IN THE COURT OF APPEAL
CIVIL APPEAL NO. 10 OF 2004
IN THE MATTER OF THE CONSTITUTION OF GRENADA
IN THE MATTER OF AN APPLICATION BY
BERNARD COARD AND OTHERS FOR REDRESS
PURSUANT TO SECTION 16 OF THE SAID
CONSTITUTION OF GRENADA FOR
CONTRAVENTION OF SECTIONS 3, 5 AND 8 THEREOF
IN RELATION TO THEM
THE ATTORNEY GENERAL
BERNARD COARD, CALLISTUS BERNARD,
LESTER REDHEAD, CHRISTOPHER STROUDE,
HUDSON AUSTIN, LIAM JAMES, LEON CORNWALL,
JOHN ANTHONY VENTOUR, DAVE BARTHOLOMEW,
EWART LAYNE, COLVILLE MCBARNETTE,
SELWYN STRACHAN, AND CECIL PRIME
Of Bernard Coard and Ewart Layne
Against the Application
For a Stay Of Execution
Of The Order
Of The Honourable Justice Kenneth Benjamin
1. These arguments are directed at the Appellant’s application for a stay of the sentencing hearing ordered by the Learned Trial Judge. We take no position on the issue of a stay of the order to pay compensation for the violation of the Respondents’ rights under Section 8(3) of the Constitution or of the order to pay costs of $15,000.
2. If the Appellant is to be granted a stay of execution he must establish that his appeal has some prospect of succeeding. In Scotland Districts Association Inc. v. Attorney General and Others 37 WLR, 407, Williams JA in the Court of Appeal of Barbados, following the decision in Linotype- Hell Finance Ltd. V. Baker (1992) 4 ALL ER, 887, stated inter alia:
Although the Linotype case dealt with a money judgment, it is clear that a major consideration as to whether to grant a stay must be the prospect of success of the appellant when his appeal is heard. In their arguments before me, counsel on both sides appeared to recognise that the onus is on the appellant to show that the appeal has some prospect of success. A stay may be granted if the appellant discharges that onus; but if he does not, there is no point in a stay.
3. In Ketchum International plc v. Group Public Relations Holding (1998) 4 ALL ER, 374 the issue was one of whether injunctive relief should be granted but the court held that the same principles applied as for the granting of a stay of execution. From the judgement one can distil that the following conditions have to be satisfied for the granting of a stay:
(i) There must be a right of appeal, with or without leave;
(ii) The appeal must be bona fide and not brought for some improper purpose such as delay;
(iii) There must be reasonable grounds for an appeal, or there must be a good arguable appeal, as it is otherwise expressed;
(iv) The stay must be necessary to prevent the appeal right being rendered nugatory or valueless.
4. In the instant case, the Appellant has put forward four grounds of appeal in support of his application for a stay of execution. These grounds are:
(a) The learned trial judge erred in law in declaring that the mandatory sentence of death imposed upon the Respondents at their trial was unconstitutional and illegal.
(b) The learned trial judge erred in law in declaring that the imposition of the sentences of natural life on the Respondents by the Governor General as a condition to the pardon is unconstitutional, illegal and null and void in that it is an encroachment on the jurisdiction of the Court.
(c) The learned trial judge erred in law in holding that the principle of the unconstitutionality of the mandatory death sentence as held by the Judicial Committee of Her Majesty’s Privy Council in the cases of Patrick Reyes v. The Queen and Peter Hughes v. the Queen has retroactive application in consequence of which the Respondents should be remanded to custody to be brought before a Judge of the High Court within 42 days to be sentences [sic] pursuant to the convictions dated December 4, 1986.
(d) The learned trial judge erred in law in holding in favour of the submissions of the Respondents (albeit obita dicta) that by virtue of the proviso to section 8(2) of the Constitution a person who has been tried in their absence cannot be sentenced to death or imprisonment.
5. We submit that the Appellant’s appeal against the sentencing hearing ordered by the Learned Trial Judge and the application for a stay thereof is not bona fide; and that it is made for the improper purpose of delaying consideration by an independent and impartial court of the Respondents’ incarceration now into the 21st calendar year, the equivalent of a 30 plus year prison term. In support of this submission we rely on the Affidavit of the Respondents filed in the matter of the present application.
6. It is our submission that Grounds (a), (b) and (c) are not good arguable grounds of appeal and that Ground (d) is irrelevant to the application for a stay of the sentencing hearing.
