1

Pratt and another v Attorney General for Jamaica and another [1993] 4 All ER 769

PRIVY COUNCIL
LORD GRIFFITHS, LORD LANE, LORD ACKNER, LORD GOFF OF CHIEVELEY, LORD LOWRY, LORD
SLYNN OF HADLEY AND LORD WOOLF

28–30 JUNE, 1, 5–6, 8, 12–14 JULY, 2 NOVEMBER 1993

Jamaica – Constitutional law – Fundamental rights and freedoms – Constitution prohibiting
inhuman or degrading punishment – Death penalty – Delay in carrying out death penalty –
Whether prolonged delay in carrying out death penalty an inhuman or degrading punishment –
Constitution of Jamaica, ss 17(1), 25, 90, 91.
On 15 January 1979 the two appellants were convicted in Jamaica on a charge of murder and
sentenced to death. Within three days they applied for leave to appeal. There was then a delay
of almost two years before a hearing by the Court of Appeal of Jamaica of the application for
leave could be arranged, part of that delay being attributable to delay in obtaining legal aid. On
5 December 1980 the Court of Appeal announced that the application for leave to appeal would
be dismissed for reasons to be given later. No date was set for the execution. The rules and
practice in force in Jamaica laid down a strict timetable for appeals to the Judicial Committee of
the Privy Council and further provided that execution would only be stayed so long as that
timetable was adhered to. Furthermore, under ss 90a and 91b of the Jamaican Constitution a
written report of the case from the trial judge and the case record were required to be
submitted to the Jamaican Privy Council, which then advised the Governor General whether the
sentence should be commuted. However, in practice a case was not referred to the Jamaican
Privy Council and the Governor General until after any appeal to the Judicial Committee had
been decided. On 16 August 1984 the first appellant wrote to the Registrar of the Court of
Appeal asking for the reasons why his application for leave to appeal was dismissed. It then
transpired that no reasons had been prepared because the papers had been misfiled and
forgotten. Reasons were then prepared and handed down on 24 September 1984. In the
meantime the first appellant petitioned the Inter-American Commission on Human Rights,
which on 3 October 1984 rejected his submission that his trial had been unfair but
recommended that his sentence be commuted for humanitarian reasons. On 28 January 1986
he petitioned the United Nations Human Rights Committee under the International Covenant
on Civil and Political Rights and on 13 March the appellants lodged notice of intention to
petition for special leave to appeal to the Judicial Committee, but leave was refused on 17 July.
On 21 July the United Nations Committee requested Jamaica not to carry out the death
sentence on the appellants before the committee had had an opportunity to consider the
complaint but the Jamaican Privy Council, having considered the appellants' case for the first
time, recommended that the state not accede to the request and a warrant of execution was
issued on 13 February 1987 for the death penalty to be carried out on 24 February. On 23
February the Governor General issued a stay of execution pending consideration by the Inter-
American Commission and the

2
a
Section 90 is set out at p 775 c d, post
b
Section 91 is set out at p 775 e to g, post
[1993] 4 All ER 769 at 770
United Nations Committee. On 9 July the Inter-American Commission requested that the
appellants' execution be commuted for humanitarian reasons but following further
consideration of the appellants' case by the Jamaican Privy Council a second warrant of
execution was issued on 23 February 1988 for execution on 1 March. On 29 February a second
stay of execution was issued by the Governor General pending the United Nations Committee's
review of the case. On 6 April 1989 the committee held that the failure of the Court of Appeal
to deliver reasons for 45 months was a violation of the appellants' human rights and
recommended that the death sentence imposed on the appellants be commuted. After a
further delay of 18 months the Jamaican Privy Council reconsidered the appellants' case on 17
September 1990 and rejected the recommendations made by the United Nations Committee.
On 21 February 1991, after further delay while the Governor General obtained legal advice on
the legal status of decisions of human rights bodies, a third warrant of execution was issued for
execution on 7 March. On 28 February 1991 the appellants commenced proceedings in the
Supreme Court for constitutional redress under s 25(1) c of the Constitution claiming that their
execution after such a prolonged delay of some 12 years since they were sentenced to death
would be 'inhuman … punishment or other treatment' and thus in breach of s 17(1) d of the
Constitution. On 14 June their application was dismissed and on 8 June 1992 the Court of
Appeal dismissed their appeal. The appellants appealed to the Judicial Committee. The Crown
contended that the death penalty for murder did not contravene s 17(1) no matter how long
the delay between the passing of sentence and execution since under s 17(2) 'the infliction of
any … punishment which was lawful in Jamaica' could not be held to contravene s 17(1).
c
Section 25(1), so far as material, provides: '… if any person alleges that any of the provisions
of sections 14 to 24 … of [the] Constitution has been, is being or is likely to be contravened in
relation to him, then … that person may apply to the Supreme Court for redress.'
d
Section 17 is set out at p 781 g, post
Held – (1) Section 17(2) of the Jamaican Constitution authorised the passing of a judicial
sentence of a description of punishment lawful in Jamaica before independence and was not
concerned with the act of the Executive in carrying out the punishment. The section, while
preserving all descriptions of punishment lawful immediately before independence and
preventing them from being attacked under s 17(1) as inhuman or degrading forms of
punishment or treatment, did not have any relevance to the question of delay and the problem
that arose from delay in carrying out a sentence (see p 782 h j and p 783 e, post); Riley v A-G of
Jamaica [1982] 3 All ER 469 not followed.

(2) Prolonged delay in carrying out a sentence of death after that sentence had been passed
could amount to 'inhuman … punishment or other treatment' contrary to s 17(1) of the
Jamaican Constitution irrespective of whether the delay was caused by the shortcomings of the
state or the legitimate resort of the accused to all available appellate procedures. A state that

3
wished to retain capital punishment had to accept the responsibility of ensuring that execution
followed as swiftly as practicable after sentence, allowing a reasonable time for appeal and
consideration of reprieve and, if the appellate procedure enabled the prisoner to prolong the
appellate hearings over a period of years, the fault was to be attributed to the appellate system
that permitted such delay and not to the prisoner who took advantage of it. However, if the
delay was due entirely to the fault of the accused, such as an escape from custody or frivolous
and time wasting resort to legal procedures which amounted to an abuse of process, the
accused
[1993] 4 All ER 769 at 771
could not be allowed to take advantage of that delay, since to do so would be to permit the
accused to use illegitimate means to escape the punishment lawfully inflicted upon him. Having
regard to unacceptable delay since the appellants had been sentenced to death and the fact
that their petitions to the Inter-American and United Nations human rights bodies did not fall
within the category of frivolous procedures disentitling them to ask the Board to look at the
whole period of delay, the execution of the appellants would be an infringement of s 17(1) of
the Constitution. The appeal would therefore be allowed and the sentences of the appellants
commuted to life imprisonment (see p 783 h, p 786 f to p 787 a d and p 789c, post); Abbott v A-
G of Trinidad and Tobago [1979] 1 WLR 1342 and Riley v A-G of Jamaica [1982] 3 All ER 469 not
followed.
Per curiam. (1) If capital punishment is to be retained in Jamaica it must be carried out with all
possible expedition. In any case in which execution is to take place more than five years after
sentence there will be strong grounds for believing that the delay is such as to constitute
'inhuman or degrading punishment or other treatment' for the purposes of s 17(1) of the
Constitution (see p 787 j and p 788 j to p 789 a, post).
(2) Sections 90 and 91 of the Constitution are to be construed as imposing a duty on the
Governor General to refer cases where a sentence of death has been passed to the Jamaican
Privy Council and on the council to give their advice as soon as practical. The procedure
contained in the Instructions approved by the Governor General in Privy Council dated 14
August 1962 for dealing with applications from or on behalf of prisoners under sentence of
death should be reinstated. In the absence of special circumstances the Governor General
should ordinarily refer a capital case to the council immediately after the appeal is dismissed by
the Court of Appeal. Capital appeals must be expedited and the aim should be to hear a capital
appeal within a year of conviction. It should be possible to complete the entire domestic appeal
process within approximately two years (see p 775 h to p 776 a, p 787 j to p 788 b, post).
Notes
For the Constitution of Jamaica, see 6 Halsbury's Laws (4th edn reissue) paras 933–934.
Cases referred to in judgment
Abbott v A-G of Trinidad and Tobago [1979] 1 WLR 1342, PC.
Bell v DPP of Jamaica [1985] 2 All ER 585, [1985] AC 937, [1985] 3 WLR 73, PC.

4
Carlton-Reid v Jamaica 250/1987, Annual Report of the Human Rights Committee, 1990 vol
2GAOR, 45th Session, Supplement No 40, p 85.
Catholic Commission for Justice and Peace in Zimbabwe v A-G (24 June 1993, unreported), Zim
SC.
de Freitas v Benny [1976] AC 239, [1975] 3 WLR 388, PC.
DS v Jamaica 304/1988, Annual Report of the Human Rights Committee, 1991 GAOR, 46th
Session, Supplement No 40, p 281.
Kindler v Canada (Minister of Justice) (1991) 84 DLR (4th) 438, Can SC.
Republic of Ireland v UK (1978) 2 EHRR 25, E Ct HR.
Richmond v Lewis (1990) 948 F 2d 1473, US Ct of Apps (9th Cir); rvsd (1992) 113 S Ct 528, US SC.
Riley v A-G of Jamaica [1982] 3 All ER 469, [1983] 1 AC 719, [1982] 3 WLR 557, PC.
Sher Singh v State of Punjab [1983] 2 SCR 582, India SC.
Smt Treveniben v State of Gujarat (1989) 1 SCJ 383, India SC.
Soering v UK (1989) 11 EHRR 439, E Ct HR.
[1993] 4 All ER 769 at 772
Vatheeswaran v State of Tamil Nadu [1983] 2 SCR 348, India SC.
Appeal

Earl Pratt and Ivan Morgan appealed with special leave from the judgment of the Court of
Appeal of Jamaica (Rowe P, Forte and Gordon JJA) dated 8 June 1992 dismissing their appeal
from the judgment of the Full Court (Wolfe, Patterson and Harrison JJ) delivered on 14 June
1991 dismissing the actions brought by the appellants for constitutional redress under s 25 of
the Constitution in which the appellants sought declarations, inter alia, that they had been
subjected to inhuman or degrading punishment and treatment and would be subjected to such
punishment and treatment if the sentence of death passed by Parnell J on 15 January 1979
following their conviction for murder was carried out. The appellants had also sought an
injunction restraining the second respondent, the superintendent of St Catherine District Prison
from carrying out the execution of the appellants. The first respondent to the appeal was the
Attorney General of Jamaica. The facts are set out in the opinion of the Board.

Geoffrey Robertson QC, Dennis Daly SC (of the Jamaican Bar), Philip Sapsford QC, Lloyd Barnett
(of the Jamaican Bar), Anthony Metzer and Anthony Bradley (instructed by Simons Muirhead &
Burton) for the appellants.
The Solicitor General of Jamaica (K O Rattray QC), Lennox K Campbell (Senior Assistant Attorney
General of Jamaica) and Lackston Robinson (Assistant Attorney General of Jamaica) (instructed
by Charles Russell) for the Attorney General of Jamaica.

5
The Director of Public Prosecutions of Jamaica (Glen R Andrade QC) and Lloyd Hibbert (Senior
Deputy Director of Public Prosecutions of Jamaica) (instructed by Charles Russell) for the
Superintendent of Prisons.
2 November 1993. The following opinion of the Board was delivered.

LORD GRIFFITHS.
The appellants, Earl Pratt and Ivan Morgan, were arrested 16 years ago for a murder committed
on 6 October 1977 and have been held in custody ever since. On 15 January 1979 they were
convicted of murder and sentenced to death. Since that date they have been in prison in that
part of Saint Catherine's prison set aside to hold prisoners under sentence of death and
commonly known as death row. On three occasions the death warrant has been read to them
and they have been removed to the condemned cells immediately adjacent to the gallows. The
last occasion was in February 1991 for execution on 7 March; a stay was granted on 6 March
consequent upon the commencement of these proceedings. The statement of these bare facts
is sufficient to bring home to the mind of any person of normal sensitivity and compassion the
agony of mind that these men must have suffered as they have alternated between hope and
despair in the 14 years that they have been in prison facing the gallows. It is unnecessary to
refer to the evidence describing the restrictive conditions of imprisonment and the emotional
and psychological impact of this experience, for it only reveals that which it is to be expected.
These men are not alone in their suffering for there are now 23 prisoners in death row who
have been awaiting execution for more than ten years and 82 prisoners who have been
awaiting execution for more than five years. It is against this disturbing background that their
Lordships must now determine this constitutional appeal and must in particular re-examine the
correctness of the majority decision in Riley v A-G of Jamaica [1982] 3 All ER 469, [1983] 1 AC
719.
[1993] 4 All ER 769 at 773
The death penalty

The death penalty in the United Kingdom has always been carried out expeditiously after
sentence, within a matter of weeks or in the event of an appeal even to the House of Lords
within a matter of months. Delays in terms of years are unheard of.

In earlier times execution for murder, as opposed to other capital offences, followed
immediately after conviction. In 1751 an Act 'for better preventing the horrid Crime of Murder'
(the Murder Act 1751) provided that all persons convicted of murder should be executed on the
next day but one after sentence, unless convicted on Friday in which case they were to be
executed on Monday and kept in solitary confinement upon bread and water until executed.
The extreme rigour of this regime of immediate execution for murder was re-enacted in the Act
9 Geo 4 c 31 (offences against the person (1828)) but was repealed by the Act 6 & 7 Will 4 c 30
(execution for murder (1836)) 'more effectually to preserve from an irrecoverable Punishment
any Persons who may hereafter be convicted upon erroneous or perjured Evidence' and it was
enacted that henceforth sentence of death in murder cases should be pronounced in the same

6
manner and the judge should have the same powers as after convictions for other capital
offences.
In England the practice in capital cases, henceforth including murder, was for the sheriff to fix a
date of execution in the fourth week after thedeath sentence was passed. In Scotland, the date
of execution was fixed by the court under s 2 of the Criminal Law (Scotland) Act 1830: if
sentence was pronounced south of the Forth, it was fixed between 15 and 21 days hence, and if
north of the Forth, between 20 and 27 days hence. In both England and Scotland the Court of
Appeal heard an appeal in a capital case within three weeks of verdict. If the appeal was
unsuccessful a revised execution date was set not less than 14 or more than 18 days after the
day when the appeal was dismissed, in order to allow the Secretary of State time to decide
whether the sentence should be commuted. The Report of the Royal Commission on Capital
Punishment 1949–1953 (Cmd 8932) gave the average delay in 1950 as six weeks if there was an
appeal and three weeks if there was not.

In 1947 there was great public disquiet that men convicted of a murder on the Gold Coast had
been under sentence of death for two years. The matter was debated in Parliament and the
Colonial Secretary gave an assurance to the House that the rules and practice to be adopted in
the colonies should be quite sufficient to prevent a repetition of the happenings in the Gold
Coast. The concern expressed by members of Parliament in the course of the debate reflected
the expectation that the colonies would follow the long-established practice in this country that
execution would not be long delayed after sentence. Mr Winston Churchill MP expressed the
sentiment of the House when he said: 'People ought not to be brought up to execution, or
believe that they are to be executed, time after time whether innocent or guilty, however it
may be, whatever their crime. That is a wrong thing.'

The rules and practice referred to by the Colonial Secretary were those that laid down a strict
timetable for appeals to the Judicial Committee of the Privy Council and provided that
execution would only be stayed so long as the timetable was adhered to. Such rules were in
force in Jamaica before independence and were adopted after independence by the Governor
General in Privy Council on 14 August 1962; it will in due course be necessary to consider why
they were not followed in this case.
[1993] 4 All ER 769 at 774

Delay of the character which has occurred in this case had never happened in Jamaica before
independence. The appellants' case contains a schedule showing the time that elapsed
between the date of conviction, appeal and execution in 40 capital cases immediately after
independence between the years 1962 and 1970. The time is never more than 18 months and
usually considerably shorter. The Solicitor General felt unable to accept the accuracy of this
schedule, but no figures were submitted to contradict it, and their Lordships accept it as
showing that the delays that are now being encountered in the execution of the death penalty
are of fairly recent origin.
It is difficult to envisage any circumstances in which in England a condemned man would have
been kept in prison for years awaiting execution. But if such a situation had been brought to the
attention of the court their Lordships do not doubt that the judges would have stayed the
7
execution to enable the prerogative of mercy to be exercised and the sentence commuted to
one of life imprisonment. Prior to independence, applying the English common law, judges in
Jamaica would have had the like power to stay a long delayed execution, as foreshadowed by
Lord Diplock in Abbott v A-G of Trinidad and Tobago [1979] 1 WLR 1342 at 1348 when he said:

'In such a case, which is without precedent and, in their Lordships' view, would involve delay
measured in years, rather than in months, it might be argued that the taking of the condemned
man's life was not “by due process of law”.'
And as was asserted by Lord Templeman in Bell v DPP of Jamaica [1985] 2 All ER 585 at
589, [1985] AC 937 at 950 where he said:

'Their Lordships do not in any event accept the submission that prior to the Constitution the
law of Jamaica, applying the common law of England, was powerless to provide a remedy
against unreasonable delay …'
The chronology

It is now necessary to consider and comment upon the course of events that has resulted in the
inordinate delay that has occurred in this case.

The murder was committed on 6 October 1977 and the appellants were sentenced to death on
15 January 1979. Their application for leave to appeal was dismissed by the Court of Appeal on
5 December 1980, which said that it would hand down its reasons later. Although notice of
application for leave to appeal was given within three days of the conviction on 18 January
1979, it took almost two years to arrange a hearing by the Court of Appeal. Making every
allowance for the pressure of work on the Jamaican courts this does seem a long time to
arrange a hearing in a capital case, which one would have expected to have been expedited. On
their application for leave to appeal the appellants both asked that the Court of Appeal should
assign legal aid to them. The appeal was listed for hearing before the appellants had been
assigned legal aid and had to be taken out of the list on their application on 28 May 1980 so
that they might be legally represented. On the following day, 29 May 1980, a legal aid
certificate was issued and counsel were assigned to the appellants. It appears therefore that at
least part of the delay in hearing the appeal was attributable to the failure to issue a legal aid
certificate at a much earlier date.

On 7 January 1981, a month after their application for leave to appeal was dismissed, the
appellants wrote to the Registrar of the Court of Appeal requesting that the necessary papers
be made available to their attorneys-at-law so that
[1993] 4 All ER 769 at 775

whenever they wished they could take the case to the Judicial Committee of the Privy Council.
On 30 January the registrar replied to say she had spoken to their attorney-at-law, Mr Eric
Frater, who had advised her that he was endeavouring to take their matter to the Privy Council
in England.
It was at this stage, after the dismissal of their application by the Court of Appeal, that their
Lordships would have expected the Governor General to refer the case to the Jamaican Privy

8
Council (the JPC) to advise him whether or not the men should be executed in accordance with
ss 90 and 91 of Sch 2 to the Jamaica (Constitution) Order in Council 1962, SI 1962/1550, which
provide:
'90.—(1) The Governor General may, in Her Majesty's name and on Her Majesty's behalf—(a)
grant to any person convicted of any offence against the law of Jamaica a pardon, either free or
subject to lawful conditions; (b) grant to any person a respite, either indefinite or for a specified
period, from the execution of any punishment imposed on that person for such an offence; (c)
substitute a less severe form of punishment for that imposed on any person for such an
offence; or (d) remit the whole or part of any punishment imposed on any person for such an
offence or any penalty or forfeiture otherwise due to the Crown on account of such an offence.

(2) In the exercise of the powers conferred on him by this section the Governor General shall
act on the recommendation of the Privy Council.
91.—(1) Where any person has been sentenced to death for an offence against the law of
Jamaica, the Governor General shall cause a written report of the case from the trial judge,
together with such other information derived from the record of the case or elsewhere as the
Governor General may require, to be forwarded to the Privy Council so that the Privy Council
may advise him in accordance with the provisions of section 90 of this Constitution.

(2) The power of requiring information conferred on the Governor General by subsection (1) of
this section shall be exercised by him on the recommendation of the Privy Council or, in any
case in which in his judgment the matter is too urgent to admit of such recommendation being
obtained by the time within which it may be necessary for him to act, in his discretion.'
These sections are included in the Constitution against the background of the pre-existing
common law practice that execution followed as swiftly as practical after sentence. They must
be construed as imposing a duty on the Governor General to refer the case to the JPC and the
JPC to give their advice as soon as practical. 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 such as a moratorium upon the
execution of all death sentences or a decision is awaited in another case of either the Judicial
Committee of the Privy Council or a human rights body that may affect the view of the JPC. The
Instructions approved by the Governor General in Privy Council dated 14 August 1962 for
dealing with applications from or on behalf of prisoners under sentence of death for special
leave to appeal to the Judicial Committee of the Privy Council are written upon the premise that
the date for execution has already been set and will only be postponed if the prisoner adheres
to the strict timetable contained in the Instructions. It is implicit in these Instructions that, by
the time the prisoner has taken advice as to whether or not he should petition the Judicial
Committee of the Privy Council in England, a decision will already have been taken by the JPC as
to whether or not he should
[1993] 4 All ER 769 at 776

be executed or reprieved. There is no indication that the letter written to the registrar on 7
January 1981 was brought to the notice of the Governor General, and certainly no intimation in

9
writing was sent to the Governor General of an intention to apply to the Judicial Committee of
the Privy Council as required by the Instructions.

Their Lordships were surprised to learn from the written submissions of the respondents that
the procedure set out in the 1962 Instructions is no longer adhered to. The respondents say:

'The appellants in keeping with what had now become established practice gave no intimation
to the Governor General of his intention to apply for special leave. That procedure had long
fallen into disuse; it was a relic of history; it was obsolete; it was not required by law. The
practice was now to apply directly to the Registrar of the Court of Appeal so that papers could
be sent directly to the solicitors in London.'
Their Lordships can perceive no reason why the appellants' case should not have been referred
to the JPC for a decision early in 1981. A reason for a short period of delay after the decision of
the Court of Appeal in December 1980 may be found in the political debate on the desirability
of retaining the death sentence in Jamaica which resulted in a resolution of the Senate on 9
February 1979 to suspend all executions for a period of eighteen months pending the report of
a Committee of inquiry. The Committee of Inquiry was appointed in June 1979. Before the
committee reported, an execution took place on 27 August 1980 which drew a protest to the
JPC from the chairman of the committee. No further executions took place before the
committee reported in March 1981. On 12 May 1981 executions were resumed. The JPC must
have considered and advised on 12 May execution shortly after the committee reported in
March and it is difficult to see why at about that time they should not have considered and
advised upon the appellants' case.

It is true that on 12 June 1981 Pratt petitioned the Inter-American Commission on Human
Rights (the IACHR) but it would not appear that the Jamaican authorities were aware of this
until the IACHR wrote to the Government of Jamaica requesting information about Pratt's case
on 17 February 1983. So these proceedings provide no answer to the question why the JPC did
not consider the appellants' case in 1981.

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. As it was, no date was set for execution and matters were allowed to drift on;
whether this was a deliberate policy adopted by the appellants and their advisers or, as seems
more likely, due to the appellants' lack of access to legal advice cannot be determined with any
certainty.

Pratt showed renewed interest in the possibility of an appeal to the Judicial Committee of the
Privy Council when he wrote on 23 March 1984 to an English member of Parliament to inquire
about his right to appeal to the Privy Council and received advice in the form of a letter written
by the registrar to the Judicial Committee of the Privy Council which was forwarded to him on
17 May. Pratt then on 16 August wrote to the Registrar of the Court of Appeal asking for the
reasons why his application for leave to appeal was dismissed. It then transpired that no

10
reasons had yet been prepared by the judge to whom the writing of the judgment had been
assigned. The papers had apparently been put in the wrong
[1993] 4 All ER 769 at 777

bundle and forgotten. 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. Prompted by Pratt's request reasons were quickly
prepared and handed down on 24 September 1984. No immediate steps were, however, taken
to petition the Judicial Committee of the Privy Council.

On 3 October the IACHR rejected Pratt's submission that his trial was unfair; but recommended
that his sentence be commuted for humanitarian reasons.

Again their Lordships do not understand why the case was not then referred to the JPC to
advise whether or not the execution should proceed. However it was not and 1985 appears to
have been a year of total inactivity.

On 28 January 1986 Pratt petitioned the United Nations Human Rights Committee (the UNHRC)
under the International Covenant on Civil and Political Rights (New York, 16 December 1966; TS
6 (1977); Cmnd 6702).
On 13 March 1986 the appellants lodged notice of intention to petition for special leave to
appeal to the Judicial Committee of the Privy Council. The application for special leave was
heard with reasonable dispatch and special leave to appeal was refused by the Judicial
Committee of the Privy Council on 17 July 1986. Rule 5 of the Judicial Committee (General
Appellate Jurisdiction) Rules Order 1982, SI 1982/1676, requires that a petition for special leave
should be lodged as soon as possible after judgment. This was certainly not done in this case;
but the requirement appears to have been waived without comment.

In dismissing the application Lord Templeman expressed the concern of the Judicial Committee
that three years and nine months had elapsed between the dismissal of the appeal and the
delivery of the reasons. He said:

'On 5 December 1980 the Court of Appeal dismissed the petitioner's appeal against conviction
and the sentence of death for murder and promised to put their reasons for so doing in writing.
Those reasons were not delivered until three years and nine months later, namely on 24
September 1984. During the whole of that period the appellant had sentence of death hanging
over him and, of course, no action could be taken on his behalf, or on behalf of the authorities,
pending the possibility of an appeal to this Board which could only be considered when those
reasons had been delivered.'

As Rowe P pointed out in his judgment in the Court of Appeal, this comment was not strictly
accurate and undoubtedly misled the two international bodies to whom the appellants
petitioned. In practice it is necessary to have the reasons of the Court of Appeal available at the
hearing of the application for special leave to appeal, as without them it is not usually possible

11
to identify the point of law or serious miscarriage of justice of which the appellant complains.
The availability of the reasons is not, however, a condition precedent to lodging an application
for special leave to appeal. Their Lordships have no doubt that if an application for special leave
to appeal had been lodged together with a request for the reasons they would have been
swiftly delivered as they were when Pratt finally requested them in 1984. Although it is most
regrettable that the Court of Appeal overlooked the delivery of its reasons for dismissing the
appeal, it is not possible to attribute the delay in lodging the notice of application for leave to
appeal to the Judicial Committee of the Privy Council to the lack of reasons.
On 21 July 1986 the UNHRC requested Jamaica not to carry out the death sentence on Pratt
and Morgan before it had an opportunity to consider the admissibility of the complaint.
[1993] 4 All ER 769 at 778

On 18 November 1986 the JPC, apparently for the first time, considered the appellants' case.
They did not accede to the request of the UNHRC to stay the execution and the first warrant of
execution was issued on 12 February 1987 for execution on 24 February.

On 23 February the Governor General issued a stay of execution. The reasons for the stay are
not entirely clear but may have been the result of a telegram from the UNHRC urging a stay of
execution and a letter from Mr Noel Edwards QC to the Governor General informing him that
the case of the appellants was due to be considered by the UNHRC on 23 March 1987 and the
IACHR on 26 March 1987.

The superintendent of the St Catherine District Prison at that time says in his affidavit that he
was informed of the stay by telephone at 4.30 pm on 23 February and ten minutes later
informed the appellants in the condemned cell and that as soon as he received written
confirmation about twenty minutes later the men were removed from the condemned cell and
returned to death row. The appellants in their affidavits say that they were not informed of the
stay until 45 minutes before they were due to be executed on the morning of 24 February. This
is a dispute which their Lordships cannot resolve on the affidavit evidence.

On 9 July 1987 the IACHR pursuant to further representations of Pratt and Morgan informed
the Jamaican government of the following findings :

'Pratt and Morgan suffered a denial of justice during the period 1980–1984 violative of Article
5(2) of the American Convention on Human Rights. The Commission found that the fact that the
Jamaican Court of Appeal issued its decision on December 5 1980 but did not issue the reasons
for that decision until four years later, September 24, 1984, was tantamount to cruel, inhuman
and degrading treatment because during that four year delay the petitioners could not appeal
to the Privy Council and had to suffer four years on death row awaiting execution. The Inter-
American Commission on Human Rights, pursuant to its cable of July 7 1987 requests that the
execution of Messrs. Pratt and Morgan be commuted for humanitarian reasons.'

This decision, as has already been explained was based on a misunderstanding of the
appellants' right to appeal to the Judicial Committee of the Privy Council.

12
On 13 October 1987 the JPC reconsidered the appellants' case. They did not accede to the
request of the IACHR and on their advice the second warrant of execution was issued on 18
February 1988 for execution on 1 March.

On 29 February 1988 the second stay of execution was issued by the Governor General. This
time it appears to have been as a result of a further request from the UNHRC not to execute the
men until the committee had completed their review of the case.
On 24 March the UNHRC decided that the appellants' case was admissible contrary to the
submission of the Jamaican government that the appellants had not yet exhausted their
domestic remedies and requested Jamaica not to carry out the death sentence until the
committee had arrived at their decision on the merits. Their Lordships observe that it had taken
over two years for the committee to determine that the case was admissible. The ground upon
which the Jamaican government had opposed the appellants' submission is stated in para 6(4)
of the committee's decision:

'The State party contends that the [appellants'] communications are inadmissible because they
have failed to exhaust domestic remedies as required by Article 5(2)(b) of the Optional
Protocol. It points out that in
[1993] 4 All ER 769 at 779

respect of the [appellants'] complaints—breach of the right to trial without undue delay and
breach of the right to protection against subjection to torture or cruel, inhuman or degrading
treatment—it would have been open to the [appellants] to apply to the Supreme Court for
redress alleging breaches of these fundamental rights protected by sections 17 and 20(1) of the
Jamaican Constitution respectively.'
Their Lordships find this a puzzling stance to be taken by the Jamaican government in view of
their successful submission in Riley v A-G of Jamaica[1982] 3 All ER 469, [1983] 1 AC 719 that
delay in carrying out execution could afford no ground for holding the execution to be in breach
of the Jamaican Constitution; unless it is perhaps to be construed as an encouragement to the
appellants to challenge the decision in Riley v A-G and seek relief under the Constitution. This,
however, seems to be unlikely in view of the Solicitor General's formidable argument before
their Lordships in support of the majority reasoning in Riley v A-G. What is certain is that it
added to the delay in the committee dealing with the case on the merits.

On 6 April 1989 the UNHRC gave their decision on the merits. They held that the failure of the
Court of Appeal to deliver reasons for 45 months was a violation of art 14, para 3(c) and art 14,
para 5 of the International Covenant on Civil and Political Rights with Optional Protocol, which
are in the following terms:

'3. In the determination of any criminal charge against him, everyone shall be entitled to the
following minimum guarantees, in full equality … (c) To be tried without undue delay …

5. Everyone convicted of a crime shall have the right to his conviction and sentence being
reviewed by a higher tribunal according to law.'

13
The committee gave the following reasons for their decision:

'13.4 The State party has contended that the time span of three years and nine months
between the dismissal of the [appellants'] appeal and the delivery of the Court of Appeal's
written judgement was attributable to an oversight and that the [appellants] should have
asserted their right to receive earlier the written judgement. The Committee considers that the
responsibility for the delay of 45 months lies with the judicial authorities of Jamaica. This
responsibility is neither dependent on a request for production by the accused in a trial nor is
nonfulfillment of this responsibility excused by the absence of a request from the accused. The
Committee further observes that the Privy Council itself described the delay as inexcusable (see
para. 2.3 above).

13.5 In the absence of a written judgement of the Court of Appeal, the [appellants] were not
able to proceed to appeal before the Privy Council, thus entailing a violation of article 14,
paragraph 3(c), and article 14, paragraph 5. In reaching this conclusion it matters not that in the
event the Privy Council affirmed the conviction of the [appellants]. The Committee notes that in
all cases, and especially in capital cases, accused persons are entitled to trial and appeal
without undue delay, whatever the outcome of those judicial proceedings turns out to be.'

It seems to their Lordships unlikely that the committee would have made this finding if they had
not been misled into believing that the delay in giving reasons prevented an appeal to the Privy
Council.

The committee also found a violation of art 7, which provides:

[1993] 4 All ER 769 at 780

'No one shall be subjected to torture or to cruel, inhuman or degrading treatment or

punishment. In particular, no one shall be subjected without his free consent to medical or
scientific experimentation.'

The committee gave their reasons as follows:

'13.6 There are two issues concerning article 7 before the Committee: the first is whether the
excessive delays in judicial proceedings constituted not only a violation of article 14, but “cruel,
inhuman and degrading treatment”. The possibility that such a delay as occurred in this case
could constitute cruel and inhuman treatment was referred to by the Privy Council. In principle
prolonged judicial proceedings do not per se constitute cruel, inhuman or degrading treatment
even if they can be a source of mental strain for the convicted prisoners. However, the situation
could be otherwise in cases involving capital punishment and an assessment of the
circumstances of each case would be necessary. In the present cases the Committee does not
find that the authors have sufficiently substantiated their claim that delay in judicial
proceedings constituted for them cruel, inhuman and degrading treatment under article 7.

13.7 The second issue under article 7 concerns the issue of warrants for execution and the
notification of the stay of execution. The issue of a warrant for execution necessarily causes
intense anguish to the individual concerned. In the [appellants'] case, death warrants were

14
issued twice by the Governor General, first on 13 February 1987 and again on 23 February
1988. It is uncontested that the decision to grant a first stay of execution, taken at noon on 23
February 1987, was not notified to the [appellants] until 45 minutes before the scheduled time
of the execution on 24 February 1987. The Committee considers that a delay of close to 10
hours from the time the stay of execution was granted to the time the [appellants] were
removed from their death cell constitutes cruel and inhuman treatment within the meaning of
article 7.'

