Delano Franklyn, Contributor

Earl Pratt in a contemplative mood just after he was released from prison after serving 30 years for murder. - Norman Grindley/Deputy Chief Photographer

The last person to have faced the gallows in Jamaica was in 1988. In 1993, in the case of Pratt and Morgan v The Attorney General of Jamaica, the Judicial Committee of the Privy Council (JCPC) held that a delay in excess of five years or more would constitute 'cruel and inhuman treatment' contrary to the Constitution of Jamaica.

The decision in Parliament to resume hanging, as is clearly stipulated in the Constitution, forces us to remind ourselves of what led to Pratt and Morgan being on death row for more than five years. Where the sentence of death for capital murder is imposed by the courts, the appellate process has to be exhausted within five years in order to avoid the Pratt and Morgan principle.

Lord Griffith, who delivered the judgment of the case on behalf of the other six law lords, outlined that, after the dismissal of the appeal by the Court of Appeal in Jamaica in 1980, and the notice for appeal by the appellants' counsel in 1981, "it was at this stage that Their Lordships would have expected the governor general to refer the case to the Jamaican Privy Council (JPC) to advise him whether or not the men should be executed in accordance with sections 90 and 91 of the Constitution".

SIR FLORIZEL GLASSPOLE

If Sir Florizel Glasspole, who was the governor general at the time, had acted at that point, then Pratt and Morgan's counsel would have had to move swiftly to take their case to the Judicial Committee of the Privy Council.

For the governor general to have acted, however, he would have had to be informed of the decision taken by the Court of Appeal. Information of this sort to the governor general is usually the responsibility of the registrar of the Court of Appeal.

Usually the governor general gets the information and then he would refer the matter to his Privy Council for a recommendation as to whether the convicted person should face the gallows or not.

The Pratt and Morgan case was fraught with further unexplained procedural bungling. The Court of Appeal, after agreeing that the appellants should be hanged, said on December 5, 1980, that it would hand down their reasons later. This took nearly three years.

Didn't take kindly to delay

Lord Griffith and the other law lords did not take kindly to this administrative judicial delay exhibited by the judges of the Court of Appeal who had the responsibility to put their decision in writing.

According to Lord Griffith, "This was a serious oversight by the judge and by those in the office of the Court of Appeal who should have reminded him that reasons had not been provided in accordance with the practice of the Court of Appeal, which is to provide a reserved judgment or reasons within three months of a hearing".

The law lords further argued that Section 90 (1) and (2) of the Jamaican Constitution should be construed as imposing a duty on the governor general to refer the case, after it was discussed by the Court of Appeal, to the Jamaica Privy Council (JPC) and for the JPC to give its advice as quickly as possible.

Should refer case to JPC

Lord Griffith further pointed out that "in the ordinary course of events, the governor general should refer a capital case to the JPC immediately after the appeal is dismissed by the Court of Appeal unless there exist some special circumstances."

This meant that the then governor general, upon receiving the decision of the case from the Court of Appeal, should have then referred the matter, as quickly as possible thereafter, to the JPC for a decision.

"On May 12, 1981 executions were resumed. The JPC must have considered and advised on the 12th May 1981 execution … and it is difficult to see why at about that time they should not have considered and advised upon the appellant's case," said Lord Griffith in the Pratt and Morgan judgment.

In a stinging criticism of the former governor general and the then members of the JPC, Lord Griffith, on behalf of the Judicial Committee of the Privy Council, pointed out, "If the case had been considered by the JPC at that time and an execution date had been fixed, Their Lordships have little doubt that this would have galvanised the appellants and their legal advisers into pursuing their application for leave to appeal to the Judicial Committee of the Privy Council."

MUST ACT DECISIVELY

The failure of the former governor general and the members of his Privy Council to act decisively and expeditiously on this matter, among other factors, allowed the appellants and their counsel to take a longer period of time than necessary to exhaust all the appellate possibilities.

The former governor general's inaction, coupled with other factors, dragged out the issue for 14 years, resulting in the findings of the Judicial Committee of the Privy Council's decision "that to execute Earl Pratt and Ivan Morgan, after holding them in custody for over 14 years since the date of their conviction, would be inhuman punishment and a violation of the constitutional rights guaranteed by Section 17 (1) of the Jamaica Constitution".

Delano Franklyn is an attorney-at-law and a former government senator.