7. The following are our specific arguments as regards each ground, taking them in the order of Grounds (a), (c), (b) and (d):
(i) The Privy Council by unanimous decision in Peter Hughes v.The Queen, upholding the majority decision of the Eastern Caribbean Court of Appeal, declared that the mandatory death sentence, which was imposed on the Respondents, is unconstitutional and illegal being in breach of Section 5(1) of the Constitution.
(ii) At the time of the trial of the Respondents in 1986, all the provisions of the Constitution except those provisions related to the Courts Order were back in force and effect. Section 5(1) of the Constitution was therefore in force. These provisions were restored since November 9th 1984 by Governor General’s Proclamation, Constitution of Grenada Order 1984. Act 1 of 1985 later validated this proclamation.
(iii) Even if the Respondents were tried in an Unconstitutional Court of Necessity that court was obligated to uphold the constitutional provisions, the Constitution being the Supreme Law.
(iv) Indeed, even if Section 5 of the Constitution remained in suspension, it would still be our submission that once the Constitution came back into effect the Respondents would be entitled to invoke the Jurisdiction of the Court under Section 16 with respect to the contravention of Section 5(1) of the Constitution inter alia. This is so because the Constitution was never validly abolished and de jure remained the supreme law of Grenada for the entire period since 1974. Hence in Jennifer Gairy v. The Attorney General (2001) 59 WLR, 189 it was uncontroversial that the Claimant could obtain constitutional relief for breaches of rights protected under the constitution which occurred at a time when the Constitution was in de facto suspension.
(i) There is nothing in the Privy Council’s decision in Peter Hughes v. The Queen (and related cases) from which it can be concluded that their Lordships intended that their decision only applied to the cases before the court and future cases.
(ii) In fact there is much in the decision in Peter Hughes v. The Queen which points to the fact that their Lordships intended and understood their decision at a minimum as applying to cases decided since the inception of the Constitution. In this regard see paragraphs 29,30,48 and 49 of the Privy Council’s judgement in Peter Hughes v. The Queen.
(iii) The declaratory theory of the common law under which judicial decisions are assumed to be of retrospective effect is a well-established theory of the common law. This doctrine can be traced back to at least 300 years: Kleinwort Benson Ltd v Lincoln City Council and other appeals  4 ALL ER 513, 534.
(iv) While the view has been expressed that the courts may need to consider a prospective declaratory approach to judicial decisions (R v. Governor of Brockhill Prison ex parte Evans (No.2) 4 ALL ER 15, 29), the retrospective effect implication of the declaratory theory is still firmly entrenched:
(v) The competing theory of prospective application has never received support by a majority of the judges in any matter before the court.
(vi) In Kleinwort Benson Ltd v Lincoln City Council and other appeals  4 ALL ER 513 opinion was divided as to the application of the traditional declaratory theory in the context of a claim for restitution where money had been paid under a mistake. The prospective application theory was put forward by two of the law lords. They took the view that the fact that a decision was overruled did not mean that the law as stated in the overruled case should not be considered as the law at the time of the payment.
(vii) But in R v. Governor of Brockhill Prison ex parte Evans (No.2) 4 ALL ER 15, 29, a later case, it was stated that the prospective application theory should only be applied if at all in exceptional cases: R v. Governor of Brockhill Prison ex parte Evans (No.2) 4 ALL ER 15, 27.
(viii) It was further stated that if ever there was a case in which the traditional declaratory theory should apply it is where the liberty of the subject is the issue: R v. Governor of Brockhill Prison ex parte Evans (No.2) 4 ALL ER 15, 28. A fortiori where the issue is one of the ultimate sanction.
(ix) Moreover, given the history of the mandatory death sentence cases, it is absurd and futile to argue that the Privy Council would have intended that their decision would apply only to Peter Hughes v. The Queen, Patrick Reyes v. The Queen and Berthill Fox v. The Queen and subsequent cases; and that despite the unlawfulness and unconstitutionality of the mandatory death sentence, and the availability of a remedy under Section 16 of the Constitution, persons whose cases were decided prior to Peter Hughes v. The Queen would still be exposed to execution pursuant to the unlawful mandatory death sentence. This is a hopeless ground of appeal.