The committee did not know that this allegation was strenuously denied by the Jamaican
government. The Solicitor General has told their Lordships that the Jamaican government did
not know that this allegation had been made to the committee on behalf of Pratt and Morgan
and that if the government had known of it they would have put in affidavit evidence denying
it. If that had been done their Lordships surmise that the committee, like their Lordships, might
have found it difficult to resolve the conflict of evidence and thus to find a violation of art 7 on
the ground of delay of notification in the stay of execution.

The committee made the following recommendation:

'It is the view of the Committee that, in capital punishment cases, States parties have an
imperative duty to observe rigorously all the guarantees for a fair trial set out in article 14 of
the Covenant. Although in this case article 6 is not directly at issue, in that capital punishment is
not per se unlawful under the Covenant, it should not be imposed in circumstances where
there have been violations by the State party of any of its obligations under the Covenant. The
Committee is of the view that the victims of the violations of articles 14, paragraph 3(c), and 7
are entitled to a remedy; the necessary prerequisite in the particular circumstances is the
commutation of the sentence.'
[1993] 4 All ER 769 at 781

Eighteen months then passed before a decision was taken by the JPC on this recommendation
of the UNHRC. Press reports of parliamentary proceedings show that in June 1990 the question
of the death penalty was under review by the Cabinet but that no conclusions had yet been
reached on commuting sentences.

On 17 September 1990 the JPC again reconsidered the appellants' case. They rejected the
recommendations made 18 months earlier by the UNHRC. On 18 February 1991 the warrant of
execution was issued for execution on 7 March 1991, the delay in issuing the warrant of
execution from 17 September 1990 to 18 February 1991 apparently being accounted for by the
wish of the Governor General to obtain the Attorney General's advice on the legal status of
decisions of human rights bodies. This is advice which it would have been appropriate to place
before the members of the JPC at a much earlier date, and before they considered any
recommendations of such bodies. Their Lordships have not seen the Attorney General's advice
but do not doubt that it correctly advised that, Jamaica being a signatory to the International
Covenant on Civil and Political Rights and to the Optional Protocol, the views of the UNHRC
should be afforded weight and respect but were not of legally binding effect; and that the like
considerations applied to the IACHR.

15
On 28 February 1991 the appellants commenced these proceedings pursuant to s 25 of the
Constitution and as a result the execution set for 7 March was stayed. On 14 June the Supreme
Court dismissed their application. On 8 June 1992 the Court of Appeal dismissed their appeal
and on 18 January 1993 gave leave to appeal to the Judicial Committee of the Privy Council.

The primary submission of the appellants is that to hang them after they have been held in
prison under sentence of death for so many years would be inhuman punishment or other
treatment and thus in breach of s 17(1) of the Constitution.

Section 17 of the Constitution provides:

'(1) No person shall be subjected to torture or to inhuman or degrading punishment or other

treatment.

(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent
with or in contravention of this section to the extent that the law in question authorises the
infliction of any description of punishment which was lawful in Jamaica immediately before the
appointed day.'
This submission cannot succeed unless their Lordships are persuaded to prefer the construction
of s 17(2) adopted by the minority in Riley v A-G of Jamaica [1982] 3 All ER 469, [1983] 1 AC
719 to that of the majority. The five appellants in Riley v A-G had been sentenced to death and
held in custody for between six and seven years before their appeal was heard by the Privy
Council. They submitted that to execute them after such a prolonged delay would contravene
their rights under s 17(1) of the Constitution. By a majority the Privy Council rejected this
submission because they construed s 17(2) as authorising execution by hanging for murder no
matter how long the delay between the passing of the sentence and the execution. Lord Bridge
of Harwich said ([1982] 3 All ER 469 at 472–473, [1983] 1 AC 719 at 726):
'The question, therefore, is whether the delayed execution of a sentence of death by hanging,
assuming it could otherwise be described as “inhuman or degrading punishment or other
treatment”, a question on which their Lordships need express no opinion, can escape the
unambiguous prohibition imposed by the words in s 17(2) emphasised as follows:
“Nothing contained in or done under the authority of any law shall be held to be inconsistent
with or
[1993] 4 All ER 769 at 782
in contravention of this section to the extent that the law in question authorises the infliction of
any description of punishment which was lawful in Jamaica immediately before the appointed
day.” An act will fall within this prohibition if it satisfies three related conditions, viz: (a) it must
be an act done under the authority of law; (b) it must be an act involving the infliction of
punishment of a description authorised by the law in question, being a description of
punishment which was lawful in Jamaica immediately before the appointed day; (c) it must not
exceed in extent the description of punishment so authorised. There can be no doubt whatever
that a delayed execution would satisfy conditions (a) and (b). The only words in s 17(2) that are
even arguably ambiguous are the words “to the extent that”. It seems to their Lordships that in
their context these words pose the question: to what extent did the law in Jamaica before

16
independence authorise the description of punishment which is under challenge? This question
can only be answered by asking in turn the further question: if the like description of
punishment had been inflicted in the like circumstances before independence, would this have
been authorised by law? An obvious instance of a description of punishment exceeding in
extent that authorised by law would be the execution of a death sentence by burning at the
stake. But since the legality of a delayed execution by hanging of a sentence of death lawfully
imposed under s 3(1) of the Offences against the Person Act could never have been questioned
before independence, their Lordships entertain no doubt that it satisfies condition (c).
Accordingly, whatever the reasons for, or length of, delay in executing a sentence of death
lawfully imposed, the delay can afford no ground for holding the execution to be a
contravention of s 17(1).'
This construction of s 17(2) focuses on the act of punishment, and proceeds upon the
assumption that the legality of a long delayed execution could never have been questioned
before independence. Their Lordships, having had the benefit of much fuller argument, cannot
accept that there could have been no challenge to a long delayed execution before
independence and for the reasons already given are satisfIed that such an execution could have
been stayed as an abuse of process. The due process of law does not end with pronouncement
of sentence: see Abbott v A-G of Trinidad and Tobago [1979] 1 WLR 1342.

The minority, who would have allowed the appeal, adopted a narrower construction of s 17(2)
which limited the scope of the subsection to authorising the passing of a judicial sentence of a
description of punishment lawful in Jamaica before independence and they held it was not
concerned with the act of the executive in carrying out the punishment.
Their Lordships are satisfied that the construction of s 17(2) adopted by the minority is to be
preferred. The purpose of s 17(2) is to preserve all descriptions of punishment lawful
immediately before independence and to prevent them from being attacked under s 17(1) as
inhuman or degrading forms of punishment or treatment. Thus, as hanging was the description
of punishment for murder provided by Jamaican law immediately before independence,
the death sentence for murder cannot be held to be an inhuman description of punishment for
murder.

Section 17(2) does not address the question of delay and is not dealing with the problem that
arises from delay in carrying out the sentence. The primary purpose of the Constitution was to
entrench and enhance pre-existing rights and freedoms, not to curtail them. Before
independence the law would have
[1993] 4 All ER 769 at 783

protected a Jamaican citizen from being executed after an unconscionable delay, and their
Lordships are unwilling to adopt a construction of the Constitution that results in depriving
Jamaican citizens of that protection.
The majority also relied upon the judgment of the Board in de Freitas v Benny [1976] AC 239. In
that case which concerned the construction of the Constitution of Trinidad and Tobago the time
scale was wholly different from the present case. The appellant had been sentenced to death in
August 1972 and his constitutional appeal was heard and determined by the Privy Council in
17
May 1975. Their Lordships in de Freitas v Benny said that they had difficulty in formulating the
appellants' argument based on delay: but it appears to have been founded upon a submission
that as the time between sentence and execution was before independence on average five
months, an execution that involved a delay longer than this was open to attack as cruel and
unusual punishment. Their Lordships dismissed this argument without calling on the
respondents. Both the argument and the extent of the delay are so different from the present
appeal that their Lordships are unable to gain any assistance from this decision.
Their Lordships will therefore depart from Riley v A-G of Jamaica and hold that s 17(2) is
confined to authorising descriptions of punishment for which the court may pass sentence and
does not prevent the appellant from arguing that the circumstances in which the executive
intend to carry out a sentence are in breach of s 17(1).
The Court of Appeal rightly held that they were bound by the majority decision in Riley v A-G of
Jamaica and did not therefore consider whether the appellants had been subjected to inhuman
or degrading punishment or treatment within the meaning of s 17(1). It is however to this
question which is central to this appeal that their Lordships must now turn.

There is an instinctive revulsion against the prospect of hanging a man after he has been held
under sentence of death for many years. What gives rise to this instinctive revulsion? The
answer can only be our humanity: we regard it as an inhuman act to keep a man facing the
agony of execution over a long extended period of time. But before their Lordships condemn
the act of execution as 'inhuman or degrading punishment or other treatment' within the
meaning of s 17(1) there are a number of factors that have to be balanced in weighing the
delay. If delay is due entirely to the fault of the accused such as an escape from custody or
frivolous and time wasting resort to legal procedures which amount to an abuse of process the
accused cannot be allowed to take advantage of that delay for to do so would be to permit the
accused to use illegitimate means to escape the punishment inflicted upon him in the interest
of protecting society against crime.

A much more difficult question is whether the delay occasioned by the legitimate resort of the
accused to all available appellate procedures should be taken into account, or whether it is only
delay that can be attributed to the shortcomings of the state that should be taken into account.
There is a powerful argument that it cannot be inhuman or degrading to allow an accused every
opportunity to prolong his life by resort to appellate procedures however extended may be the
eventual time between sentence and execution. This is the view that currently prevails in some
states in the United States of America and has resulted in what has become known as the
'death row phenomenon', where men are held under sentence of death for many years while
their lawyers pursue a multiplicity of appellate procedures. Powerful statements in support of
this point of view appear in the opinion of Circuit Judge O'Scannlain in Richmond v Lewis (1990)
948 F 2d 1473, a decision of the United States Court of
[1993] 4 All ER 769 at 784
Appeals for the Ninth Circuit, and in the judgment of La Forest J in Kindler v Canada (Minister of
Justice) (1991) 84 DLR (4th) 438, a decision of the Supreme Court of Canada. A further valuable
analysis of the decisions in the United States courts appears in the judgment of the Supreme
18
Court of Zimbabwe in Catholic Catholic Commission for Justice and Peace in Zimbabwe v A-G (24
June 1993, unreported).
Support for this view is also to be found in previous decisions of the Privy Council. In Abbott v A-
G of Trinidad and Tobago [1979] 1 WLR 1342 an unsuccessful appeal against the death
sentence was made upon the ground that the period of eight months taken to reject the
petition for reprieve infringed the appellant's constitutional rights. The appeal was heard by the
Privy Council on 4 April 1979, nearly six years after the conviction on 16 July 1973. In delivering
the judgment of the Board, Lord Diplock said (at 1345):
'That so long a total period should have been allowed to elapse between the passing of a death
sentence and its being carried out is, in their Lordships' view, greatly to be deplored. It brings
the administration of criminal justice into disrepute among lawabiding citizens. Nevertheless
their Lordships doubt whether it is realistic to suggest that from the point of view of the
condemned man himself he would wish to expedite the final decision as to whether he was to
die or not if he thought that there was a serious risk that the decision would be unfavourable.
While there's life, there's hope. At any rate, as in de Freitas v Benny [1976] AC 239, it has to be
conceded that the applicant cannot complain about the delay totalling three years preceding
his petition for pardon caused by his own action in appealing against his conviction or about the
delay totalling two years subsequent to the rejection of his petition caused by has own action in
appealing against the sentence on constitutional grounds. His case as advanced before their
Lordships has depended solely on the period of somewhat less than eight months sandwiched
between the two longer periods, which was allowed by the state to elapse between the lodging
of his petition for pardon and its rejection by the President. This it is claimed amounted to delay
so inordinate as to involve a contravention of his constitutional rights.'
In Riley v A-G of Jamaica [1982] 3 All ER 469 at 471, [1983] 1 AC 719 at 724 Lord Bridge of
Harwich said:

'Apart from the delays necessarily occasioned by the appellate procedures pursued by the
appellants (of which it could hardly lie in any appellant's mouth to complain) …'
Lord Scarman and Lord Brightman concluded their dissenting judgment by saying ([1982] 3 All
ER 469 at 480, [1983] 1 AC 719 at 736):

'Prolonged delay when it arises from factors outside the control of the condemned man can
render a decision to carry out the sentence of death an inhuman and degrading punishment. It
is, of course, for the applicant for constitutional protection to show that the delay was
inordinate, arose from no act of his, and was likely to cause such acute suffering that the
infliction of the death penalty would be in the circumstances which had arisen inhuman or
degrading.'
However, in an earlier passage of their judgment Lord Scarman and Lord Brightman said ([1982]
3 All ER 469 at 479, [1983] 1 AC 719 at 735):
[1993] 4 All ER 769 at 785

'It is, of course, true that a period of anguish and suffering is an inevitable consequence of
sentence of death. But a prolongation of it beyond the time necessary for appeal and
consideration of reprieve is not. And it is no answer to say that the man will struggle to stay
19
alive. In truth, it is this ineradicable human desire which makes prolongation inhuman and
degrading.'

Their Lordships are therefore doubtful whether Lord Scarman and Lord Brightman would have
regarded delay caused by appeals made within the time scale permitted by the state as time to
be left out of account in computing the total period of delay.
There are other authorities which do not accept that delay occasioned by use of appeal
procedures is to be disregarded. In Catholic Commission for Justice and Peace in Zimbabwe v A-
G Gubbay CJ said:

'It seems to me highly artificial and unrealistic to discount the mental agony and torment
experienced on death row on the basis that by not making the maximum use of the judicial
process available the condemned prisoner would have shortened and not lengthened his
suffering. The situation could be otherwise if he had resorted to a series of untenable and
vexatious proceedings which, in consequence, had the effect of delaying the ends of justice.'
And he expressed his dissent from the contrary view contained in Abbott v A-G of Trinidad and
Tobago [1979] 1 WLR 1342.
In Soering v UK (1989) 11 EHRR 439 the applicant, a West German national, alleged that the
decision by the Home Secretary to extradite him to the United States of America to face trial in
Virginia on a charge of capital murder would, if implemented, give rise to a breach by the
United Kingdom of art 3 of the Convention for the Protection of Human Rights and
Fundamental Freedoms (Rome, 4 November 1950; TS 71 (1953); Cmd 8969), which provides
that no one should be subjected to torture or to inhuman or degrading treatment or
punishment.

The United States had applied to the United Kingdom to extradite the applicant to stand trial in
the state of Virginia on a charge of capital murder. The European Court of Human Rights
recognised that the death row phenomenon in Virginia where prisoners were held for a period
of six to eight years before execution arose from repeated applications by the prisoner for a
stay of execution but nevertheless held that such a long period of delay might go beyond the
threshold set by art 3.
In India, where the death penalty is not mandatory, the appellate court takes into account
delay when deciding whether the death sentence should be imposed. In Vatheeswaran v State
of Tamil Nadu [1983] 2 SCR 348 at 353 Chinnappa Reddy J said:

'While we entirely agree with Lord Scarman and Lord Brightman about the dehumanising effect
of prolonged delay after the sentence of death, we enter a little caveat, but only that we may
go further. We think that the cause of the delay is immaterial when the sentence is death. Be
the cause for the delay, the time necessary for appeal and consideration of reprieve or some
other cause for which the accused himself may be responsible, it would not alter the
dehumanising character of the delay.'

The court held that delay exceeding two years in the execution of a sentence of death should
be sufficient to entitle a person under sentence of death to demand

20
 [1993] 4 All ER 769 at 786

the quashing of his sentence on the ground that it offended against art 21 of the Indian
Constitution, which provides: 'No person shall be deprived of his life or personal liberty except
according to procedure established by law.'
In Sher Singh v State of Punjab [1983] 2 SCR 582 the court held:
'Prolonged delay in the execution of a death sentence is unquestionably an important
consideration for determining whether the sentence should be allowed to be executed. But no
hard and fast rule that “delay exceeding two years in the execution of a sentence of death
should be considered sufficient to entitle the person under sentence of death to invoke Art. 21
and demand the quashing of the sentence of death” can be laid down as has been
in Vatheeswaran.'

The court pointed out that to impose a strict time limit of two years would enable a prisoner to
defeat the ends of justice by pursuing a series of frivolous and untenable proceedings.
In Smt Triveniben v State of Gujarat (1989) 1 SCJ 383 the Supreme Court of India approved the
judgment in Sher Singh v State of Punjab and held that a sentence of death imposed by the
'Apex Court', which will itself have taken into account delay when imposing the death
sentence, can only be set aside thereafter upon petition to the Supreme Court upon grounds of
delay occurring after that date. Oza J said (at 410):

'If, therefore, there is inordinate delay in execution, the condemned prisoner is entitled to
come to the court requesting to examine whether, it is just and fair to allow the sentence of
death to be executed.'

In their Lordships' view a state that wishes to retain capital punishment must accept the
responsibility of ensuring that execution follows as swiftly as practicable after sentence,
allowing a reasonable time for appeal and consideration of reprieve. It is part of the human
condition that a condemned man will take every opportunity to save his life through use of the
appellate procedure. If the appellate procedure enables the prisoner to prolong the appellate
hearings over a period of years, the fault is to be attributed to the appellate system that
permits such delay and not to the prisoner who takes advantage of it. Appellate procedures
that echo down the years are not compatible with capital punishment. The death row
phenomenon must not become established as a part of our jurisprudence.

The application of the appellants to appeal to the Judicial Committee of the Privy Council and
their petitions to the two human rights bodies do not fall within the category of frivolous
procedures disentitling them to ask the Board to look at the whole period of delay in this case.
The total period of delay is shocking and now amounts to almost 14 years. It is double the time
that the European Court of Human Rights considered would be an infringement of art 3 of the
European Convention and their Lordships can have no doubt that an execution would now be
an infringement of s 17(1) of the Jamaican Constitution.

21
To execute these men now after holding them in custody in an agony of suspense for so many
years would be inhuman punishment within the meaning of s 17(1). In the last resort the courts
have to accept the responsibility of saying whether the threshold has been passed in any given
case and there may be difficult borderline decisions to be made. This, however, is not a
borderline case. The delay in this case is wholly unacceptable and this appeal must be allowed.

In arriving at this conclusion their Lordships do not overlook the reliance placed by the Solicitor
General on the dissenting judgment of Judge Sir Gerald
[1993] 4 All ER 769 at 787
Fitzmaurice in Republic of Ireland v UK (1978) 2 EHRR 25 at 120 but prefer an interpretation of
the Constitution of Jamaica that accepts civilised standards of behaviour which will outlaw acts
of inhumanity, albeit they fall short of the barbarity of genocide.

Section 25(2) of the Constitution provides:

'The Supreme Court shall have original jurisdiction to hear and determine any application made
by any person in pursuance of subsection (1) of this section and may make such orders, issue
such writs and give such directions as it may consider appropriate for the purpose of enforcing,
or securing the enforcement of, any of the provisions of the said sections 14 to 24 (inclusive) to
the protection of which the person concerned is entitled.'

The width of the language of this subsection enables the court to substitute for the sentence of
death such order as it considers appropriate. The appropriate order in the present case is that
the sentence of death of each appellant should be commuted to life imprisonment.

Their Lordships are very conscious that many other prisoners under sentence of death are
awaiting the outcome of this appeal. In an attempt to assist the Jamaican authorities who may
be faced with a large number of appeals their Lordships wish to make some general
observations.

The delay in this case would never have reached anything like its present dimensions if the
Governor General and the JPC had reviewed the case pursuant to ss 90 and 91 of the
Constitution early in 1981 after the Court of Appeal had dismissed the appellants' application
for leave to appeal. As has already been pointed out, there was no reason why the case should
not have been reviewed at that time and it appears inevitable in the light of after events that
the JPC would have advised that the execution should proceed and a date would have been set.
This would have provided the impetus for an immediate application to the Judicial Committee
of the Privy Council which would have been disposed of in the summer of 1981 and a new
execution date set within a matter of weeks. If this had occurred, the grounds upon which the
two human rights bodies recommended commutation of sentence to life imprisonment would
never have arisen, because the Court of Appeal would have been prompted to deliver their
reasons by the application to the Judicial Committee of the Privy Council and the execution
would have taken place years before the late reprieve of which the appellants have
complained.

22
There may of course be circumstances which will lead the JPC to recommend a respite in the
carrying out of a death sentence, such as a political moratorium on the death sentence, or a
petition on behalf of the appellants to IACHR or UNHRC or a constitutional appeal to the
Supreme Court. But if these respites cumulatively result in delay running into several years an
execution will be likely to infringe s 17(1) and call for commutation of thedeath sentence to life
imprisonment.

Their Lordships are very conscious that the Jamaican government faces great difficulties with a
disturbing murder rate and limited financial resources at their disposal to administer the legal
system. Nevertheless, if capital punishment is to be retained it must be carried out with all
possible expedition. Capital appeals must be expedited and legal aid allocated to an appellant
at an early stage. The aim should be to hear a capital appeal within 12 months of conviction.
The procedure contained in the Governor General's Instructions should be reinstated so that
the JPC consider the case shortly after the Court of Appeal hearing and if an execution date is
set and there is to be an application to the Judicial Committee
[1993] 4 All ER 769 at 788

of the Privy Council it must be made as soon as possible, as both the rules of the Judicial
Committee of the Privy Council and the Governor General's Instructions require, in which case it
should be possible to dispose of it within six months of the Court of Appeal hearing or within a
further six months if there is to be a full hearing of the appeal. In this way it should be possible
to complete the entire domestic appeal process within approximately two years. Their
Lordships do not purport to set down any rigid timetable but to indicate what appear to them
to be realistic targets which, if achieved, would entail very much shorter delay than has
occurred in recent cases and could not be considered to involve inhuman or degrading
punishment or other treatment.
The final question concerns applications by prisoners to IACHR and UNHRC. Their Lordships
wish to say nothing to discourage Jamaica from continuing its membership of these bodies and
from benefiting from the wisdom of their deliberations. It is reasonable to allow some period of
delay for the decisions of these bodies in individual cases but it should not be very prolonged.
The UNHRC does not accept the complaint unless the complainant 'has exhausted all available
domestic remedies'. The UNHRC has decided in this case and in Carlton-Reid v
Jamaica 250/1987, Annual Report of the Human Rights Committee, 1990 vol 2 GAOR, 45th
Session, Supplement No 40, p 85 that a constitutional motion to the Supreme Court of Jamaica
is not a remedy to which the complainant need resort before making an application to the
Committee under the Optional Protocol. A complainant will therefore be able to lodge a
complaint immediately after his case has been disposed of by the Judicial Committee of the
Privy Council. If, however, Jamaica is able to revise its domestic procedures so that they are
carried out with reasonable expedition no grounds will exist to make a complaint based upon
delay. And it is to be remembered that the UNHRC does not consider its role to be that of a
further appellate court:
'The Committee observes that it is generally for the appellate courts of States parties to the
Covenant and not for the Committee to evaluate the facts and evidence placed before domestic

23
courts and to review the interpretation of domestic law by national courts. Similarly, it is for the
appellate courts and not for the Committee to review specific instructions to the jury by the
judge, unless it is apparent from the author's submission that the instructions to the jury were
clearly arbitrary or tantamount to a denial of justice, or that the judge manifestly violated his
obligation of impartiality.' (See DS v Jamaica 304/1988, Annual Report of the Human Rights
Committee, 1991 GAOR, 46th Session, Supplement No 40, p 281.)

It therefore appears to their Lordships that provided there is in future no unacceptable delay in
the domestic proceedings complaints to the UNHRC from Jamaica should be infrequent and
when they do occur it should be possible for the committee to dispose of them with reasonable
dispatch and at most within eighteen months.

These considerations lead their Lordships to the conclusion that in any case in which execution
is to take place more than five years after sentence there will be strong grounds for believing
that the delay is such as to constitute 'inhuman or degrading punishment or other treatment'.
If, therefore, rather than waiting for all those prisoners who have been in death row under
sentence of death for five years or more to commence proceedings pursuant to s 25 of the
Constitution, the Governor General now refers all such cases to the JPC who, in accordance
with the guidance contained in this advice, recommend commutation to life
[1993] 4 All ER 769 at 789

imprisonment, substantial justice will be achieved swiftly and without provoking a flood of
applications to the Supreme Court for constitutional relief pursuant to s 17(1).

The appellants pursued alternative grounds of appeal upon which their Lordships find it
unnecessary to express any conclusions.

Their Lordships will accordingly humbly advise Her Majesty that this appeal ought to be
allowed, and the sentences of the appellants be commuted to life imprisonment.
Appeal allowed.
Celia Fox Barrister.

24
De Freitas v Benny [1976] A.C. 239

MICHAEL DE FREITAS also called MICHAEL ABDUL MALIK APPELLANT AND GEORGE
RAMOUTAR BENNY AND OTHERS RESPONDENTS [ON APPEAL FROM THE COURT OF APPEAL
OF TRINIDAD AND TOBAGO]

1975 April 30; May 1; 15

Lord Diplock, Lord Morris of Borth-y-Gest, Viscount Dilhorne, Lord Kilbrandon and Lord
Salmon
Trinidad and Tobago - Constitution - Human rights and fundamental freedoms - Imposition of
death penalty for murder - Whether cruel and unusual punishment - Whether executive act in
carrying out death sentence valid - Prerogative of mercy - Whether right to have advisory
committee's report disclosed - Trinidad and Tobago (Constitution) Order in Council 1962 (S.I.
1962 No. 1875), Sch. 2, ss. 1 (a), 2 (b), 3
[1976] A.C. 239 Page 240

The appellant was convicted of murder in the Supreme Court of Trinidad and Tobago on August
21, 1972, and sentenced to death. His appeal against conviction was dismissed by the Court of
Appeal on April 17, 1973, and a petition for special leave to appeal to the Judicial Committee of
the Privy Council was dismissed on December 12, 1973. On December 20, 1973, the appellant
applied to the High Court for, inter alia, a declaration that the carrying out of the death
sentence would contravene his human rights recognised under section 1 (a), and protected
under section 2 (b), of the Trinidad and Tobago (Constitution) Order in Council 1962. 1 The High
Court dismissed the application on February 15, 1974, and its decision was affirmed by the
Court of Appeal on April 30, 1974.

On appeal by the appellant to the Judicial Committee: -

Held, dismissing the appeal, (1) that the executive act of carrying out a death sentence
pronounced by a court of law was authorised by laws that were in force at the commencement
of the Constitution and the appellant was, therefore, debarred by section 3 of the Constitution
from asserting that it abrogated, abridged or infringed any of his rights or freedoms recognised
and declared in section 1 or particularised in section 2 (post, pp.244F-H, 246C).
(2) That the appellant had no legal right to have disclosed to him the material furnished to the
advisory committee and to the Minister on which the Minister tendered advice to the
Governor-General as to the exercise of the prerogative of mercy as the exercise of the royal
prerogative was solely discretionary (post, p. 248D-F) and not quasi-judicial.

Judgment of the Court of Appeal of Trinidad and Tobago affirmed.

The following case is referred to in their Lordships' report:

25
Director of Public Prosecutions v. Nasralla [1967] 2 A.C. 238; [1967] 3 W.L.R. 13; [1967] 2 All E.R.
161; 10 W.I.R. 299, P.C.

The following additional cases were cited in argument:

Olivier v. Buttigieg [1967] 1 A.C. 115; [1966] 3 W.L.R. 310; [1966] 2 All E.R. 459, P.C.
People v. Anderson (1972) 6 Cal. 3d 628; 100 Cal.Rptr. 152.
Ridge v. Baldwin [1964] A.C. 40; [1963] 2 W.L.R. 935; [1963] 2 All E.R. 66, H.L.(E.).

APPEAL (No. 20 of 1974) from a judgment (April 30, 1974) of the Court of Appeal of Trinidad
and Tobago (Hyatali C.J., Phillips and Corbin JJ.A.) dismissing an appeal by the appellant,
Michael de Freitas also called Michael Abdul Malik, from a judgment of the High Court of
Trinidad and Tobago (Braithwaite J.) whereby his application for redress under section 6 of the
Trinidad and Tobago (Constitution) Order in Council 1962 naming George Ramoutar Benny,
Registrar of the Supreme Court, the Attorney-General of Trinidad and Tobago and Tom Iles,
Commissioner of Prisons, as defendants and seeking declarations that,
1 Trinidad and Tobago (Constitution) Order in Council 1962, Sch. 2, s. 1 (a): see post, pp. 243H
- 244A.
Ss. 2 (b), 3: see post. p. 244B-D.
[1976] A.C. 239 Page 241

inter alia, a sentence of death passed upon him was unlawful and contravened the Constitution
of Trinidad and Tobago, was dismissed.

The facts are stated in the report of their Lordships.

Louis Blom-Cooper Q.C., G. R. Robertson and Jonathan Caplan for the appellant. The main
issue is whether the death penalty as administered in Trinidad and Tobago is cruel and unusual
punishment both under section 2 (b) of the Constitution and at common law, and whether the
execution of the death penalty infringes section 1 of the Constitution which provides that no
individual shall be deprived of his right to life except by due process of law. It is not contended
that the death penalty as a penalty judgment infringes any constitutional provision.
The Court of Appeal was wrong in holding that section 3 (1) of the Constitution operated to
exclude the application of sections 1 and 2 in respect of acts done in purported pursuance of a
law in force prior to the commencement of the Constitution. [Reference was made to Director
of Public Prosecutions v. Nasralla [1967] 2 A.C. 238.] Even if such acts were excluded by section
3 (1) of the Constitution, the statute 1 William and Mary, c. 2 (the Bill of Rights 1689) by virtue
of section 12 of the Supreme Court of Judicature Act (No. 12 of 1962) survived as part of the
law of Trinidad and Tobago at the commencement of the Constitution. That statute was
unaffected by section 3 (1) of the Constitution and operates on laws enacted prior to the
Constitution. It continues to proscribe cruel and unusual punishment.
The death penalty is, per se, cruel and unusual punishment. It is conceded that the
pronouncement of the death sentence at trial is not unconstitutional. [Reference was made

26
to People v. Anderson (1972) 6 Cal. 3d 628.] It is the carrying out of the death penalty that is
unconstitutional irrespective of the constitutionality of the pending judgment. Alternatively, if
the carrying out of the death penalty is not per se unconstitutional, the inordinate delay in
carrying it out in the present case has made it so. Whether or not section 3 (1) of the
Constitution applies to acts done under the authority or purported authority of a law which was
in force at the commencement of the Constitution, on the facts of the present case the
inordinate delays have made the death penalty a cruel and unusual punishment.
The Bill of Rights (1 William and Mary, c. 2) proscribes cruel and unusual punishments. That
statute is part of the common law of England and became merged in the provisions of the
Trinidad and Tobago Constitution. Section 3 (1) of the Constitution protects statute law and
common law in force at the commencement of the Constitution from being struck down as
inconsistent with the recognised human rights and fundamental freedoms, but does not
legitimise administrative acts done in furtherance of such protected legislation if the
administrative acts are unconstitutional. The administrative acts must pass the test of
constitutionality. [Reference was made to Olivier v. Buttigieg [1967] 1 A.C. 115.] A distinction is
to be drawn between the sentence passed by the court and the execution of that sentence.
Section 3 (1) of the Constitution preserves the constitutionality of section 59 of the Criminal
Procedure Ordinance (Ch. 4, No. 3), which deals with warrants for the execution of prisoners
under sentence of
[1976] A.C. 239 Page 242

death, but does not in the present case protect the acts of the respondents which subject the
appellant to cruel and unusual punishment or which are calculated to deprive him of his life
other than by due process of law. Section 59 of the Criminal Procedure Ordinance provides for
the form of the warrant and other related matters but is silent about the time within which the
execution shall take place. There is no written law as to the time within which an execution
shall take place. Prior to the commencement of the Constitution in 1962 the normal period
before execution was five months. This policy of the executive in relation to the time for an
execution was an unwritten law. After 1962 the normal period was extended to two or three
years. That change substituted a new unwritten law, not exempted by section 3 (1) of the
Constitution. The inordinate delay therefore constituted a cruel and unusual punishment which
was not exempted by section 3 (1) of the Constitution. If the death penalty is to be carried out
constitutionally it must be carried out expeditiously. It is cruel and unusual to keep a convicted
prisoner waiting unduly. The appellate process for dealing with the appellant's appeal against
conviction during 1972-73 was unpermissibly protracted. In the present case the Trinidad and
Tobago Government has been unduly lax and that laxity has made the punishment cruel and
unusual.
The reprieve procedure as administered in Trinidad and Tobago operates in an arbitrary and
discriminatory fashion. Some condemned prisoners are thereby deprived of life other than by
due process of law and the equal treatment guaranteed by section 1 of the Constitution. Prior
to 1962 all condemned prisoners received equality of treatment vis-à-vis each other. Section 71
of the Constitution in 1962 established an Advisory Committee on the prerogative of mercy. No
clear and certain rules are laid down in respect of decisions by the committee; consequently the

27
operation of the committee is arbitrary, discriminatory and unpredictable and therefore
contrary to the guarantee of equal treatment under section 1 of the Constitution. It is conceded
that the exercise of the royal prerogative of mercy may not be questioned, but the statutory
provisions of sections 70 to 72 of the Constitution have wholly superseded the prerogative of
mercy. Since the statutory establishment of the Advisory Committee a condemned prisoner is
entitled to see both the written report of the case from the trial judge and the
recommendations of the Advisory Committee in order that he may deal with any inaccuracies
or prejudicial matter. The condemned prisoner has also a right to legal representation before
the Advisory Committee. The "due process of law" referred to in section 1 (a) of the
Constitution concerns the administrative process as well as the legislative process. [Reference
was made to Ridge v. Baldwin [1964] A.C 40, 72.] The principles of natural justice required that
the report of the Advisory Committee should have been made available to the appellant, but
this was denied him. The appeal should be allowed.
Mervyn Heald Q.C. and Stuart N. McKinnon for the respondents.

[LORD DIPLOCK. Their Lordships need not trouble the respondents, and will humbly advise Her
Majesty that the appeal should be dismissed for reasons to be delivered later.]
[1976] A.C. 239 Page 243

May 15. The report of their Lordships was delivered by LORD DIPLOCK.

