Fisher v. The Minister of Public Safety and Immigration and Others

The appellant was arrested and charged with murder and attempted murder arising out of two separate incidents. At the same time, he plead guilty to possession of a firearm and ammunition for which he was sentenced to a total of two years’ imprisonment. Two years later, he was convicted of attempted murder, armed robbery and possession of a firearm and was sentenced to concurrent terms of 15 years’ imprisonment. Two years later, he was convicted of murder and sentenced to death.

The Court of Appeal dismissed his appeal of his murder conviction. He sought special leave to appeal to the Judicial Committee of the Privy Council but his application was dismissed. He subsequently lodged a petition with the Inter-American Commission on Human Rights in June 1996. When he was informed of his execution date, the appellant immediately filed a constitutional motion alleging that, in accordance with the principle established in Pratt v A-G for Jamaica[1994] 2 AC 1 (Jam PC), the period of three years and five months during which he was detained in prison before his trial for murder, when added to the delay of two years and six months which occurred from the date of his conviction and sentence to the date when he was due to be executed, violated the constitutional prohibition on inhuman or degrading punishment under Article 17(1). His motion was dismissed by the Court of Appeal, and he appealed to the Privy Council.

[Adapted from INTERIGHTS summary, with permission]

Dismissing the appeal, the Court held that the appellant's Article 17(1) rights had not been violated. The Court reasoned that the question of the impact of pre-trial delay was not considered in Pratt v A-G for Jamaica, which only analyzed the period following sentence of death during which time the convicted person is facing the agony of execution. The principle in Pratt v A-G for Jamaica (above) was established in response to the specific problem of unacceptable periods of delay on death row and was not meant to be extended to address the wholly different problem of pre-trial delay. Under the Constitution, pre-trial and post-conviction delay enable the accused or convicted person to invoke rights of a different nature. A person who relies upon pre-trial delay should direct his/her complaint to the trial process, the purpose being to prevent a conviction; whereas, in a death sentence case, a person who relies on post-conviction delay should direct the complaint to the inhumanity of carrying out the punishment after the delay which has occurred since conviction. On the principle in Pratt v A-G for Jamaica, a post-conviction delay of two years and six months cannot have the effect that the subsequent execution of the appellant would be inhuman punishment contrary to Art 17(1). This is so despite the fact that the applicable period in The Bahamas is accepted to be three and a half years, rather than the five-year period applicable in other Caribbean countries.

The Court noted that it was plainly undesirable that the appellant was tried for other serious criminal offences prior to his trial for murder, but the action of the responsible authorities in The Bahamas in proceeding to prosecute the appellant in this manner did not amount of itself to inhuman treatment contrary to Article 17(1). These events would have been material to a submission that the prosecution for murder should be dismissed for want of prosecution, or to a submission based on his right under Article 20(1) that he should be tried within a reasonable time, but they did not provide any basis for a complaint under Article 17(1).

[Adapted from INTERIGHTS summary, with permission]

"A state that wishes to retain capital punishment must accept the responsibility of ensuring that condemned persons are confined in conditions that satisfy a minimum standard of decency. In considering whether a lesser period than the five-year or three and a half-year norms may be sufficient to render a proposed execution unlawful it must be permissible to take into account that the anguish of the condemned person has been greatly increased by his incarceration in appalling conditions. Our humanity permits no other answer to this question." Para 44.