(i) It is common ground between the Appellants and the Respondents that in imposing the sentence of imprisonment for the remainder of natural life, the Governor General exercised a sentencing function;
(ii) The very wording of Ground (b) makes clear that the Appellant is contending that the Governor General had the legal authority to impose the sentences. The Appellant’s argument rejected by the learned trial judge is that Section 72(1) of the Constitution confers the power of sentence on the Governor General.
(iii) It is settled law that the doctrine of separation of powers is one of the implicit foundation principles of constitutions of the Westminster type to which the Grenada Constitution belongs. Under the doctrine of separation of powers it is for the Court to determine the severity of sentence: Hinds v. R (1975); Director of Public Prosecutions v. Mollison (2) (Jamaica)  UKPC 6.
(iv) The Appellant’s contention is that Section 72(1) of the Constitution derogates from this principle.
(v) Section 72(1) of the Constitution confers certain powers on the Governor General to grant mercy. Among those powers is that under Section 72(1)(c). This is the only power under Section 72(1) that can approach anything resembling a sentencing power.
(vi) Together with the opening clause of Section 72(1), Section 72(1) (c) reads:
The Governor General may, in Her Majesty’s name and on Her Majesty’s behalf-
Substitute a less severe form of punishment for any punishment imposed on any person for any offence;
(vii) It would be observed that Section 72(1)(c) does not use the term “sentence”; it does not say that the Governor General can substitute “a less severe sentence” or even ‘a less severe punishment”; it says that he can substitute “a less severe form of punishment.” That is not by mistake.
(viii) Is there a difference between a sentence and a form of punishment? Once the question is posed the answer becomes obvious. The answer is yes. Imprisonment, on the one hand, is a form of punishment. Ten years imprisonment, on the other hand, is a sentence.
(ix) Once one gets into determining how severe a particular form of punishment should be, one is exercising a sentencing function; and under our constitutional system that function is a judicial function.
(x) That is why Section 72(1)(c) limits the Governor General’s power to that of substituting “a less severe form of punishment”; the extent or severity of the punishment is a matter for the court. Section 72 does not have to spell that out; it is implicit (Director of Public Prosecutions v. Mollison (2) (Jamaica)  UKPC 6) because our Constitution is built on the principle of Separation of Powers, and under the Doctrine of Separation of Powers, the function of sentencing is for the court and the court alone.
11. What Section 72(1)(c) would have permitted the Governor General to do in the instant case was to pardon the Respondents on condition that they undergo the punishment of imprisonment i.e. a less severe form of punishment.
12. Once the Governor General took the further step (pursuant to the advice of the Chairman of the Advisory Committee on the Prerogative of Mercy) of he himself determining how severe the imprisonment must be, he exercised a power not provided him by Section 72(1) of the Constitution; he encroached on territory that belongs to the court and the court alone. He breached the doctrine of separation of powers.
13. We submit that the above analysis is sufficient to establish that Section 72(1) of the constitution does not confer a power of sentence on the Governor General. But if more evidence is needed that Section 72(1) does not contemplate the Governor General having the power of sentence, such evidence can be found in Section 3(1) of the Constitution.
(i) Section 3(1) of the Grenada Constitution guarantees the right to personal liberty. The section opens with the following words:
No person shall be deprived of his personal liberty save as may be authorized by law in any of the following cases, that is to say-
in execution of the sentence or order of a court, whether established for Grenada or some other country, in respect of a criminal offence of which he has been convicted;
(ii) Section 3(1) lists 10 instances in all, in which one can be lawfully deprived of his personal liberty. There is no reference to any power vested in the Governor General under Section 72(1) of the Constitution to deprive any person of his liberty.
(iii) It is a rule of construction with respect to derogation from constitutional guarantees that derogation should be strictly and narrowly construed. Thus, in Peter Hughes v. The Queen at paragraph 35, their Lordships observed that:
“In the State v. Petrus  LCR (Const) 699,720D-F in the Court of Appeal of Botswana, Aguda JA referred to Corey v. Knight (1957) 150 Cal App 2d 671 and observed, ‘It is another well known principle of construction that exceptions contained in constitutions are ordinarily to be given strict and narrow, rather than broad, constructions’”
(iv) To read a power of sentence into Section 72(1) of the Constitution, one would have to construe “Court” in Section 3(1) (a) to include the Governor General. This would offend the rule of construction presently mentioned.
