PM Maurice Bishop

The remaining 14 from the original 17 convicted for the death of former prime minister Maurice Bishop and others in 1983 were given a Independence present by the Judicial Committee of the Privy Council when they ruled that “it should be declared that the sentence of death imposed upon the appellants was invalid and that the case should be remitted to the Supreme Court of Grenada for the appellants to be sentenced in accordance with the construction of section 230 of the Criminal Code”.

Three of the 17 who received jail sentences were released - December 2006, after serving their prison term.

In an historical ruling by the Lord Lords, dated February 7th 2007, the Privy Council in a ruling said, among other things, that “the appellants’ present detention is solely by the authority of the executive”.

Former deputy Bernard Coard

Here is an extract from the ruling.

“Their Lordships therefore return to the main submission, namely that the mandatory sentence of death was unconstitutional. Mr Dingemans QC, appearing for the Attorney-General of Grenada, did not contest this point.

It was so held in relation to the similar constitutions of other Caribbean states in Reyes v The Queen [2002] 2 AC 235 (Belize); Regina v Hughes [2002] 2 AC 259 (St Lucia): Fox v The Queen (2002) 2 AC 284 (Saint Christopher and Nevis) and Bowe v The Queen [2006] 1 WLR 1623 (The Bahamas). The last case decides that upon the true construction of the Grenadian Constitution, such a sentence was unconstitutional at the time it was passed in 1986. The result is that section 230 of the Criminal Code must be interpreted to mean, and has meant since the Constitution came into force in 1974, that the death penalty for murder is

discretionary: a person convicted of murder may be sentenced to death but may instead be given a lesser sentence. The judge did not exercise this discretion and the sentence was therefore unlawful.

Mr Dingemans submitted, however, that the validity of the sentence of death was just as much res judicata as the validity of the conviction. If, as the Privy Council held in Bowe’s case, the sentence was unconstitutional by 1986, the point could just as well have been taken before the Court of Appeal in 1991. The appellants are no longer “in the judicial system” and their only remedy is to petition the Governor-General under section 60 to grant them executive clemency or refer their cases back to the Court of Appeal.

In the ordinary way, there would be both logic and practical sense in Mr Dingemans’s argument. But this is no ordinary case. First, the application to this case of the doctrine of res judicata is somewhat artificial. The legality of the mandatory death sentence imposed upon the appellants has never been the subject of judicial decision. It is true that it could have been raised before the Court of Appeal in 1991 and the Board’s decision in Bowe’s case shows that if it had been raised, the correct answer would have been that it was unlawful. But that follows from the principle that judicial decisions on the meaning of the Constitution have retrospective effect. In practice, however, as was shown by the citation by Lord Bingham in Bowe of earlier cases before the Board, it is unrealistic to expect that the argument which succeeded in Bowe would have been entertained, let alone succeeded, before the Court of Appeal.

Secondly, the sentence in question was death. If the appellants were still at risk of execution, there can be little doubt that the Board would not allow the principle of res judicata to stand in the way of granting relief to prevent the carrying into effect of an unlawful sentence. But the validity of the life sentence substituted by the warrant of commutation is dependent upon the validity of the sentence of death. In the absence of such a sentence, the Governor-General has no power to order that the appellants be imprisoned for life and the appellants therefore remain held in detention without lawful authority.

Thirdly, there has never been any judicial contribution to determining the sentences which the appellants should serve. Byron J, correctly applying the law as it was understood at the time, exercised no discretion. And the appellants’ present detention is solely by the authority of the executive.

Fourthly, there appears to be no adequate mechanism in Grenada for providing the appellants, even now, with the judicial sentencing procedure to which they were entitled. The only prospect of a review of the sentences is by means of the exercise of the royal prerogative of mercy, which depends entirely upon executive discretion. It is the Minister who advises the Governor-General on the exercise of the prerogative powers in section 72(1) of the Constitution. Before doing so, the Minister may, if he chooses, seek the advice of the Advisory Committee under section 74(2), but he is not bound by their advice. Alternatively, the Minister may receive advice from a Board of Review which he has appointed under section

2 of the Prison Rules Cap 254 to review the sentences of long term prisoners. In this latter case, however, it appears that the machinery has failed to function. Section 3(b) of the Prison Rules requires that the Board of Review should review the sentences of all life prisoners after the first 12 months have been served and thereafter after 4 years from the date of sentence and then at 4 yearly intervals. When these proceedings were before Benjamin J, he said (paragraph 49) that the Board had either never been appointed or had not functioned: in either case the situation was “unsatisfactory and inexcusable”. It would appear from the affidavit in support of the constitutional motion that between October 1999 and April 2000, all but one of the appellants were interviewed by the Board but there is no evidence that any advice was tendered to the Minister.

When the case was before the Court of Appeal, the Review Board had still not functioned and their Lordships were told that nothing further has happened. It may be that the reason for the failure to review the sentences is that the authorities took the view that the terms of the warrant of commutation precluded any possibility of release. If that was the case, then, as their Lordships have already indicated, they think that this was a misreading of the terms of the warrant.

Fifthly, and perhaps most important, is the highly unusual circumstance that, for obvious reasons, the question of the appellants’ fate is so politically charged that it is hardly reasonable to expect any Government of Grenada, even 23 years after the tragic events of October 1983, to take an objective view of the matter. In their Lordships opinion that makes it all the more important that the determination of the appropriate sentence for the appellants, taking into account such progress as they have made in prison, should be the subject of a judicial determination.

In Hinds v Attorney-General of Barbados [2002] 1 AC 854, 870 Lord Bingham qualified the principle stated by Lord Diplock in Chokolingo v Attorney General of Trinidad and Tobago [1981] 1 WLR 106 with this observation:

“It would be undesirable to stifle or inhibit the grant of constitutional relief in cases where a claim to such relief is established and such relief is unavailable or not readily available through the ordinary avenue of appeal. As it is a living, so must the Constitution be an effective, instrument.”

Their Lordships do not think that in practice the relief sought by the appellants in relation to their sentences was ever available through the ordinary avenue of the appeal. They will therefore humbly advise Her Majesty that this appeal should be allowed and that it should be declared that the sentence of death imposed upon the appellants was invalid and that the case should be remitted to the Supreme Court of Grenada for the appellants to be sentenced in accordance with the construction of section 230 of the Criminal Code which their Lordships have indicated, taking into account the progress made by the appellants during their time in prison.”