Richards et Al v the Attorney General et Al

• Jurisdiction: Saint Kitts and Nevis
• Judge: Floissac, C.J.,Joseph, J.A.
• Judgment Date: 28 September 1992
• Neutral Citation: KN 1992 CA 9
• Docket Number: Crim. Appeal No. 1 of 1992
• Court: Court of Appeal (Saint Kitts and Nevis)
• Date: 28 September 1992

Court of Appeal

Floissac, C.J. Byron, J.A., Joseph, J.A. (Ag.)

Crim. Appeal No. 1 of 1992

Richards et al

and

The Attorney General et al

Appearances:

L. Moors, Dr. H. Browns and Miss A. Inniss for the appellants

H. A. Rawlins (Solicitor General) for the respondents

Constitution - Interpretation — Appellants found guilty of murder and sentenced to death by hanging — Meaning of “a person shall not be subjected to torture or to inhuman or degrading punishment or other treatment” — Section 7 of the Constitution — Whether section 7 applied to or affects the pre — constitutional validity of inhuman or degrading types of punishment — Whether death by hanging was lawful type of punishment before commencement of Constitution — Whether delays in executing death sentence was constitutionally invalid — Constitution of St. Christopher and Nevis, 1983, Sch. 1 and 2, ss. 7, 18(1).

Floissac, C.J.

1 On the 11th April and 22nd May 1991 and after trials by juries presided over by Singh J., the appellant Ronald Browns and the appellant Bernard Richards were convicted of the murders of Viola “Bessy” Claxton and Mervyn Walters respectively and both appellants were sentenced to death by hanging.

2 On or about the 11th November 1991, the solicitors for the appellants applied to the Advisory Committee on the Prerogative of Mercy to commute the sentences imposed on the appellants. On the 13th January 1992, the Committee refused the applications.

3 On the 1st and 6th February 1992, the appellants filed in the High Court Notices of Motions for judicial redress under section 18 (1) of the 1983 Constitution of Saint Christopher & Nevis. By these motions, the appellants sought declarations that the executions of the sentences would be inhuman and degrading and would therefore contravene section 7 of the Constitution and the fundamental right guaranteed thereunder. The appellants also thereby sought orders restraining the Superintendent of Her Majesty's Prison from executing the sentences.

4 The motions were heard by Singh J. who by judgment dated 6th February 1992 refused the declarations and orders sought. Whereupon the appellants appealed against that judgment.

5 This appeal involves the interpretation and interrelation of certain sections and paragraphs of the two Schedules to the Saint Christopher and Nevis Constitution Order 1983 (Imperial Order 1983 No. 881) Schedule 1 whereto sets out the Constitution of Saint Christopher and Nevis and Schedule 2 whereto contains certain so-called Transitional Provisions. The general issue in this appeal is the interpretation and scope of section 7 of the Constitution which provides that: “A person shall not be subjected to torture or to inhuman or degrading punishment or other treatment.”

6 The specific issues in this appeal are (1) whether section 7 of the Constitution applies to or affects the constitutional validity of so-called inhuman or degrading types of punishment which were lawful before 27th February 1967 (the prescribed date) (2) whether death by hanging was a lawful type of punishment before the prescribed date and (3) whether the delays in the executions of the sentences of death rendered the executions inhuman and degrading and therefore constitutionally invalid.

(1) The Scope of section 7.

7 Section 3 of the Imperial Order provides that:

“The Constitution of Saint Christopher and Nevis set out in schedule 1 to this Order shall come into effect in Saint Christopher and Nevis on 19th September 1983 subject to the transitional provisions set out in schedule 2 to this Order.”

8 Therefore, section 7 of the Constitution cannot be read in isolation. It must be read subject to paragraph 9 of the Transitional Provisions which provides that:

“Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of section 7 of the Constitution to the extent that the law in question authorises the infliction of any description of punishment that was lawful immediately before 27th February 1967 (being the date on which Saint Christopher, Nevis and Anguilla became an associated state).”

Counsel for the appellants sought to equate the word “law” appearing in paragraph 9 with the words “existing laws” specifically dealt with in paragraph 2 of the Transitional Provisions and defined in paragraph 2(7) for the purposes of that paragraph only. Counsel thereby sought to confine paragraph 9 to written law and to make paragraph 9 subject to paragraph 2(1) of the Transitional Provisions which provides that:

“The existing laws shall, as from 19th September 1983, be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with the constitution and the Supreme Court Order.”

9 But the words used in paragraph 9 are “any law” and not “any existing law”. Accordingly, the word “law” appearing in paragraph 9 must be interpreted by reference to paragraph 13(2) of the Transitional Provisions complemented by section 119(1) of the Constitution.

10 According to paragraph 13(2) of the Transitional Provisions:

“The provisions of section 119 of the Constitution shall apply for the purposes of interpreting this schedule and otherwise in relation thereto as they apply for the purposes of interpreting and in relation to the Constitution.”

11 According to section 119(1) of the Constitution:

“In this Constitution, unless the context otherwise requires –

“law” means any law in force in Saint Christopher and Nevis or any part thereof, including any instrument having the force of law and any unwritten rule of law and “lawful” and “lawfully” shall be construed accordingly.”

12 Therefore, the evident intent of section 3 of the Imperial Order and paragraph 9 of the Transitional Provisions is to assert the constitutional validity of any type of punishment which was lawful immediately before the prescribed date and any written or unwritten law which authorises the infliction of that type of punishment and to create a constitutional estoppel against any assertion that any such punishment or law is inconsistent with or in contravention of section 7 of the Constitution.

(2) Death by hanging.

13 Section 2 of the offences against the Person Act (Cap 56 of the Revised Laws of Saint Christopher and Nevis) provides that “Whoever is convicted of murder shall suffer death as a felon.” Counsel for the appellants conceded that Cap 56 is a law which was in force immediately before the prescribed date and that the phrase “death as a felon” is a reference to death by hanging. Therefore, the combined effect of section 3 of the Imperial order and paragraph 9 of the Transitional Provisions is to exclude death by hanging from the purview of section 7 of the Constitution and to assert the constitutional validity of that type of punishment without the need to engage in any endless philosophical controversy as to whether such punishment is torturous, inhuman or degrading.

(3) The delays in the executions.

14 The Judicial Committee of the Privy Council has more than once been required to pronounce on the question whether a delay in the execution of a sentence of death by...