Privy Council Decision 3

Last week we discussed the grounds raised in Court of Appeal No 10 of 2006 between Bernard Coard and others and the Attorney General of Grenada and the reasoning of their Lordships of the Privy Council. This week we will commence where we left off.

Constitutional right to appeal

Counsel for the appellant pointed out that the appellants had been denied their constitutional right to appeal and to this their Lordship pointed to the case of Mitchell v Director of Public Prosecutions which had dealt with the issue.{{more}} In that case it was noted that the right was abolished by People’s Law No 84 of 1979, instituted under the revolutionary government and was confirmed by Act No 1 of 1985 by the constitutional government. Restoration of appeal to the Privy Council came in 1991 but could not operate to afford the appellant the right to appeal.

Counsel went on to ask for leave to challenge the constitutionality of the appellants convictions in 1986, but their Lordships noted that this point was already resolved in the case of Chokolingo v the Attorney General of Trinidad and Tobago where it was argued against the use of a constitutional motion “to avoid the finality of a decision dismissing a criminal appeal”. They argued that in a similar case in Canada the same issue was raised and the Supreme Court held that the appellant could not use a collateral procedure to reopen the question of whether his conviction had been lawful. If an appeal is still open then the issue could be revisited.

After dealing with the minor issues their Lordships turned to the central submission in the appeal, that is, that the mandatory sentence of the death penalty was unconstitutional. As said before, the Caribbean Court of Appeal led by Byron CJ had in the Case of Regina v Hughes [2002] 2 AC 259 held that the mandatory death penalty was an “inhuman or degrading punishment and unconstitutional”. Their Lordships noted that this point was also made in relation to other constitutions in several cases in the Caribbean and based on section 230 of the Grenada constitution which came into being in 1974 the death penalty for murder was discretionary. With this interpretation it means that a person convicted of murder is not automatically given the death sentence but may be given a lesser sentence. In the case before them, their Lordships therefore concluded that the death sentence was unlawful.

Their Lordships also noted that Byron J, the judge who conducted the trial had applied the correct law that was in existence at the time but “there was no judicial contribution to determining the sentence which they should have served”, in fact no discretion was exercised.

They looked at the existing mechanism in Grenada for sentencing and pointed to the prerogative of mercy but thought it was inadequate and was dependent on executive discretion. They also noted that there was a provision in the Prison Rules to review sentences for life prisoners by a Board and they relied on Benjamin J, who said that the Board had either never been appointed or had not functioned “.

Their Lordships felt that there was “the highly unusual circumstance in that the question of the fate of the appellants was “politically charged that it is hardly reasonable to expect any Government of Grenada even 23 years after the tragic events of October1983 to take an objective view of the matter”, They therefore recommended a judicial determination so that appropriate sentences could be arrived at, taking into consideration “such progress” as the appellants have made in prison”

Ada Johnson is a solicitor and barrister-at-law.
E-mail address is: exploringthelaw@yahoo.com