At the conclusion of the hearing of this appeal on May 1, 1975, their Lordships announced that
they would humbly advise Her Majesty that the appeal should be dismissed. They now give
their reasons for tendering that advice.

The history of the matter starts on August 21, 1972, when the appellant was convicted of
murder and sentenced to suffer death as a felon. By section 4 (1) of the Offences against the
Person Ordinance passed in 1925, this is the mandatory penalty for murder in Trinidad and
Tobago. He appealed against his conviction to the Court of Appeal. By section 51 of the
Supreme Court of Judicature Act 1962, this had the effect of staying execution of the death
sentence until his appeal was disposed of and dismissed on April 17, 1973. He then petitioned
Her Majesty for special leave to appeal to the Privy Council - a right preserved to him by section
82 (3) of the Constitution of Trinidad and Tobago. His petition was dismissed by Order in
Council dated December 12, 1973.
On December 20, 1973, having by now exhausted all his remedies against his conviction, he
started the fresh proceedings which have given rise to the present appeal. They took the form
of an application to the High Court under section 6 (1) of the Constitution for redress for an
alleged contravention of certain of his human rights and fundamental freedoms under sections
1 and 2 of the Constitution, which he claimed would be violated if the death sentence on him
were carried out. That application was dismissed by the High Court on February 15, 1974. His
appeal from that decision to the Court of Appeal was dismissed on April 30, 1974. From the
decision of the Court of Appeal he exercised his right under section 82 (1) (c) of the Constitution
to appeal to Her Majesty in Council.

28
In view of the complaint that has been made on his behalf about the long delay in execution of
the death sentence, their Lordships draw attention to the fact that for the first 15 months
between August 21, 1972, and December 12, 1973, the delay was due to the pendency of
proceedings brought by the appellant himself in an unsuccessful attempt to have his conviction
set aside; and that all subsequent delay, apart from the period of eight days between
December 12 and 20, 1973, was due to the pendency of fresh proceedings brought by the
appellant himself in an unsuccessful attempt to obtain a stay of execution of that sentence. The
initiative for securing expedition in all these proceedings lay with the appellant; procrastination
on the part of the Crown or the courts is not alleged.

The Constitution of Trinidad and Tobago came into force on August 31, 1962. Chapter I on
which the appellant's claim is founded is headed "The Recognition and Protection of Human
Rights and Fundamental Freedoms." Section 1, so far as is relevant to the present appeal, is in
the following terms:
"It is hereby recognised and declared that in Trinidad and Tobago there have existed and shall
continue to exist without discrimination by reason of race, origin, colour, religion or sex, the
following human rights and fundamental freedoms, namely, (a) the right of the
[1976] A.C. 239 Page 244
individual to life, liberty, security of the person and enjoyment of property, and the right not to
be deprived thereof except by due process of law; (b) the right of the individual to equality
before the law and the protection of the law."
The paragraphs that follow, (c) to (k), specify other familiar rights and freedoms which form the
subject of the Universal Declaration of Human Rights. Sections 2 and 3, so far as relevant, read
as follows:
"2. Subject to the provisions of sections 3, 4 and 5 of this Constitution, no law shall abrogate,
abridge or infringe or authorise the abrogation, abridgment or infringement of any of the rights
and freedoms hereinbefore recognised and declared and in particular no Act of Parliament shall
- … (b) impose or authorise the imposition of cruel and unusual treatment or punishment;… (e)
deprive a person of the right to a fair hearing in accordance with the principles of fundamental
justice for the determination of his rights and obligations;… (h) deprive a person of the right to
such procedural provisions as are necessary for the purpose of giving effect and protection to
the aforesaid rights and freedoms. 3. (1) Sections 1 and 2 of this Constitution shall not apply in
relation to any law that is in force in Trinidad and Tobago at the commencement of this
Constitution. (2) For the purpose of subsection (1) of this section a law in force at the
commencement of this Constitution shall be deemed not to have ceased to be such a law by
reason only of - (a) any adaptations or modifications made thereto by or under section 4 of the
Trinidad and Tobago (Constitution) Order in Council 1962…"

"Law" is defined in section 105 (1) as including "any instrument having the force of law and any
unwritten rule of law." The "unwritten law" in force in Trinidad and Tobago at the
commencement of the Constitution was the common law and doctrines of equity that were in
force in England on March 1, 1848, in the case of Trinidad, and on January 1, 1889, in the case
of Tobago, so far as these had not been abrogated by enacted law. This unwritten law has been

29
preserved after the commencement of the Constitution by section 12 of the Supreme Court of
Judicature Act 1962.
Chapter I of the Constitution of Trinidad and Tobago, like the corresponding Chapter III of the
Constitution of Jamaica (see Director of Public Prosecutions v. Nasralla [1967] 2 A.C. 238),
proceeds on the presumption that the human rights and fundamental freedoms that are
referred to in sections 1 and 2 are already secured to the people of Trinidad and Tobago by the
law in force there at the commencement of the Constitution. Section 3 debars the individual
from asserting that anything done to him that is authorised by a law in force immediately
before August 31, 1962, abrogates, abridges or infringes any of the rights or freedoms
recognised and declared in section 1 or particularised in section 2.

Section 2 is not dealing with enacted or unwritten laws that were in force in Trinidad or Tobago
before that date. What it does is to ensure that subject to three exceptions no future
enactment of the Parliament
[1976] A.C. 239 Page 245

established by Chapter IV of the Constitution shall in any way derogate from the rights and
freedoms declared in section 1. The three exceptions are: Acts of Parliament passed during a
period of public emergency and authorised by sections 4 and 8; Acts of Parliament authorised
by section 5 and passed by the majorities in each House that are specified in that section; and
Acts of Parliament amending Chapter I of the Constitution itself and passed by the majorities in
each House that are specified in section 38.
The specific prohibitions upon what may be done by future Acts of Parliament set out in
paragraphs (a) to (h) of section 2 and introduced by the words "in particular," are directed to
elaborating what is meant by "due process of law" in section 1 (a) and "the protection of the
law" in section 1 (b). They do not themselves create new rights or freedoms additional to those
recognised and declared in section 1. They merely state in greater detail what the rights
declared in paragraphs (a) and (b) of section 1 involve.
The appellant's claim that it would be unlawful to carry out the sentence of death pronounced
on him on August 21, 1972, was based on he contention that this would constitute an
"imposition of cruel and unusual punishment" upon him such as is prohibited by section 2 (b) of
the Constitution, and so would infringe his right under section 1 (a) not to be deprived of life
except "by due process of law." Their Lordships agree with the Court of Appeal that this
contention fails in limine. Sentence of death for murder, as their Lordships have already
pointed out, is mandatory under the Offences against the Person Ordinance which was in force
at the commencement of the Constitution. Although in the High Court it had been contended
that the death sentence itself was unconstitutional, before the Court of Appeal and before this
Board counsel for the appellant felt constrained to concede that the pronouncement of the
sentence by the judge at the conclusion of the trial did not offend against the Constitution. He
focused his attack upon the act of the executive in carrying out an admittedly lawful order of a
court of law. The attack upon the constitutionality of carrying out the death sentence was
based upon two alternative grounds. The first was that capital punishment was per se a cruel
and unusual punishment and that, although the pronouncement of the death sentence by the

30
court was mandatory, the executive act of carrying it out was not authorised by any law that
was in force before August 31, 1962. The alternative ground was that, even if the carrying out
of the death sentence is not per se unconstitutional, the average lapse of time between
sentence and execution has become substantially greater since the commencement of the
Constitution and this has the effect of making it unconstitutional to carry out the death
sentence.

In their Lordships' view neither of these contentions can bear examination. Section 4 (1) of the
Offences against the Person Ordinance is not confined to the pronouncement of sentence.
What it says is: "Every person convicted of murder shall suffer death as a felon." The carrying
out of the sentence of death is provided for by section 59 of the Criminal Procedure Ordinance,
which was also passed in 1925. This section provides for the issue by the Governor-General of
warrants in
[1976] A.C. 239 Page 246

the forms set out in the Third Schedule directed to the Marshal and the Keeper of the Royal
Gaol respectively. The warrant directed to the Keeper requires him at a date and hour specified
to deliver the prisoner to the Marshal. The warrant directed to the Marshal requires him to
receive the prisoner into his custody at that date and time and forthwith convey him to the
usual place of execution and there cause execution to be done upon him. The section itself
provides that this warrant "shall be carried into execution by such Marshal or his assistant at
such time and place as shall be mentioned in such warrant," and contains a proviso authorising
the Governor-General to respite the execution and issue a fresh warrant specifying some later
time or other place of execution. The method of execution, viz. by hanging, is specified in the
warrant and is in accordance with the common law of England that was in force in Trinidad and
Tobago at the commencement of the Constitution. It is in their Lordships' view clear beyond all
argument that the executive act of carrying out a sentence of death pronounced by a court of
law is authorised by laws that were in force at the commencement of the Constitution.

Their Lordships find some difficulty in formulating the alternative argument based upon delay.
It is not contended that the executive infringed the appellant's constitutional rights by
refraining from executing him while there were still pending legal proceedings that he himself
had instituted to prevent his execution. There was no law which compelled the executive to
refrain from executing him at any time after December 12, 1973, but the Criminal Proceedings
Ordinance leaves the date of execution in the discretion of the Governor-General who under
section 70 (2) of the Constitution acts on the advice of a designated Minister.
The argument for the appellant, however, does not depend upon the delay which actually
occurred in the instant case. So far as their Lord ships have been able to understand it, it runs
thus: (1) There is evidence that prior to independence the normal period spent in the
condemned cells by prisoners before execution was about five months. (2) The very fact that
this occurred in practice was sufficient to have given rise to an "unwritten rule of law" in force
at the commencement of the Constitution that the executive must so organise the procedure
for carrying out the death sentence upon prisoners that the average lapse of time between
sentence and execution is not more than about five months. (3) Since the coming into force of

31
the Constitution the average lapse of time has increased substantially beyond five months. (4)
The very fact that this increase in theaverage lapse of time has occurred in practice has given
rise to the substitution for the previous unwritten law of a new "unwritten rule of law "which
was not in force at the commencement of the Constitution. (5) This new "unwritten rule of law"
is not exempted from scrutiny by section 3 of the Constitution.
This, so the argument goes, entitles and requires the court to consider whether capital
punishment, now that in practice it involves a delay between sentence and execution which on
the average exceeds five months, is incompatible with the right of the individual under section
1 (a) of the Constitution not to be deprived of life "except by due process of law,"
[1976] A.C. 239 Page 247
because it involves the imposition of "cruel and unusual punishment" within the meaning of
section 2 (b).

Their Lordships have emphasised the word "average" because, accordingly to the argument, it
matters not that in the individual cases from which the average lapse of time is calculated there
has been a wide range of variation in the length of the delay between the death sentence and
its execution. It is the alteration in the average lapse of time which changes the nature of the
death penalty and by doing so substitutes a new "unwritten rule of law" relating to the death
penalty for that which was in force at the commencement of the Constitution. If this new law
can be struck down as unconstitutional, there is nothing left to legalise the carrying out of any
death sentences, however expeditiously it is intended to execute them and whatever may be
the reasons for delay.

This contention in their Lordships' view needs only to be stated to be rejected. Not only does it
involve attributing to the expression "unwritten rule of law" in section 105 (1) of the
Constitution a meaning which it is incapable of bearing, but it conflicts with the very concept of
the nature of a law.

Their Lordships are, accordingly, of opinion that there is nothing in the Constitution which
would render unlawful the carrying out of the death sentence on the appellant in the instant
case.
They turn next to the contention that before advice is tendered to the Governor-General as to
the exercise of the prerogative of mercy in the appellant's case, the appellant will be entitled
(1) to be shown the material which the Minister who tenders that advice has placed before the
Advisory Committee on the prerogative of mercy and (2) to be heard by that committee in reply
at a hearing at which he is legally represented. It is submitted on behalf of the appellant that
under sections 70 to 72 of the Constitution the functions of the Advisory Committee on the
prerogative of mercy established under section 71 are quasi-judicial in their nature and that,
accordingly, any failure to grant to the appellant the rights he claims would contravene the
rules of natural justice and infringe his right not to be deprived of life except by due process of
law that is secured to him by section 1 (a) of the Constitution.

32
Except in so far as it may have been altered by the Constitution the legal nature of the exercise
of the royal prerogative of mercy in Trinidad and Tobago remains the same as it was in England
at common law. At common law this has always been a matter which lies solely in the
discretion of the sovereign, who by constitutional convention exercises it in respect of England
on the advice of the Home Secretary to whom Her Majesty delegates her discretion. Mercy is
not the subject of legal rights. It begins where legal rights end. A convicted person has no legal
right even to have his case considered by the Home Secretary in connection with the exercise of
the prerogative of mercy. In tendering his advice to the sovereign the Home Secretary is doing
something that is often cited as the exemplar of a purely discretionary act as contrasted with
the exercise of a quasi-judicial function. While capital punishment was still a lawful penalty for
murder in England it was the practice of the Home Secretary in every capital case to call for a
report of the case from the trial judge and for such other information from such other
[1976] A.C. 239 Page 248

sources as he thought might help him to make up his mind as to the advice that he would
tender to the sovereign in the particular case. But it never was the practice for the judge's
report or any other information obtained by the Home Secretary to be disclosed to the
condemned person or his legal representatives.

Section 70 (1) of the Constitution makes it clear that the prerogative of mercy in Trinidad and
Tobago is of the same legal nature as the royal prerogative of mercy in England. It is exercised
by the Governor-General but "in Her Majesty's name and on Her Majesty's behalf." By section
70 (2) the Governor-General is required to exercise this prerogative on the advice of a Minister
designated by him, acting in accordance with the advice of the Prime Minister. This provision
does no more than spell out a similar relationship between the designated Minister and the
Governor-General acting on behalf of Her Majesty to that which exists between the Home
Secretary and Her Majesty in England under an unwritten convention of the British
Constitution. It serves to emphasise the personal nature of the discretion exercised by the
designated Minister in tendering his advice. The only novel feature is the provision in section 72
(1) and (2) that the Minister before tendering his advice must, in a case where an offender has
been sentenced to death, and may, in other cases, consult with the Advisory Committee
established under section 71, of which the Minister himself is chairman; but section 72 (3)
expressly provides that he is not obliged in any case to act in accordance with their advice. In
capital cases the Advisory Committee too must see the judge's report and any other
information that the Minister has required to be obtained in connection with the case, but it
still remains a purely consultative body without any decision-making power.

In their Lordships' view these provisions are not capable of converting the functions of the
Minister, in relation to the advice he tenders to the Governor-General, from functions which in
their nature are purely discretionary into functions that are in any sense quasi-judicial. This
being so the appellant has no legal right to have disclosed to him any material furnished to the
Minister and the Advisory Committee when they are exercising their respective functions under
sections 70 to 72 of the Constitution.

33
Finally, lest it be thought that they have overlooked an additional argument addressed to them
which does not depend upon the Constitution, their Lordships would add that the reference to
cruel and unusual punishment in the Bill of Rights (whether or not that English Act of
Parliament is only declaratory of the common law) cannot avail the appellant in view of the
express provision of section 4 (1) of the Offences against the Person Ordinance, which makes
death a mandatory penalty for murder in Trinidad and Tobago.
Solicitors: Simons, Muirhead & Allan; Charles Russell & Co.
R. W. L-S.

34
Reckley v Min of Public Safety [1995] 4 All ER 8

Reckley v Minister of Public Safety and Immigration and others

PRIVY COUNCIL
LORD GOFF OF CHIEVELEY, LORD BROWNE-WILKINSON AND LORD HOFFMANN

8, 13 JUNE 1995
Bahamas – Criminal law – Death penalty – Constitutional motion challenging carrying out of
death penalty – Appeal from dismissal of constitutional motion – When stay of execution should
be ordered – Conservatory order enforcing stay pending outcome of other proceedings –
Whether delay in carrying out death sentence amounting to inhuman or degrading treatment –
Constitution of The Bahamas 1973, art 17(1).

The petitioner was sentenced to death in The Bahamas on 7 November 1990 for murder. Under
arts 91 and 92 of the Constitution the case of a person condemned to death had to be
considered by the Advisory Committee on the Prerogative of Mercy whose recommendation
had in turn to be considered, but not necessarily acted upon, by the respondent minister before
the sentence was carried out. On 8 May 1992 the lawyers acting for the petitioner wrote to the
advisory committee inviting them to take into account certain features of his case. They
received no acknowledgment or response to that letter, despite a reminder. In fact, the
petitioner's case was not referred to the advisory committee until after the dismissal of the
appeal in another case challenging the legality of the death penalty in The Bahamas. Pending
the outcome of that appeal executions had been suspended but when that appeal was
dismissed executions were resumed. The advisory committee met on 18 May 1995 to consider
the petitioner's case. On 25 May 1995 a death warrant was signed by the Governor General
directing that the sentence of death be carried out on 30 May 1995 at 8 am and on 26 May he
was informed of the outcome of the proceedings before the advisory committee. On 29 May
the petitioner lodged a constitutional motion in the Supreme Court of The Bahamas, alleging
that the execution of the sentence of death would be a contravention of his constitutional
rights under arts 15 to 27 of the Constitution including, in particular, his right under art
17(1)a not to be subjected to inhuman or degrading punishment or treatment. On the same day
he applied to a judge for an order preventing the implementation of the sentence of death until
final determination of the constitutional motion. The judge heard the motion on the same day
and dismissed it. The petitioner appealed the same day to the Court of Appeal of The Bahamas.
His appeal was dismissed at 1.05 am on 30 May 1995. The court declined to grant a stay of
execution pending the hearing of an appeal to the Privy Council. At 6 am, two hours before the
petitioner was due to be executed, the Privy Council made a conservatory order directing that
the petitioner be not executed pending the hearing of his petition of appeal against the
decision of the Court of Appeal. In his petition to the Board the petitioner contended (i) that he
had a constitutional right under art 28 of the Constitution to bring proceedings in the Supreme
Court alleging infringement of his basic rights under the Constitution and a constitutional right

35
of appeal in such cases, if necessary, to the Privy Council, and that in death penalty cases a stay
of
a
Article 17(1) provides: 'No person shall be subjected to torture or to inhumane or degrading
treatment or punishment.'
[1995] 4 All ER 8 at 9

execution had to be granted pending the disposal of his constitutional motion, including all
rights of appeal, since otherwise his constitutional rights were rendered nugatory; (ii) that his
execution after four and a half years had elapsed since sentence of death was passed was
contrary to his right under art 17 of the Constitution not to be subjected to inhuman or
degrading treatment; and (iii) that he was entitled to be informed of the judge's report and
other materials put before the advisory committee and to make oral or written representations
to the committee before it tendered its advice and had been denied that right.
Held – (1) If a constitutional motion filed by a prisoner awaiting sentence of death raised a real
issue for determination it was right for the the courts to grant a stay prohibiting the carrying
out of the death sentence pending the determination of the constitutional motion. On the
other hand, if it was demonstrated that the constitutional motion was plainly and obviously
bound to fail, the proceedings were vexatious and could be struck out, and if it was
demonstrated to the court from whom a stay of execution was sought that the constitutional
motion was vexatious as being plainly and obviously ill-founded, then it was right for the court
to refuse a stay even in death penalty cases. However, a refusal of a stay in a death penalty case
was only proper where it was plain and obvious that the constitutional motion was bound to
fail and in cases where the motion raised a fairly arguable point, even if the court hearing the
application for a stay considered the motion was ultimately likely to fail, the case was not
appropriate to be decided under the pressures of time which always attended applications for a
stay of execution (see p 12 c to f, post).
(2) There was no possible blame attaching either to the legal system or to the government for
any delay which had occurred in carrying out the death sentence on the petitioner and in any
event the delay of four and a half years fell within the acceptable period of delay before it
amounted to inhuman or degrading treatment under art 17 of the Constitution (see p 13 c,
post).
(3) However, pending the outcome of other proceedings before the Board in which a petitioner
was challenging a refusal to allow him to see the material placed before an Advisory Committee
on the Prerogative of Mercy in another jurisdiction or to make representations to the
committee, a conservatory order would be granted directing that the sentence of death be not
carried out on the petitioner until seven days after the determination of the appeal in those
proceedings and the hearing of the petition would be adjourned to await the outcome of that
appeal (see p 13 gto p 14 a, post).
Per curiam. The procedure which should be adopted in cases where application is made for a
stay of execution in a death penalty case is that even if the first instance judge or the Court of
Appeal reach the view that the constitutional motion is so hopeless that no stay should be
granted, it does not follow that it is inappropriate to grant a short stay to enable their decision

36
to be challenged on appeal. Accordingly, even if a court decides not to grant a full stay until
determination of a constitutional motion, the court should grant a short stay (a matter of days)
to enable its decision to be tested on appeal (see p 14 b to d, post).
Notes
For the government of The Bahamas, see 6 Halsbury's Laws (4th edn reissue) para 884.
[1995] 4 All ER 8 at 10
Cases referred to in judgment
de Freitas v Benny [1976] AC 239, [1975] 3 WLR 388, PC.
Doody v Secretary of State for the Home Dept [1993] 3 All ER 92, [1994] 1 AC 531, [1993] 3 WLR
154, HL.
Guerra v Baptiste (27 July 1994, unreported), Trin and Tob CA.
Jones v A-G of The Bahamas [1995] 4 All ER 1, [1995] 1 WLR 891, PC.
Pratt v A-G for Jamaica [1993] 4 All ER 769, [1994] 2 AC 1, [1993] 3 WLR 995, PC.
Petition

By petition lodged on 30 May 1995 Thomas Reckley petitioned the Board for a stay of execution
following the dismissal by Fountain CJ (Ag) sitting ex officio as a single judge of the Court of
Appeal of The Commonwealth of The Bahamas on 30 May of the petitioner's appeal against the
decision of Osadebay J on 29 May refusing the petitioner's application for a stay of the sentence
of death due to be carried out on him on 30 May 1995 pending the determination of the
originating motion filed by the petitioner on 26 May pursuant to art 28 of the Constitution in
which he alleged that the carrying out of the sentence would be unconstitutional and in
contravention of his rights under arts 15 to 27 of the Constitution. The respondents to both the
petition and the motion were (1) the Minister of Public Safety and Immigration, (2) the Advisory
Committee on the Prerogative of Mercy and (3) the Attorney General of The Bahamas sued in a
representative capacity on behalf of himself and the Governor General of the Commonwealth
of The Bahamas. The facts are set out in the judgment of the Board.

Timothy Straker (instructed by Clifford Chance) for the petitioner.

Sir Godfray Le Quesne QC and Bernard Turner, acting Assistant Director of Legal Affairs of The
Bahamas (instructed by Charles Russell) for the respondents.
The Board took time for consideration.
13 June 1995. The following judgment of the Board was delivered.

LORD BROWNE-WILKINSON.

This is an appeal from a judgment of the Court of Appeal of the Commonwealth of The
Bahamas (Fountain CJ (Ag) presiding ex officio) dated 30 May 1995 dismissing an appeal from
the refusal of the Supreme Court (Osadebay J) to grant the petitioner a stay of execution of the

37
sentence of death passed upon the petitioner pending a hearing of a constitutional motion to
the Supreme Court which alleges that the carrying out of that sentence would be
unconstitutional.

On 4 May 1989 the petitioner, Thomas Reckley, was charged with the offence of murder. On 7
November 1990 he was convicted and sentenced to death. He appealed against both conviction
and sentence to the Court of Appeal which dismissed his appeal on 3 May 1991. He petitioned
for special leave to appeal against his conviction to this Board. His application for leave was
dismissed by their Lordships on 12 March 1992.
Article 90 of the Constitution of the Commonwealth of The Bahamas 1973, SI 1973/1080,
confers on the Governor General a power of pardon. Articles 91 and 92 establish an Advisory
Committee on the Prerogative of Mercy (the advisory committee). Where an offender has been
sentenced to death the relevant minister is bound to cause a written report of the case from
the trial judge
[1995] 4 All ER 8 at 11

'together with such other information derived from the record of the case or elsewhere as the
minister may require' to be taken into consideration at a meeting of the advisory committee.
The minister is not bound to act in accordance with the advice of the advisory committee.
At the time of the dismissal by their Lordships of the petitioner's petition for leave to appeal
against conviction there were constitutional proceedings pending before the Bahamian
courts, Jones v A-G of The Bahamas [1995] 4 All ER 1, [1995] 1 WLR 891. In those proceedings,
the plaintiffs (who were all under sentence of death) were challenging the legality of the
carrying out of the death sentence in The Bahamas on three different grounds, none of which is
directly relevant to these proceedings. However, if the Jones proceedings had been successful
they would have established that the carrying out of the death sentence in The Bahamas was
unlawful. As a result of those pending proceedings in Jones, the Attorney General indicated that
no death sentences would be carried out until the Jones proceedings had been determined.
The Jones proceedings ended on 11 April 1995, when Her Majesty in Council approved the
Board's judgment delivered on 3 April 1995 that the appeal ought to be dismissed. In their
judgment their Lordships rejected the attack on the legality of carrying out the death sentence
in The Bahamas.
On 8 May 1992 the lawyers acting for the petitioner wrote to the advisory committee inviting
them to take into account certain features of his case. They received no acknowledgment or
response to that letter, despite a reminder. In fact, the petitioner's case was not referred to the
advisory committee until after the dismissal of the appeal in Jones on 3 April 1995 which led to
the possibility of a resumption of executions. The advisory committee met on 18 May 1995. On
25 May 1995 a death warrant was signed by the Governor General directing that the sentence
of death be carried out on 30 May 1995 at 8 am. The warrant was read to the petitioner at 7.28
am on the morning of Friday, 26 May 1995. At that time he had still not been informed of the
outcome of the proceedings before the advisory committee or the minister's advice to the
Governor General: the certificate of the reading of the warrant records that he was under the
apprehension that his case was to be considered by the advisory committee. The petitioner was

38
not informed of the outcome until he received a letter, dated 25 May 1995, at approximately 6
pm on 26 May.

On 29 May 1995 the petitioner launched a constitutional motion in the Supreme Court alleging
that the execution of the sentence of death would be a contravention of his constitutional
rights under arts 15 to 27 of the Constitution including, in particular, his right under art 17 not
to be subjected to inhuman or degrading punishment or treatment. On the same day,
application was made to Osadebay J for an order preventing the implementation of the
sentence of death until final determination of the constitutional motion. After a long hearing,
the judge at about 10.10 pm on the same day refused to grant any stay, stating that he would
give his written reasons in due course. An appeal against the refusal of the stay was heard by
Fountain CJ (Ag), sitting ex officio as a single judge of the Court of Appeal, who, at 1.05 am in
the morning of 30 May 1995, dismissed the appeal and declined to grant a stay of execution
pending the hearing of an appeal to the Board. On 30 May 1995 at approximately 6 am
Bahamas time (11 am London time) the Board made a conservatory order directing that the
petitioner be not executed pending the hearing of his petition of appeal against the decision
[1995] 4 All ER 8 at 12

of Fountain CJ (Ag). That petition was heard by the Board on Thursday, 8 June 1995.

The petitioner's case, both before the courts in The Bahamas and before their Lordships, has
been based on the fact that art 28 of the Constitution gives him a constitutional right to bring
proceedings in the Supreme Court alleging infringement of the basic rights assured to him by
arts 16 to 27 of the Constitution and a constitutional right of appeal in such cases, if necessary
to the Privy Council. It is argued that in death penalty cases it must follow that a stay of
execution must be granted pending the disposal of the constitutional motion (including all
rights of appeal) since otherwise the constitutional right is rendered nugatory.
Their Lordships accept that, if the constitutional motion raises a real issue for determination, it
must be right for the courts to grant a stay prohibiting the carrying out of a sentence of death
pending the determination of the constitutional motion. But it does not follow that there is an
automatic right to a stay in all cases. If it is demonstrated that the constitutional motion is
plainly and obviously bound to fail, those proceedings will be vexatious and could be struck out.
If it can be demonstrated to the court from whom a stay of execution is sought that the
constitutional motion is vexatious as being plainly and obviously ill-founded, then in their
Lordships' view it is right for the court to refuse a stay even in death penalty cases. Since the
decision of their Lordships in Pratt v A-G for Jamaica [1993] 4 All ER 769, [1994] 2 AC 1 the
postponement of the carrying out of the death penalty can have a profound effect on the
question whether it would be inhuman or degrading treatment or punishment to execute the
convicted man given the lapse of time since conviction and sentence. As Pratt itself makes
clear, delay caused by 'frivolous and time wasting resort to legal proceedings' by the accused
provides no ground for saying that execution after such delay infringes the constitutional right
(see [1993] 4 All ER 769 at 783, [1994] 2 AC 1 at 29–30). However, their Lordships would
emphasise that a refusal of a stay in a death penalty case is only proper where it is plain and
obvious that the constitutional motion must fail. In cases where the motion raises a fairly

39
arguable point, even if the court hearing the application for a stay considers the motion is
ultimately likely to fail, the case is not appropriate to be decided under the pressures of time
which always attend applications for a stay of execution.
In the present case Osadebay J adopted an entirely correct approach to the application for a
stay. After a long hearing lasting until 10 pm he reached the conclusion that the grounds on
which it was alleged that the petitioner's rights had been infringed were plainly bad: he
accordingly refused the stay. Shortly stated, the two substantial grounds on which the
petitioner relied and relies are as follows. First (the Pratt point), that given that four and a half
years have elapsed since sentence of death was passed, to execute him now would conflict with
his right under art 17 of the Constitution not to be subjected to inhuman or degrading
treatment. Second (the advisory committee point), that the petitioner was entitled to be
informed of the judge's report and other materials put before the advisory committee and to
make oral or written representations to the committee before it tendered its advice.
As to the Pratt point, their Lordships entirely agree with the judge's reasons for his decision.
These are set out in an admirable judgment produced by him with exemplary speed on 1 June
1995. The total lapse of time since conviction is now four and a half years. The process of
exhausting the domestic rights of appeal, including an appeal to their Lordships, was completed
in 14 months. No possible
[1995] 4 All ER 8 at 13
complaint could be made that this was unjustifiable delay, being well within the two-year target
envisaged in Pratt (see [1993] 4 All ER 769 at 787,[1994] 2 AC 1 at 34–35). After the dismissal of
the petitioner's petition for leave to appeal to their Lordships, following the guidance
in Pratt, the next step would normally have been the prompt reference of the case to the
advisory committee. However, the decision in Pratt shows that it is not necessary to make such
a reference where 'a decision is awaited in another case … that may affect the view of' the
advisory committee. In the present case there was an even better reason for not referring the
matter to the advisory committee since, until Jones was finally decided, there was no question
of carrying out any death sentence in The Bahamas: the lawfulness of carrying out the sentence
of death was in question and the Attorney General had given an undertaking or assurance that
no executions would take place. Almost immediately after Jones had been resolved, prompt
steps were taken to refer the matter to the advisory committee. In the circumstances, there
was no possible blame attaching either to the legal system or to the government for any delay
which has occurred. Moreover, even given the special circumstances, the delay does not
amount to the period of five years mentioned in Pratt. In their Lordships' view, as the judge
held, the Pratt point is plainly hopeless.
As to the advisory committee point, the judge held that the case advanced was rendered
unarguable by the decision of this Board in de Freitas v Benny [1976] AC 239. That was an
appeal from Trinidad and Tobago, the Constitution of which contains provisions as to the role of
an advisory committee in relation to pardons virtually identical with those contained in arts 90
to 92 of the Constitution of The Bahamas. This Board rejected a submission that the
condemned man was entitled to be shown the material placed before the advisory committee
and to be heard by that committee at a hearing at which he was legally represented. It was

40
submitted that the functions of the advisory committee were quasi-judicial and that accordingly
any failure to grant the appellant the rights claimed would contravene the rules of natural
justice. Their Lordships held that the function of the advisory committee and the minister were
purely discretionary and not in any sense quasi-judicial. Therefore the condemned man had no
right either to see the materials or to make representations. Their Lordships agree with the
courts below that, so long as the law stated in de Freitas v Benny remains unchanged, the
advisory committee point advanced by the petitioner in the present case was unarguable in the
courts below.
However, a fresh point was available to the petitioner before their Lordships. There is an appeal
pending before the Board from Trinidad and Tobago,Guerra v Baptiste. That appeal is due to be
heard at the end of June 1995. The appellant in that case is contending that, in the light of the
developments in public law since 1976, de Freitas v Benny [1976] AC 239 is no longer good law.
In particular it is said that the emergence of the ability to review the exercise of prerogative
powers and the decision of the House of Lords in Doody v Secretary of State for the Home
Dept [1993] 3 All ER 92, [1994] 1 AC 531 indicates that the condemned man does have legal
rights to know what material is being considered by the advisory committee and to make
representations. Their Lordships express no view on the merits of the arguments to be
advanced in Guerra v Baptiste. But if the appeal in that case were to succeed, it would
undoubtedly affect the merits of the petitioner's constitutional motion in the present case. In
the circumstances, their Lordships are of the view that it would be wrong to permit the
sentence of death on the
[1995] 4 All ER 8 at 14
petitioner to be carried out until the outcome of the Guerra appeal is known. Their Lordships
will therefore direct that a conservatory order be granted directing that the sentence of death
be not carried out on the petitioner until seven days after the determination of the appeal in
the Guerracase. Their Lordships will also stand over the further hearing of this petition until
after the determination of the Guerra case.

Finally, their Lordships would add a word as to the procedure to be adopted in cases where
application is made for a stay of execution in a death penalty case. If the first instance judge or
the Court of Appeal reach the view that the constitutional motion is so hopeless that no stay
should be granted, it does not follow that it is inappropriate to grant a short stay to enable their
decision to be challenged on appeal. In the present case, great difficulty was encountered by
the petitioner in convening a Court of Appeal in The Bahamas and a Board of the Privy Council
with sufficient speed to deal with the appeals in the short time available before the time fixed
for execution. In the view of their Lordships, even if a court decides in such a case not to grant a
full stay until determination of the constitutional motion itself, the court should grant a short
stay (a matter of days) to enable its decision to be tested on appeal. Execution of a death
warrant is a uniquely irreversible process. It is neither just nor seemly that a man's life should
depend upon whether an appellate court can be convened in the limited time available.
Petition adjourned.
Celia Fox Barrister.

