysis the CCJ has established that Human Rights and the established principles in that regard will be at the forefront of its determinations. The quality and robustness of the approach convinces me that this is not mere flattery. It appears that the thesis

19 for the Court and the antithesis from the detractors have synthesized, and have resulted in the creation of an institution of which we can be justly proud In Lashley and Campayne v. Det. Cpl. Winston Singh [2014] CCJ 11(AJ), the Court considered whether the conduct of the Appellant s counsel at the trial had deprived him of a fair trial stated: Counsel for Lashley and Campayne after he chose not to lead any sworn evidence had the tactical advantage of depriving the prosecution of a closing address. This decision was a tactical move to enable him to have the last word. This move, like other strategic moves of counsel, did not achieve the desired result. However, what the preceding paragraphs demonstrate is that the Appellants were granted the full panoply of their rights at trial. [Para. 21] On the question of sentencing, the majority (Justices Byron, Nelson, Saunders and Hayton) stated: and concluded: The principles on which appellate courts will interfere with a sentence are well settled. This Court will not interfere with a sentence unless it is manifestly excessive or wrong in principle. It matters not that individual members of an appellate court would themselves have imposed a different sentence. The matter of sentencing involves an exercise of discretion. The matters to be taken into account for the purposes of sentencing (circumstances of the offence aggravating factors and mitigation) are well established and apply to the sentencing decision in this case. [Para. 30] In the final analysis, it cannot be said that the learned Chief Magistrate did not bring to bear on her decision the proper principles applicable to sentencing or failed to apply such principles properly or at all. Having regard to the public interest she gave great weight to the prevalence and seriousness of the offences charged and the apparent lack of remorse on the part of the Appellants. There is no proper basis upon which an appellate court should interfere with the exercise of the learned Chief Magistrate s discretion save as to varying her order by crediting the Appellants with the four days spent on remand. [Para. 36] 19 P a g e

20 In a minority judgment, Justice Wit and Anderson, stated: and added: It is a well known principle of sentencing that young first offenders should, as far as possible, be kept out of prison. They should, at least, as a rule, not be given a long custodial sentence, lest they receive a thorough and professional training to become hardened criminals in the "University of Crime" (the overcrowded Georgetown prison where Lashley and Campayne are currently detained may very well qualify as such and is, despite the efforts of those Prison Officers who are trying to make the best of it, one of the most dehumanizing places we have seen in our region). We have not discovered anything in the Chief Magistrate s memorandum of reasons that shows some basic understanding of this in our view crucial principle of sentencing. [para. 43] In the matter at hand, it is arguable that there would have been sufficient reason for the Chief Magistrate to impose a custodial sentence especially given the failure of the state to provide sufficient probation officers and consequently sufficient guidance to young offenders, the almost non-existent possibilities of community service in Guyana and, what the Chief Magistrate has called, the prevalence of the offence and the increase of the commission of crimes by young persons. Under these circumstances, it would be difficult if not impossible for a sentencing judicial officer to let the offender of the hook as a practically toothless non-custodial sentence, not without reason, would be perceived by the general public. In the circumstances of the case before us, the proper sentencing approach would in our view therefore have been to use the short sharp shock method of imposing a sentence of six month with the warning that if there is to be a next time, the court will react with the full force of the law. [Para. 45] 3.23 Both the strict and more severe approach of the majority and the liberal and more positive approach of the minority are sensitive to societal needs as well as the importance of rehabilitation, although the majority were clearly influenced by the traditional non-interference policy of appellate courts in reviewing sentences in criminal cases. 20 P a g e

21 3.24 In Lucas & Carillo v. Chief Education Officer, The Minister of Education et al (2015] CCJ 6(AJ), the Appellants had challenged their suspension from their posts as Principal and Vice-Principal of a Secondary School in a mixed claim for judicial review and constitutional review. The Court of Appeal quashed the suspension on the basis that the Chief Education Officer had acted ultra vires in suspending the Appellants but held that there was no breach of constitutional rights. The Court posited that while the right to work was an important socio-economic right, the scope of such a right must vary with the economic well-being of the country and therefore the right to work has to be interpreted as an opportunity to earn a living and not as a guarantee of employment. The majority held that a breach of section 15 of the Constitution of Belize would only arise if the Ministry had placed an unjustifiable fetter on the Appellant s right to freely choose or practice a trade or profession. On the issue of equal protection, the Appellants could only succeed by proving that they had been treated differently from those in comparable circumstances On the issue of vindicatory damages, the Court acknowledged that the purpose of vindicatory damages is to vindicate a constitutional right by reflecting the sense of public outrage; underlining the importance of the constitutional right and deterring future breaches, but this did not arise as there had been no breach of a constitutional right In strong dissenting judgments, Justices Saunders and Wit said taking into account the unfairness inherent in the procedures used to conduct the investigations, and the accompanying undue publicity, there should be an award of damages for breach of the Appellant s fundamental rights. The decision of the majority is explicable on the ground that the Court of Appeal had correctly held that the investigation undertaken by the Minister was a fact - finding inquiry into the cause of unrest and tension at ESTM and was not a disciplinary inquiry The Majority stated: 21 P a g e In concluding that the Court of Appeal was right, we are aware that in the field of suspensions pending investigation, the cases are not always consistent in treating a right to be heard as not arising at a preliminary stage. In our view, there is no formulaic answer to the problem and each case must be decided on a careful examination of its own particular facts. We are satisfied that the Court of Appeal could properly reach the conclusion it arrived at on the facts. [Para. 77] The majority approach appears to be unduly conservative because if the basic facts are not in dispute the CCJ was in as good a position as the Court of Appeal to evaluate the legal implications of those facts.