Fri | Apr 28, 2017

Did the judge err? - The Firearms Act: The case of Wilburn Purcell

Published:Sunday | March 22, 2015 | 3:00 AM
Purcell
1
2

A friend and I got into a rousing discussion last weekend about the 'error' made by the judge in the case of Wilburn Purcell.

Just to refresh your memories, Purcell's case came to public attention last year, when Queen's Counsel, Churchill Neita intervened. The end result of Neita's intervention was that the Governor General's Privy Council remitted or lifted Purcell's life sentence for gun offences committed in or about 1978.

When Purcell was initially sentenced in 1978, the Firearms Act (the act) had prescribed a mandatory life sentence for the gun offences for which he had been charged and, as such, he had been sentenced to life imprisonment but luckily had been granted parole on July 31, 1987, to go his way and sin no more.

But, Purcell did sin again while on parole and was convicted in February 1993 of the same type of offences as those for which he had previously been convicted. At the sentencing hearing, it appears the judge gave Purcell a 15-year sentence for the second set of offences and ordered him, on account of his violation of his parole, to serve out his original sentence of life imprisonment on the charges from 1978.

Purcell's sentence on the second set of offences expired in 2002 and he remained in prison serving out his life sentence on the first set of offences until the intervention of Neita. In various publications between August and December of last year, The Sunday Gleaner quoted persons who referred to the judge's decision ordering Purcell to complete his initial life sentence as an 'error' or an 'incorrect' decision.

In so labelling the judge's determination, the critics, got it wrong. It is my view that the judge did not err in law. In fact, if one looks at Section 13 of the Parole Act, the judge may not even have had a discretion about the reimposition of the original sentence as Purcell's parole would have been deemed to have been automatically forfeited by his conviction for the second set of offences.

When Purcell committed the second set of offences, he triggered his original sentence which, up to that point, had been suspended or in abeyance awaiting a moment, such as in 1993, when Purcell did sin once more.

Granted, the judge, given the changes to the Firearms Act in the 1980s, and the reviews of life sentences in such cases by the local Privy Council, arguably, could have exercised greater discretion and not ordered the reversion to the previous sentence when the issue came up in 1993.

Nevertheless, the judge did not err in law by ordering that Purcell complete his original sentence. The judge's position then, is not unlike that of magistrate's today hearing matters concerning small amounts of ganja. Though the amendments to the Dangerous Drugs Act are not yet law, magistrates, nonetheless, are by and large exercising their discretion in keeping with the spirit and sentiments of the intended amendments, and as such are refraining from recording the conviction of persons brought before them for these offences.

Any magistrate, however, that orders the conviction of any person for possession of ganja, regardless of the quantity, would most certainly not have acted erroneously. I accept that the analogy just provided is not on all fours with Purcell's case, as in his case, the amendments had already been in effect. Nevertheless, the amendments did not change the law applicable to Purcell's situation and so to that extent, the judge then and the judges now in ganja cases, are in similar positions, having to balance spirit of the law with letter of the law.

 

Court of Appeal

 

Had the good judge erred in law as was contended, then the appropriate recourse for Purcell would have been an appeal to the Court of Appeal at the time of his sentencing and not to the Governor General's Privy Council 30 years later.

The Governor General's Privy Council is a seat of mercy and clemency, not of the strict letter of the law. The members of the local Privy Council are empowered to pardon convictions and so free persons convicted of various offences where the said councillors are satisfied that in all the circumstances of the particular case, it was appropriate to bestow the prerogative of mercy.

Having looked at Purcell's case, his conduct in prison, and considering the changes to the Act in the 1980s, I agree that this would have been a good case for the local Privy Councillors to decide to pardon Purcell. Nevertheless, the judge did not err in law and the critics of his action, including The Sunday Gleaner, need to set the record straight and apologise to the judge for repeatedly referring to the ruling as incorrect.

In the next instalment of this column, I will look further at the Firearms Act, especially its provisions regarding the discharge, possession and care of firearms. Persons with firearms, legal or otherwise, would be well advised to look out for the next instalment.

- Shena Stubbs-Gibson is an attorney-at-Law and legal commentator. Send feedback to: Email: shena.stubbs@gleanerjm.com. Twitter:@shenastubbs