41
42
Young and Bristol Airplane ltd [1946] 1 All ER 98

Young v Bristol Aeroplane Co Ltd

HOUSE OF LORDS
VISCOUNT SIMON, LORD RUSSELL OF KILLOWEN, LORD MACMILLAN, LORD PORTER AND
LORD SIMONDS

24, 25, 26, 27 JULY, 29 NOVEMBER 1945

Workmen's Compensation – Right to sue for breach of statutory duty – Alternative remedies –
Election between remedies – Receipt of compensation – Knowledge of workman – “Option” –
When option exercised – Workmen's Compensation Act, 1925 (c 84), s 29(1).
The appellant, a workman in the respondents' factory, sustained injuries in the course of his
employment owing to the failure of the respondents to fence a machine. He lost three fingers
and was unable to return to work for 6 months. Shortly after the accident the respondents
offered him, and he accepted, a weekly sum of money and he signed receipts for weekly
payments made under the Workmen's Compensation Act, 1925. These sums were paid to him
throughout the period of his unemployment. The appellant then brought an action against the
respondents claiming damages for breach of their statutory duty. It was found as a fact that,
although the appellant could not be said to have exercised his option under the Workmen's
Compensation Act, 1925, s 29(1), since he did not know of his right to elect, nevertheless he
had received the payments made to him by the respondents as compensation under the Act.
The question for the determination of the court was whether the appellant, knowing that such
payments to him were made by the respondents under the Workmen's Compensation Act,
1925, was debarred by virtue of sect 29(1) from taking proceedings independently of the Act
for the recovery of damages from the respondents:—
Held – (i) The Workmen's Compensation Act, 1925, s 29(1) was not to be regarded as
substituted for the civil liability of the employer to the workman who, although given an option
under the section as to which liability he might enforce against his employer, could not pursue
together the two remedies by claiming compensation under the Act and damages
independently of the Act. The option, however, was not equivalent to equitable election, since
that would make the exercise of it by the workman dependent not upon what he had done but
upon what he knew.

(ii) where, however, the workman accepted some payments under the Act, in ignorance of the
option, the alternative remedy available to him was not lost. But if he persisted in receiving
weekly compensation after knowing of the alternative course, he was debarred from changing
the nature of his claim.

43
(iii) on the facts here, the appellant, after he became fully informed of his rights, continued to
receive weekly payments from the respondents and had, therefore, exercised his option for
compensation under the Act.
Decision of the Court of Appeal ([1944] 2 All ER 293) affirmed.
at 99
Notes
It is abundantly clear in this case that the workman continued to receive compensation under
the Act with knowledge of the choice of remedies given him by the Workmen's Compensation
Act, 1925, s 29, and the House of Lords accordingly upholds the decision of the Court of Appeal
in favour of the employers. There is however, considerable difference of opinion as to the true
construction of sect 29, which may be reduced to this position.Perkins v Hugh
Stevenson and Selwood v Townley Fire Co are based upon the view that a workman who has
accepted compensation as such cannot sue for damages even though he did not know he had
an alternative remedy, the latter part of sect 29 operating in favour of the employer
independently of the first part. The contrary view, represented by the reasoning of the Lord
Ordinary in Brown v William Hamilton & Co, is that the final part of the section is merely
exegetical. Much of the difficulty appears to arise from confusing the statutory “option” with
the equitable right of election. Grave difficulties arise if a workman is required to have such a
knowledge of all the material facts as would be necessary in the case of the equitable doctrine.
The matter may be summed up in the words of Lord Simonds, at p 113 post, that “it is what the
appellant did, not what he knew or thought, that matters.”
As to Alternative Remedies, see Halsbury, Hailsham Edn, Vol 34, pp 961–966, paras 1318–1325;
and for Cases, see Digest, Vol 34, pp 490–492, Nos 4063–4071. See also Willis's Workmen's
Compensation, 36th Edn, pp 522–549.
Cases referred to in opinions
Perkins v Stevenson (Hugh) & Sons Ltd [1939] 3 All ER 697, [1940] 1 KB 56, Digest Supp, 109
LJKB 1, 161 LT 149, 32 BWCC 181.
Selwood v Towneley Coal & Fireclay Co Ltd [1939] 4 All ER 34, [1940] 1 KB 180, Digest Supp, 109
LJKB 8, 161 LT 323, 32 BWCC 238.
Brown v William Hamilton & Co Ltd [1944] SLT 282, [1943] Session Notes 82.
Unsworth v Elder Dempster Lines Ltd [1940] 1 All ER 362, [1940] 1 KB 658, Digest Supp, 109 LJKB
305, 162 LT 163, 33 BWCC 1.
Lochgelly Iron & Coal Co Ltd v M'Mullan [1934] AC 1, Digest Supp 102LJPC 123, 149 LT 526, 26
BWCC 463.
Coe v London & North Eastern Ry, Co [1943] 2 All ER 61, [1943] 1 KB 531, 112 LJKB 497, 168 LT
382.
Lissenden v Bosch (CAV) Ltd [1940] 1 All ER 425, [1940] AC 412, Digest Supp, 109 LJKB 350, 162
LT 195, 33 BWCC 21.

44
Bennett v Whitehead (L & W) Ltd [1926] 2 KB 380, 34 Digest 492, 4068, 135 LT 329, 19 BWCC
133.
Cribb v Kynoch Ltd (No 2) [1908] 2 KB 551, 34 Digest 492, 4071, 77 LJKB 1001, 99 LT 216, 1
BWCC 43.
Burton v Chapel Coal Co Ltd [1909] SC 430, 34 Digest 491, k, 46 ScLR 375, [1909] 7 SLT 111, 2
BWCC 120.
Blain v Greenock Foundry Co (1903), 5 F (Ct of Sess) 893.
McDonald v James Dunlop & Co (1905), 7 F (Ct of Sess) 533.
Rouse v Dixon [1904] 2 KB 628, 34 Digest 491, 4066, 73 LJKB 662, 91 LT 436, 6 WCC 44.
Edwards v Godfrey [1899] 2 QB 333, 34 Digest 492, 4072, 68 LJQB 666, 80 LT 672, 1 WCC 32.
Kendall v Hamilton (1879), 4 App Cas 504, 1 Digest 579, 2195, 48 LJQB 705, 41 LT 418.
Mackay v Rosie [1908] SC 174, 1 BWCC 52.
Birch v Pease & Partners Ltd [1941] 1 KB 615, 165 LT 146, 34 BWCC 37, sub nom Pease &
Partners Ltd v Birch [1941] 1 All ER 343.
Kinneil Cannel & Coking Coal Co Ltd v Sneddon (or Waddell) [1931] AC 575, Digest Supp, 100
LJPC 113, 145 LT 289, 24 BWCC 181.
Codling v Mowlem (J) & Co Ltd [1914] 3 KB 1055, 34 Digest 491, 4067, 83 LJKB 1727, 111 LT
1086, 7 BWCC 786, affg SC [1914] 2 KB 61.
Appeal
Appeal by the plaintiff, a workman, from a decision of the full Court of Appeal (Lord Greene MR,
Scott, Mackinnon, Luxmoore LJJ, Lord Goddard and Du Parcq LJJ), dated 28 July 1944, reported
([1944] 2 All ER 293), affirming a decision of the commissioner of assize, given at Lancaster on
30 November 1943, dismissing the action brought by the workman against his employers for
damages for breach of their statutory duty. The facts are fully set out in the opinions of
Viscount Simon, Lord Russell of Killowen and Lord Porter.

Gilbert J Paull KC and Henry Burton for the appellant.

F A Sellers KC and W Matabele Davies for the respondents.
Their Lordships took time for consideration
at 100
29 November 1945. The following opinions were delivered.

VISCOUNT SIMON.
My Lords, this is the appeal of the plaintiff, in an action brought for damages at common law
against his employers, the respondents, for failure to fence dangerous machinery. The appeal is
from a unanimous decision of the Court of Appeal which was specially constituted to hear the
plaintiff's appeal from the judgment given against him by the commissioner at the Manchester

45
Assizes. Besides Lord Greene MR who delivered the considered judgment of the whole court,
Scott, Mackinnon, Luxmoore, Goddard and Du Parcq LJJ, were parties to the decision. One of
the conclusions reached in the judgment of Lord Greene MR is that if the Court of Appeal, when
sitting in one of its Divisions, has in a previous case pronounced on a point of law which
necessarily covers a later case coming before the court, the previous decision must be followed
(unless, of course, it was given per incuriam, or unless the House of Lords has in the meantime
decided that the law is otherwise), and that this application of the rules governing the use of
precedents binds the full Court of Appeal no less than a division of the court as usually
constituted. Thus, the previous decisions of the Court of Appeal in Perkins v Hugh Stevenson &
Sons Ltd and Selwood v Townley Coal and Fireclay Co, upon the correctness of which the
respondents rely, but which the appellant challenges, could not be overruled in that court; and
since these decisions were held to apply to the present case in a sense adverse to the appellant,
his appeal was necessarily dismissed.
The present appeal, therefore, is in substance a submission that the decisions in Perkins's case
and Selwood's case are wrong, or, at any rate, that they are not conclusive against the
appellant's claim. The question involves the interpretation and application of the Workmen's
Compensation Act, 1925, s 29(1)—a section which is in the same form as sect 1(2)(b) of the
1896 Act, and one which has given rise to many difficulties and to a multitude of decisions. Sect
29(1) runs as follows:

'When the injury was caused by the personal negligence or wilful act of the employer or of
some person for whose act or default the employer is responsible, nothing in this Act shall
affect any civil liability of the employer, but in that case the workman may, at his option, either
claim compensation under this Act or take proceedings independently of this Act; but the
employer shall not be liable to pay compensation for injury to a workman by accident arising
out of and in the course of the employment both independently of and also under this Act, and
shall not be liable to any proceedings independently of this Act, except in case of such personal
negligence or wilful act as aforesaid.'

Before proceeding further, it is necessary to set out the essential facts in the present case. On 3
April 1942, the appellant lost three fingers of his left hand by amputation while operating a
guillotine sheet-metal cutter in the respondents' factory. It is not in dispute that this accident
arose out of and in the course of his employment in such circumstances as to create a liability in
the respondents to pay compensation for his injury under sect 1 of the 1925 Act. On 30 April
1942, the appellant attended at the respondents' works and received from one Howarth, whose
duty it was to attend, on the respondents' behalf, to payments under the Workmen's
Compensation Act, the sum of £6 15s, which amount is equal to the compensation under the
Act due to the appellant for the first four weeks. Thereafter, the appellant attended at the
works and was paid by Howarth, week after week, the sum of £1 15s until the following
October. On each occasion there was put before him a pay-sheet which plainly showed that
these were payments under the Workmen's Compensation Act, and how they were calculated.
On each occasion the appellant signed the pay-sheet “for payment received.” The
commissioner of assize found that the appellant read the form and understood it, and accepted

46
these payments knowing them to be made as compensation under the Act, though he did not
in the first instance “make a claim for compensation 'as such'.”

In the course of making and receiving these weekly payments, namely, on 24 July 1942 (and
apparently after the respondents had been prosecuted and convicted for failing to fence the
machinery which had injured the appellant) the appellant's solicitor wrote on his behalf
claiming “compensation under the Workmen's Compensation Act and, alternatively, claiming
damages.” The respondents replied admitting liability under the Act only, and pointed out that
the appellant “has been in receipt of compensation since his cessation
at 101
of work following the injuries.” Notwithstanding this correspondence in July, the appellant
continued to draw his weekly compensation and the commissioner found (a) that the appellant
between the time of the accident and July “did not know that he had a right under sect 29(1) of
the Workmen's Compensation Act to elect as between two alternative remedies,”
and (b) inferentially, that he “did know after 24 July but nevertheless went on drawing his
compensation money.” Consequently, the commissioner, following Perkins's case, felt
constrained to hold that the option to use independently of the Act had gone.
In Perkins's case, the injured workman had actually applied to his employers for compensation
under the Act and was paid weekly sums accordingly for about a year, after which no further
compensation was due as he had recovered from his injuries. About two months after the
accident, however, his solicitor had written referring to his alternative claim apart from the Act
and attempted unsuccessfully to secure that the weekly payments should be regarded as being
made without prejudice to the alternative claim. The Court of Appeal held that this alternative
claim was barred, because from the date of the solicitor's letter the workman must be regarded
as having material for exercising his “option” and as having exercised it; the employer had
already been made liable under the Act and had paid in full all that the Act prescribed and could
not therefore, be also liable independently of the Act. It is true that in the course of his
judgment Sir Wilfrid Greene MR, expressed the view ([1939] 3 All ER 697, at p 703) that:
'… where the employer, in response to a claim under the Act, has made a payment of
compensation under the Act, that payment discharges once and for ever, in whole orpro tanto,
the statutory liability under the Act … '

Finlay LJ, appears to agree with him. But this view is not essential to the decision, and Sir Wilfrid
Greene MR, goes on to point out that in that case the workman has in fact exercised his option.
The actual decision can be supported by reason of that circumstance, apart from the fact that
the workman had claimed and received compensation without knowledge that another remedy
was available to him if he chose to adopt it.
In Selwood's case, the workman had made no application for compensation but he had received
a number of weekly sums from his employers which were, as he knew, payments under the Act.
Later, and while still gravely incapacitated, he refused, on the advice of his solicitor, to accept
any more weekly payments and subsequently brought an action at common law against his
employers for damages for personal injuries. The Court of Appeal held that the principle
of Perkins's case applied: he could not succeed in his action, according to the Court of Appeal,
47
because, if he did, his employers would be paying both under the Act and independently of the
Act. One difficulty I feel about this latter decision is that it involves the conclusion that if an
injured workman receives one single weekly payment, knowing it is tendered as compensation
under the Act, he loses all chance of suing successfully at common law. On this view, he takes
the first payment, even though he has never asked for it, at his peril. The employers have paid
for one week “under this Act” and are liable to pay it, and, therefore, it is suggested, they
cannot thenceforth be liable to any proceedings by the workman “independently of this Act.” It
is to be observed that in Selwood's case there is no trace of a suggestion that the workman had
effectively exercised an “option”: the decision turned on nothing else than that one or more
weekly payments had been offered and accepted.
Having regard to the general scheme of the Act and to its obvious purpose of preserving
remedies apart from the Act if the workman chose to avail himself of the alternative, I cannot
accept this view. Perkins's case, on its actual facts, seems to me to be correctly decided: there
the workman, by persisting in receiving weekly compensation as long as his injury lasted,
although he long before had appreciated that the law offered him an alternative remedy, must
be regarded as having effectively exercised “his option.” But, with all respect to the members of
the Court of Appeal inSelwood's case, which was decided three months later, I do not agree
that this decision necessarily followed from the principle laid down in Perkins'scase, and I think
that the decision in Selwood's case was wrong. The Lord Ordinary (Patrick) in Brown v William
Hamilton & Co develops the view ([1944] SLT 282,
at 102
at p 286), which I would uphold, with much clearness and cogency. I think that the Scotch
authorities quoted by Lord Patrick are right in treating the final part of sect 29 (“but the
employer … “) as exegetical of the preceding part (“but in that case the workman may, at his
option … “) and not as further restricting by an added condition the workman's right of option.
As the Lord Ordinary (Patrick) points out, and as was also laid down by Lord Goddard in the
Court of Appeal in Unsworth v Elder Dempster, no difficulty in adopting this construction arises
from the rule that the employer is not to be bound to pay twice over. If, before the workman
can be regarded as having really exercised his option, he receives one or more weekly
payments under the Act, and he then opts to issue a writ and recovers damages, the damages
in the action would be reduced by the amounts already received. This view secures what Sir
Wilfrid Greene MR, in Perkins's case, described as the effect of the final words ([1939] 3 All ER
697, at p 703), namely, that “the employer is not to be made to pay twice over to the same
person.” I cannot agree that the deduction from damages of a sum already paid in respect of
the same injury is contrary to any “principle of law” (ibid, at p 704). On the contrary, I would
adopt the statement of the Lord Ordinary (Patrick), ([1944] SLT 282, at p 286) that:

'When the workman sues at common law, if the sum awarded in the name of damages exceeds
the sums already paid to him in the name of workmen's compensation, these sums will form a
good set-off or will have to be taken into account in diminution of damages.'

In the present case, I agree that the appeal must be dismissed on the ground that the appellant,
who knew of his “option” in July, nevertheless continued to draw weekly compensation until

48
the following October, and must consequently have deliberately and consciously chosen to
claim compensation under the Act, instead of proceeding independently of the Act.

As the House has heard a full discussion of the difficulties of construction arising under sect 29,
I venture to add the following observations as representing my view of the general effect of the
clause:
(1) The statutory provisions for workmen's compensation are not to be understood as
substituted for remedies against his employer previously available to the workman injured by
the personal negligence or wilful act of the employer or of those for whom the employer is
responsible. One of the remedies so preserved is a right of action based upon breach of a
statutory duty: see Lochgelly Iron Co v McMullan, especially per Lord Atkin ([1934] AC 1, at p 9).
The previous remedies remain available as an alternative for the cases which they cover.

(2) But the two remedies are not to be pursued together. For a workman to issue a writ for
damages independently of the Act and also to “claim” compensation under the Act is
forbidden. This prohibition of double procees applies to the initiation and carrying on of
proceedings whether either or both of them would ultimately succeed or not. It is presumably
inserted for the protection of the employer, so that he shall not be vexed with both demands
concurrently. The protection so given him could in proper cases be secured by stay or
injunction.
(3) There thus being an option between two kinds of proceedings, who is to have the right to
exercise the option? The employer cannot insist on being called on to pay by one process rather
than by the other. It is the workman who opts. It is “his” option. This option is not equivalent to
equitable election and I deprecate the use of the latter word as a substitute for the word in the
section. If “election,” in the full sense, were meant, it would be necessary for the workman to
know all that was material to determine his choice. Scott LJ, is perfectly logical, in Coe v London
and North Eastern Ry. Co, in saying ([1943] 2 All ER 61, at p 64), that if “option” means
“election” there can be no effective exercise of option “without full knowledge of all material
facts affecting his choice.” But this, in my opinion, is not the meaning of “option” in this
connection. “Election” has two meanings, as Viscount Maugham pointed out in Lissenden v CAV
Bosch, Ltd, when he said ([1940] 1 All ER 425, at p 429):

'… the equitable doctrine of election has no connection with the common law principle which
puts a man to his election (to give a few instances only) whether he
at 103

will affirm a contract induced by fraud or avoid it, whether he will in certain cases waive a tort
and claim as in contract, or whether, in a case of wrongful conversion, he will waive the tort
and precover the proceeds in an action for money had and received. These cases mainly relate
to alternative remedies in a court of justice. The history of the common law rules, the principles
which apply to them, and the effect of the election are all very different from those which
prevail where the equitable principle is in question.'
See also Lord Atkin's speech ([1940] 1 All ER 425, at p 436).

49
Here we are dealing with a statutory “option”, in its setting in the section, and I am willing to
adopt the view, which has constantly been expressed and enforced, that the workman does not
lose his alternative remedy merely because he accepts some payments under the Act, when the
option is unknown to him. But if the circumstances amount to this, that he persists in taking
weekly compensation after knowing of the alternative course, he is debarred from changing the
nature of his claim. This view, in my opinion, is confirmed by the exegetical character of the
prohibition against double liability.

In conclusion, I would venture to express the hope that, if there is to be new statutory
enactment on the subject of alternative remedies when workmen meet with industrial
accident, the legislation will be so framed as to get rid of the doubts and difficulties which have
led to so much controversy, and have given rise to such fine distinctions, in the interpretation
and application of sect 29.

My Lords, I move that the appeal be dismissed, with costs.

LORD RUSSELL OF KILLOWEN

[read by Lord Porter]. My Lords, the question debated on this appeal, while it admits of easy
statement, is difficult of solution. The question is whether the appellant workman having
accepted from his employers (the respondents) payments of compensation under the
Workmen's Compensation Act, 1925, knowing them to be payments under that Act, is debarred
by reason of sect 29(1) of that Act from taking proceedings independently of that Act for the
recovery of damages from his employers. Sect 29(1) of the Act runs thus:

'When the injury was caused by the personal negligence or wilful act of the employer or of
some person for whose act or default the employer is responsible, nothing in this Act shall
affect any civil liability of the employer, but in that case the workman may, at his option, either
claim compensation under this Act or take proceedings independently of this Act; but the
employer shall not be liable to pay compensation for injury to a workman by accident arising
out of and in the course of the employement both independently of and also under this Act,
and shall not be liable to any proceedings independently of this Act, except in case of such
personal negligence or wilful act as aforesaid.'
The relevant dates are these: The accident occurred on 3 April 1942; the appellant received
payment of the appropriate compensation (viz, £1 15s a week) until he returned to work on 2
October 1942; on 5 February 1943, he issued the writ in the present litigation, claiming
damages for negligence and breach of statutory duty. The only defence upon which the
respondents now rely is sect 29(1) of the Act.
The commissioner who tried the action at the Manchester Assizes, found the following facts: (i)
that on and after 30 April 1942, the appellant accepted the weekly payments knowing them to
be made as compensation under the Act; (ii) that the appellant when he began to receive those
payments did not know “that he had a right under sect 29(1) of the Workmen's Compensation
Act to elect as between two alternative remedies”; and (iii) that in or about July, 1942, he did
become aware of that right. The commissioner, on the finding first above-mentioned, felt

50
bound to dismiss the action in view of two authorities in the Court of Appeal, viz, Perkins v
Hugh Stevenson & Sons, Ltd and Selwood v Townley Coal & Fireclay Co, which may, I think, be
accurately described as having decided that a workman who has knowingly accepted as such
payments of compensation under the Act, is precluded from recovering compensation
independently of the Act.

My Lords, let me say at once, that in my opinion the present appeal must fail whatever view be
taken as to the correctness of the decisions of the Court of Appeal, or the true interpretation of
sect 29(1). The appellant here knew in July, 1942, of the choice given to him by the subsection,
and with that knowledge chose to continue in receipt of compensation under the Act until he
returned to work. Having thus, in exercise of the option given to him
at 104

by the subsection, enforced to the full one liability of the employer, he cannot enforce any
other; in other words, having in exercise of his option, enforced to the full the employer's
liability to pay compensation under the Act, he cannot take proceedings to make the employer
pay compensation independently of the Act. He has deliberately selected and exhausted one of
the two rights which the subsection offers for his choice.

In view, however, of the course taken by the debate before your Lordships, I may be permitted
to state my views upon the true construction of the subsection. It contains four provisions to
the following effect:

(1) The civil liability of the employer is not affected by the Act when the injury was caused by
the personal negligence or wilful act therein described.

(2) If the injury was so caused the workman is given a choice as to which liability he will seek to
enforce.

(3) The employer is not to have to pay compensation to the workman both independently of
the Act and under its provisions.

(4) No action may be brought against the employer in respect of an injury to a workman by
accident arising out of or in the course of his employment, unless the injury was caused by the
personal negligence or wilful default as aforesaid.

The subsection only applies when the injury was caused by the personal negligence or wilful
default described in the opening words, but when it applies, it operates for the benefit of both
the workman and the employer. On the one hand the first provision preserves to the workman
the civil liability of the employer, and the second provision gives him a choice between
enforcing that liability and enforcing the liability imposed on the employer by the Act. On the
other hand, the third provision protects the employer from being obliged to meet both
liabilities. The fourth provision may for the present purpose be disregarded. The second and
third provisions are the ones which create the difficulty.

51
The Court of Appeal has treated the third provision as an enactment in favour of the employer
which operates independently of the first and second provisions, and which in some way
detracts from or qualifies the express saving in favour of the workman of the civil liability of the
employer. It has construed the subsection as meaning that once some compensation for injury
to a workman has been paid under the Act, and has been accepted by him as such, the
employer is freed from all liability to pay compensation independently of the Act. My Lords, I
find myself unable so to construe the third provision. It is a construction which, in my opinion,
should only be adopted if none other is open, because it destroys to a great extent the primary
object of the subsection, viz, the preservation in favour of the workman of the employer's civil
liability. So long as in the long run an employer is not made to pay more than his total liability
under the particular head of liability which the workman, knowing of his choice, chooses to
enforce, the protection given to the employer by the third provision will be secured to him. He
will not have paid two sets of compensation, but only the compensation payable under his
liability independently of or under the Act as the case may be.

For myself I would construe the subsection as follows: The object of the subsection is to keep
the civil liability of the employer alive, and it gives the workman a choice as to what liability he
will enforce against the employer. But to make a choice the workman must be aware of his
right to choose, and of the alternatives open to his choice. In the case of a workman who,
owing to ignorance in these repects, has been unable to exercise his option under the
subsection, but who has been paid and has accepted compensation under the Act, even to the
full amount, I cannot see how he can be prevented, on discovering his right to choose, from
recovering compensation independently of the Act, if he be not barred by lapse of time.

On the other hand, if a workman, who knows of his right to choose and of the alternatives open
to his choice, has enforced his claim to compensation independently of or under the Act, he
cannot thereafter seek to enforce any other liability of the employer. By the words “has
enforced his claim,” I mean that he has obtained a judgment for damages at common law or
compensation under the Employers Liability Act, 1880, or that he has obtained an award or an
agreement for recording under sect 23 of the 1925 Act, determining
at 105

the employer's liability under the Act. When the workman has so made his choice of the liability
which he desires to enforce, and has so enforced it, the subsection has been worked out, and
the chapter is closed. But unless and until he has so enforced the liability of his choice, I find
nothing in the subsection to prevent him from changing his mind, abandoning any pending
proceedings in reference to one liability, and commencing proceedings to enforce the other
liability.
In coming to this conclusion I find myself in substantial agreement with the views expressed by
the Lord Ordinary (Patrick) in Brown v William Hamilton & Co Ltd, although I do not think that
the rights of the workman under the subsection are (as is indicated or suggested in many
authorities) to be judged in the light of the strict rules applicable to the equitable doctrine of
election. As I have said, the primary object of the section is to preserve the civil liability of the
employer, making it plain on the one hand that it is the workman who may choose which

52
liability shall be enforced against the employer, and on the other hand that the employer
cannot be made to pay more than the measure of his liability independently of, or under, the
Act as the case may be. The Lord Ordinary (Patrick) has pointed out the harsh results and the
difficulties which would ensue if a workman is to be held to be deprived of his rights against the
employer which are independent of the Act, by the mere acceptance as such of compensation
paid under the Act. I need not repeat them, but they appear to me very real; and while no
suggestion is or could be made against the employers in the present case, it is obvious that
instances might arise in which, upon the construction of the subsection adopted by the Court of
Appeal, very grave injustice might be inflicted on a workman by his employer.

As already indicated, however, this appeal must, in my opinion, fail.

LORD MACMILLAN
[read by LORD SIMONDS]. My Lords, on the facts of the present case I have no doubt that the
decision of the Court of Appeal was right in law. But as certain views on the proper
interpretation of the Workmen's Compensation Act, 1925, s 29, are implied in that decision and
as the opportunity has been taken of bringing under review the many and varying judicial
expositions of this much-debated enactment, I agree with your Lordships that the House ought
to pronounce on the matter generally.

The remedy of compensation which the Act provides for accidents to workmen arising out of
and in the course of their employment is expressly declared to be exclusive of all other
remedies except in the single case of the accident having been caused by the employer's
personal negligence or wilful act. In that case, but in the case only, the injured workman is given
an option; he may either claim compensation under the Act or take proceedings independently
of the Act under the pre-existing law. One thing at least is clear on the terms of the enactment:
the injured workman is not entitled to make claims against his employer simultaneously for
compensation under the Act and for damages independently of the Act. The remedies are
mutually exclusive.

The option given to the workman is no doubt important and valuable, but it should not be
overlooked that the Legislature in fixing the scale of statutory compensation must be taken to
have regarded it as affording in the normal case fair and adequate compensation for the injury
sustained, which physically is the same whether the accident was due to the employer's
personal negligence or not. The reluctance manifested in some of the cases to hold that the
workman has exercised his option in favour of the statutory compensation and the ingenuity
exhibited in avoiding such a decision would seem to suggest that this consideration has not
always been borne in mind.

The main controversy has centred round the question of what in law is to be held as committing
the workman irrevocably to one or other of the two courses open to him when he has
sustained an accident arising out of and in the course of his employment which has been
caused by his employer's personal negligence or wilful act, the only case in which the statute
gives him an option.

53
The problem has in my opinion been confused by the importation of the refinements of the
equitable doctrine of election. It has been said that in giving the workman an option between
two courses the statute has put him to his “election”; an “election” to be valid and irrevocable
can only be made
at 106
where there is on the part of the workman knowledge of the alternatives and full information
as to the advantages and disadvantages of deciding to adopt the one or the other.
Consequently the workman cannot be held to have exercised his option and to have committed
himself irrevocably to the one or the other remedy unless he was possessed of such knowledge
and information. The result of this argument is to make the determination of the question
whether the workman has irrevocably exercised his option dependent not upon what he has
done but upon what he knew. In my view this is an erroneous approach to the matter. Carried
to its logical conclusion the argument would entitle a workman who for years had received
compensation under the Act from his employer, either by agreement or under an award, to
turn round and institute proceedings for damages independently of the Act on the plea that he
did not know, when he claimed and accepted or was awarded compensation under the Act,
that he had any right to redress outside the Act. If he could prove that this was so, then he must
be held never to have exercised his statutory option, never to have made an “election.”
Similarly, on this argument, if the workman had intimated a claim of damages outside the Act
and obtained from his employer, with or without proceedings in court, a sum in full satisfaction
of his claim, he could nevertheless throw over the settlement and have recourse to a claim for
compensation under the Act if he could show that he had not been aware of his rights under
the Act when he made the settlement. Such an interpretation of the enactment would, in my
opinion, be clearly contrary both to its letter and to its spirit. In one case the Act permits a locus
poenitentae. If the workman exercises his option by bringing an action to recover damages
independently of the Act and fails in that action, he may move the court to assess and award
him compensation under the Act, if otherwise entitled to it, subject to deduction of the costs
caused to his employer by his unsuccessful action. There is no parallel provision in the case of
an unsuccessful claim under the Act. The inference is clear that the workman cannot try his luck
first under the Act and then, if unsuccessful, independently of the Act or vice versa, apart from
the single special concession which I have just mentioned.
It would be a singular situation if the employer could have no assurance that finality had been
reached in settling a claim either under or independently of the Act unless he had taken steps
to satisfy himself of the state of the workman's mind and that the workman had made a fully
informed “election” between the alternative courses open to him. It would be grotesque to
suggest that the employer to whom a claim under the Act has been made must ask the
workman if he has considered the possibility of bringing an action against him for personal
negligence or wilful fault, lest otherwise any settlement of the claim under the Act might have
no finality because there had been no “election” on the part of the workman. The workman,
like any other citizen, must be presumed to know the rights which the statute has given him,
and must be judged according to what he does in the exercise of these rights and not according
to the extent of his knowledge of them. I quote and adopt the words of Scrutton LJ, inBennett v
L & W Whitehead Ltd ([1926] 2 KB 380, at p 405):

54
'If by statute you have an option to do A or B, but not both, and you have done A, it does not
seem to me relevant to say “I have done A, but I have not elected to do it.“'

If one of the alternatives is adopted the other is excluded, no matter what failure there has
been to appreciate the respective merits of the one or the other.

But this, unfortunately, is far from ending the matter. It still remains to consider what steps
taken by the workman must be held in law to be evidence of an irrevocable exercise of his
statutory option. This has proved a highly controversial point, as the diversity of judicial
opinions shows. It is best elucidated by discussing the possible cases. I begin with the easiest
case, on which there appears to be general agreement. If the workmen's claim either under or
outside the Act is contested and he institutes proceedings which are carried through to their
conclusion and result in an award of compensation under the Act or in a judgment for damages
outside the Act, all are apparently now agreed that finality has been reached. The workman
cannot be heard to say that in proceeding in the one way or the other he was unaware of his
rights and had never truly exercised his option.

