Attorney General v Carter and Austin

• Jurisdiction: Barbados
• Judge: Williams, J.A.,Waterman, J.A.
• Judgment Date: 12 October 2010
• Neutral Citation: BB 2010 CA 21
• Docket Number: Civ. App. No 14 of 2009
• Court: Court of Appeal (Barbados)
• Date: 12 October 2010

Court of Appeal

Williams, J.A.; Waterman, J.A.; Mason, J.A.

Civ. App. No 14 of 2009

Attorney General

and

Carter and Austin

Appearances:

Mr. Wayne A. Clarke for the appellant.

Mr. Alair P. Shepherd Q.C. and Mr. Douglas L. Mendes S.C. for the first respondent Carter.

Mr. Robert L.M. Clarke for the second respondent Austin.

Criminal practice and procedure - Murders — Mandatory death sentences — Barbados Privy Council pardoning respondents on condition they be imprisoned for life subject to Prison Rules — Further condition imposed for review after serving 30 years — Respondent applying for 30 years period to be abrogated and to be set free after serving 20 years — Whether court having constitutional power to interfere with conditions imposed by Governor General in exercise of prerogative of mercy — Constitution, s.78 — Provision for grant of pardon by Governor General with or without conditions — Whether 30 year condition a judicial function as distinct from an executive act — Whether lawful to make respondents subject to Rule 42 of Prison Rules — Rule 42 providing for four yearly reviews of imprisonment applicable to respondents — Appeal allowed in part — Respondents' case to be reviewed by Governor General in compliance with Rule 42 and Governor General to exercise powers under s.78(1) of Constitution as advised by Barbados Privy Council.

Williams, J.A.

I. INTRODUCTION

1 The quest to temper justice with mercy is never-ending. In many cultures the taking of a life justified similar state action against the perpetrator. However, as the concept of the right to life, the most fundamental of all human rights, has become more defined, the search for some alternative form of fair punishment has intensified.

2 This case concerns two men convicted of murder on whom the court imposed mandatory death sentences but who were subsequently pardoned. The Governor-General at the time, acting in accordance with the advice of the Barbados Privy Council (the BPC) pardoned the condemned men for their offences on condition that they be imprisoned for the remainder of their natural lives, subject to the Prisons Rules. A further condition or stipulation was that their cases were to be reviewed when they would have served a period of imprisonment of 30 years.

3 Nevertheless, over 20 years having elapsed since their convictions they have applied to have the period of 30 years abrogated and to be set free. We have to decide whether the Court has any constitutional power to interfere with the conditions imposed by the then Governors-General in the exercise of the prerogative of mercy in relation to these two respondents.

II. BACKGROUND

4 Both respondents, Frank Anderson Carter (Carter) and Anthony Leroy Austin (Austin), were convicted of murder on 25 January 1985 and 19 February 1986 respectively and sentenced to death. Both appealed their convictions and the Court of Appeal dismissed their appeals on 10 June 1986 and 31 July 1987 respectively. The Judicial Committee of the Privy Council (the JCPC) dismissed their appeals. They had therefore exhausted their legal rights.

5 Thereafter, the only recourse of Carter and Austin to avoid the carrying into effect of the mandatory death sentences was to seek mercy by way of executive clemency. They therefore petitioned the Governors-General, who on the advice of the BPC commuted their sentences on 14 November 1989 and 13 September 1990 respectively to life imprisonment.

6 It is important to quote the Warrants of Commutation of Sentence in respect of Carter and Austin, which were in similar terms. The Warrant in respect of Carter reads as follows:

“By His Excellency Sir Denys Ambrose Williams, Knight Bachelor, holder of the Gold Crown of Merit, Acting Governor-General of Barbados.

D. A. WILLIAMS

ACTING GOVERNOR-GENERAL

TO: EDGAR ALONSO HENDY, ESQUIRE, SUPERINTENDENT OF THE PRISON AT GLENDAIRY (Ag.)

WHEREAS FRANK ANDERSON CARTER of the parish of ST. MICHAEL was on the 25th day of January, 1985, convicted before a sifting of the High Court for the trial of criminal causes of the offence of MURDER, and was by the said Court sentenced for this said offence to suffer DEATH:

AND WHEREAS the said FRANK ANDERSON CARTER appealed against the said conviction and sentence being Criminal Appeal No. 5 of 1985, to the Court of Appeal:

AND WHEREAS the Court of Appeal on the loth day of June, 1986, dismissed the said Appeal:

AND WHEREAS the said FRANK ANDERSON CARTER appealed to Her Majesty in Council, against the decision of the Court of Appeal No. 5 of 1985:

