Higgs and David Mitchell v. The Minister of National Security and Others

The first appellant was arrested for murder in July 1993. He was committed for trial in November 1993 but there was a technical defect in the committal as a result of which it was subsequently quashed. On 14 November 1994 he was committed again and on 2 October 1995 found guilty and sentenced to death. The Court of Appeal allowed his appeal and ordered a retrial. On 6 August 1996 he was again convicted and sentenced to death and this was subsequently affirmed on appeal in May 1997. The second appellant was convicted of murder and sentenced to death in November 1994; his appeal was dismissed and the sentence affirmed in October 1995. The first appellant unsuccessfully sought special leave to appeal to the Judicial Committee of the Privy Council in November 1997, and the second had his appeal to the Privy Council dismissed in January 1998. During their detention, the appellants had been held in separate cells and in cramped conditions and their rights to exercise had been restricted due to the over-crowding. They each subsequently lodged a complaint with the Inter-American Commission on Human Rights (IACmHR). The Government wrote to the IACmHR on 21 October 1998 inviting it to complete its consideration of each complaint within 18 months (that is, in May 2000). It did not, however, inform the appellants’ solicitors of its decision to act even if the IACmHR had not reached a final decision by that time. An execution warrant was read to the first appellant on 3 August 1999 and he was informed that he would be executed on 10 August 1999. The second appellant’s execution was set for the same date. Each appellant immediately filed a constitutional motion but they were dismissed both at first instance and by the Court of Appeal. They subsequently each appealed to the Privy Council claiming inter alia, that the Government would be in breach of their constitutional right to life under Art 16(1) if they were executed while their petitions were still pending before the IACmHR. They also claimed that the time elapsed in prison, and the conditions of their detention, constituted ‘inhuman or degrading treatment or punishment’ in violation of Art 17(1) of the Constitution. The constitutional motions of each appellant were heard together.

[Adapted from INTERIGHTS summary, with permission]

The Court dismissed the appeals.

1. Although an international treaty, such as the Constitution of the Organisation of American States (OAS), forms no part of domestic law unless enacted by the legislature, it may give rise to a legitimate expectation on the part of its citizens that the government will observe its terms (Minister of State for Immigration and Ethnic Affairs v Teoh[1995] 3 LRC 1; [1996] 1 CHRLD 67 (Aus HC) applied).
2. Although the Government failed to notify the appellants that it had imposed a time limit of 18 months on the proceedings before the IACmHR, no one after the hearing in Fisher v Minister of Public Safety and Immigration (No 2) [1998] 3 LRC 451; (1999) 2 CHRLD 174 (Bah PC) could have had a reasonable expectation that the Government would wait for more than a reasonable time for the proceedings to be completed. Nor is there any evidence to suggest that the Government would give the appellant notice of exactly what period it considered to be a reasonable time or that it would exceed 18 months.
3. Under common law, there is an implication that the ‘execution of the sentence of a court’ to which Art 16(1) refers will be carried out with regard to due process. In the absence of specific language in the Constitution, however, this common law concept of due process does not have the power to incorporate procedures existing only under international law into the domestic criminal justice system (Fisher v Minister of Public Safety and Immigration (No 2) (above) followed and Thomas v Baptiste [1999] 2 LRC 733; [1999] 2 CHRLD 178 (T&T PC) considered).
4. In order to render a subsequent execution inhuman or degrading, pre-trial delay and prison conditions must amount to an aggravation of the punishment of death. This will arise only exceptionally. Other legal remedies exist to address unacceptable delay or conditions. (Conjwayo v Minister of Justice, Legal and Parliamentary Affairs1992 (2) SA 56 (Zim SC), Thomas v Baptiste (above) applied and Fisher v Minister of Public Safety and Immigration (No 1) [1997] 4 LRC 344 (Bah PC) followed).
5. To constitute an unlawful aggravation of the death penalty the treatment of a condemned prisoner must have a connection with the sentence of death imposed. In the present case, neither the pre-trial delay nor conditions of detention had any connection with the fact that the appellants were under sentence of death. Proving the necessary connection is more difficult when prison conditions are a generalised consequence of overcrowding and lack of resources (Pratt v A-G for Jamaica [1994] 2 AC 1 (Jam PC), Thomas v Baptiste (above), Guerra v Baptiste [1995] 1 LRC 407; [1996] 2 CHRLD 171 (T&T PC) and Catholic Commission for Justice and Peace in Zimbabwe v A-G [1993] 2 LRC 279 (Zim SC) considered).
6. The Privy Council is not a second court of appeal; its function is to lay down general principles and to correct substantial miscarriages of justice. It would be detrimental to the administration of justice in The Bahamas if in each death penalty case it were to form its own view on whether local prison conditions fell on one side or the other of the imprecise line dividing treatment which is inhuman from that which is not. The judge’s assessment in the present case that the conditions did not fall below reasonable standards of decency, having regard to financial and security constraints, should, therefore, be respected (Thomas v Baptiste (above) considered).

The dissent viewed that the men deserved commutation from a death sentence to life imprisonment due to the terrible treatment they experienced. The factors the dissent noted were the almost complete removal of exercise rights for years, and the resultant virtual solitary confinement; the delay of almost five to six years of carrying out the execution, and prison conditions that alone would qualify as inhuman treatment. Any of these were viewed as enough to qualify as inhuman treatment and justification for a commutation of the sentence.

[Adapted from INTERIGHTS summary, with permission]

12. The second consequence is that unincorporated treaties cannot change the law of the land. They have no effect upon the rights and duties of citizens in common or statute law: see the classic judgment of Sir Robert Phillimore in The Parlement Belge (1879) 4 P.D. 129. They may have an indirect effect upon the construction of statutes as a result of the presumption that Parliament does not intend to pass legislation which would put the Crown in breach of its international obligations. Or the existence of a treaty may give rise to a legitimate expectation on the part of citizens that the government, in its acts affecting them, will observe the terms of the treaty: see Minister for Immigration and Ethnic Affairs v. Teoh (1995) 183 C.L.R. 273. In this respect there is nothing special about a treaty. Such legitimate expectations may arise from any course of conduct which the executive has made it known that it will follow. And, as the High Court of Australia made clear in Teoh's case, the legal effect of creating such a legitimate expectation is purely procedural. The executive cannot depart from the expected course of conduct unless it has given notice that intends to do so and has given the person affected an opportunity to make representations.

34. … Detention in prison before execution is a necessary part of the death penalty. … It is [difficult] to regard detention in substantially the same general conditions as other prisoners as something that affects the constitutionality of the execution. As de la Bastide C.J. said in the Thomas judgment to which their Lordships have already referred, "There is not … the same nexus between the abuse complained of and the death sentence as exists between delay in carrying out the death sentence and the actual carrying out of it". … The question of whether they amount to an aggravation of the punishment of death is an objective one. But there must be some connection with that punishment which would make the execution itself inhuman and degrading.

35. For this reason the majority of the Board in Thomas held that prison conditions which it described (at p. 265B) as "completely unacceptable in a civilised society" would not render an execution inhuman or degrading, even if they amounted to an infringement of other constitutional rights. The judgment of the Board in that case makes it clear that the fact that the appellants have suffered "inhuman treatment" in prison, contrary to Article 17(1) of the Constitution, will entitle them to a remedy … but not necessarily to commutation of the death sentences.