Should judges decide on cases where they are adjudicating on matters of legal recourse abolished in their country of practice?
That is the question I pose about the jurisdiction of the Judicial Committee of the Privy Council (JCPC) in appeals against the death penalty, as raised in numerous sentencing appeals over recent years from the Caribbean.
It has been a long-standing feature in British legal policy for the JCPC, that is the judicial arm of the Privy Council (formal body of advisers to the sovereign), to hear appeals from citizens of Britain’s ex-colonies, overseas territories and self-governing dominions.
In essence, the Justices of the UK Supreme Court sit on cases in either Westminster’s Middlesex Guildhall or abroad giving “advice” to the Crown, essentially court judgments, on the matter at hand.
The law in such cases is often drawn from the common law tradition or British statute, in recognition of the countries’ Commonwealth pasts.
The death penalty, for instance, was commonplace across the Commonwealth. Its popularity waned in many countries with the increasing recognition of its inhuman nature and the potential for miscarriages of justice.
In the United Kingdom it was abolished by way of the Murder (Abolition of Death Penalty) Act 1965. Nevertheless, previous Commonwealth countries such as the United States retain it (in some of its fifty states) alongside current members of the association including Jamaica.
Capital punishment is cited by countries such as Jamaica as a means by which to control the social and economic effects of rising crime, rates of which increased during the 1990s, but to many it could also be seen as a hark back to when they were colonies of Britain, simply absorbing some of Britain’s old traditions.
The death penalty became a subject of much debate in this period, in foreign relations between the Caribbean and Britain, leading to much litigation in front of the Committee.
In Regina v Hughes,  UKPC 12 the respondent was granted special leave to appeal against his sentence, having been convicted of murder and subsequently sentenced to death. In section 178 of the Saint Lucian Criminal Code it was expressly stated that whoever committed murder was “liable indictably to suffer death”. This inherently failed to take into account any mitigating factors in the defendant’s case.
In the leading judgment Lord Rodger of Earlsferry asked the crucial question of “to what extent the Criminal Code authorised the infliction of the punishment of death by hanging”.
It was held that mandatory death penalties infringed the right to not be subjected to inhuman or degrading punishment or other treatment promised under the St Lucia constitution. Hughes is crucially important for it was the first case where it was necessary for the Board to examine the application of a provision like section 178 in relation to a challenge on the mandatory nature on sentencing.
Subsequently, in the decision in Reyes v The Queen,  2 AC 133, their Lordships held that section 178 of the Criminal Code was inconsistent with section 5 of the Constitution owing to its arbitrary application to anyone convicted of murder.
The appeal by the Crown was dismissed, varying the order of the Eastern Caribbean Court of Appeal to require the judge in the High Court of St Lucia to determine the appropriate sentence. Furthermore, it is the duty of the judges, after hearing submissions and evidence in some cases, to decide as to the appropriate penalty in cases of murder.
The latter is recognition on the part of the Lord Justices that the domestic judges are ultimately responsible for the imposition of their law. This is a crucial point.
On the face of it, Regina v Hughes may have appeared to undermine the decision of the Eastern Caribbean Supreme Court (ECSC), and those inferior domestic courts, for the way in which the Committee scrutinised the law of Saint Lucia. In fact, it is important to recognise that the case was remitted to the Court of Appeal division of the ECSC.
It was up to the Court to decide whether the mandatory death sentence should be quashed and if so, what sentence would be imposed, or whether the original sentence should be affirmed. Granting the domestic court this discretion inherently contradicts the fear that their Lordships are responsible for the final say on matters of domestic law (in this instance, that of St Lucia).
In spite of this, there is a palpable effect once a decision (or rather advice) of the Judicial Committee has been issued.
Thomas & Hilarire v Baptiste,  WLR 249 is perhaps the strongest example of this, for the advice handed down set a precedent for cases to come.
It was decided by their Lordships that Trinidad and Tobago had to allow the condemned to have their case heard before the Inter-American Court of Human Rights, or its Commission, before they were executed. Without this final avenue of appeal, the defendant would not have been granted their right to due process of the law. Accordingly their sentence was stayed.
In the earlier case of Pratt and Morgan v the Attorney General of Jamaica a precedent was also set that prisoners on death row would have their sentence commuted after a five-year period. The JCPC has noticeably affected the procedures and standards used when applying this sentence in the region – imparting a strong human rights flavour to the litigation, interspersed with reference to constitutionality.
Inevitably there has been much criticism faced by the JCPC that it does not show enough appreciation for the criminal justice systems of the Caribbean when making its decisions. Often the death penalty is either commuted or the condemned is granted a saving grace, when they would otherwise be executed. In spite of these misgivings, we like to reassure ourselves that being professional judges their Lordships are sufficiently impartial as to consider the constitutionality of the sentences in hand.
It is also very much the culture of the United Kingdom to pay homage to the rights and freedoms of people, which is noticeable in the importance placed by the Lords on the right to be free from inhuman and degrading treatment and to due process in many of the cases before them.
Such fundamental principles of English law stem from the Magna Carta and other medieval texts. Bearing this in mind, the “human rights mindset” of British judges seems little changed when they are adjudicating on Caribbean cases.
Their Lordships are evidence, and a result, of a British legal culture shaped by the abolition of the death penalty. This undoubtedly transfers into their work, which they can support with rhetoric recognising that many of the countries in question are signatories to the Inter-American Convention on Human Rights or even the non-binding American Declaration on Human Rights.
These judges may be in a sense better placed, in some respects, at adjudicating on cases of these type where they are not constricted by worries of rising crime rates of the country in question and the “moral decay” seen to follow.
All of this discussion about the concerns people have of the Committee, brings back to light a question that the prime ministers of Jamaica and of Trinidad and Tobago, among others, have raised on numerous occasions: should the Privy Council give advice or decide on cases where, fundamentally, the law at hand is not the law of the United Kingdom?
Is it their Lordships’ lack of familiarity with the various jurisdictions over which they adjudicate matters problematic?
From what we can see, opinion is divided.
On the one hand, there is an impetus for further Caribbean countries to accept the jurisdiction of the Caribbean Court of Justice (CCJ) in a bid to replace the JCPC. As Brian Tittemore said in his article, “it is not unexpected that some governments would resist the findings of domestic courts and international tribunals in this area” in a bid to “counter the effects of the death penalty jurisprudence”.
In particular, the prime ministers of Jamaica and of Trinidad and Tobago have both spoken of breaking from the Committee’s jurisdiction in favour of the CCJ.
At present there does not appear to be any indication that this change is imminent but the potential still exists.
In a similar vein, these countries’ governments have successfully argued that “savings clauses” included in their national constitutions precluded the JCPC from declaring the death penalty an infringement of the fundamental rights and freedoms contained within their constitutions.
This political tactic has been extended to pre-independence legislation, which protects them from scrutiny.
On the other hand, there are attorneys within the Caribbean who seem to believe in the mantra of “if it ain’t broken, don’t fix it”. Their line of thinking references the British legal foundations on which the Caribbean commonwealth countries were founded. They recognise the similarities between the two systems and see no fault in the UK’s Lordships deciding appeals from their jurisdictions.
This discussion leaves me with three unanswered questions. What’s the way forward? (We discuss the past and present day here.) What would happen if the JCPC’s jurisdiction were abolished? And finally, would the number of capital punishment cases where the sentence is upheld on appeal increase?
Either way, it would seem that liberal human rights objectives and true democracy might be mutually exclusive, at least in the early years of any devolution of judicial powers.