AND WHEREAS the Judicial Committee of the Privy Council advised Her Majesty that the appeal ought to be dismissed:

AND WHEREAS I have been advised that the Queen's mercy should, subject to the conditions hereinafter mentioned, be extended to the said FRANK ANDERSON CARTER:

NOW THEREFORE I, SIR DENYS AMBROSE WILLIAMS, Acting Governor-General of Barbados, by virtue and in exercise of the powers in me vested by section 78 of the Constitution of Barbados and in accordance with the advice of the Privy Council, do hereby, in Her Majesty's name and on Her Majesty's behalf, grant unto the said FRANK ANDERSON CARTER Her Majesty's pardon for the offence whereof he stands so convicted, on condition that the said FRANK ANDERSON CARTER shall be confined and imprisoned in the prison at Glendairy for the remainder of his natural life and that his case be reviewed again when he would have served a period of imprisonment of NOT LESS THAN 30 years, and that he be subject to the Prison[s] Rules and Regulations for the time being in force in the said prison:

AND THESE PRESENTS do authorise and command you, the Superintendent of the said prison, to keep the said FRANK ANDERSON CARTER in your custody in the said prison and thereto carry out the punishment of imprisonment, and for so doing this shall be your sufficient warrant.

IN WITNESS HEREOF I have subscribed my name and affixed the Public Seal of Barbados at Government House, Barbados this 14th day of November, 1989, and in the Thirty-Eighth Year of Her Majesty's Reign.”

7 The wording of the preamble to the Warrant issued in respect of Austin was identical to that issued in respect of Carter except for the personal details and the fact that the Governor-General who issued the warrant in respect of Austin was Dame Ruth Nita Barrow. The terms of the Warrant issued in respect of Austin were identical to those in Carter's Warrant except that the words “NOT LESS THAN” appearing in Carter's Warrant were absent in Austin's Warrant.

8 We postpone for later discussion the attempts made by Carter and Austin to have their cases reviewed by the Governor-General. Suffice it to say at this stage that following unsuccessful attempts to have a positive review in their favour, they commenced proceedings in the High Court.

III. PROCEEDINGS AND ORDERS

(a) Originating Motions

9 On 30 October 2003 and 28 November 2003 respectively, Carter and Austin filed Originating Motions similarly worded seeking constitutional redress pursuant to section 24 of the Constitution. In order to have a good understanding of the nature of these proceedings it is necessary to quote in full the relief and/or redress claimed by the applicants. The redress sought by Carter in his Originating Motion was similar to that sought by Austin in his amended Originating Motion, which we set out as follows:

• “1. A Declaration that the commutation of the applicant's sentence to death to that of life imprisonment is constitutionally null and void as it offends the applicant's right to life liberty and protection of law as enshrined in sections 13, 15, and 18 of the Constitution and protected by section 11.

• 2. A Declaration that the commutation of the applicant's sentence to death to that of life imprisonment is constitutionally null and void as it is contrary to the separation of powers as enshrined in the Constitution and in particular amounts to the unconstitutional exercise of the executive powers set out in section 63 of the Constitution.

• 3. A Declaration that the imposition of a sentence of imprisonment for the rest of his natural life breaches the applicant's rights guaranteed by Chapter III of the Constitution of Barbados, namely the right:

  • (i) to life, liberty, security of the person and enjoyment of property and the right not to be deprived thereof except by due process of law (Section 11(a) of the Constitution);

  • (ii) to the protection of the law (Section 11(c) of the Constitution);

  • (iii) not to be subjected to arbitrary detention and imprisonment (Section 13 of the Constitution);

  • (iv) not to be subjected to inhuman or degrading punishment or other treatment (Section 15 of the Constitution);

  • (v) to a fair hearing in accordance with the principles of natural justice for the determination of his rights and obligations (Section 18 of the Constitution);

  • (vi) to be legally represented (Section 18(2)(d) of the Constitution);

  • (vii) to such procedural provisions as are necessary for the purpose of giving effect and protection to the aforesaid rights (Section 18 of the Constitution).

• 4. A Declaration that His Excellency the Governor-General and/or the Privy Council in purporting to recommend that the applicant's sentence not be reviewed before the expiration of thirty (30) years was in breach of the doctrine of separation of powers.

• 5. An Order that the decision of His Excellency the Governor-General acting on the advice of the Privy Council, which, imposed the sentence of life imprisonment, be quashed.

• 6. An Order that the decision of His Excellency the Governor-General acting on the advice of the Privy Council not to review the applicant's sentence for a period of thirty (30) years be quashed.

• 7. An Order providing for all questions as to sentence which then arise to be determined in accordance with the law and Constitution of Barbados.

• 8. Damages.

• 9. Further...