But what if the workman fails in the proceedings which he has taken? Is he entitled then to
resort to the alternative proceedings which he might have
at 107
taken but did not take? The answer in my opinion is in the negative. I quote and adopt the
words of Cozens-Hardy MR, in Cribb v Kynoch Ltd (No 2)([1908] 2 KB 551, at p 555):

'… I think that the true meaning of the Act is that a workman cannot proceed to trial under the
Act and fail, and then proceed by common law action, and also cannot proceed by common law
action and, having failed in that action, then proceed under the Act … '
subject, of course, to the special right accorded under subsect (2) of sect 29. The workman by
persisting to a conclusion in the proceedings which he has taken has irrevocably committed
himself. He cannot be heard to say that he has exercised his opinion only conditionally on
success. This view was emphatically approved in Scotland by a court of seven judges in Burton v
Chapel Coal Co Ltd. But in that case a qualification was admitted, based on the Scottish
decisions in Blain v Greenock Foundry Co and McDonald v James Dunlop & Co, and the English
case of Rouse v Dixon. If the reason of the workman's failure to recover compensation in
proceedings under the Act was that his case did not fall within the Act, then, it was said, he was
not barred from proceeding outside the Act. The ground for this view, as stated in Burton's case
by Lord Low ([1909] SC 430, at p 441), is that the enactments were:

'… intended to meet the case of a workman who has, in fact, an option between a claim under
the Act and a claim independently of the Act, and, therefore, have no application to the case of
a workman who does not fall within the purview of the Act and has no title to claim
compensation under it.'
I do not accept this qualification. In contested claims for compensation the employer's most
frequent answer, apart from questions of quantum, is that the claim does not fall within the Act
because the accident did not arise out of or in the course of the employment. If the employer

55
succeeds in this plea he is nevertheless, if the qualification is well-founded, to be exposed to
entirely new proceedings outside the Act. This is, in my opinion, contrary to the true
interpretation of the Act. I agree with Scrutton LJ, that if the workman's case fails it makes no
“difference whether the applicant fails because he is not, or fails although he is, a 'workman' or
'dependent' within the Act” (Bennett's case ([1926] 2 KB 380, at p 403)). If the workman takes
proceedings under the Act and carries them to a conclusion, then he has exhausted his rights,
notwithstanding that the conclusion may be that his case does not fall within the Act, for
example, because the accident did not arise out of or in the course of his employment. He
cannot be heard to say that he has exercised his option only conditionally on his case being held
to fall within the Act. The proceedings are under the Act none the less that the result of the
proceedings may be that the workman's case is held not to come within it “… Proceedings
carried to a final determination are conclusive evidence of a final election” (per Bankes LJ,
in Bennett's case, ibid, at p 391).
Next, what if the workman, having instituted proceedings either under or outside the Act,
withdraws from them before a decision is reached? As the law stands, under the authority
of Bennett's case, notwithstanding the vigorous dissent by Scrutton LJ, the workman is not held
to have irrevocably committed himself by the initiation of proceedings from which he has
resiled. Bankes LJ, who was in the majority, seems nevertheless to have thought that it was a
question of circumstances and that a workman might in some circumstances be held to have
irrevocably committed himself by taking proceedings not persisted in to a conclusion. This
leaves the law in an unsatisfactory state. It has been suggested that there are two and only two
rival constructions of sect 29: (i) that it protects the employer from being proceeded against
more than once; (ii) that it protects him only from being made to pay more than once. But this
clean-cut choice of interpretations has not been accepted or logically applied. The mere
intimation of a claim for compensation, although a step in proceedings, has not been held to be
an irrevocable exercise of the workman's option. The hardship of so holding has moved the
courts not to do so, though on a strict and literal reading of the section it looks very much as if
this was intended, and Scrutton LJ so thought. Suppose a workman makes a claim on his
employer under the Act—it may be quite informal and need not even be in writing—and the
employer declines to admit it, pointing out that he has an irrefutable
at 108
answer to it, the validity of which the workman at once recognises. Is the workman by having
made this abortive claim finally precluded from resorting to an action of damages for which he
may have an excellent prima facie case? Similarly if the workman has issued a writ in an action
of damages and on seeing the defence at once recognises that he has no case, must he go on
with the action to its inevitable conclusion against him in order to obtain a “determination” that
the injury is one for which the employer is not liable and so enable himself to obtain
compensation under subsect (2) of sect 29 less the cost of the action? While I have thus
indicated the sort of considerations involved I am not disposed in the present case, in which the
point does not arise, to express a concluded opinion upon it. It may never have to be decided
by this House, in view of the general revision of the law of workmen's compensation which the
Government has announced that it has in contemplation.

56
I pass now to consider the position where there have been no proceedings either by way of
arbitration under the Act or by way of action independently of the Act. If the injured workman
intimates a claim against his employer on the ground of the employer's personal negligence or
wilful act and the employer admits liability and settles with the workman by payment of an
agreed sum, in such a case I think there can be no question that the workman must be held to
have exercised his option irrevocably. If on the other hand the workman intimates a claim
under the Act and the employer admits liability and proceeds to make to the workman the
payments due under the Act, I equally see no reason why the workman should not be held to
have exercised his option irrevocably. The Act contemplates that in the normal case claims will
be settled by agreement without resort to proceedings, and the vast majority of cases are so
settled. I cannot see any good reason for holding that finality is reached where as a result of
proceedings in a contested case there has been a determination of the matter in favour of or
against the workman, but that where a contest has been avoided by agreement the workman
should be entitled to maintain that he has never exercised his option. An agreement can under
the Act be rendered as enforceable as an award after proceedings. It is, of course, essential that
there be a real agreement between the parties for the payment and acceptance of
compensation under the Act. But where there is sufficient evidence of such an agreement I do
not think that it is open to the workman to challenge it on the ground that he has never
exercised his option because he did not know that he might have brought an action against his
employer for damages or had not information to enable him to weigh the comparative
advantages of claiming under the Act and claiming independently of the Act. An agreement
under the Act need not be in writing. It may be oral or inferred from the facts and
circumstances. It does not seem to me to make any difference whether the agreement results
from a claim by the workman admitted by the employer or from an offer by the employer
accepted by the workman or from the conduct of the parties. What is essential is that the
agreement should be an agreement under the Act; that is to say, that the parties should
understand that they are transacting about the right to compensation which the Act confers.
And, of course, it must be a real agreement; it must not be vitiated by mutual error, fraud,
undue influence or any of the other grounds on which the validity of an agreement may be
assailed. A fortiori of there has been not only agreement under the Act but payments under the
Act on the faith of the agreement, the evidence of the workman having finally exercised his
option is conclusive. Further, the acceptance by the workman of payments expressly made
under the Act and accepted by him as such is sufficient evidence of the agreement of the
parties and of the workman having irrevocably committed himself.
In the present case the appellant workman did not take advice as to the course he should
adopt, although the respondent's representative was so fair as to inquire of him whether he
intended to take advice before committing himself, and he was not proved to have known that
he had any rights independently of the Act. But week after week he accepted payments made
to him expressly under the Act and received by him as such. That being so, I agree with Lord
Greene MR that the case is covered by the decisions of the Court of Appeal in Perkins v Hugh
Stevenson & Sons Ltd, andSelwood v Townley Coal & Fireclay Co, in which it was held that:

'… a workman who has been paid compensation under the Act, which he has
at 109

57
knowingly accepted as such compensation, is thereby precluded from recovering damages from
his employers at common law.'
I am of opinion that these cases were decided rightly and in consonance with a sound
interpretation of the Act. Consequently, while I appreciate I cannot accept the views expressed
by the Lord Ordinary (Patrick) in Brown v William Hamilton & Co Ltd, to which the attention of
the House was specially drawn on behalf of the appellant.

The appeal should, in my opinion, be dismissed and the judgment of the Court of Appeal be
affirmed.

LORD PORTER.

My Lords, this case raises again a question which has many times been before the courts of this
country. The facts are short. On 3 April 1942, the appellant met with an accident arising out of
and in the course of his employment. About three weeks after the accident he saw, at the
respondents' works, one Howarth, assistant to their commercial manager. Howarth's duty was
to deal with payments under the Workmen's Compensation Act, and he saw about fifteen to
twenty men on days specially appointed for that purpose. He told the appellant that no
authority had yet come from the respondents' insurance company to make any payment, and
asked the appellant whether, in view of the seriousness of his injury, he would seek advice, and
probably mentioned his trade union. The appellant next visited Howarth on 30 April and on that
occasion Howarth passed over the pay-sheet for the appellant to read, and explained that
though only 24 days' compensation was then due, he proposed to pay up to the end of the
fourth week. The appellant read and understood the form, which plainly showed that it dealt
with weekly payments under the Workmen's Compensation Acts. He then filled in the form and
signed the appropriate receipt. Thereafter the appellant continued to draw compensation and
to accept payments of workman's compensation knowing it to be such until he returned to
work on 2 October.

Meanwhile, on 24 July his solicitor wrote to the respondents stating that he desired to claim
compensation under the Workmen's Compensation Act and alternatively damages. To this
letter the respondents' insurance company replied on 19 August that liability was only admitted
under the Act, and that the appellant had been in receipt of compensation under it since his
cessation of work following his injuries. After some further communications between the
parties a writ was issued on 5 February 1943, claiming damages for negligence and breach of
statutory duty. Meanwhile the appellant continued to receive and to accept compensation
under the Act, and no notice was given or assertion made that the receipt was without
prejudice to the bringing of a claim for damages.

The final finding of the commissioner is as follows. I quote his words:

'I am satisfied … that the plaintiff did not make a claim for compensation as such … The plaintiff,
as I find, received the payments made to him as compensation under the Workmen's
Compensation Act and the payments were paid to him as such. I also find that at the time this
workman received his first payment on Apr. 30, 1942, and until such time as he consulted his

58
solicitor … he did not know that he had a right under sect. 29(1), of the Workmen's
Compensation Act to elect as between two alternative remedies. It follows that the workman,
not knowing of the existence of his right to elect, could not be said to have exercised the option
given to him by the subsection.'

In the action the substantial defences were that the appellant was guilty of contributory
negligence and that in any event, having claimed and received compensation under the
Workmen's Compensation Act, he was debarred from recovering damages. The judge negatived
the former of these two defences, but, whilst making the findings set out above, felt himself
bound by authority to hold that the latter must succeed. This defence is the creature of statute
and depends upon the construction to be placed on the Workmen's Compensation Act, 1925, s
29(1), which is in the following terms:

'When the injury was caused by the personal negligence or wilful act of the employer or of
some person for whose act or default the employer is responsible, nothing in this Act shall
affect any civil liability of the employer, but in that case the workman may, at his option, either
claim compensation under this Act or take proceedings independently of this Act; but the
employer shall not be liable to pay compensation for injury to a workman by accident arising
out of and in the course of the employment both
at 110

independently of and also under this Act, and shall not be liable to any proceedings
independently of this Act, except in case of such personal negligence or wilful act as aforesaid.'
The wording is not very artistic, but the aim is, I think, clear enough, viz, to leave the workman
his choice of two remedies whilst preventing the employer from having to pay both damages
and compensation.
Apart from authority, I should have thought it reasonably plain that whereas the workman can
choose which of his two types of remedy he would pursue, he cannot recover both damages
and compensation, and at some time or other he must reach the position when he is bound to
the one and debarred from the other. Your Lordships have to determine when and by what
means that position is reached. The appellant maintained that the choice continues until the
workman can be said to have exercised the option which the Act gives him. The true
construction of the subsection was, he said, to be found by reading the second part as
exegetical or explantory of the first, ie, by interpreting it as meaning that the workman might at
his option pursue either remedy, provided that by doing so he did not ultimately impose a
liability upon his employer to pay both damages and compensation. In his contention, that
point would not be reached unless either a judgment had been obtained in his favour in a claim
for damages or an award made in his favour or an agreement for compensation registered. In
support of this agreement he cited the observation of Kennedy J, inRouse v Dixon ([1904] 2 KB
621, at p 634):

'It is not impossible to construe sect. 1(2) [the corresponding section in the 1897 Act] as
meaning that the option may be exercised unless and until a claim has proceeded to a decision
…'

59
The respondent, on the other hand, urged that the two parts of the subsection were to be read
separately; that the choice made by the workman was irrevocable if he received workmen's
compensation as such, and in any case that, as the Court of Appeal has held, the acceptance of
either damages or compensation as such was a bar to recovery under the alternative remedy.
Even though the respondent's argument be, as I think it is, unsound, yet in the present case I
can have no doubt but that, after his solicitor's letter of 4 August the appellant knew that he
could claim damages and with this knowledge continued to accept compensation. Up till then in
my view he might have withdrawn his claim under the Act, but after that time he was confined
to the remedy of which he continued to take advantage. Conversely, if he had brought an
action knowing what he did and failed, he could not thereafter have applied for workmen's
compensation were it not for the terms of sect 29(2), which expressly make provision for his
contingency: see Edwards v Godfrey, and Cribb v Kynoch. The general principle is founded on
Lord Blackburn's dictum in Kendall v Hamilton ([1879] 4 App Cas 504, at p 542): “… There
cannot be an election without knowledge of the right to elect.” It finds support in Rouse v
Dixon, Bennett v Whitehead, and Unsworth v Elder Dempster, and is not inconsistent
with Burton v Chapel Coal Co, where it was decided that a workman cannot sue for damages
after failure to recover under the Act in a case where he has brought his action with full
knowledge of the alternative remedy. Moreover, Mackay v Rosie, and Birch v Pease & Partners,
are not antagonistic in deciding that acts may be evidence of choice. Whether the workman has
chosen is a matter of fact, but the effect of his knowledge or ignorance that he has alternative
remedies is a matter of law.
In so far as Perkins v Hugh Stevenson, and Selwood v Townley Fire Co depart from these
principles and decide that the mere acceptance of compensation as such, but in ignorance of
the existence of an alternative remedy, is a fatal bar to a claim for damages, I think they are
wrong. I prefer the reasoning of the Lord Ordinary (Patrick) in Brown v William Hamilton & Co,
where he reviews the Scotch cases and refuses to follow the two last-mentioned English cases. I
should be content to follow his conclusion and reasoning, but as the matter has been fully
argued I think I ought to give the grounds for my preference.

In the English cases, as I understand them, the Court of Appeal construed sect 29(1) as divisible
into two parts. Under the first they acknowledged the existence of the workman's option, at
any rate unless and until he accepted
at 111

compensation under the Act as such, but under the second they held that a workman who had
claimed and received compensation or had accepted compensation as such had precluded
himself from suing for damages even though he did not know that he had an alternative
remedy; it was enough that he knew he was receiving workman's compensation as such. The
Court of Appeal, as I understand them, in so holding, relied solely upon the second half of the
subsection and thought it unnecessary to have regard to the earlier part which gave the
workman a choice. The mere payment and receipt of compensation was said to free the
employer from the alternative liability, inasmuch as to expose him to such a claim would be to
render him liable to pay twice over.

60
So long as it was thought that, if compensation was paid, there was no method of recovering
what had been so paid or of setting it off against any damages afterwards awarded, there was
force in this argument (see Perkins's case and Selwood's case), but once it was acknowledged,
as it was inUnsworth v Elder Dempster, that this view was mistaken and that any compensation
previously paid could be deducted from damages when awarded, the argument loses its
efficacy. In a case where this course is adopted the employer does not pay twice nor has his
liability to pay been finally determined.

In my view, unless the dispute has reached the stage at which the employer is at least
compellable to pay, either by judgment in an action or by award or registered agreement under
the Act, he cannot be said to be liable to pay within the wording of the subsection. Even a
failure at law or the dismissal of a claim for compensation would not be enough; there must be
some binding decision under which the employer is liable to pay. The provisions of this part of
the subsection are a defence against a legal liability to pay twice, not a method of ascertaining
whether the workman has or has not made an irrevocable choice.

But a choice has to be made under the first part of the subsection and must at some time
become irrevocable. When does this occur? I can find no answer, except that it comes when the
workman is fully aware of the alternatives and deliberately makes his choice between them. He
must not only know that he has claimed, or is offered or is receiving workman's compensation
as such, he must also know that he has an alternative remedy.
The opinion I have been expressing is, I think, in accordance with the view of your Lordships'
House, as expressed in Kinneil Cannel & Coking Coal Co Ltd v Waddell. In Codling v John
Mowlem & Co Ltd Atkin J, as he then was, had said ([1914] 2 KB 61, at p 69), that the provisions
referred to in the latter part of the section give to the employer the right, independent of the
exercise by anyone of the option, not to pay twice over, and further that this would be the
result although payment under the statute was made without the knowledge and consent of
the plaintiff who was seeking to enforce common law rights. Lord Buckmaster did not agree,
and Viscount Dunedin said ([1931] AC 575, at p 584):

'What I think the section means to say, and what involves no absurdity, is that no individual is
to get two payments, one at common law and the other under the Act.'

If the workman, knowing of the alternative, makes his choice, I should regard the option as
exercised. But if he had not this knowledge, a claim for damages which either was not brought
to a conclusion, or if brought to a conclusion failed, need not be a final election. Even judgment
in favour of the workman would not of itself necessarily be a final choice, but it would bar a
claim under the Act because the employer, being thereby liable to pay independently of the
Act, could not be made liable to pay under it; the wording of the second half of the subsection
would protect him.

For the same reason an award or registered agreement under the Act would likewise protect
the employer. But short of such a conclusion I do not see why the workman should not
withdraw from one claim and proceed in the other, always provided he has not deliberately
chosen the one or the other with full knowledge that the alternative is open to him.

61
In the present case I think the appellant did make such a choice, and I would for that, but that
reason alone, dismiss the appeal.

LORD SIMONDS.

My Lords, I concur in the motion that this appeal, the facts of which I need not rehearse, should
be dismissed and will add only some observations upon the meaning and effect of the
Workmen's Compensation
at 112

Act, 1925, s 29, which, having caused so much controversy in the English, Scotch and Irish
Courts is now, I hope, to be replaced by a provision more easily intelligible. The section in
question is, I suppose, introduced for the benefit of both the employer and the workman. The
Workmen's Compensation Acts provided a new remedy for an injured workman but they could
not be read so as to take away from him an existing right at common law in the absence of a
provision to that effect. Yet it was clearly unfair to the employer that in respect of the same act
or omission he should be doubly liable: therefore some provision against that event had to be
made. It was made by sect 29 of the 1925 Act as similar provision had been made by the earlier
Acts: the question for your Lordships' consideration is, what does the section mean?

My Lords, there are, I think, two separate questions involved. The first is, what is meant by
saying that the workman may at his option do one of two things? Having done one of those two
things is he debarred from doing the other of them, only if (as some would say) he knew that he
had a choice, or (as others would say) he both knew that he had a choice and was aware of all
the facts relevant to the making of the particular choice? Or having done one of those two
things, is he, whatever his state of mind may have been, altogether debarred from doing the
other of them upon the footing that his act proclaims his choice? The second question is, what
act or acts amount to claiming compensation under the Act or taking proceedings
independently of it, as the case may be, so that after such acts the workman is debarred from
his other remedy? That is a question that arises whatever answer may be given to the first
question.

Upon the first question I respectfully concur in what has been said by Lord Macmillan, whose
opinion I have had the advantage of reading. I agree in thinking that much confusion has arisen
from importing into the consideration of this section the niceties of the equitable doctrine of
election. I do not understand how a workman, being given the statutory choice between what I
will, for brevity, call claim and action, can make his claim and later say: “I will now bring my
action, for when I made my claim I was unaware that I could bring an action.” It is not clear to
me whether the contention that he can do so is based solely on the words “at his option” which
are found in the section. I do not think that it is logical that it should. For without those words
the section gives the choice: “the workman may … claim compensation … or take proceedings …
,” and if where there is a choice, an act, however unequivocal, is not decisive unless the actor is
aware of his rights, the words “at his option” and nothing.
In Bennett v L & W Whitehead Ltd Scrutton LJ said ([1926] 2 KB 380, at p 404):

62
'I do not think you can escape the statutory prohibition against doing a thing by saying that,
though you have done it, you have not elected to do it.'
This expresses my own view with admirable terseness. If the statute says that a man may do
one of two things, that involves that he may not do both. If he does one of them he cannot
escape by saying: “I did not choose or elect to do it.” He has done it. Res ipsa locuta est. If it is
said that this gives no meaning to the words “at his option,” I should be inclined to agree, but in
any event they are superfluous since he, who has the choice, has also the option. The value of
the words, as it appears to me, lies in this, that they make doubly clear, what was already clear
enough, that it is for the workman not the employer to say which remedy shall be pursued. But
that does not mean that, when the workman has pursued one remedy, he can deny that it was
his choice.
My Lords, in coming to this conclusion upon what I conceive to be the first question, I am
assisted by a consideration of the difficulties, overwhelming as they appear to me to be, if the
alternative view is accepted, viz, that, whatever a workman may have done, he is not debarred
from his alternative remedy unless he has made a conscious choice between the two remedies.
It is significant that, as I pointed out earlier in this opinion, it is not agreed amongst those who
adopt this view, what degree of knowledge is sufficient to make the choice effective. On the
one hand it is said that there must be knowledge that there is a right to choose: no more
apparently is needed. On the other hand it is said—and I will take the latest statement of this
kind from the judgment in Coe v L & NE Ry Co, of Scott LJ ([1943] 2 All ER 61, at p 64): “that
at 113

option is beyond doubt a legal right of election; and no election can be exercised by the elector
without full knowledge of all material facts affecting his choice.” In this view there must be
knowledge not only of the possibility of choice in general but of all the material facts affecting
the particular choice. If indeed it is relevant to ascertain the state of the workman's mind, when
he makes his claim or brings his action, the latter view appears to me more consistent and
logical, for it is of little use to the workman to know in general that he has a choice unless he
knows also all the facts which should guide him in making it. The theory postulates that the
workman is instructed before he acts. I see no justification for stopping half-way and saying
that it is sufficient for him to know that he has a choice and that it does not matter how much
or how little he knows of the facts relevant to that choice.
But, my Lords, if the view so expressed by Scott LJ is the right one, the practical difficulties are
grave indeed. There are no doubt regions of the law in which it is necessary to enquire into the
state of a man's mind. But the inquiry must always be a difficult one, not lightly to be
undertaken. Here “all material facts affecting his choice” must include the very facts which can
perhaps only be ascertained upon a judicial determination of his claim or action, and, even
when they have been ascertained, there may be nice questions as to their bearing upon such
problems as the doctrines of contributory negligence or volenti non fit injuria introduce. It
would appear that the workman can make no fully instructed choice until he has been taught
by failure or success in the claim or action that he has made or brought, and that it is only after
that that any act on his part is final or irrevocable. If so, it is strange that it should have been
thought necessary in a certain event and subject to certain conditions to preserve to him his

63
alternative remedy, viz, to permit him, if he brings his action and fails in it, to ask the court to
assess and award him compensation under the Act.
My Lords, I would say, expanding what I venture to think was in the mind of Scrutton LJ,
in Bennett v Whitehead (L & W Ltd), that this is but an example of the fundamental proposition
that a man intends the natural consequences of his acts. He is judged by what he does, not by
what he thinks. Given alternative rights against his employer he exercises one of them: the
employer for whose benefit has been introduced the limitation of alternative remedy, is bound
neither to enlighten him nor to enquire into his state of mind. He is entitled to assume that that
which the workman has done, he has intended to do, that he has “at his option” made his claim
or brought his action, as the case may be. I think, with deference to those who think or have
thought otherwise, that Lord Blackburn's dictum in Kendall v Hamilton ([1879] 4 AC 504, at p
542), that there cannot be an election without knowledge of the right to elect (a dictum uttered
in a widely different context) does not assist your Lordships in the construction of this section.

Answering the first question that I have posed by saying that it is what the appellant did, not
what he knew or thought, that matters, I turn to the second question and ask whether he so
acted that he was debarred from taking proceedings independently of the Act. Upon this
question I understand that no doubt is entertained by your Lordships that, however much the
simple words, “claim compensation under this Act,” where they occur in this section, may be
expanded or refined, however liberally the section may be construed in favour of the workman,
the present appellant so acted and, if it be material, continued so to act with knowledge of his
rights, as to debar him from his alternative remedy of action. Under those circumstances, fully
concurring in the conclusion, I do not think it necessary to consider the widely divergent views
that have been held upon this subject. But I would safeguard myself in any future consideration
of the matter, if it should come again before this House, by saying that I am far from satisfied
that a somewhat strained and unnatural meaning has not been placed upon simple words. It is
clear, I think, what the words “take proceedings independently of this Act” mean. That is one
remedy open to the workman. The other remedy is to “claim compensation under this Act.” If it
becomes material, I should wish to consider how far it is legitimate to construe these plain
words as importing anything more than a demand for compensation as of right, which I
understand to be the natural and primary meaning of “claim.” Nor should I, unless constrained
by authority,
at 114

be prepared without further consideration to accept the view that it is only against an ultimate
double liability that the section protects the employer. That it has that result is certainly true,
but as at present advised I do not see why it does not further protect him from proceedings
independently of the Act if a claim for compensation under the Act has been already made.
That is what the section seems in clear language to say. It may be thought desirable to give a
greater latitude to the workman in the pursuit of his alternative remedies. That is a matter for
the Legislature. I am for my part unable by judicial interpretation of the section in its present
form to achieve that result.

The appeal should, in my opinion, be dismissed.

64
 Appeal dismissed with costs.
Solicitors: W H Thompson (for the appellant); Gregory, Rowcliffe & Co agents for John Taylor &
Co, Manchester (for the respondents).
C StJ Nicholson Esq Barrister.

65
Boyce and joseph v AG Barbados
8 November 2006
CCJ Appeal No CV 2 of 2005
BB Civil Appeal No 29 of 2004
CARIBBEAN COURT OF JUSTICE
THE ATTORNEY GENERAL, SUPERINTENDENT OF PRISONS AND CHIEF MARSHAL
v.
JEFFREY JOSEPH AND LENNOX RICARDO BOYCE
JUDGMENT

BEFORE: PRESIDENT: Mr Justice de la Bastide

JUSTICES: Mr. Justice Nelson; Mr. Justice Pollard; Mr. Justice
Saunders; Madame Justice Bernard; Mr. Justice Wit; Mr. Justice
Hayton

Citation: Attorney General v. Joseph, [2006] CCJ 1 (AJ)

Represented By: APPELLANT: Mr. Roger Forde QC; Mr. Brian L. St. Clair Barrow
FIRST RESPONDENT: Mr. Maurice Adrian King; Ms Wendy Maraj
SECOND RESPONDENT: Mr. Alair Shepherd QC; Mr. Douglas
Mendes SC; Mrs. Peta Gay Lee-Brace; Mr. Philip McWatt
Editor's Note:

JOINT JUDGMENT OF THE RT HONOURABLE MR. JUSTICE DE LA BASTIDE AND THE

HONOURABLE MR. JUSTICE SAUNDERS

THE FACTUAL BACKGROUND

[1] On the 10th April, 1999, Marquelle Hippolyte, a lad 22 years old, was brutally beaten
to death with pieces of wood. Four men, all in their early twenties, were charged with
his murder. At their trial, the Prosecution offered to accept pleas of guilty of
manslaughter from the accused. Two of the men accepted that offer and pleaded guilty
to the lesser offence. They were each sentenced to 12 years' imprisonment. The other
two, the respondents Jeffrey Joseph ("Joseph") and Lennox Ricardo Boyce ("Boyce"),
rejected the offer. They entered pleas of not guilty and were accordingly tried. On 2nd
February, 2001 they were both found guilty of murder. Joseph had one previous
conviction for robbery in 1995 for which he had been placed on two years' probation.
Boyce had no criminal record. The mandatory sentence of death by hanging was
imposed on each of them.

[2] Joseph and Boyce appealed their convictions to the Court of Appeal. On the 27th

66
March, 2002, those appeals were dismissed. The men then began to make arrangements
to appeal to the Judicial Committee of the Privy Council ("the JCPC"). This was indicated
to His Excellency the Governor-General. While these arrangements were being made,
the Barbados Privy Council ("the BPC") notified counsel for the men that it intended to
meet to advise the Governor-General in relation to the exercise by him of his powers
under section 78 of the Constitution. Section 78, which we will later set out, deals with
the prerogative of mercy. Copies of certain documents which had been requested by the
BPC were also sent to counsel. These included the antecedents of the convicted men,
the respective reports of the trial judge, the Chaplain and the Prisons Superintendent,
and a medical report.

[3] Correspondence then ensued between counsel and the Attorney-General with
respect to whether the men had a right to be heard before the BPC and what level of
funding should be made available to them for their legal representation before that
body. Counsel were repeatedly invited to make written submissions to the BPC but they
chose not to do so. Counsel's position was that unless a commutation of the sentence
was being recommended, it was inappropriate for the BPC to meet given that the men
intended, and were actively preparing, to prosecute an appeal to the JCPC.

[4] The BPC met on the 24th June, 2002 and advised against commutation of the death
sentences. Two days later, death warrants were read to the men. An order was obtained
from the High Court staying their executions, and the appeal to the JCPC was eventually
heard. That appeal addressed a single issue namely, whether the mandatory nature of
the death penalty rendered that punishment unlawful and unconstitutional. On 7th July,
2004, by a 5-4 majority, the JCPC upheld the mandatory death penalty in Barbados and
the respective appeals of Joseph and Boyce were dismissed[FN1].

----------------------------------------------------------------------------------------------------------------
[FN1] See: Boyce v The Queen [2005] 1 AC 400; (2004) 64 WIR 37
----------------------------------------------------------------------------------------------------------------

[5] Shortly after the JCPC's dismissal of the appeal, lawyers for the condemned men
informed the State's solicitors that the men intended to file an application before the
Inter-American Commission on Human Rights ("the Commission"). On 3rd September,
2004, the men filed applications before that body seeking declarations that their rights
under the American Convention on Human Rights ("ACHR") had been violated. The BPC
was duly informed that these applications were pending. On the 13th September, 2004
the BPC met again, but merely to consider the Order in Council emanating from the
conclusion of the proceedings before the JCPC. Upon the conclusion of its meeting, the
BPC tendered its advice to the Governor- General that the death sentences should be
carried out. On the 15th September, 2004, death warrants were again read to the men
for their execution to be carried out on 21st September, 2004.

[6] On the 16th September, 2004 the men filed a motion before the High Court seeking

67
declarations that their rights to life, security of the person, the protection of the law and
their right not to be subjected to inhuman and degrading treatment were being
infringed. They sought a commutation of the sentence of death imposed upon them.
This motion was subsequently amended to add the complaint that they were treated
unfairly and/or in a manner that was in breach of the principles of natural justice. The
motion was consolidated with motions filed earlier in 2002 that had not been heard.
Execution of the men was again stayed pending the determination of the motions. The
Inter-American Court also issued provisional measures requiring Barbados to preserve
the lives of the two men until the outcome of the petitions before the Inter-American
system.

[7] The constitutional motions in the High Court were heard by Mr.. Justice Greenidge.
The most crucial of the issues argued was whether the BPC was obliged to await the
outcome of the Commission's proceedings before advising the Governor-General in
relation to the exercise by him of the prerogative of mercy. Greenidge, J. dismissed the
motions in a judgment delivered by him on 22nd December, 2004. Joseph and Boyce
successfully appealed this judgment to the Barbados Court of Appeal. The Attorney
General now appeals the Court of Appeal's decision to this Court.

THE JUDGMENTS OF THE COURTS BELOW

[8] Greenidge, J. in dismissing the motions, held that the BPC was not required to await
the conclusion of the Commission's proceedings before tendering its advice to the
Governor-General. The learned judge also held that the BPC was an advisory and not a
judicial entity and, noting that in 2002 the men had been afforded but had not availed
themselves of an opportunity to make written representations to the BPC, he stated that
there was no right for an applicant to make oral representations to that body. The judge
also held that the men had no right to have their legal representation before the BPC
funded at public expense and that the BPC had acted constitutionally on the occasions it
had met as no appellate process had commenced before the first reading of the death
warrant and, at the time of the second reading, the men had already exhausted their
domestic appeals.

[9] The Court of Appeal (C. Williams, L. Waterman and P. Williams, JJA) first examined
the question whether it was a breach of the men's rights to execute them prior to the
receipt by the BPC of reports from the Inter-American Commission. The Court held that
the Executive, as the treaty-making organ of government, could not ignore treaties
which gave rights to citizens and to which the Executive had bound the State. The Court
of Appeal agreed with the trial judge that the men had no right to an oral hearing before
the BPC but held nonetheless that circumstances might arise where an oral hearing
might be desirable. The Court saw no reason why the BPC should have held an oral
hearing in this particular case and it rejected the contention that the men had been
deprived of an opportunity to place representations before the BPC. The Court relied
heavily on Neville Lewis v The Attorney-General[FN2] and on R. (West) v Parole

68
Board[FN3]. The Court commented on the ouster clause contained in section 77(4) of
the Constitution (set out later in this judgment at [23]). The Court held that the BPC was
an independent quasi-judicial decision-making body and not just an advisory body
having a consultative role. Section 24 of the Constitution - which provides for a right to
apply to the High Court for redress for the contravention of the fundamental rights and
freedoms - was not ousted by section 77(4) and it was for the Court to determine, on a
true construction of the Constitution, whether there had been an error of jurisdiction or
breach of natural justice or some misdirection which made the ouster clause
inapplicable. The Court could in appropriate proceedings, it was said, either set aside the
decision of the BPC or declare it to be a nullity. The Court of Appeal expressly refrained
from giving a considered opinion on whether the men were entitled to adequate funding
to facilitate their representation before the BPC. In determining the order that should be
made, the Court reasoned that since in all the circumstances it was not realistic to
expect that the men would conclude the international proceedings available to them
within the time-table outlined in Pratt and Morgan v The Attorney-General,[FN4] the
proper order to make was to commute the death sentences and to substitute terms of
imprisonment for life.

----------------------------------------------------------------------------------------------------------------
[FN2] [2001] 2 AC 50; (1999) 57 WIR 275
[FN3] [2005] 1 WLR 350
[FN4] [1994] 2 AC 1; (1993) 43 WIR 340
----------------------------------------------------------------------------------------------------------------

[10] The Court alluded to three other circumstances in arriving at its decision. Firstly, the
undesirability of having the death warrants read to the men for a third time; secondly,
the disproportion between the sentence imposed on the other two original co-accused
on the one hand and the mandatory death sentences imposed on Joseph and Boyce on
the other, and thirdly, the fact that the men had no access to funding to pursue
effectively any further rights they might have, but instead were dependent on lawyers
who acted pro bono.

THE BROAD ISSUES RAISED BY THIS APPEAL AND THE APPROACH OF THIS COURT

[11] Prior to the hearing of this appeal, the parties agreed that the broad issues raised in
this appeal could be formulated in the following way:

(1) Whether the exercise by the Governor-General of his powers under section 78 of the
Constitution of Barbados is justiciable and if so, to what extent.
(2) In what manner, if at all, may unincorporated international human rights treaties
which give a right of access to international tribunals affect the rights and status of a
person convicted of murder and sentenced to the mandatory punishment of death by
hanging.
(3) Whether section 24 of the Constitution authorises the Court to commute a death

69
sentence and, if so, whether in all the circumstances it was appropriate for the Court of
Appeal to take into account the matters that it did in deciding whether to commute or
give other relief.

[12] Essentially, the court must determine whether the exercise of the prerogative of
mercy is reviewable and whether the State is under an obligation to defer execution of a
condemned man until the determination of any petition filed by him with an
international body pursuant to the provisions of a human rights treaty entered into and
ratified by the State but not incorporated in domestic law by the legislature.