(v) Significantly, where, as in Sections 14-15 of the Constitution, the framers of the Constitution intended to derogate from the protection provided under Section 3(1) of the Constitution, this is expressly stated. Thus Section 14 states:
Nothing contained in or done under the authority of a law enacted by Parliament shall be held to be inconsistent with or in contravention of section 3 or section 13 of this Constitution to the extent that the law authorizes the taking during any period of public emergency of measures that are reasonably justifiable for dealing with the situation that exists in Grenada during that period.
(vi) No such words of derogation are used in Section 72 of the Constitution.
(vii) The Appellant argued at the trial that it is sufficient that there is a nexus between the sentence of the Court and the sentence in effect for the detention to be in execution of the sentence of a court per Section 3(1) of the Constitution. The judge accepted this.
(viii) But the judge went on to point out, correctly, that the argument of the Respondent does not address the issue of the executive actually exercising a sentencing function which it does not have and which is the preserve of the court;
(ix) In Anderson v. R  UKHL 46 the issue before the court was stated as follows by Lord Steyn at paragraph 33 of the judgement of the Court: “whether decisions about the term of imprisonment to be served by convicted murderers, sentenced to mandatory life imprisonment, should be made by the Secretary of State for the Home department, a member of the executive, or by independent courts or tribunals.”
(x) The Home Secretary argued that in fixing the tariff for the release of a convicted murderer he was administering a sentence already determined and imposed by the court rather than exercising a sentencing function.
(xi) A seven-man House of Lords bench by unanimous decision rejected that contention and held that the fixing of the tariff was a sentencing function since in fixing the tariff the Home Secretary was making a determination as to how severe the offender should be punished for his offence.
(xii) Based on the reasoning of the Learned Trial Judge in the instant matter, if it were the case that under Grenadian law it was stipulated that whenever the prerogative of mercy is exercised in death penalty cases that the sentence of death shall be substituted by a sentence of imprisonment for the remainder of natural life, then an argument may have been open to the Appellant that what the Governor General exercised was an administrative and not a sentencing function. However, it cannot be doubted that where there is a choice as to the punishments to be imposed, the task of determining which sentence to apply is the exercise of a sentencing function. This was the essence of the court’s decision in Anderson v. R aforesaid.
(xiii) Significantly, the Governor General perceived that he had such choice, because, within a six-week period, as deposed by the Respondents in the court below (with copies of the warrants attached as exhibits), the Governor General imposed the sentence of imprisonment for the remainder of natural life on the 13 respondents and on two others, while he sentenced 7 persons to imprisonment for life simpliciter.
(xiv) Since there is no law in Grenada stipulating what sentence is to be substituted where the executive exercises its prerogative power to set aside a death sentence, then if the Governor General decided to exercise his power under Section 72(1)(c), while, consistent with section 72(1)(c), it was for the Governor General to determine the form of punishment that is to be substituted; consistent with the doctrine of separation of powers implicit in section 72 (and the entire Constitution), it was for the courts to determine the severity of the punishment i.e. the sentence.
14. The analysis and conclusion set out herein are in full accordance with their Lordships’ observation in Patrick Reyes v. The Queen. There it was stated, expressly, at paragraph 44 of the judgment, that the Advisory Committee’s function is not a sentencing function; and that the Advisory Committee is not an independent and impartial court within the meaning of Section 8(1) of the Constitution.
15. The analysis here is also consistent with the view taken by Saunders JA in Hughes and Spence v. the Queen. In examining the nature and character of the prerogative of mercy Saunders JA said at paragraph 198 of his judgment:
“I do not believe that anything contained in the prerogative of mercy was intended specifically to supplement or derogate from the rights and freedoms declared and enshrined in Chapter 1 of the respective Constitution. These are rights and freedoms over which the judiciary must have full superintendence. It is for the Courts of law to adjudicate such questions as how, when whether and in what circumstances such rights may be enjoyed or infringed.”
16. Based on the many decisions of the Privy Council and the Court of Appeal upon which the above analyses are based, we submit that it is hopeless for the Appellant to argue that Section 72(1) of the Constitution conferred on the Governor General, a member of the executive, the power to sentence each of the respondents to imprisonment for the remainder of their natural lives.
17. Once the Learned Trial Judge arrived at the conclusion that the sentence of imprisonment for the remainder of natural life is unlawful, the court was faced with one of two options:
(i) Sever the pardon from the unlawful condition and free the Respondents forthwith; or
(ii) Nullify both the pardon and unlawful condition i.e. the executive sentence of imprisonment for the remainder of natural life, with the effect that all that is left is a mandatory death sentence, which has been declared unlawful and void by the Privy Council.
