Friday, March 28, 2014

They say we can't, but we say we can! Fairness trumps logic in the Privy Council.

Every judge dislikes constraints on jurisdiction that impede justice. One can be confident about that.

In our legal system – and perhaps in yours too – the greatest jurisdiction is given to the senior trial court, the High Court, while the appeal courts, the Court of Appeal and the Supreme Court, have jurisdiction that is limited by statute.

You might think that it would be sensible to give the final appeal court the greatest jurisdiction. But no, that is not the way that the legislature has decided to distribute jurisdiction. Admittedly, an appeal court should not need original jurisdiction, so that difference is understandable. But once an appeal court has a case before it, it should be able to do anything that another court could lawfully do.

Yesterday the Privy Council riled against a jurisdictional constraint and turned its face, by a majority, against a logically irrefutable limitation on its jurisdiction to order commutation of a death sentence to life imprisonment: Ramdeen v The State (Trinidad and Tobago) [2014] UKPC 7 (27 March 2014).

Justice overrode logic. The appeal was against conviction, and after lengthy delays during the course of judicial process [conviction 29 July 2008, appeals dismissed in T&T 26 February 2010, leave to appeal to the Board granted 18 March 2013, this appeal heard 23 January 2014], it was dismissed by this Board. Should the death sentence stand, notwithstanding that it had not been appealed? The prosecutor indicated no enthusiasm for its imposition.

Lord Toulson, with Lord Kerr [49], [58], [59] and, separately, Lord Neuberger [68], agreeing, held that the Board was seised of the criminal proceedings as a whole once it granted leave to appeal against conviction, and that as it was satisfied that carrying out the sentence would be unlawful in view of the inhumanity caused by the delay, it had the power to order commutation instead of requiring further proceedings to be brought on that issue. Fairness and convenience both pointed to this conclusion [69].

Lord Mance, with whom Lord Sumption agreed, dissented on logical grounds. They had no doubt that the appellant’s ordinary remedies in Trinidad and Tobago would be forthcoming.