[13] After the respondents were convicted and sentenced, the Parliament of Barbados,
on 5th September, 2002, passed the Constitution Amendment Act, No. 14 of 2002. This
Act amended three sections of the Barbados Constitution. Two of these sections are
germane to the issues involved in this judgment. Section 15 of the Constitution, which
protects citizens from being subjected to torture or to inhuman or degrading
punishment or other treatment, was amended by the insertion of a provision that none
of the following can be held inconsistent with or in contravention of the section, namely,
a)the imposition or execution of a mandatory sentence of death; b)any delay in carrying
out a death sentence, and c)the holding of an incarcerated person in conditions
prescribed by the Prisons Act or "otherwise practised in Barbados" before or at the date
of the amendment. It was specifically provided that these amendments of section 15 of
the Constitution did not apply to a person convicted and sentenced to death before 5th
September, 2002. The respondents are therefore unaffected by these amendments.

[14] Section 78 of the Constitution was also amended to add three new sub-sections, (5),
(6) and (7). These amendments concern the prerogative of mercy and, along with the
original provisions dealing with the exercise of the prerogative will be set out in full later
in this judgment.

[15] At the end of his submissions, when pressed, Mr.. Roger Forde QC, counsel for the
Crown, conceded that, even if this appeal by the Crown were successful, it would not be
appropriate for this Court to re-impose the death penalty on Joseph and Boyce. This
concession was in our view rightly made. Over five years had elapsed since their
conviction and sentence and the Crown made no attempt to challenge the applicability
to them of the time-limit for carrying out the death penalty laid down in Pratt and
Morgan. Further, as we have noted, the amendments to section 15 of the Constitution
do not apply in this case.

[16] It is therefore possible to dispose of this appeal without deciding whether it was
lawful for the respondents to be executed before the BPC received and considered the
decision of the Inter-American body. This issue was however dealt with in the courts
below and was answered differently by Greenidge, J. and the Court of Appeal in their
respective judgments. Moreover, it was identified by the parties as one of the major
issues raised by the appeal to this court. Accordingly, we believe that the parties are

70
entitled to receive our views on it. Moreover, the Court of Appeal relied for its decision
on the JCPC's judgment in Lewis. It was right so to do because it was bound by that
decision. We, on the other hand, can determine whether Lewis should or should not
continue to be the law of Barbados. Although it will add considerably to the length of
this judgment, we think it important to give a considered judgment on this issue.

[17] A determination of the questions in issue requires a re-examination also of other

judgments of the JCPC now that this Court has replaced it as the final appellate court for
Barbados. We are mindful of the fact that the establishment of the Caribbean Court of
Justice has been accompanied by much speculation as to the approach we might take to
JCPC judgments and in particular to those rendered in death penalty cases. It is just as
well therefore that we begin by outlining some basic features of the approach we adopt
in addressing these issues.

[18] The main purpose in establishing this court is to promote the development of a
Caribbean jurisprudence, a goal which Caribbean courts are best equipped to pursue. In
the promotion of such a jurisprudence, we shall naturally consider very carefully and
respectfully the opinions of the final courts of other Commonwealth countries and
particularly, the judgments of the JCPC which determine the law for those Caribbean
states that accept the Judicial Committee as their final appellate court. In this connection
we accept that decisions made by the JCPC while it was still the final Court of Appeal for
Barbados, in appeals from other Caribbean countries, were binding in Barbados in the
absence of any material difference between the written law of the respective countries
from which the appeals came and the written law of Barbados. Furthermore, they
continue to be binding in Barbados, notwithstanding the replacement of the JCPC, until
and unless they are overruled by this court. Accordingly we reject the submission of
counsel for the appellants that such decisions were and are not binding in Barbados.
See: Bradshaw v The Attorney General[FN5].

----------------------------------------------------------------------------------------------------------------
[FN5] Appeals Nos. 31 and 36 of1992 (Barbados) unreported at page 28 and [1995] 1
WLR 936 (PC); (1995) 46 WIR 62 (PC)
----------------------------------------------------------------------------------------------------------------

[19] With the exception of the British Dependent territories, the laws of all the countries
of the Commonwealth Caribbean make provision for capital punishment. We recognise
that the death penalty is a constitutionally sanctioned punishment for murder and falls
within internationally accepted conduct on the part of civilised States. The death
penalty, however, should not be carried out without scrupulous care being taken to
ensure that there is procedural propriety and that in the process fundamental human
rights are not violated. Death is a punishment which is irrevocable. Amidst deep and
continuing controversy over the death penalty, it must be acknowledged that several
court decisions in the Caribbean over the last two or three decades have done much to
humanise the law and to improve the administration of justice in this area.

71
[20] At the same time, courts have an obligation to respect constitutions and laws that
retain capital punishment. Judges, like everyone else, are entitled to their personal views
on the death penalty. But if a judge is so uncomfortable with imposing or sanctioning the
imposition of a constitutionally permitted punishment that the judge cannot be
dispassionate in resolving legal issues that bear on the subject, then the judicial function
is compromised and public confidence in the administration of justice is undermined.

ISSUE ONE
TO WHAT EXTENT, IF AT ALL, IS THE EXERCISE OF THE POWERS CONFERRED UNDER
SECTION 78 JUSTICIABLE

[21] In the courts below, the condemned men challenged the fairness of the procedures
adopted by the BPC in relation to them. They raised questions as to their right to an oral
hearing before that body and complained of the failure of the BPC to await and consider
the report of the Commission. The Crown on the other hand contended inter alia, that
the prerogative of mercy was not justiciable.

[22] Sections 76 to 78 of the Constitution establish the Barbados Privy Council, prescribe
its composition, define the ambit of its powers, and address broadly the prerogative of
mercy. The following are relevant extracts from these sections:

(76) (1) There shall be a Privy Council for Barbados which shall consist of such persons as
the Governor-General, after consultation with the Prime Minister, may appoint by
instrument under the Public Seal.
(2) The Privy Council shall have such powers and duties as
may be conferred or imposed upon it by this Constitution or any other law.
(3) ....

(77) (1) The Privy Council shall not be summoned except by the authority of the
Governor-General acting in his discretion.
(2) The Governor-General shall, so far as is practicable, attend and preside at all
meetings of the Privy Council.
(3) Subject to the provisions of this Constitution, the Privy Council may regulate its own
procedure.
(4) The question whether the Privy Council has validly performed any function vested in
it by this Constitution shall not be inquired into by any court.

(78) (1) The Governor-General may, in Her Majesty's name and on Her Majesty's behalf
–

(a) grant to any person convicted of any offence against the law of Barbados a pardon,
either free or subject to lawful conditions;
(b) grant to any person a respite, either indefinite or for a specified period, from the

72
execution of any punishment imposed on that person for such an offence;
(c) substitute a less severe form of punishment for that imposed on any person for such
an offence; or
(d) remit the whole or part of any punishment imposed on any person for such an
offence or any penalty or forfeiture otherwise due to the Crown on account of such an
offence.

(2) The Governor-General shall, in the exercise of the powers conferred on him by
subsection (1) or of any power conferred on him by any other law to remit any penalty
or forfeiture due to any person other than the Crown, act in accordance with the advice
of the Privy Council.
(3) Where any person has been sentenced to death for an offence against the law of
Barbados, the Governor-General shall cause a written report of the case from the trial
judge, together with such other information derived from the record of the case or
elsewhere as the Governor-General may require, to be forwarded to the Privy Council so
that the Privy Council may advise him on the exercise of the powers conferred on him by
subsection (1) in relation to that person.
(4) The power of requiring information conferred upon the Governor-General by
subsection (3) shall be exercised by him on the recommendation of the Privy Council or,
in any case in which in his judgment the matter is too urgent to admit of such
recommendation being obtained by the time within which it may be necessary for him to
act, in his discretion.
(5) A person has a right to submit directly or through a legal or other representative
written representation in relation to the exercise by the Governor-General or the Privy
Council of any of their respective functions under this section, but is not entitled to an
oral hearing.
(6) The Governor-General, acting in accordance with the advice of the Privy Council, may
by instrument under the Public Seal direct that there shall be time-limits within which
persons referred to in subsection (1) may appeal to, or consult, any person or body of
persons (other than Her Majesty in Council) outside Barbados in relation to the offence
in question; and, where a time-limit that applies in the case of a person by reason of
such a direction has expired, the Governor-General and the Privy Council may exercise
their respective functions under this section in relation to that person, notwithstanding
that such an appeal or consultation as aforesaid relating to that person has not been
concluded.
(7) Nothing contained in subsection (6) shall be construed as being inconsistent with the
right referred to in paragraph (c) of section 11[ie the right to the protection of the law].

[23] Sub-sections 5, 6 and 7 of section 78 were introduced by the Constitution

Amendment Act No. 14 of 2002. Our perusal of the relevant Hansard, produced by the
respondents' counsel without objection from the other side, confirms that these
amendments were prompted by dissatisfaction on the part of the people of Barbados
with certain decisions of the JCPC and the resolve of the Barbados Parliament to restrict
at least, if not negate, the effects of these decisions. The respondents were convicted

73
and sentenced before the amendments came into force but it was submitted in writing
on their behalf that the new sub-sections applied to them. It has not however proved
necessary for us to rule on this point and accordingly we decline to do so.

REVIEWABILITY OF THE PREROGATIVE OF MERCY

[24] Mr.. Forde argued, on behalf of the Crown, that section 78 had codified, preserved
and institutionalised the prerogative of mercy. He submitted that the section ought not
to be regarded as a mere statutory power subject to judicial review. There is of course
authority for the proposition that placing a prerogative power in a statute renders the
body exercising the power subject to judicial review. In C. O. Williams Co. Ltd. v.
Blackman and another[FN6], Lord Bridge of Harwich stated:

"It is trite law that when the exercise of some governmental function is regulated by
statute, the prerogative power under which the same function may have previously
been exercised is superseded and, so long as that statute remains in force, the function
can only be exercised in accordance with its provisions".

----------------------------------------------------------------------------------------------------------------
[FN6] (1994) 45 WIR 94 at page 99J; [1995] 1 WLR 102 @ 108
----------------------------------------------------------------------------------------------------------------

[25] More recently, in Mowit vs. The DPP of Mauritius[FN7], their Lordships accepted as
the "ordinary if not the invariable rule", the observation of Lloyd LJ in R v Panel on Take-
overs and Mergers, Ex p Datafin PLC[FN8], that "If the source of power is a statute, or
subordinate legislation under a statute, then clearly the body in question will be subject
to judicial review".

----------------------------------------------------------------------------------------------------------------
[FN7] [2006] UKPC 20
[FN8] [1987] QB 815 at page 847
----------------------------------------------------------------------------------------------------------------

[26] The decision of the House of Lords in Re Council of Civil Service Unions[FN9] ("the
CCSU case") marked a defining point in the approach of the courts to the judicial
reviewability of prerogative powers. In the distant past, courts and text-book writers
regarded the acts of the sovereign as 'irresistible and absolute'. On this basis courts
confined themselves merely to an inquiry into the existence and extent of prerogative
powers. Their Lordships' speeches in the CCSU case emphatically endorsed the break
with this approach. The modern view is that courts today will review a prerogative
power once the nature of its subject-matter renders it justiciable. What is now pivotal to
a determination of the reviewability of a prerogative power is not so much the source of
the power but rather its subject-matter. In the CCSU case, Lord Fraser stated at page
399E :

74
"...whatever their source, powers which are defined, either by reference to their object
or by reference to procedures for their exercise, or in some other way, and whether the
definition is expressed or implied, are in my opinion normally subject to judicial control
to ensure that they are not exceeded. By "normally" I mean provided that considerations
of national security do not require otherwise".

----------------------------------------------------------------------------------------------------------------
[FN9] [1985] AC 374
----------------------------------------------------------------------------------------------------------------

[27] Lord Diplock's opinion was that procedural impropriety could well be a ground for
judicial review of a decision made under powers of which the ultimate source was the
prerogative. At page 410C-D, after noting that prerogative powers derive their source
from the common law, Lord Diplock saw:

". no reason why simply because a decision-making power is derived from a common
law and not a statutory source it should for that reason only be immune from judicial
review." (his emphasis)

[28] In Regina v Secretary for the Home Dept, ex parte Fire Brigades Union[FN10], Lord
Browne-Wilkinson, in the House of Lords, reaffirmed that:

"judicial review is as applicable to decisions taken under prerogative powers as to

decisions taken under statutory powers save to the extent that the legality of the
exercise of certain prerogative powers [e.g. treaty making] may not be justiciable".

----------------------------------------------------------------------------------------------------------------
[FN10] (1995) 2 AC 553 at page 553C-D;
----------------------------------------------------------------------------------------------------------------

[29] Lord Roskill, in the CCSU case, expressed the view that the prerogative of mercy, like
treaty-making, fell into a special class of prerogative powers that were unreviewable.
Ten years before that, Lord Diplock, delivering the advice of the JCPC in de Freitas v
Benny[FN11] had rejected submissions that a condemned man was entitled to be shown
the material that was to be placed before the Advisory Committee on the prerogative of
mercy and to be heard by that committee. The JCPC held then that "a convicted person
has no legal right even to have his case considered."

----------------------------------------------------------------------------------------------------------------
[FN11] (1976) AC 239; (1975) 27 WIR 318
----------------------------------------------------------------------------------------------------------------

[30] Citing de Freitas v Benny and the speech of Lord Roskill in the CCSU case, Mr.. Forde

75
argued forcefully that mercy was not the subject of legal rights and that the prerogative
of mercy was therefore not subject to review by the courts. The decision in de Freitas v
Benny was followed by the JCPC as recently as 1996 in Reckley v Minister of Public Safety
and Immigration[FN12]. It must be borne in mind however that, as Lord Diplock himself
acknowledged in the CCSU case, the law relating to judicial control of administrative
action is a developing one. Indeed, Lord Diplock prefaced his judgment in the CCSU case
by noting that this area of the law had been "virtually transformed" in the three decades
immediately preceding. It should come as no surprise that, in the thirty years since de
Freitas v Benny, ongoing development of this area of the law should have cast a different
light upon Lord Diplock's famous aphorism in de Freitas that mercy begins where legal
rights end. In particular, the modern approach to human rights with its emphasis on
procedural fairness was obviously capable of impacting upon the reviewability of the
prerogative of mercy.

----------------------------------------------------------------------------------------------------------------
[FN12] (1996) AC 527; (1996) 47 WIR 9
----------------------------------------------------------------------------------------------------------------

[31] In light of these developments, the exercise of the prerogative of mercy has fallen
under greater scrutiny, especially in those states whose Constitutions permit, or
specifically sanction, retention of the mandatory death penalty for the crime of murder.
The occasion on which the prerogative of mercy is exercised is the final, and in
mandatory death penalty regimes, the only, opportunity a convicted murderer has to
point to the particular circumstances of his case and to argue by reference to them that
he should not be executed. Whether he is or is not ultimately put to death by the State
depends not just on the substantive exercise of the prerogative of mercy but also on the
procedures governing and leading up to its exercise. The quality and nature of the advice
given to the Governor-General bear a direct relationship to the quality and nature of the
process followed by the BPC in coming to its decision.

[32] In spite of de Freitas v Benny, the JCPC has over the years handed down decisions
that are inconsistent with the supposed immunity of the exercise of the prerogative of
mercy from judicial scrutiny. The broad view contended for by Mr.. Forde QC, that a
condemned man has no legal rights, does not, for example, sit well with the decisions in
Abbott v The Attorney-General[FN13], where the JCPC observed that due process of law
must continue to be observed in the case of a condemned man, and Guerra v Baptiste13
where the Board held that justice and humanity dictate that to execute a man without
giving him reasonable notice of the time of his execution, would constitute cruel and
unusual punishment contrary to section 5(2)b of the Trinidad & Tobago Constitution.

----------------------------------------------------------------------------------------------------------------
[FN13] (1979)32 WIR 347; [1979] 1 WLR 1342
----------------------------------------------------------------------------------------------------------------

76
[33] In Burt v Governor-General[FN14], Cooke P, delivering the judgment of the New
Zealand Court of Appeal, did not regard as contrary to principle the claim that courts
should be prepared to review the exercise of the prerogative of mercy. After a review of
the relevant authorities, including the House of Lords decision in the CCSU case, Cooke P
concluded at page 9A-B that "... it would be inconsistent with the contemporary
approach to say that merely because it is a pure and strict prerogative power, its
exercise or non-exercise must be immune from curial challenge".

----------------------------------------------------------------------------------------------------------------
[FN14] [1996] AC 397; (1995) 47 WIR 439
----------------------------------------------------------------------------------------------------------------

[34] Closer to home, Fitzpatrick JA, in Yassin v Attorney-General of Guyana[FN15], with

respect to the prerogative of mercy, held at page 117A that:

"In this case justiciability concerning the exercise of the prerogative of mercy applies not
to the decision itself but to the manner in which it is reached. It does not involve telling
the Head of State whether or not to commute. And where the principles of natural
justice are not observed in the course of the processes leading to its exercise, which
processes are laid down by the Constitution, surely the court has a duty to intervene, as
the manner in which it is exercised may pollute the decision itself".

----------------------------------------------------------------------------------------------------------------
[FN15] [1993] 4 LRC 1
----------------------------------------------------------------------------------------------------------------

[35] In R v Secretary of State for the Home Department, Ex parte Bentley[FN16] the
Divisional Court, undeterred by the view expressed by Lord Roskill in the CCSU case that
the exercise of the prerogative of mercy was not reviewable, stated:

"If, for example, it was clear that the Home Secretary had refused to pardon someone
solely on the grounds of their sex, race or religion, the courts would be expected to
interfere and, in our judgment, would be entitled to do so".

----------------------------------------------------------------------------------------------------------------
[FN16] [1994] QB 349
----------------------------------------------------------------------------------------------------------------

[36] In Lewis v The Attorney General of Jamaica, where provisions of the Jamaica
Constitution similar to those of Barbados were construed, the JCPC finally put the matter
to rest. Their Lordships decided that de Freitas v Benny and Reckley should be overruled.
Lord Hoffmann, a member of the Reckley panel, dissented but his dissent on this subject
addressed itself more to the principle that the Board should not overrule a considered
decision of its own so recently given. In Lewis, the JCPC held that the processes involved

77
in the exercise of mercy were not beyond review by the courts. The judgment stated at
page 76C that:

"On the face of it there are compelling reasons why a body which is required to consider
a petition for mercy should be required to receive the representations of a man
condemned to die and why he should have an opportunity in doing so to see and
comment on the other material which is before that body. This is the last chance and
insofar as it is possible to ensure that proper procedural standards are maintained that
should be done. Material may be put before the body by persons palpably biased against
the convicted man or which is demonstrably false or which is genuinely mistaken but
capable of correction. Information may be available which by error of counsel or honest
forgetfulness by the condemned man has not been brought out before. Similarly, if it is
said that the opinion of the Jamaican Privy Council is taken in an arbitrary or perverse
way ... or is otherwise arrived at in an improper, unreasonable way, the court should
prima facie be able to investigate".

[37] It is instructive to note that their Lordships regarded the act of clemency as part of
the whole constitutional process of conviction, sentence and the carrying out of the
death sentence. This mirrored the view of Telford Georges, P. in Lauriano v Attorney-
General of Belize[FN17] where, in response to counsel's submissions on the
constitutionality of the mandatory death penalty, the learned President, at page 91C-D
noted, in reference to the section of the Belize Constitution establishing the Belize
Advisory Council, that:

"It is artificial to attempt to view the mandatory sentence which the courts must impose
separate and apart from the constitutional provisions for its review enshrined in section
54 of the Constitution. This process can supply the necessary flexibility. The character
and record of the offender and the circumstances of the particular offence are open to
consideration by the council".

----------------------------------------------------------------------------------------------------------------
[FN17] (1995) 47 WIR 74
----------------------------------------------------------------------------------------------------------------

[38] This notion that clemency may be regarded as linked to the sentencing process was
advanced before the JCPC decided in Reyes v The Queen[FN18] that the mandatory
death penalty infringed the constitutional guarantee against inhuman treatment. One of
the central planks upon which the decision in Reyes rested was that the individualisation
of a sentence is a matter for the judicial branch of Government and not for an Executive
body. It is debatable therefore whether some of the ideas expressed in Lauriano and in
Lewis with regard to the grant of clemency would retain the same force in those states in
which the mandatory death penalty has been ruled unconstitutional and judges now
have a discretion as to whether or not to impose a death sentence on a convicted
murderer. There certainly is a good basis for arguing that the courts should be more

78
willing to review the exercise of the prerogative of mercy in a system in which the death
penalty is mandatory than in one in which it is discretionary.

----------------------------------------------------------------------------------------------------------------
[FN18] [2002] 2 AC 235; (2002) 60 WIR 42
----------------------------------------------------------------------------------------------------------------

[39] Mr.. Forde argued that this Court should decline to follow this aspect of the decision
in Lewis and should instead, in effect, reinstate as the law of Barbados the decisions in
de Freitas and Reckley. Mr.. Mendes SC submitted on behalf of the respondents that,
even if we thought that Lewis was wrong on this or any of the other points it decided,
we should nevertheless not differ from it in all the circumstances, even though it was
open to us to do so. He proceeded to outline in great detail what those circumstances
were. It is unnecessary for us to treat here with these very carefully prepared
submissions of Mr.. Mendes because we are firmly of the view that the decision in Lewis
on this point is correct. We agree with those who regard the power to confirm or
commute a death sentence, particularly a mandatory one, as far too important to permit
those in whom it is vested freedom to exercise that power without any possibility of
judicial review even if they commit breaches of basic rules of procedural fairness.
Rooted though they be in language and literature, conceptual differences between
mercy and justice cannot justify denying to a man under sentence of death, an
enforceable right to have the decision whether he is to live or die arrived at by a
procedure which is fair.

[40] Mr.. Forde also urged us, in his written submissions, to give effect to the ouster
clause contained in section 77(4) of the Constitution. That clause, in our view, provides
no comfort to the Crown. Ever since the House of Lords decision in Anisminic v Foreign
Compensation Commission[FN19], courts have made it clear that they will not be
deterred by the presence of such ouster clauses from inquiring into whether a body has
performed its functions in contravention of fundamental rights guaranteed by the
Constitution, and in particular the right to procedural fairness. See: Thomas v Attorney-
General[FN20], Attorney-General v Ryan[FN21], Lauriano v Attorney-General[FN22] and
Ulufa'alu v Attorney-General[FN23].

----------------------------------------------------------------------------------------------------------------
[FN19] [1969] 2 AC 147
[FN20] (1981) 32 WIR 375 at 393-394; [1982] AC 113
[FN21] [1980] AC 718 at 730
[FN22] (supra) at 80F, 90-91
[FN23] [2005] 1 LRC 698 at 708, para 33
----------------------------------------------------------------------------------------------------------------

[41] The Barbados Court of Appeal held, correctly in our view, that the BPC was a
decision-making body and that the Court may, in appropriate proceedings, either set

79
aside a decision of that body or declare it to be a nullity. There was nothing to prevent
the Court from examining the procedure adopted by the BPC and testing it for
procedural fairness by reference to the rules of natural justice, and, for compliance with
the fundamental rights and freedoms recognised in the Constitution. If the procedure
adopted failed that test, then there was a breach of the respondents' right to the
protection of the law, one of the fundamental human rights enumerated and recognised
in section 11 of the Constitution. The right of an aggrieved person to approach the Court
for redress and the power of the Court to grant such redress, are expressly conferred by
section 24 of the Barbados Constitution, but only in respect of breaches that run foul of
the provisions of sections 12 to 23 of the Constitution. We do not, however, accept Mr..
Forde's submission that the Court is powerless to remedy a breach of the
constitutionally recognised right to the protection of the law if that breach does not
involve a contravention of any of the sections numbered 12 to 23. While this issue is
discussed more fully later in this judgment at [57] - [66], it is our view that the Court
quite independently of section 24, has an implied or inherent power to give redress for
such a violation.[FN24] The question, therefore, is whether there was such a breach in
this case and this leads us to a consideration of the second issue.

----------------------------------------------------------------------------------------------------------------
[FN24] See: Maharaj v A.G. of Trinidad & Tobago (No. 2) [1979] AC 385; (1978) 2 AC 228
and Gairy v A.G. of Grenada (1999) 59 WIR 174; [2002] 1 AC 167
----------------------------------------------------------------------------------------------------------------

ISSUE TWO
THE EFFECT OF UNINCORPORATED INTERNATIONAL HUMAN RIGHTS TREATIES ON THE
CARRYING OUT OF A DEATH SENTENCE

[42] The treaties being referred to under this issue are treaties that have been ratified by
the Executive but not implemented by Parliament. It was pursuant to a treaty of this
type that the respondents, having completed all their domestic appeals, were at liberty
to petition international human rights bodies and complain to them about alleged
violations by Barbados of its treaty obligations. They both opted to file such petitions.
After judgment was reserved in this appeal, we were informed by the respondents'
counsel that their petitions lodged with the Inter-American Commission for Human
Rights, had been referred to the Inter-American Court for adjudication.

[43] The question which confronted the Court of Appeal was whether there was an
obligation on the part of the BPC to await the processing of those petitions so that it
could take into account the report of the Commission as part of its deliberative process.
Put another way, is a State required to defer execution of a convicted murderer until the
man has completed any application he has made to an international body pursuant to a
ratified treaty? The Crown took the position that the Executive was under no obligation
to wait; that, on this point, Lewis was wrongly decided and that this Court should
overturn Lewis. The respondents submitted that the Executive was under an obligation

80
to wait; that before the BPC tendered its advice to the Governor-General, it was obliged
to consider any report made by the international body and that, on this point as well,
Lewis was rightly decided.

[44] These questions bring into focus a wide range of matters which we feel we should
address. We propose therefore:

(a) to discuss the JCPC decision in Pratt and outline how, taken together with the
decision in Lewis, an unsatisfactory dilemma has been created;
(b) to consider the relationship between domestic law and unincorporated treaties;
(c) to consider the enforcement of the right of a condemned man to the protection of
the law, and
(d) to explore a body of Commonwealth case law with a view to ascertaining how Courts
have approached the foregoing issues, and, in particular, to examine the judgments of
the JCPC that specifically address the position of a condemned man seeking to take
advantage of provisions in a ratified but unincorporated human rights treaty.

THE DILEMMA CREATED BY THE DECISIONS IN PRATT & MORGAN AND LEWIS

[45] Pratt v The Attorney General of Jamaica[FN25], a decision of the JCPC, delivered in
1993, had a seismic effect on capital punishment jurisprudence in the Commonwealth
Caribbean. The judgment consolidated the appeals of two convicted murderers from
Jamaica, Earl Pratt and Ivan Morgan. The case concerned delay in the execution of
persons on death row and the constitutional consequences of such delay. In overruling
its own decision given ten years before in Riley v The Attorney General of Jamaica[FN26],
an expanded seven-member panel of the JCPC unanimously held that, where execution
was delayed for more than five years after sentence, there would be strong grounds for
believing that execution after such delay infringed the Constitution's prohibition against
inhuman or degrading punishment. In other words, if a convicted murderer were to be
executed, he should be executed as soon as lawfully possible after sentence. To have
him linger on death row indefinitely, not knowing what his ultimate fate would be, was
constitutionally impermissible. A period of five years following sentence was established
as a reasonable, though not by any means inflexible, time-limit within which the entire
post-sentence legal process should be completed and the execution carried out. If
execution was not carried out within that time-frame, there was a strong likelihood that
the court would regard the delay as amounting to inhuman treatment and commute the
death sentence to one of life imprisonment. The JCPC arrived at the five-year standard
by reasoning that an efficient justice system must be able to complete its entire
domestic appellate process within two years and that eighteen months could safely be
set aside for applications to international bodies to which condemned prisoners might
have rights of access.

----------------------------------------------------------------------------------------------------------------
[FN25] [1994] AC 1; (1993) 43 WIR 340

81
[FN26] [1983] 1 AC 719;
----------------------------------------------------------------------------------------------------------------

[46] The radical nature of the decision in Pratt, the suddenness with which it was sprung,
the apparent stringency of the time-period stipulated, the unpreparedness of the
authorities to cope in an orderly manner with the far-reaching consequences of the
decision, all of these factors raised tremendous concern on the part of Governments and
members of the public in the Caribbean. The decision caused disruption in national and
regional justice systems. Its effect was that, in one fell swoop, all persons on death row
for longer than five years were automatically entitled to have, and had, their sentences
commuted to life imprisonment. In Jamaica there were 105 such prisoners, in Trinidad &
Tobago 53, and in Barbados 9. Justice systems were required to make sharp adjustments
to their routines. Some countries were compelled to place on indefinite hold the hearing
of all other appeals, both civil and criminal, in order to concentrate on those appeals
that were in danger of running foul of the Pratt & Morgan guidelines.

[47] Now that the initial dislocation has generally abated, it must be acknowledged that
prior to Pratt some States countenanced an unacceptably lax approach to the processing
of their criminal appeals and a valuable consequence of the Pratt & Morgan decision is
that it has forced justice systems in the Commonwealth Caribbean to deal with criminal
appeals more efficiently and expeditiously. We respectfully endorse without reservation
the proposition that the practice of keeping persons on death row for inordinate periods
of time, is unacceptable and infringes constitutional provisions that guarantee humane
treatment. In this respect, Pratt has served as an important reminder to all that the
Constitution affords even to persons under sentence of death, rights that must be
respected and that the true measure of the value of those rights is not just how well
they serve the law-abiding section of the community, but also, how they are applied to
those for whom society feels little or no sympathy.

[48] We have previously in this judgment referred several times to Neville Lewis v The
Attorney General. In Lewis, the JCPC decided inter alia, that, where a State has ratified a
treaty conferring on individuals the right to petition an international human rights body,
a person sentenced to death by a court of that State is entitled by virtue of his
constitutional right to the protection of the law, to require that the sentence of death
passed on him be not carried out until his petition to the human rights body has been
finally disposed of and the report of that body is available for consideration by the State
authority charged with exercising the prerogative of mercy .

[49] We shall comment further in due course on the reasoning underpinning this aspect
of the Lewis decision. It is sufficient to state here that Pratt and Lewis have the combined
effect of creating a dilemma since a State Party to a human rights treaty like the ACHR
has no control over the pace of proceedings before the relevant international human
rights body and the standard prescribed in Pratt has come to be applied with guillotine-
like finality. A State, for example, desirous of making good its pledge under Article 4(6) of

82
the ACHR not to execute a prisoner while his petition is pending, may find that when the
period of five years after conviction elapses, the international proceedings before the
Commission or the Inter-American Court have not yet been completed. The result is that
the State may ultimately through no fault of its own be unable to carry out the
constitutionally sanctioned death penalty because of the conjoint effect of the decisions
in Pratt and Morgan and Lewis. The sense of frustration on the part of regional
governments in this Catch-22 situation is well illustrated in the following exchange
between the Attorney-General of Barbados and the President of the Court of Appeal
during the hearing of this case before that court:

ATTORNEY-GENERAL: My Lords, the Government of Barbados does not disregard its

international treaty obligations. The Executive of Barbados does not take lightly its
international treaty obligations. But what confronts the State of Barbados and what
confronts Your Lordships today is a dilemma that is one perhaps that can be described
appropriately in other jurisdictions as Hobson's choice; in our colloquial terms as being
between the devil and the deep blue sea. That is the truth of the matter. That, were we
as an Executive, to willingly agree that we should wait until the Inter-American system
deliberates, knowing full well that even now the State of Barbados is involved in a
matter since October 2002 and only in March 2004 was it referred to the Inter-American
Court.. Knowing full well that even a year later, not much more has happened, and I say
to Your Lordships that what allowing them –

WILLIAMS, P. JA: So the five years will run out.

ATTORNEY-GENERAL: Thank you, My Lord. So that is the problem. That we face coming
into breach, into collision with the very same Barbados Constitution that we are bound
to uphold...

[50] This "impossible position" of the Government, as Lord Goff described it in Thomas v
Baptiste[FN27], gives a certain poignancy to this second issue. Of course, for the
respondents, the issue has now become moot because the time permitted by Pratt for
their execution has already expired and the commutation of their death sentences is no
longer challenged. However, the matter is too important and too contentious to shelve
on that basis. It was fully argued in the courts below and before us and the parties are
entitled to have our ruling on it. Save to the extent that any recent statute may have
affected its operation, Lewis currently represents the law of Barbados and the
consequences and implications of that decision are important for Barbados. The law
here is still evolving and there is every likelihood that this broad area of the law, namely,
the legal impact of unincorporated international treaties upon the domestic body politic,
will assume increasing importance given the tendency towards globalisation in the
regulation of matters such as crime, trade, human rights and the protection of the
environment, to mention but a few.

----------------------------------------------------------------------------------------------------------------

83
[FN27] [2002] 2 A.C.1; (2002) 54 WIR 387
----------------------------------------------------------------------------------------------------------------

THE RELATIONSHIP BETWEEN DOMESTIC LAW AND UNINCORPORATED TREATIES

[51] The State of Barbados ratified the ACHR on 5th November, 1981. Barbados did so
with reservations but those reservations are not material to this judgment. Article 4 of
the ACHR recognises the right of States to impose capital punishment for the most
serious crimes but the Convention, like most other human rights treaties[FN28],
discourages use of the death penalty. The penalty is not to be extended to crimes to
which it does not presently apply. See: Art. 4(2). It shall not be re-established in States
that have abolished it. See: Art 4(3). In Hilaire v Trinidad & Tobago[FN29], the Inter-
American Court ruled that mandatory death sentences fall foul of the right to life. The
Court has also declared that "without going so far as to abolish the death penalty, the
Convention imposes restrictions designed to delimit strictly its application and scope, in
order to reduce the application of the penalty and to bring about its gradual
disappearance".[FN30]

----------------------------------------------------------------------------------------------------------------
[FN28] See for example the International Covenant on Civil and Political Rights
[FN29] See: Case of Hilaire, Constantine and Benjamin et al. v Trinidad and Tobago,
Judgment of June 21, 2002, Series C 94
[FN30] See: Advisory Opinion (OC-3/83) delivered on 8th September, 1983.
----------------------------------------------------------------------------------------------------------------

[52] Article 4(6) of the ACHR is relevant to the case for the respondents. It states that:

"Every person condemned to death shall have the right to apply for amnesty, pardon, or
commutation of sentence, which may be granted in all cases. Capital punishment shall
not be imposed while such petition is pending decision by the competent authority"
(emphasis added).