18. The Honourable Justice Benjamin chose the second course and provided the remedy laid down for such cases by the Privy Council in Peter Hughes v. The Queen.
19. His Lordship therefore did not rely on the simple contention that the decision in Peter Hughes v. The Queen applies to the Respondents’ case and that, hence, any interference by the executive with the sentence, which was void, was itself void.
(i) We submitted to the Learned Trial Judge in our written reply to the skeleton arguments of the Appellant that despite the unconstitutionality of the mandatory death sentence imposed in 1986, the court still had to consider the issue of the pardon.
(ii) We submitted that a pardon is not voided on account of a sentence being void; that under Section 72(1)(a) of the Constitution the Governor-General has the power to grant a pardon to any person convicted of any offence; that Peter Hughes v. The Queen did not invalidate the conviction. Hence the pardon could survive the decision in Peter Hughes v. The Queen.
(iii) We submitted further that this is an area in which the distinction between a commutation to imprisonment as a form of punishment, and a pardon, is important. The power to commute – i.e. substitute a less severe form of punishment- falls within Section 72(1)(c). The power to pardon falls under Section 72(1)(a). It may be arguable that the commutation of a void punishment is itself void. But once a conviction remains valid, there can be no challenge to a pardon which is otherwise valid. And hence despite the Application of Peter Hughes v. The Queen, the court still had to consider the validity of the pardon.
(iv) We submitted further that even if it were argued by the Respondent that the Governor General acted under both Section 72(1)(a) and 72(1)(c), the void act under Section 72(1)(c) is severable from the pardon under Section 72(1)(a).
21. Thus his Lordship did not simply apply the decision in Peter Hughes v. The Queen directly. Instead, he rejected the submission for the severance of the pardon from the illegal sentence imposed as a condition. He declared that, as a matter of law, in the circumstances of this case, the pardon fell together with the unlawful condition. By so doing, the clock was rolled back to the mandatory death sentence of December 4th 1986. This therefore made the decision in Peter Hughes v. The Queen now a live issue, and, in that context his Lordship applied the said decision.
22. Moreover, the Learned Trial Judge applied Peter Hughes v. The Queen not simply on the ground of it having retroactive effect and automatically entitling the Respondents to a remedy, as we submit he was entitled to do. His Lordship considered whether the Respondents could be denied a remedy on the basis of the doctrine of res judicata. He examined the matter in light of the Privy Council’s judgement in Jennifer Gairy v. The Attorney General (No.2) (1999) 59 WLR 174 on the correct approach to res judicata. His Lordship concluded that in this case the public interest in the finality of decisions of the court was outweighed by the public interest in not having persons subjected to the severest possible punishment declared unconstitutional and illegal by the highest court of the land. We submit that it is hopeless to seek to fault this finding.
(i) The view expressed by the Learned Trial Judge on the Proviso to Section 8(2) was obiter. It has no bearing on the Order of the Court. Wherefore no appeal right is involved here.
(ii) While the issue of the effect of the Proviso to Section 8(2) may be relevant to the proceedings at the sentencing hearing, this issue does not relate to the question of whether there should or should not be a sentencing hearing. The relevance of the proviso is to the sentencing power of the Court at such hearing.
(iii) The Appellant does not have a right of appeal against the sentence imposed by the court in a sentencing hearing. Nor does he have a right of appeal within the framework of Civil Appeal No. 10 against the Judge’s view on the proviso because, as aforementioned, that view does not form part of the Judge’s decision.
(iv) Therefore the Appellant cannot properly argue that his appellate right would be rendered valueless if the sentencing hearing were to go forward before the Court of Appeal considers the issue of the effect of the Proviso to Section 8(2). In the circumstances, he has no appellate right with regard to the present issue so there is nothing to be rendered valueless.
(v) In any case, the Proviso to Section 8(2) of the Constitution is pellucid. And while confirmation by the Court of Appeal of the Learned Trial Judge’s view of the effect of the said proviso will be welcomed, this is not a ground for the granting of a stay, since no appeal right invested in the Appellant stands to be prejudiced.
24. For the aforementioned reasons we submit that the Appellant’s application for a stay of the sentencing hearing should be dismissed with cost against the Appellant.
Tuesday April 13th 2004