Sat | Apr 29, 2017

Pratt vs Morgan Lives on

Published:Monday | July 27, 2015 | 7:00 AM

Although this is an unusual topic for this column, the decision of the Privy Council in the case of Hunte and Khan v The State (Trinidad and Tobago)[2015] UKPC 33, which was delivered on July 16, 2015, will pique the interest of most Jamaicans, whether you are in favour of, or are opposed to the death penalty.

The brief background to the case is that on March 31, 2008, Hunte and Khan were convicted of the murder of Ramkhelawan Ray Charran, who was murdered in his home on August 21, 2003. They were sentenced to the mandatory death penalty.

Appeals to the Court of Appeal were refused, and they both sought leave to appeal to the Privy Council which, by a majority of 6:1 upheld the convictions and sentences.

Several important issues were raised concerning the propriety of the convictions, but it is the sentence on which I will focus my attention, because both appellants argued against sentence on the grounds that it would now be unconstitutional for it to be carried out, and that the Privy Council had the jurisdiction to commute the sentence.

Two significant conclusions were made by the Privy Council regarding the commutation of the sentence:

The Trinidadian High Court had the jurisdiction to order the commutation of sentences under sections 14 (1) and (2) of the Constitution.

 

PRIVY COUNCIL'S DECISION

 

The decision of the Privy Council in Pratt v Morgan is that, "in any case in which execution was to take place more than five years after sentence, there would be strong grounds for believing that the delay was such as to constitute inhuman or degrading punishment or other treatment" applied under the Constitution of Trinidad and Tobago.

However, the Privy Council held that, due to the fact that, as an appellate Court, it does not have the original jurisdiction under section 14 (1) and (2) to hear an application for commutation of a lawfully passed sentence, it could not hear that application. If a similar application had been made to the Trinidadian High Court, the Privy Council would have had the jurisdiction to hear an appeal.

Interestingly, the Privy Council had previously decided that it had the original jurisdiction to consider such an application. In Hunte and Khan's case, the Privy Council ruled that the decisions in the cases of Ramdeen v The State of Trinidad and Tobago [2014] UKPC 7 and Matthew v State of Trinidad and Tobago [2005] 1 AC 433 were wrong and should not be followed.

In Pratt v Morgan, the Privy Council held that, "a state that wishes to retain capital punishment must accept the responsibility of ensuring that execution follows as swiftly as practicable after sentence, allowing a reasonable time for appeal and consideration of reprieve-appellate procedures that echo down the years are not compatible with capital punishment". Further, she said, "Taking account of how the system ought to work, including appeals, consideration of reprieve, and what ought to be rare applications to international human rights bodies", and, "in any case in which execution is to take place more than five years after sentence, there will be strong grounds for believing that the delay is such as to constitute 'inhuman or degrading punishment or other treatment'."

In her dissenting opinion, Lady Hale formed the view that Ramdeen was correctly decided and that for the Privy Council to refuse to hear an application for commutation of death sentence in a case that was properly before them could not have been intended by the Constitution. She described that approach as being "morally unacceptable".

In my view, this most recent decision has not eroded the principles in Pratt v Morgan. Instead, the Privy Council did not consider whether it would be unconstitutional for the death sentences to be carried out at all. This was based on the purely technical point that that issue should have first been raised before the Trinidadian High Court.

• Sherry Ann McGregor is a partner and mediator in the firm of Nunes Scholefield DeLeon & Co. Please send questions and comments to lawsofeve@yahoo.com or lifestyle@gleanerjm.com.