[53] The ACHR establishes the Inter-American Commission ("the Commission") and the
Inter-American Court on Human Rights. Any citizen of a State Party may lodge a petition
with the Commission complaining of a violation of the Convention. See: Art. 44. Such a
petition is not admissible unless, inter alia, the petitioner has exhausted all remedies
under domestic law and the petition is lodged within six months from the date of
dismissal of the petitioner's final domestic appeal. See: Art. 46. Either the Commission or
a State Party may refer a petition to the Inter-American Court for adjudication. By Article
68, the States Parties undertake to comply with the judgment of the court in any case to
which they are parties.

[54] Some Commonwealth Caribbean countries, including Barbados, have also ratified
the International Covenant on Civil and Political Rights (ICCPR) and also the Optional

84
Protocol to the ICCPR. Like the ACHR, the ICCPR defines the fundamental rights that
should be enjoyed by nationals of the States Parties. These rights include "the inherent
right to life". Anyone sentenced to death has the right to seek pardon or commutation of
the sentence which may be granted in all cases. The Optional Protocol imposes upon
States Parties the obligation to recognise the competence of the Committee, an organ of
the treaty, to receive and consider communications from individuals subject to its
jurisdiction, who claim to be victims of a violation by that State Party of any of the rights
set forth in the Covenant. See: Art. 1. Subject to the provisions of Article 1, individuals
who claim that any of their rights enumerated in the Covenant have been violated and
who have exhausted all available domestic remedies may submit a written
communication to the Committee for consideration. See: Art. 2.

[55] In states that international lawyers refer to as 'dualist', and these include the United
Kingdom, Barbados and other Commonwealth Caribbean states, the common law has
over the centuries developed rules about the relationship between domestic and
international law. The classic view is that, even if ratified by the Executive, international
treaties form no part of domestic law unless they have been specifically incorporated by
the legislature. In order to be binding in municipal law, the terms of a treaty must be
enacted by the local Parliament. Ratification of a treaty cannot ipso facto add to or
amend the Constitution and laws of a State because that is a function reserved strictly
for the domestic Parliament. Treaty-making on the other hand is a power that lies in the
hands of the Executive. See: JHRayner (MincingLane) Ltd v Dept of Trade &
Industry[FN31]. Municipal courts, therefore, will not interpret or enforce the terms of an
unincorporated treaty. If domestic legislation conflicts with the treaty, the courts will
ignore the treaty and apply the local law. See: The Parlement Belge[FN32].

----------------------------------------------------------------------------------------------------------------
[FN31] [1990] 2 AC 418 at page 476; See also Thomas v Baptiste [2002] 2 A.C.1@ p 23 A-
D per Lord Millett
[FN32] (1879) 4 PD 129
----------------------------------------------------------------------------------------------------------------

[56] It does not at all follow that observance of these rules means that domestic courts
are to have absolutely no regard for ratified but unincorporated treaties. The classic view
is that the court will presume that the local Parliament intended to legislate in
conformity with such a treaty where there is ambiguity or uncertainty in a subsequent
Act of Parliament. In such a case, a municipal court will go only so far as to look at the
treaty in order to try to resolve the ambiguity. See: R v Home Secretary, ex parte
Brind[FN33] and R v Chief Immigration Officer, ex parte Salamat Bibi[FN34]

----------------------------------------------------------------------------------------------------------------
[FN33] [1991] 1 A.C. 696
[FN34] [1976] 1 W.L.R. 979 @ 984 per Lord Denning, MR.
----------------------------------------------------------------------------------------------------------------

85
ENFORCEMENT OF A CONDEMNED MAN'S RIGHT TO THE PROTECTION OF THE LAW

[57] Mr.. Forde submitted that in accordance with de Freitas v Benny, no constitutional
rights of the respondents were infringed or at risk; that any entitlements the men might
have were neither rights that could be enforced by virtue of section 24 of the
Constitution nor indeed, rights for which a court could give constitutional relief; that
even if the BPC in advising on the prerogative of mercy while the international
proceedings were still pending had adopted a procedure in relation to the condemned
men that was deemed to be unfair, the Court of Appeal could not properly commute the
death sentences.

[58] These submissions call into question the nature and extent of the rights to which a
condemned man is entitled. The particular right of the condemned man most heavily
relied on by the respondents, was the right to the protection of the law. That right is
referred to in section 11 of the Barbados Constitution. Section 11 is part of Chapter 3,
the Chapter in the Constitution devoted to the protection of fundamental rights and
freedoms of the individual. Chapter 3 embraces sections 11 through 27. Section 11
which is in the nature of a preamble, states the rights in the following manner:

"11. Whereas every person in Barbados is entitled to the fundamental rights and
freedoms of the individual, that is to say, the right, whatever his race, place of origin,
political opinions, colour, creed or sex, but subject to respect for the rights and freedoms
of others and for the public interest, to each and all of the following, namely –

(a) life, liberty and security of the person;

(b) protection for the privacy of his home and other property and from deprivation of
property without compensation;
(c) the protection of the law; and
(d)freedom of conscience, of expression and of assembly and association,

the following provisions of this Chapter shall have effect for the purpose of affording
protection to those rights and freedoms subject to such limitations of that protection as
are contained in those provisions, being limitations designed to ensure that the
enjoyment of the said rights and freedoms by any individual does not prejudice the
rights and freedoms of others or the public interest" (our emphasis).

[59] Sections 12 to 23 of the Constitution (which we will refer to as 'the detailed

sections') contain specific provisions for the enforcement of rights which either
correspond exactly with those enumerated in section 11 or may be regarded as
corollaries or components of them. By way of illustration, section 12 is expressly
concerned with the right to life and section 16, with the right not to be deprived of
property without compensation, both of which are referred to in section 11. On the
other hand, the protection afforded by section 14 against slavery or forced labour, and

86
by section 15 against torture or inhuman and degrading punishment or treatment, is not
linked as a matter of language to any of the rights enumerated in section 11. But those
rights are in substance connected with the liberty and security of the person, which are
included in the rights listed in section 11 (a). In the case of the right to the protection of
the law, the only express link between that right and any of the detailed sections is
provided by the marginal note to section 18 which reads: 'Provisions to secure
protection of law'. It is important to note that the pattern followed in these detailed
sections is that each section normally begins with a prohibition against conduct which
would violate the right or freedom that is being protected, followed by a fairly detailed
exposition of the exceptions which the law may create to that prohibition. In other
words, there is a broad statement of the right or freedom followed by a number of
limitations on the protection afforded that right or freedom. Those exceptions or
limitations serve to put into more specific and concrete terms the qualifications
contained in section 11 to the effect that persons in Barbados are entitled to the
fundamental rights and freedoms enumerated "subject to respect for the rights and
freedoms of others and for the public interest". It is not unexpected, therefore, that the
redress which section 24 of the Constitution provides for violation of these fundamental
rights and freedoms, should be structured so as to take account of the exceptions and
limitations contained in the detailed sections. Thus, the jurisdiction conferred by section
24 on the High Court to adjudicate allegations that any particular right has been, is being
or is likely to be contravened and to fashion appropriate remedies for any contravention
or likely contravention that it finds, is limited to cases which involve a contravention of
one or other of the detailed sections. The question which arises is whether the court's
power to enforce the right to protection of the law, and to grant a remedy for its breach,
is limited to contraventions of section 18, that being the only one of the detailed
sections which by its subject matter and its marginal note is linked to the protection of
the law.

[60] In a fundamental respect, section 18 is different from the other detailed sections. In
each of the others, the Constitution deals comprehensively with the relevant right or
freedom. Where the extent or content of the right requires elucidation, that is provided
(see for example section 19), and in all cases, any limitations on the enjoyment of the
right are set out quite fully. There is, therefore, no scope for enforcement of the relevant
right outside the four corners of the detailed sections. In the case of the right to the
protection of the law, however, it is clear that section 18 does not provide, nor does it
purport to provide, an exhaustive definition of what that right involves or what the
limitations on it are. There is no mention in that section of the protection of the law,
which is in itself an indication that section 18 is not intended to be an exhaustive
exposition of that right. Indeed, the right to the protection of the law is so broad and
pervasive that it would be well nigh impossible to encapsulate in a section of a
constitution all the ways in which it may be invoked or can be infringed. Section 18 deals
only with the impact of the right on legal proceedings, both criminal and civil, and the
provisions which it contains are geared exclusively to ensuring that both the process by
which the guilt or innocence of a man charged with a criminal offence is determined as

87
well as that by which the existence or extent of a civil right or obligation is established,
are conducted fairly. But the right to the protection of the law is, as we shall seek to
demonstrate, much wider in the scope of its application. The protection which this right
was afforded by the Barbados Constitution, would be a very poor thing indeed if it were
limited to cases in which there had been a contravention of the provisions of section 18.

[61] The Constitutions of both Jamaica and the Bahamas contain provisions which mirror
exactly sections 11 to 24 of the Barbados Constitution though the numbering of these
sections differs from one constitution to another. In the Jamaican case of Lewis, the right
to protection of the law was held to be breached by the intervention of the Executive
before the international process was completed. There is nothing in section 18 nor in its
Jamaica equivalent, which expressly prohibits such an intervention, though no one
doubts that on the premise which the JCPC accepted, namely that access to the
international body had been made part of the domestic justice system, the attempt by
the State to hang Lewis before completion of the international process was rightly held
to be a breach of his right to the protection of the law. Their Lordships in that case
moreover do not appear to have thought that this was a breach for which there was no
constitutional remedy even though it did not involve any contravention of section 20 of
the Jamaican Constitution which corresponds with section 18 of the Barbados
Constitution.

[62] The wide scope of the protection of the law can be demonstrated by reference to
the authorities. In Ong Ah Chuan v Public Prosecutor[FN35] for example, Lord Diplock
noted that:

".a Constitution founded on the Westminster model and particularly in that part of it
that purports to assure to all individual citizens the continued enjoyment of fundamental
liberties or rights, references to "law" in such contexts as "in accordance with law,"
"equality before the law," "protection of the law" and the like, in their Lordships' view,
refer to a system of law which incorporates those fundamental rules of natural justice
that had formed part and parcel of the common law of England that was in operation in
Singapore at the commencement of the Constitution".

----------------------------------------------------------------------------------------------------------------
[FN35] [1981]A.C. 648
----------------------------------------------------------------------------------------------------------------

[63] More recently, in Thomas v Baptiste[FN36], Lord Millett, in reference to the

expression "due process of law" found in the Trinidad & Tobago Constitution, stated at
page 8:

"In their Lordships' view, "due process of law" is a compendious expression in which the
word "law" does not refer to any particular law and is not a synonym for common law or
statute. Rather, it invokes the concept of law itself and the universally accepted

88
standards of justice observed by civilised nations which observe the rule of law; see the
illuminating judgment of Phillips JA in Lasalle v Attorney-General (1971) 18 WIR 379,
from which their Lordships have derived much assistance.
The clause thus gives constitutional protection to the concept of procedural fairness.".

----------------------------------------------------------------------------------------------------------------
[FN36] [2000] 2 AC 1 @ 22; (2002) 54 WIR 387 @ 421
----------------------------------------------------------------------------------------------------------------

[64] We are of the view that Lord Millett's observations on the meaning of the word
"law" in the context of the phrase "due process of law" are equally applicable to the
phrase "protection of the law". Procedural fairness is an elementary principle
permeating both concepts and therefore, pursuant to section 11, a condemned man has
a constitutional right to procedural fairness as part of his right to protection of the law.
Correspondingly, the courts have an inherent jurisdiction, and a duty, to grant an
appropriate remedy for any breach of that right.

[65] Given the similarities identified between the Constitutions of the Bahamas and
Barbados, we would respectfully adopt the view of Lord Goff, speaking for the JCPC in
Reckley v Minister of Public Safety (No. 2)[FN37], an appeal from the Bahamas, when he
stated at page 19B that:

"…After his rights of appeal are exhausted, he [i.e. a convicted murderer] may still be
able to invoke his fundamental rights, and in particular his right to the protection of the
law, even after he has been sentenced to death. If therefore it is proposed to execute
him contrary to the law, . he can apply to the Supreme Court for redress under article 28
of the Constitution".

----------------------------------------------------------------------------------------------------------------
[FN37] (1996) 47 WIR 9 at 19B; [1996] 1 AC 527 at 540 C-D
----------------------------------------------------------------------------------------------------------------

[66] If a court were of the view that a condemned man's right to the protection of the
law was or was likely to be infringed by procedures of the BPC that were deemed unfair,
the appropriate relief normally would be to quash the decision of the BPC to give the
Governor-General the advice which it did and to stay any impending execution that was
based on that advice. In the case of the respondents however, the Court of Appeal was
entitled to commute the sentences because it rightly anticipated that, in the
circumstances then existing, it would have been impossible for the international process
to be completed before expiry of the five year deadline established by Pratt.

EXPLORING THE CASE LAW

[67] The Barbados Court of Appeal was obliged to consider the current law regarding the

89
position of a condemned man who has filed a petition with an international body as
determined in Lewis. Since Lewis followed and extended Thomas v Baptiste, these two
cases must be discussed together. In Thomas, the question arose in the following way.
The Government of Trinidad & Tobago had issued a document entitled 'Instructions
relating to applications from persons under sentence of death'. These Instructions
established successive time-limits within which the petitions of condemned men to the
Commission and to the UNHRC were required to be processed. The appellants, convicted
murderers, having exhausted their domestic appeals, petitioned the Commission. Before
the Commission's proceedings were concluded, death warrants were read to the
appellants. The appellants filed constitutional motions. Before the Board, the main issue
was whether the appellants had a constitutional right not to be executed while their
petitions before the Commission were pending.

[68] Lord Millett, on behalf of a majority of 3 to 2, held that the Instructions were
unlawful because they were disproportionate in that they "curtailed the petitioners'
rights further than was necessary to deal with the mischief created by the delays in the
international appellate processes". In his view, it would have been sufficient to provide
an outside time-limit of say, eighteen months, but it was unnecessary and inappropriate
to provide separate and successive time limits for each application and each stage of
each application.

[69] Lord Millett then analysed and traced the history of the due process clause in the
Constitution of Trinidad & Tobago and concluded that

"…the clause extends to the appellate process as well as the trial itself. In particular, it
includes the right of a condemned man to be allowed to complete any appellate or
analogous legal process that is capable of resulting in a reduction or commutation of his
sentence before the process is rendered nugatory by executive action".

[70] After duly noting and accepting the arguments of counsel for the State that
unincorporated international treaties cannot alter domestic law, Lord Millett continued
that

".By ratifying a treaty which provides for individual access to an international body, the
Government made that process for the time being part of the domestic criminal justice
system and thereby, temporarily at least, extended the scope of the 'due process' clause
in the Constitution.
Their Lordships note that a similar argument was rejected in Fisher (No. 2). They
observe, however, that the Constitution of the Bahamas which was under consideration
in that case does not include a 'due process' clause similar to that contained in article
4(a) of the Constitution of Trinidad & Tobago".

[71] Lords Goff and Hobhouse, in a powerful dissent, emphasised that in a liberal
democracy such as Trinidad & Tobago, the Executive has no right or capacity to make

90
law and that references to "law" in the Constitution refer only to municipal law. Due
process of law could therefore relate only to domestic and not international law. The
terms of the unincorporated treaties were incapable of conferring upon the condemned
man any rights which the courts were at liberty to enforce. The treaties could not be
invoked as a basis for alleging an infringement of the Constitution. Sensitive to the
practical effect of their dissent, the minority stated that:

"...An unincorporated treaty cannot make something due process; nor can such a treaty
make something not due process, unless some separate principle of municipal law
makes it so...
.Whilst it is of course correct that the content of what is 'due process of law' may change
from time to time (eg the reduction or the extension of the right to trial by jury), the
change must derive from a change in the law of the Republic.The applicants may be at
liberty to complain to the human rights commissions but they have no right to do so. If
the treaty purports to confer such a right, it has only done so for the purpose of
international law and not for the purpose of the law of the Republic."

[72] Lewis and others v The Attorney-General[FN38] was decided in September, 2000. It
is a case from Jamaica. Each of the appellants had been convicted of murder, sentenced
to death and had exhausted his domestic appeals. The Governor- General had earlier
issued instructions published on 7th August 1997 laying down a six-month timetable for
the conduct of applications to international human rights bodies. Significantly, while the
Constitution of Jamaica confers a right to the protection of the law, it does not have a
due process clause like the one in Trinidad & Tobago. The men brought constitutional
motions challenging the validity of their death sentences on a variety of grounds. One of
these was that they had a right not to be executed before the final reports on their
petitions to the Commission had been received.

----------------------------------------------------------------------------------------------------------------
[FN38] [2001] 2 A.C. 50; (1999) 57 WIR 275
----------------------------------------------------------------------------------------------------------------

[73] The Board was divided 4 to 1 on that issue. In the course of the majority judgment
delivered by Lord Slynn it was stated that:

"Their Lordships do not consider that it is right to distinguish between a Constitution

which does not have a reference to "due process of law" but does have a reference to
"the protection of the law". They therefore consider that what is said in Thomas v
Baptiste to which they have referred is to be applied mutatis mutandis to the
Constitution like the one in Jamaica which provides for the protection of the law. In their
Lordships' view when Jamaica acceded to the American Convention and to the
International Covenant and allowed individual petitions the petitioner became entitled
under the protection of the law provision in section 13 to complete the human rights
petition procedure and to obtain the reports of the human rights bodies for the

91
Jamaican Privy Council to consider before it dealt with the application for mercy and to
the staying of execution until those reports had been received and considered".

[74] It is to be noted that in this judgment the right of the condemned man to complete
the process he initiated before the human rights body was stated in absolute terms and,
in contrast to the judgment in Thomas, nothing was said to suggest that the
corresponding obligation of the Jamaican Privy Council to await the outcome of that
process, was limited to waiting a reasonable time.

[75] Lord Hoffmann, who had earlier, in Higgs v Minister of National Security[FN39], a
case from the Bahamas, come to the opposite conclusion, issued a stinging dissent in
these terms:

"On the Inter-American Commission issue, the majority have found in the ancient
concept of due process of law a philosopher's stone, undetected by generations of
judges, which can convert the base metal of executive action into the gold of legislative
power. It does not however explain how the trick is done. Fisher v Minister of Public
Safety and Immigration (No. 2) [2000] 1 A.C. 434 and Higgs v Minister of National
Security [2000] 2 W.L.R. 1368 are overruled but the arguments stated succinctly in the
former and more elaborately in the latter are brushed aside rather than confronted. In
particular, there is no explanation of how, in the domestic law of Jamaica, the
proceedings before the Commission constitute a legal process (as opposed to the
proceedings of any other non-governmental body) which must be duly completed. Nor
can there be any question of the prisoners having had a legitimate expectation (as the
term is now understood in administrative law) that the State would await a response to
their petitions. All the petitions were presented after the Government had issued the
Instructions and a legitimate expectation can hardly arise in the face of a clear existing
contrary statement of policy. In Thomas v Baptiste [1999] 3 W.L.R. 249, 262-263 an
argument based upon legitimate expectation was summarily rejected".

----------------------------------------------------------------------------------------------------------------
[FN39] [2000] 2 A.C. 228; (1999) 55 WIR 10
----------------------------------------------------------------------------------------------------------------

[76] Mr.. Shepherd QC urged us to accept the decisions in Thomas and Lewis as good law
for the reasons given by their Lordships and to apply it to the decision of the BPC to
advise the Governor-General on the exercise of the prerogative of mercy in this case. We
would respectfully agree that it would not be right for the BPC, before tendering its
advice to the Governor-General, wholly to ignore either the fact that a condemned man
has a petition pending before an international body or that a report has been made by
such a body. We are unable to accept however the reasoning which underpins the
decisions in Thomas and Lewis. Many of the trenchant criticisms of Lord Hoffmann in
Lewis and Lord Goff and Lord Hobhouse in Thomas appear, with respect, to have merit.
The majority judgments in those two cases did not explain how mere ratification of a

92
treaty can add to or extend, even temporarily, the criminal justice system of a State
when the traditional view has always been that such a change can only be effected by
the intervention of the legislature, and not by an unincorporated treaty. It seems to us
that the effect which the majority gave to the treaty i.e. expansion of the domestic
criminal justice system so as to include the proceedings before the Commission, was
inconsistent with their protestations of support for the strict dualist doctrine of the
unincorporated treaty. Nor did the judgments explain how, if ratification has that effect,
the appropriate domestic authorities can be entitled to impose even reasonable time-
limits for the disposal of the case in the absence of any such limitation on the State's
obligation in the treaty itself. In the result, both the accretion to the domestic criminal
justice system and its disappearance after the lapse of a reasonable time according to
Lord Millett's judgment in Thomas, were unsupported by legal principle.

[77] We have examined a body of cases, including decisions of the JCPC, which we
considered might assist us in arriving at the admittedly desirable result reached in
Thomas by a route that appears to us to pose fewer problems. Several of the cases we
have looked at have adverted to the doctrine of legitimate expectation. Unfortunately,
the potential use of this doctrine was not really argued before us by either side.
Accordingly, we were not specifically directed to the evidence on which any such
expectation might be grounded. Nor were we addressed on the principles that would
govern it. Surprisingly, the respondents made only passing reference to it in their written
submissions although in the affidavit of Lennox Ricardo Boyce sworn on 16th September,
2004, he declares: "I have now and always had a legitimate expectation that I would be
allowed to exhaust my rights of appeal to all of the relevant International Human Rights
Commissions and that no execution of the sentence of death would be effected until
those appeals had been exhausted". Notwithstanding the dearth of argument presented
to us on this issue, there is a body of relevant material before us upon which we are able
to draw.

LEGITIMATE EXPECTATION AND UNINCORPORATED TREATIES

[78] In dualist states there have been several strategies employed in an effort to finesse
the rule that unincorporated treaties have no effect in domestic law, and these have met
with varying degrees of success. The strategies include, but are not limited to, the
invoking of the doctrine of legitimate expectation.

[79] The English courts dealt with the matter of the effect of unincorporated treaties in
Regina v Secretary of State for the Home Department, ex parte Brind[FN40]. The
Secretary of State had issued directives under a statute requiring journalists and media
houses to refrain from broadcasting "any matter" consisting of direct statements by
representatives of organisations proscribed in Northern Ireland and Great Britain. Britain
had not yet incorporated the European Convention for the Protection of Human Rights
but the directives were challenged on the basis, inter alia, that they interfered with the
right to freedom of expression. Counsel submitted that when a statute conferred upon

93
an administrative body a discretion capable of being exercised in a way which infringes
any basic human right protected by the Convention, it may be presumed that the
legislative intention was that the discretion should be exercised within the limitations
imposed by the Convention. This argument found no favour with the English courts. The
House of Lords, upholding a unanimous Court of Appeal, firmly set its face against any
importation of unincorporated international law into the domestic field. Unincorporated
treaties may be resorted to in order to help resolve some uncertainty or ambiguity in
municipal law but they could not be a source of rights and obligations on the domestic
plane. In this context, it is useful to observe that in Britain parliament, and not a written
Constitution, is supreme.

----------------------------------------------------------------------------------------------------------------
[FN40] supra
----------------------------------------------------------------------------------------------------------------

[80] Tavita v Minister of Immigration[FN41] is a case from New Zealand. In that case, a
man, whose application for residence in New Zealand had been declined, was ordered to
be deported. Before execution of the warrant for his deportation he fathered a child in
New Zealand and married the child's mother. When attempts were made to execute the
deportation warrant he brought judicial review proceedings. He argued that the relevant
Minister had not taken account of the International Covenant on Civil and Political Rights
and the First Optional Protocol of the United Nations Convention on the Rights of the
Child. These treaties enjoin States Parties to ensure that a child shall not be separated
from his or her parents against their will, except when the competent authorities
determine that such separation is necessary for the best interests of the child.

----------------------------------------------------------------------------------------------------------------
[FN41] [1994] 1 LRC 421
----------------------------------------------------------------------------------------------------------------

[81] The State submitted that the Minister and the relevant Department were entitled to
ignore the unincorporated international treaties. Cooke P., delivering the judgment of
the New Zealand Court of Appeal, found that submission "unattractive". Declaring that
the law as to the bearing on domestic law of international rights and instruments
declaring them is undergoing evolution, he noted that

".. .an aspect to be borne in mind may be one urged by counsel for the appellant: that
since New Zealand's accession to the Optional Protocol, the United Nations Human
Rights Committee is in a sense part of this country's judicial structure, in that individuals
subject to New Zealand jurisdiction have direct recourse to it.".

[82] The stay against the man's deportation was continued and the appeal adjourned
sine die so that the man's application could be reconsidered in light of the international
treaties and the birth of his New Zealand child. Brind was considered by Cooke P. and

94
regarded by him as a "controversial decision".

[83] In Minister of State for Immigration and Ethnic Affairs v Teoh[FN42], a decision of
the High Court of Australia given in April, 1995, the facts were similar to those in Tavita.
The question arose as to whether Australia's ratification of the Convention on the Rights
of the Child gave rise to any legitimate expectation on the part of a Malaysian man who
had entered Australia and married an Australian woman with whom he had young
children. In holding that the man's residence application had to be reviewed in light of
the Convention, Chief Justice Mason and Deane J. in their joint judgment held that:

".ratification by Australia of an international Convention is not to be dismissed as a

merely platitudinous or ineffectual act., particularly when the instrument evidences
internationally accepted standards to be applied by courts and administrative authorities
in dealing with basic human rights affecting the family and children. Rather, ratification
of a Convention is a positive statement by the Executive government of this country to
the world and to the Australian people that the Executive government and its agencies
will act in accordance with the Convention. That positive statement is an adequate
foundation for a legitimate expectation, absent statutory or executive indications to the
contrary, that administrative decision-makers will act in conformity with the
Convention . It is not necessary that a person seeking to set up such a legitimate
expectation should personally entertain the expectation; it is enough that the
expectation is reasonable in the sense that there are adequate materials to support
it"[FN43].

McHugh J dissented, holding that no legitimate expectation arose.

----------------------------------------------------------------------------------------------------------------
[FN42] [1995] 3 LRC 1
[FN43] See page 17 @ [34]
----------------------------------------------------------------------------------------------------------------

[84] Baker v Canada (Minister of Citizenship and Immigration)[FN44] is a decision of the

Supreme Court of Canada decided in 1999. The applicant was a Jamaican woman who
had entered Canada in 1981 and had remained and given birth to four Canadian-born
children. A deportation order was made against her. She unsuccessfully applied for
judicial review. As Canada had ratified the International Convention on the Rights of the
Child, a question was certified as to whether the immigration authorities must treat the
best interests of a Canadian child as a primary consideration in assessing the applicant's
status. The Court of Appeal had held firstly, that the Convention could not have legal
effect in Canada as it had not been implemented through domestic legislation and
secondly, that the Convention could not be interpreted to impose an obligation upon the
government to give primacy to the interests of the children in deportation proceedings.

----------------------------------------------------------------------------------------------------------------

95
[FN44] [1999] 2 SCR 817
----------------------------------------------------------------------------------------------------------------

[85] L'Heureux-Dube J. writing for a majority of the Supreme Court, expressed the view
that "the articles of the Convention and their wording did not give rise to a legitimate
expectation on the part of Ms. Baker that when the decision on her ... application was
made, specific procedural rights above what would normally be required under the duty
of fairness would be accorded, a positive finding would be made, or particular criteria
would be applied"[FN45]. The Convention was held not to be the equivalent of a
government representation about how such applications would be decided. The Court
nonetheless found in the fact of ratification of the Convention, "an indicator of the
importance of considering the interests of children when making a compassionate and
humanitarian decision". The values and principles espoused by the Convention could not
be ignored by the decision¬maker. Failure to give serious consideration to the interests
of the applicant's children would render unreasonable an exercise of the discretion. The
Court left open the possibility that an international instrument ratified by Canada could
in other circumstances give rise to a legitimate expectation.

----------------------------------------------------------------------------------------------------------------
[FN45] Supra at [39]
----------------------------------------------------------------------------------------------------------------

[86] Two judges of the Court joined in issuing a strong dissent to the majority's views on
the effect of unincorporated treaties. Iacobucci J., with Cory J. concurring, stated that:

"It is a matter of well-settled law that an international convention ratified by the

executive branch of government is of no force or effect within the Canadian legal system
until such time as its provisions have been incorporated into domestic law by way of
implementing legislation."[FN46].

----------------------------------------------------------------------------------------------------------------
[FN46] Ibid at [79]
----------------------------------------------------------------------------------------------------------------

[87] The Indian courts adopt a robust approach to the matter of the direct enforcement
in domestic law of the terms of human rights treaties but undoubtedly their boldness is
encouraged, if not mandated, by Article 51(c) of the Indian Constitution which requires
the State to "endeavour to foster respect for international law and treaty obligations in
the dealings of organised peoples with one another". Thus, in People's Union for Civil
Liberties v Union of India[FN47] the Indian Supreme Court, basing itself at length on
Teoh, held that the provisions of the International Covenant on Civil and Political Rights
"which elucidate and go to effectuate the fundamental rights guaranteed by our
Constitution, can be relied upon by courts as facets of those fundamental rights and,
hence, enforceable as such".

96
----------------------------------------------------------------------------------------------------------------
[FN47] [1999] 2 LRC 19
----------------------------------------------------------------------------------------------------------------

[88] The question of the effect, if any, of the European Convention on the immigration
policies of the United Kingdom has been the subject of several court decisions in
England. In one such case, R v Secretary for the Home Department ex parte
MohammedHussain Ahmed[FN48], the argument was made that when the Secretary of
State exercised a prerogative power, he was obliged to do so in conformity with the
treaty obligations of the State. This position was rejected by Lord Woolf MR. who
nevertheless stated that:

"...the entering into a treaty by the Secretary of State could give rise to a legitimate
expectation upon which the public in general are entitled to rely. Subject to any
indication to the contrary, it could be a representation that the Secretary of State would
act in accordance with any obligations which he accepted under the treaty. The
legitimate expectation could give rise to a right to relief, as well as additional obligations
of fairness, if the Secretary of State, without reason, acted inconsistently with the
obligations which this country has undertaken. This is very much the approach adopted
by the High Court of Australia in the immigration case of Minister of State for
Immigration and Ethnic Affairs v Teoh".

----------------------------------------------------------------------------------------------------------------
[FN48] [1999] Imm AR 22
----------------------------------------------------------------------------------------------------------------

[89] The views of Woolf MR. on the creation of a legitimate expectation were endorsed
by Hobhouse LJ who noted that the expectation was "not based upon any actual state of
knowledge of individual immigrants or would be immigrants."

[90] The position contended for by Lord Woolf MR. was briefly discussed in Regina v
Director of Public Prosecution ex parte Kebilene and others[FN49]. Before the Divisional
Court (Lord Bingham CJ, Laws LJ and Sullivan J) a submission was made that applicants
had a legitimate expectation founded on ratification of the unincorporated European
Convention for the Protection of Human Rights. Lord Bingham held that no legitimate
expectation could have thereby arisen because when the Convention had been ratified
over fifty years previously it was never assumed that such ratification would have had
any practical effect on British law and practice. Moreover, the terms of the Act that had
since been passed to incorporate the Convention but which had not yet been brought
into force, expressly contradicted any such expectation. Further, the relevant decision-
maker (in this case the DPP) was a body independent of the Executive. Lord Justice Laws
for his part sought to contain the scope of the remarks of Lord Woolf in Ahmed and to
reaffirm the strictness of the ruling in Brind. The case went to the House of Lords[FN50]

97
but the argument on legitimate expectation was not pressed there.

----------------------------------------------------------------------------------------------------------------
[FN49] [2000] 2 A.C. 326
[FN50] [2000] 2 AC 326 @ 358 et seq.
----------------------------------------------------------------------------------------------------------------

[91] Ahani v Regina[FN51] is a decision of the Court of Appeal for Ontario delivered in
February, 2002. The appellant, an Iranian, was ordered deported from Canada on the
basis that reasonable grounds existed to believe that he was a member of a terrorist
organisation. He was notified of the case against him and given an opportunity to make
written submissions. He submitted that there was a risk that he would be subjected to
torture upon his return to Iran. He appealed to the Supreme Court the decision to have
him deported. The Supreme Court upheld the decision of the Minister. Ahani then filed a
communication with the United Nations under the Optional Protocol of the ICCPR. The
Committee made an interim measures request that Canada stay the deportation order
until it had considered the communication. The question before the Court was whether
it was incumbent upon Canada to comply with the interim measures request. Among the
authorities considered were Baker and the JCPC's judgments in Thomas, Higgs and Lewis.

----------------------------------------------------------------------------------------------------------------
[FN51] 208 D.L.R. (4th) 66
----------------------------------------------------------------------------------------------------------------

[92] The Appeal Court was divided 2 to 1. The majority held that the principles of
fundamental justice espoused were not engaged as Ahani had not demonstrated that his
rights to life, liberty or security of the person were threatened. Even if any of his rights
were at stake, "no principle of fundamental justice entitled him to remain in Canada
until his communication was considered by the Committee". The court held that, absent
implementing legislation, neither the Covenant nor the Protocol had any legal effect in
Canada although "Canada's international human rights commitments might still inform
the content of the principles of fundamental justice under s. 1 of the Charter". Laskin JA
writing for the court, held at [33]:

[33] To give effect to Ahani's position.would convert a non- binding request in a

Protocol, which has never been part of Canadian law, into a binding obligation
enforceable in Canada by a Canadian court, and more, into a constitutional principle of
fundamental justice. Respectfully, I find that an untenable result.

