Fisher v. The Minister of Public Safety and Immigration and Others (No. 2)

[1998] 3 LRC 451, [1999] 2 WLR 349, (1998) 6 BHRC 244, (1998) 2
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The appellant was convicted of murder and sentenced to death in 1994. In 1996, he lodged a petition with the Inter-American Commission on Human Rights (IACmHR). Although The Bahamas ratified the Charter of the Organisation of American States (OAS) in 1982, it has never ratified the American Convention on Human Rights. However, Article 51 of the Regulations of the Inter-American Commission on Human Rights allows the right of individuals to petition to the IACmHR regarding a violation by a state which, although not a party to the American Convention, is a member of the OAS.

A warrant of execution was read to the appellant, and he was informed that he would be executed on 12 September 1996. The appellant immediately filed a constitutional motion alleging that, in accordance with the principle established in Pratt v A-G for Jamaica [1994] 2 AC 1 (Jam PC), the period of delay that had occurred in his case violated the constitutional prohibition on inhuman or degrading punishment under Article 17(1).

The government wrote to the IACmHR on 29 December 1997 inviting it to complete its consideration of the appellant’s complaint by 15 February 1998 and it also wrote to the appellant’s solicitors in January 1998 informing them of its decision to act even if the IACmHR had not reached a final decision by that date. On 26 March 1998 the warrant of execution was read for the second time. Three days later, the appellant filed a further constitutional motion alleging that there had been a breach of his legitimate expectation that the government would abide by the IACmHR Regulations and allow a reasonable time (submitted by the appellant to be, in the circumstances, not less than 18 months from 16 December 1997) for the IACmHR process to be completed. The constitutional motion was dismissed both at first instance and by the Court of Appeal.

The appellant appealed to the Privy Council claiming that the government would be in breach of his constitutional right to life under Article 16(1) – which provides that no person shall be deprived intentionally of his life save in execution of the sentence of a Court in respect of a criminal offence of which he has been convicted – if he were executed before the IACmHR had completed its inquiries. In addition, the appellant argued that the decision by the government not to wait any longer than 26 March 1998 before carrying out the execution was a wholly unreasonable exercise of power or discretion. Finally, the appellant claimed that, if the appeal were dismissed, the reading of the execution warrant for a third time would itself constitute inhuman treatment contrary to Article 17(1).

[Adapted from INTERIGHTS summary, with permission]

In dismissing the appeal, the court held that the Bahamas was not a party to the OAS at the time the Constitution was enacted and there could not, therefore, be any implication that the right to life in Article 16(1) required that an appellant not be executed while an application to the IACmHR was pending. If Parliament had intended to introduce a constitutional qualification at the time The Bahamas did become a party, it would presumably have done so in express terms. Moreover, it is difficult to see how, in the circumstances, a qualification can be implied; it would mean that the government had introduced new rights into domestic law by entering into a treaty obligation (Brind v Secretary of State for the Home Dept [1991] LRC (Const) 512 (UK E&W HL) applied).

The Court further held that carrying out the death penalty while a petition is pending is not inhuman or degrading treatment or punishment in breach of Art 17(1). Moreover, since it was lawful to execute a prisoner without waiting for a decision of the IACmHR before 10 July 1973 (because The Bahamas was not then a party to the OAS), under Art 17(2) it cannot be held to be in contravention of Art 17(1) to do so now.

The reading of the warrant for a third time did not constitute inhuman treatment contrary to Art 17(1). It might be a factor to be borne in mind by the Advisory Committee on the Prerogative of Mercy but it is not a matter for the courts. Even if the appellant had a legitimate expectation that he would not be executed while his petition was pending, his expectation could not survive the government’s unequivocal warning to his solicitors in January 1998 that it would wait no longer than 15 February 1998 before carrying out the execution.

The government’s decision to read the warrant of execution on 26 March 1998 was not unreasonable in the sense established in Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] 2 All ER 680 (UK E&W CA). There were weighty factors pointing in favour of an immediate decision, not least the need to maintain public confidence in the country’s criminal justice system, and the requirement on humanitarian grounds that, in countries which retain the death penalty, lawful death sentences should be carried out as swiftly as practicable. As at 26 March 1998 there appeared to be no immediate prospect of the IACmHR reaching a decision and even now it is not known when the Commission will report. Nor is there any provision in the Constitution requiring the Advisory Committee on the Prerogative of Mercy or the designated minister to comply with any such report (Reckley v Minister of Public Safety and Immigration (No 2) [1996] 1 LRC 401; [1996] 3 CHRLD 400 (Bah PC) followed).

Finally, the Court noted that a defendant is entitled to exercise his or her domestic rights of appeal and should be allowed a reasonable time to petition the IACmHR but the overriding principle is that execution should follow as swiftly as practicable after sentence of death. In determining what is a reasonable time in the present case, it is of critical importance to bear in mind that the appellant has been sentenced to death. Having regard to the fact the appellant’s petition had been under consideration by the IACmHR for 21 months when the execution warrant was read for the second time on 26 March 1998, that the IACmHR was in possession of all the material it required by 7 April 1997 and that the government had written repeatedly to the IACmHR asking it to give the case its urgent attention, there is no doubt that a reasonable time for the IACmHR to complete its investigation had elapsed before 26 March 1998.

Observation (per Lord Slynn of Hadley and Lord Hope of Craighead):

It is essential for death sentence cases to be treated as urgent cases calling for a shortening of the relevant timetables. Whilst a change of policy might be announced by the government to prevent legitimate expectations arising in the future, once a procedure like the present has actually begun a government cannot by a unilateral announcement terminate legitimate expectations already created (Minister of State for Immigration and Ethnic Affairs v Teoh (above) considered).

[Adapted from INTERIGHTS summary, with permission]

"But at the time the Constitution was enacted, there could be no question of any implication. For The Bahamas was not then a party to the Organisation of American States. It did not become a party until 1982. If Parliament had intended to introduce a constitutional qualification at that time, it would presumably have done so in express terms. In the circumstances it is difficult to see how a qualification can be implied. It would mean that the Government had introduced new rights into domestic law by entering into a treaty obligation, contrary to the principles stated in Reg. v. Secretary of State for Home Department, Ex parte Brind [1991] 1 A.C. 696." Para. 18.

"But their Lordships do not regard the reading of the warrant for a third time as giving rise to a separate ground of complaint distinct from the grounds already considered. No doubt it is a factor which will be borne in mind by the Advisory Committee. It is not a matter for the courts." Para. 21.

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