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].