At [45], the court stated that Judges were not competent to assess whether Canada was
acting in bad faith by rejecting the Committee's interim measures request.

[93] Laskin, JA distinguished the JCPC's decision in Thomas v Baptiste by noting that,
unlike the appellants in Thomas, Ahani was not facing a death penalty and moreover, the

98
Thomas appellants had already obtained the benefit of orders from the Inter-American
Commission on Human Rights. Even so, at [56] of the judgment, the majority found Lord
Millett's reasoning to be in conflict with well- established Canadian law where "mere
ratification of a treaty, without incorporating legislation, cannot make the international
process part of our domestic criminal justice system".

[94] The contention that Ahani had a legitimate expectation of not being deported to
Iran pending the Committee's consideration was rejected on the grounds that there was
no evidential basis to support any such reasonable expectation and that Ahani was really
seeking a substantive right to remain in Canada as distinct from a procedural right.

[95] Rosenberg JA dissented. He would have granted an injunction to prevent Ahani's

removal from Canada. Although he found some of the JCPC's reasoning "strained", he
was prepared to adopt Thomas and Lewis and to hold that due process required that
individuals be given the opportunity to access the international bodies.

LEGITIMATE EXPECTATION AND THE CONDEMNED MAN

[96] The crucial question in issue in this case is whether a condemned man in Barbados
derives from the ACHR, an international treaty, any benefit enforceable on the municipal
plane. If indeed the man relies on a legitimate expectation that the State will not, absent
undue delay, execute him while his application is pending before the international body,
is the State entitled, either after or without giving notice, to act on the municipal plane
in a manner inconsistent with that expectation? Can the courts restrain the decision-
making body from frustrating the expectation the State has created?

[97] Before the Lewis decision, the JCPC reversed itself on more than one occasion on
this very issue. In Fisher v Minister of Public Safety & Immigration (No. 2)[FN52] a
Bahamian convicted of murder in March 1994 had by May, 1996 exhausted his domestic
appeals. In June 1996 he petitioned the Commission. The Bahamas had not ratified the
Convention but regulations under that instrument enabled complaints to be made by
petition to the Commission. While his petition to the Commission was pending, the
death warrant was read to the appellant. A stay was obtained and a motion filed
claiming constitutional relief. Those proceedings went all the way up to the JCPC[FN53].
Before the Board, counsel for the Government gave the assurance that the Government
would respect the IACHR regulations. In December, 1991 the Government wrote to the
IACHR inviting it to conclude its inquiries into the case by 15th February 1998 and in
January 1998 the Government sent the Commission a reminder. Counsel for the
appellant was informed of these developments and was also told that the Government
would not wait on the Commission beyond 15th February, 1998. On 26th March, 1998,
after the petition had been with the IACHR for some 21 months, the death warrant was
read for the second time to the appellant. A fresh constitutional motion was filed by the
appellant in which he argued that he had a legitimate expectation that the Government
would allow a reasonable time for the completion of the IACHR process and that such

99
time had not expired. He submitted secondly, that based on his constitutional right to
life, he had a right not to be executed until after the IACHR had completed its inquiries,
however long that process took. The matter came up again before the JCPC.

----------------------------------------------------------------------------------------------------------------
[FN52] [2000] 1 AC 434; (1998) 52 WIR 27
[FN53] Fisher v Minister of Public Safety & Immigration (1997) 52 WIR 1; [1998] AC 673
----------------------------------------------------------------------------------------------------------------

[98] Their Lordships were divided 3 to 2. The majority held that it could not be implied,
in assessing the man's right to life, that the Executive would wait a reasonable time for
his international petition before the Commission to be completed, as that would mean
that the Government had introduced rights into domestic law by entering into a treaty.
The court relied on Brind. On the issue of legitimate expectation, counsel for the
condemned man relied on Teoh. The majority's view was that even if the appellant had a
legitimate expectation that he would not be executed while his petition was pending, his
expectation could not survive the Government's letters of January, 1998 and in any
event, by March, 1998 the petition had been with the Commission for a reasonable
length of time.

[99] Lord Slynn and Lord Hope, confessing at the commencement of their judgment that
"the issue which lies at the heart of this constitutional motion is not an easy one to
resolve", entered a joint dissent. They agreed that there could be no claim by the
appellant that in the circumstances his right to life was being infringed since the
proceedings before the Commission formed no part of the domestic appellate process.
However, they found that by reason of the Government's participation in the Inter-
American proceedings, the appellant had derived a legitimate expectation that if the
Commission were to recommend against the carrying out of the death sentence, its
views would be considered before the final decision was taken as to whether or not he
was to be executed. Against this background, executing the man before that
recommendation was received, and after the man had spent many months in the
condemned cell for no other purpose than to await the recommendation of the
Commission, would constitute "inhuman treatment".

[100] In Briggs v Baptiste[FN54] Lord Millett had an opportunity to re-visit his decision in
Thomas. He appeared to retreat somewhat from his former position. Thomas, he
maintained:

". did not overturn the constitutional principle that international conventions do not
alter domestic law except to the extent that they are incorporated into domestic law by
legislation. It did not decide that the recommendations of the Commission (which are
not binding even in international law) or the orders of the Inter- American Court are
directly enforceable in domestic law. It mediated the proceedings before the Inter-
American system through the 'due process' clause in the Constitution. It confirmed the

100
principle that the consideration of a reprieve is not a legal process and is not subject to
the constitutional requirement of due process, and that the Advisory Committee is not
bound to consider, let alone adopt, the recommendations of the Commission".

----------------------------------------------------------------------------------------------------------------
[FN54] (1999) 55 WIR 460; [2000] 2 AC 40
----------------------------------------------------------------------------------------------------------------

[101] Lord Nicholls dissented. He was for insisting upon the full breadth of Thomas. He
was of the view that "under the 'due process' clause ... an applicant is entitled to have
the Inter-American system run its course. The appellant is not to be shut out from the
possibility that . the Commission may yet make an order that the sentence of death be
commuted".

[102] The issue came back before the JCPC in another appeal from the Bahamas in Higgs
& Mitchell v Minister of National Security[FN55]. The JCPC now had another opportunity
to re-examine Thomas v Baptiste and settle the law by arriving at consensus. Once again
however the court was divided 3 to 2. The majority judgment, delivered by Lord
Hoffmann, took as its premise the well known principles of law expressed in Rayner
[FN56] and The Parlement Belge[FN57]. Significantly, Lord Hoffmann was prepared to
hold, following Teoh, that the existence of a ratified treaty may give rise to a legitimate
expectation on the part of citizens that the Government, in its acts affecting them, will
observe the terms of the treaty. But he regarded the benefit which such a legitimate
expectation conferred as being purely procedural. The most the citizen could expect was
that the Executive would not depart from the expected course of conduct unless it gave
notice that it intended to do so and afforded the person affected an opportunity to make
representations. Lord Hoffmann saw Thomas v Baptiste as being indistinguishable from
Fisher (No 2). Confronted with the majority's reasoning in Thomas, it was open to Lord
Hoffmann expressly to disapprove Thomas but, with some reluctance, he opted not to
do so on the basis that the majority in Thomas had not overruled Fisher No. 2, but
distinguished it on the ground that the Trinidad & Tobago Constitution had a "due
process" clause which the Bahamian Constitution lacked.

----------------------------------------------------------------------------------------------------------------
[FN55] (1999) 55 WIR 10; [2000] 2 AC 228
[FN56] [1990] 2 AC 418
[FN57] (1879) 4 PD 129
----------------------------------------------------------------------------------------------------------------

ANALYSING AND APPLYING THE CASE LAW

[103] Our view on the reasoning in Thomas and Lewis is framed by the line of cases
referred to above. The frequency and force of the dissents and the high incidence of
reversals by the JCPC of its own recent decisions demonstrate very forcefully the fact

101
that this branch of the law is in an unsettled state and is still evolving. Novel and difficult
questions of law are involved here. Judges all over the world are struggling to give form
and coherence to ideas that only began to engage their attention in fairly recent times.
In the judgments examined above there is a divergence of opinion and approach, not
only as between different courts but as between judges of the same court. The range is
from the very assertive and activist positions of the Indian Supreme Court to the more
conservative approach of the House of Lords.

[104] The differences reflect in part a variety of responses to underlying changes that
have been taking place in the manner in which treaties, and human rights treaties in
particular, are drawn. These changes affect the reach of such treaties and the entities
that are accorded rights under them. Traditionally, individual citizens derived no
entitlement under treaties concluded between States. Such instruments imposed
obligations and conferred benefits upon States. The subject-matter of the treaties was
not intimately bound up with rights of human beings now regarded as fundamental and
inalienable.

[105] Over the last sixty or so years, however, it has become quite common for treaties
to grant to individual human beings "rights" directly enforceable by them with the result
that, far from being passive subjects, individuals can now become active players on the
international plane pursuant to treaties entered into by their Governments. These
treaties contain provisions that are legally complete under international law. They
provide the process by which individuals may enforce the rights conferred by them and
no refinement is required by a State Party in order for nationals to take advantage of
such provisions. Pursuant to the ACHR for example, without formal incorporation by
Parliament, individual citizens may initiate proceedings and obtain relief from an
international body.

[106] This development has been accompanied by the promotion of universal standards
of human rights, accepted both at the domestic and on the international level. Citizens
are now at liberty to press for the observance of these rights at both levels. At the
domestic level, the jurisprudence of international bodies is fully considered and applied.
In determining the content of a municipal right, domestic courts may consider the
judgments of international bodies. Likewise, on the international plane, the judgments
of domestic courts assist in informing the manner in which international law is
interpreted and applied. There is therefore a distinct, irreversible tendency towards
confluence of domestic and international jurisprudence.

[107] The Australian decision in Minister of State for Immigration and Ethnic Affairs v
Teoh appears to have been received and approved throughout the common law world
as an appropriate response to the evolving situation. The view seems to have emerged
that, unless municipal law rules this out, a ratified but unincorporated treaty can give
rise to a legitimate expectation of a procedural benefit. When a treaty evidences
internationally accepted standards to be applied by administrative authorities in dealing

102
with basic human rights, courts will be hesitant to regard the relevant terms of the
treaty as mere "window-dressing" capable of being entirely ignored on the domestic
plane.

[108] Turning our attention to the position of the respondents in this case, the
punishment that faced them, the real detriment they sought to avoid, was death. True,
death as a punishment for a very serious crime, but death nevertheless. Death is not to
be treated as simply just another punishment. It is a punishment in a class of its own,
warranting special procedures before it is carried out. The United States Supreme Court
has consistently held that death is a unique punishment that differs from all other forms
of criminal punishment, not in degree but in kind. See: Furman v Georgia[FN58]; Gregg v
Georgia[FN59]; Woodson v North Carolina[FN60]; Lockett v Ohio[FN61].

----------------------------------------------------------------------------------------------------------------
[FN58] (1972) 408 U.S. 238
[FN59] (1976) 428 US 153
[FN60] (1976) 428 US 280
[FN61] (1978) 438 US 586
----------------------------------------------------------------------------------------------------------------

[109] Amidst scholarly discussion of legal theories, one must not lose sight of the
situation of a condemned man, particularly in a state like Barbados where the
mandatory death penalty has not been held to be unconstitutional as it has been in
several other Caribbean states. The condemned man may have been convicted of
murder, but even after his domestic appeals have been exhausted he is not altogether at
the mercy of the Executive. He does still have, at a minimum, a right to the protection of
the law. He understands that the Government has ratified an international treaty that
entitles him, without more, liberty to petition an international tribunal. Before this
international body he can perhaps advance new material, including matters that may
have arisen since the conclusion of his domestic appeals, or matters which for one
reason or another his counsel could not or did not raise in the domestic proceedings. He
can attempt to show that his trial was not in accordance with internationally accepted
standards. He can put forward reasons why, in all the circumstances, he ought not to be
regarded as deserving of the penalty of death. If he does any of these things and
manages to secure a favourable report from the international body, there is no
guarantee that the relevant authority, when it considers the report, will be persuaded by
it to recommend or grant commutation. That authority will certainly not be bound to
accept any recommendation made in the report. But there is a chance, however small,
that it may do so.

[110] Put in stark terms, by ratifying the treaty, the Executive has thrown to the
condemned man, fighting for his life to be spared, a lifeline, albeit one that perhaps
offers only a slim chance of rescue. The real issue facing judges is this: As the man is
about to grasp this lifeline, is it fair for the Executive, which placed it there in the first

103
place, to yank it away? Is it enough for the court then merely to explain to the man that
unincorporated international treaties form no part of domestic law; that he has derived
no "right" from the mere accession of his Government to the treaty; that the Executive
does not have to await the determination of his petition by the international body
before executing him, even though the report of that body, if it were available, would
have to be considered by the authority responsible for exercising the prerogative of
mercy and might persuade that authority to spare his life? Those are the haunting
questions that cause judges much discomfort.

[111] As far as we have discerned, the case law has produced at least four different
trends of thought. The first discernible approach is the one, lucidly expressed by the
minority in Thomas that is grounded in the principles expressed in Brind. Under this
approach, the questions posed in the preceding paragraph are all answered with a
regretful "Yes!" One advantage of this approach is that its consequences are certain and
predictable. Moreover, this approach has the backing of over a century of judicial
authority. Its disadvantage is that the result that it produces seems oddly out of step
with the modern trend of employing legal concepts for giving effect to, rather than
frustrating, generally accepted notions of what is fair and humane.

[112] Secondly, there is the view which suggests that to execute a man while his petition
is pending and after he has spent time on death row awaiting its outcome is to
contravene guarantees against cruel or inhuman treatment. This was a view expressed
by Lord Slynn and Lord Hope, the minority in Fisher No. 2, but it is a view which appears
not to have received support from the authorities we have examined.

[113] Thirdly, there is the reasoning expressed by Lord Millett and adopted by the
majority in Thomas, with which we have expressed our disagreement.

[114] We have spent some time exploring the fourth approach that invokes the doctrine
of legitimate expectation. The obvious limitations inherent in the use of procedural
legitimate expectation have been already noted. It is of little use to the condemned man
who really desires a substantive benefit, namely to require the authorities to delay
executing him until receipt of the report from the international body or, at least, to delay
his execution so as to give the international body a reasonable time for completion of its
procedures and submission of its report.

[115] As we saw earlier, the Attorney-General of Barbados represented to the Court of

Appeal that her country does take seriously, and desires to abide by, its international
obligation not to execute a condemned man while his petition is pending before the
international body. This is also reflected in the legislature's amendment of the Barbados
Constitution to add section 78 (6) which authorizes

"[t]he Governor-General, acting in accordance with the advice of the Privy Council, ... by
instrument under the Public Seal [to] direct that there shall be time-limits within which

104
persons ... may appeal to, or consult, any person or body of persons (other than Her
Majesty in Council) outside Barbados in relation to the offence in question".

[116] Parliament in making that amendment impliedly recognised that it was the
practice and indeed the obligation of the State to await the Commission's process, at
least for some period of time, and has therefore contributed to the creation of the
legitimate expectation that the right to apply to the Commission will be respected. It
seems as though it is not so much that the State wishes to deny the condemned man
access to the international human rights bodies or to frustrate the petition process but it
wants to avoid being caught by the Pratt timelines which so far have not been relaxed
despite the growing recognition that the eighteen-month period allotted to the
international process has proved insufficient through no fault of the Governments
involved. In Bradshaw v Attorney-General of Barbados[FN62] for example, the JCPC
appreciated this dilemma but rejected the suggestion that: –

"… either the periods of time relating to applications to the human rights bodies should
be excluded from the computation of delay or the period of five years should be
increased to take account of delays normally involved in the disposal of such
complaints."

----------------------------------------------------------------------------------------------------------------
[FN62] supra
----------------------------------------------------------------------------------------------------------------

[117] We disagree with the rejection of this suggestion. The refusal of the JCPC to
sanction any relaxation of what has now become a five-year deadline clearly contributed
in no small measure to the decision of the Barbados legislature to amend section 15 of
the Constitution to rule out the possibility that any delay, however long, in the carrying
out of a death sentence could ultimately render it unconstitutional. Something was
obviously amiss when the State was being required, on the one hand to conform strictly
to the Pratt five year time-limit, and on the other, to await the outcome of a condemned
man's petition to the extraterritorial body, however long it took. It was Lord Goff who, in
Thomas v Baptiste[FN63], noted that these bodies:

"espouse a policy of discouraging capital punishment wherever possible and, in

accordance with that policy, appear to see postponement of an execution for as long as
possible as an advantage since it may improve the chances of commuting the sentence
or quashing the conviction: see also Johnson v Jamaica (1996) 1 B.H.R.C. 31. There is
thus a direct conflict between the policy of the Commissions and the enforcement of the
law of the Republic. The Commissions appear to be unable or unwilling to alter their
practices to accommodate the countries' requests for more speedy procedures".

----------------------------------------------------------------------------------------------------------------
[FN63] Supra @ [35]

105
----------------------------------------------------------------------------------------------------------------

ADDRESSING THE RESPONDENTS' LEGITIMATE EXPECTATION

[118] What are the facts and circumstances that could have given rise to the legitimate
expectation claimed by the respondents? Quite apart from the fact that Barbados had
ratified the ACHR, positive statements were made by representatives of the Executive
authority evincing an intention or desire on the part of the Executive to abide by that
treaty. Such statements were, for example, made in Parliament during the debate on the
Constitution Amendment Act. Further, it appears that it was the practice of the Barbados
Government to give an opportunity to condemned men to have their petitions to the
international human rights body processed before proceeding to execution. In all these
circumstances we would hold that the respondents had a legitimate expectation that the
State would not execute them without first allowing them a reasonable time within
which to complete the proceedings they had initiated under the ACHR by petition to the
Commission.

[119] The issue to be resolved is whether, and if so to what extent, this legitimate
expectation of the respondents should produce a substantive benefit. The circumstances
in which the unusual step of granting to an applicant with a legitimate expectation, a
substantive as distinct from a procedural benefit is still a matter of ongoing judicial
debate. It was discussed by Sedley, J. (as he then was) in Regina v Ministry of Agriculture,
Fisheries and Food[FN64] where the learned judge stated the following with which we
respectfully agree:

".the real question is one of fairness in public administration. It is difficult to see why it is
any less unfair to frustrate a legitimate expectation that something will or will not be
done by the decision maker than it is to frustrate a legitimate expectation that the
applicant will be listened to before the decision maker decides whether to take a
particular step. Such a doctrine does not risk fettering a public body in the discharge of
public duties, because no individual can legitimately expect the discharge of public
duties to stand still or be distorted because of that individual's peculiar position.
[L]egitimacy is itself a relative concept, to be gauged proportionately to the legal and
policy implications of the expectation. This, no doubt, is why it has proved easier to
establish a legitimate expectation that an applicant will be listened to than that a
particular outcome will be arrived at by the decision maker. But the same principle of
fairness in my judgment governs both situations".[FN65]

----------------------------------------------------------------------------------------------------------------
[FN64] But see ex parte Hargreaves [1997] 1 WLR 906 where this approach of Sedley, J.
was described as "heresy " by the English Court of Appeal.
[FN65] Regina v Ministry of Agriculture, Fisheries and Food ex parte Hamble Fisheries
(Offshore) [1995] 2 AER 714 @544-545
----------------------------------------------------------------------------------------------------------------

106
[120] R v North & East Devon Health Authority, ex parte Coughlan[FN66] is a case in
which a claimant was held to be entitled to a substantive benefit. According to Lord
Woolf M.R., once the court finds that there was a legitimate expectation of a substantive
benefit, "the court has, when necessary, to determine whether there is a sufficient
overriding interest to justify a departure from what has been previously promised". The
court's task, he said, is not to impede executive activity but to reconcile its continuing
need to initiate or respond to change with the legitimate expectations of citizens who
have relied, and have been justified in relying, on a current policy.

----------------------------------------------------------------------------------------------------------------
[FN66] (2001) QB 213
----------------------------------------------------------------------------------------------------------------

[121] The legitimate expectation in Coughlan was rooted in an express promise,

repeatedly made to a select, identifiable group of persons, that had the character of a
contract. The learned Master of the Rolls equated unwarranted frustration of the
legitimate expectation with an abuse of power and the case was treated almost like an
estoppel in private law, justifying a standard of review by the courts that was higher than
would normally be the case.

[122] Coughlan was one of the cases discussed in the judgment of Sir David Simmons in
Pearson Leacock v The Attorney General[FN67]. In that case the learned Chief Justice
stopped just short of providing the applicant with a substantive benefit on the basis of a
legitimate expectation and ordering the Barbados Commissioner of Police to grant to a
police officer, who had attained his LLB degree with honours, while on study leave,
further study leave to obtain his professional qualification at the Hugh Wooding Law
School. Sir David thought that it was not open to him to declare that the applicant was
entitled to study leave as "that would be an intrusion into the merits of the case". The
merits, he said "will often involve policy considerations. Such considerations are not for
the courts". Sir David nonetheless quashed the decision of the Police Commissioner to
deny the grant of study leave and declared that decision to be an unreasonable and
improper exercise of discretion.

----------------------------------------------------------------------------------------------------------------
[FN67] Barbados High Court Civil Division, No. 1712 of 2005, unreported
----------------------------------------------------------------------------------------------------------------

[123] The English Court of Appeal in Secretary of State for the Home Dept. v The Queen
(on the application of Bakhtear Rashid)[FN68], a matter involving a Kurdish asylum
seeker, affirmed the view expressed in R v Inland Revenue Commissioners, ex parte
Unilever plc[FN69] and other cases[FN70] that where the concept of legitimate
expectation is invoked, implementation by a public authority of a decision to frustrate
the expectation would be restrained by the court if the decision is so unfair that it

107
amounts to an abuse (some judges say "misuse") of power in the absence of some
overriding public interest. In Rashid, the court granted a declaration "the effect of which
[was] expected to be a grant by the Secretary of State of permission to remain
indefinitely in the United Kingdom".

----------------------------------------------------------------------------------------------------------------
[FN68] [2005] EWCA Civ 744
[FN69] [1996] STC 681
[FN70] See: ex parte Begbie [2000] 1 WLR 1115; ex parte Unilever [1996] STC 681; SSHD
v Zeqiri [2002] Imm AR 296; ex parte Ahmed & Patel [1998] INLR 570
----------------------------------------------------------------------------------------------------------------

[124] In matters such as these, courts must carry out a balancing exercise. The court
must weigh the competing interests of the individual, who has placed legitimate trust in
the State consistently to adhere to its declared policy, and that of the public authority,
which seeks to pursue its policy objectives through some new measure. The court must
make an assessment of how to strike the balance or be prepared to review the fairness
of any such assessment if it had been made previously by the public authority. As
indicated by Dyson, LJ in Rashid, "...[W]here, for example, there are no wide-ranging
policy issues, the court may be able to apply a more intrusive form of review to the
decision. The more the decision which is challenged lies in the field of pure policy,
particularly in relation to issues which the court is ill-equipped to judge, the less likely it
is that true abuse of power will be found".

[125] In the case before us, there is on the one hand the legitimate expectation of the
condemned men that they will be permitted a reasonable time to pursue their petitions
with the Commission with the consequence that any report resulting from the Inter-
American process will be available for consideration by the Barbados Privy Council. On
the other hand, there is whatever the State may advance as an overriding interest in
refusing to await completion of the international process before carrying out the death
sentence. It appears from what was represented to the Court of Appeal in this case that,
apart from the constraints of the Pratt time-limit, the State of Barbados claims no
overriding interest in putting the condemned men to death without allowing their
legitimate expectation to be fulfilled. The BPC remains under no legal obligation to
accept the report or recommendations of the Commission or UNCHR although of course
it must consider them. In our view, to deny the substantive benefit promised by the
creation of the legitimate expectation here would not be proportionate having regard to
the distress and possible detriment that will be unfairly occasioned to men who hope to
be allowed a reasonable time to pursue their petitions and receive a favourable report
from the international body. The substantive benefit the condemned men legitimately
expect is actually as to the procedure that should be followed before their sentences are
executed. It does not extend to requiring the BPC to abide by the recommendations in
the report.

108
[126] By the amendment of section 15 of the Constitution, the State of Barbados no
longer has the constraint of the Pratt five-year time-limit. Even without Pratt however,
we expect the relevant authorities to strive for completion within a reasonable time of
all the criminal justice processes including those that span the period between
conviction and the carrying out of a death sentence. Where Pratt is applicable, as it was
in Barbados for these respondents, we would have been inclined to the view, if the issue
of the five-year time-limit was still a live one before us, that where the time taken in
processing a condemned man's petition before an international body exceeded eighteen
months, the excess should be disregarded in the computation of time for the purpose of
applying the decision in Pratt. In any event, protracted delay on the part of the
international body in disposing of the proceedings initiated before it by a condemned
person, could justify the State, notwithstanding the existence of the condemned man's
legitimate expectation, proceeding to carry out an execution before completion of the
international process. This may be regarded either as a situation which is catered for by
the terms of the legitimate expectation itself or as one which creates an overriding
public interest in support of which the State may justifiably modify its policy of
compliance with the treaty.

[127] A fundamental rationale of the dualist approach to international law is that, should
its violation be encouraged, there would be a risk of abuse by the Executive to the
detriment of the citizenry[FN71]. Ensuring that the Executive does not, by its treaty-
making power, usurp the legislative role of Parliament is a measure designed principally
to protect the rights of the individual. The fulfillment of the legitimate expectation of the
condemned men here results in the enhancement of the protection afforded those
rights and minimises the risk that the Executive may have cause to regret the carrying
out of a death sentence.

----------------------------------------------------------------------------------------------------------------
[FN71] See: In re McKerr [2004] UKHL 12 per Lord Steyn at [50]
----------------------------------------------------------------------------------------------------------------

[128] For all the foregoing reasons we are of the view that the BPC ought not to have
decided to advise the Governor-General to proceed with the executions before allowing
the respondents a reasonable time to complete the processing of their petitions. In
giving this advice without waiting a reasonable time for the Commission's report, the
BPC defeated the legitimate expectation of the respondents and deprived itself of any
opportunity of considering the Commission's report or if the matter was referred to the
Inter-American Court, that Court's judgment. The reading of the death warrants on the
15th September 2004 constituted an infringement of the respondents' right to the
protection of the law.

[129] Save that we have qualified somewhat the scope of the relevant legitimate
expectation and that we are prepared to ground our opinion on a breach of the right to
the protection of the law as distinct from a breach of the right to life, our opinion is not

109
at variance with views expressed by Lord Slynn and Lord Hope, the minority in the
Bahamian case of Fisher (No. 2)[FN72], who were disposed to find that the acts of the
Government of the Bahamas in that case had

"...provided the appellant with a legitimate expectation that, if the IACHR were to
recommend against the carrying out of the death sentence, its views would be
considered before the final decision is taken as to whether or not he is to be executed.
But any such recommendation would plainly be pointless if he were to be executed
before the recommendation was made and communicated to the Government. For the
Government to carry out the death sentence while still awaiting a recommendation
which might, when considered, lead to its commutation to a sentence of life
imprisonment would seem in itself to be an obvious violation of the appellant's right to
life."

----------------------------------------------------------------------------------------------------------------
[FN72] [2000] 1 AC 434 @ 452; (1998) 53 WIR 27 @ 42
----------------------------------------------------------------------------------------------------------------

[130] In our view the respondents' legitimate expectation can only be defeated by some
overriding interest of the State. If, pursuant to section 78(6) of the Constitution, the
Governor-General acting in accordance with the advice of the Privy Council, imposes
reasonable time-limits within which a condemned man may "appeal to, or consult"
extra-territorial bodies, then it could not be said that such time-limits did not evince an
intention on the part of the State to address its treaty obligations in good faith. The State
cannot reasonably be expected to delay indefinitely the carrying out of a sentence, even
a sentence of death, lawfully passed by its domestic courts pending the completion of
the hearing of a petition by an international body even though the State has by treaty
conferred on the person sentenced the right to pursue that petition.

[131] This decision should not be seen as opening up avenues for the wholesale
domestic enforcement of unincorporated treaties. States, and small States in particular,
enter into treaties for a host of different reasons and a Caribbean Court is acutely
sensitive to such realities. Our application of the doctrine of legitimate expectation in
this case is rooted in a number of considerations which are peculiar to the situation in
which it has been invoked. These include: the desirability of giving the condemned man
every opportunity to secure the commutation of his sentence, the direct access which
the treaty affords him to the international law process and the disproportion between
giving effect to the State's interest in avoiding delay even for a limited period in the
carrying out of a death sentence and the finality of an execution. Our decision may be
viewed as merely a further step in the development of the capital punishment
jurisprudence which has been rapidly growing since the Pratt decision.

[132] Ultimately, with respect to the second of the broad issues before us, we have
arrived at a result which is not dissimilar to that reached by their Lordships in Lewis (save

110
that the obligation of the State to await the outcome of the international process is not
in our judgment open-ended) but we have followed a somewhat different route. On this
second issue as well therefore, we do not consider it necessary to comment upon the
lucid submissions of Mr.. Mendes (briefly referred to in paragraph 40 of this judgment)
as to why we should not depart from Lewis.

ISSUE THREE
WHETHER IT WAS APPROPRIATE FOR THE COURT OF APPEAL TO COMMUTE THE DEATH
SENTENCES

[133] Some of the matters that fall under this head were not fully argued before us.
Others have become otiose as a consequence of our other findings. For the avoidance of
doubt, we would affirm the decision of the Court of Appeal to commute the sentence of
death imposed on the respondents. In our view, the Court of Appeal was right to do so.
The exercise of the prerogative of mercy is indeed reviewable; the respondents were
entitled by virtue of the legitimate expectation created by their Government's
ratification of the ACHR and its subsequent conduct and statements, to a reasonable
time to file and complete proceedings in the Inter-American system; and, to have
permitted the respondents to make use of that entitlement would inevitably have taken
the case over the five- year limit set in Pratt, as applied in Lewis, both of which were at
the material time the law of Barbados.

[134] There is another reason, not argued before us, why the death sentences on the
respondents would have had to be commuted even if we had held, reversing Thomas v.
Baptiste and Lewis, that the State was entitled to proceed to execute the respondents
without allowing them reasonable time to complete the proceedings they had started
before the Commission. In Matthew v. the State[FN73] the JCPC by a 5 to 4 majority
reversed its previous decision in Roodal v. the State[FN74] and held that the mandatory
death penalty was not unconstitutional in Trinidad and Tobago. Despite doing so,
however, the majority also held that all those who were under sentence of death at the
time when Matthew was decided (including Matthew himself) should have their
sentences commuted. The reason given was that as a result of the decision in Roodal
these persons had been given the expectation that their sentences would be reviewed
by a judge for the purpose of deciding whether a sentence of imprisonment should be
substituted for the death sentence passed on them. To disappoint them in this
expectation was considered so unfair as to render their execution cruel. In relation to
the appellant Matthew himself, Lord Hoffmann, writing for the majority, put the matter
in the following way:

"On the other hand, simply to leave the sentence to be carried out, subject to the
decision of the President, appears to their Lordships unfair to Mr.. Matthew. He has
been given the expectation of a review of a sentence, additional to the possibility of
Presidential commutation, of which he is now deprived. Their Lordships think that it
would be a cruel punishment for him to be executed when that possibility has been

111
officially communicated to him and then been taken away".

----------------------------------------------------------------------------------------------------------------
[FN73] [2005] 1 AC 433 @ 453; (2004) 64 WIR 412
[FN74] [2005] 1 AC 328; (2003) 64 WIR 270
----------------------------------------------------------------------------------------------------------------

[135] In this case, the expectation of the respondents with respect to their petitions to
the Commission would have been shaped firstly by Pratt itself in which the JCPC allowed
a period of eighteen months for proceedings before the international bodies. Thomas v.
Baptiste and Lewis would have put firmly in place the expectation that the respondents
would be allowed at least a reasonable time to complete proceedings before the
Commission. If subsequently we were to have held that Thomas and Lewis were wrongly
decided and that the State was under no obligation to allow any time for the completion
of proceedings before international bodies, then it would have been at least as unfair
and as cruel to execute the respondents as it would have been to execute Mr.. Matthew
and those who were similarly circumstanced. This was therefore another reason, though
not one that was adverted to at the time, why Mr.. Forde's decision not to challenge the
commutation of the death sentence in this case, was rightly made.

[136] It is interesting to note the special features of the expectation relied on by the
JCPC in Matthew. Firstly, it is the expectation of a person under sentence of death.
Secondly, it is an expectation created not by the Executive, but by a court decision which
is subsequently reversed. Thirdly, the expectation is that the condemned man will be
given a chance (however slim) of avoiding being put to death. To deny the condemned
man that chance was deemed so unfair as to render the carrying out of the death
sentence cruel and, therefore, unconstitutional. This decision of their Lordships has
nothing to do with the doctrine of legitimate expectation which we have invoked as the
basis of the State's obligation to afford the respondents a reasonable opportunity to
have their case aired in the Inter- American system. It would seem, however, to justify
giving special weight and effect to an expectation that has the same features as those
mentioned above save that it is created by the Executive of the condemned man's
country, rather than by its courts.

[137] As to our view on the successive readings of the death warrants and the issue of
funding for the condemned men, we would prefer not at this time to pronounce on
those matters as they were given no attention by counsel and they really are peripheral
to a determination of the main issues in the appeal.

DISPOSING OF THE APPEAL

[138] It follows that, while in principle we affirm the decision in Pratt, as previously
intimated, we would have been inclined to take the view that where the relevant
international human rights process initiated by a condemned man exceeds eighteen

112
months, the time taken in excess of that period has to be disregarded in computing time
for the purpose of determining compliance with Pratt or, alternatively, such excess must
be added to the five-year limit prescribed by Pratt. This is all on the premise that the
additional time taken is not attributable to delays in the process for which the
Government concerned is responsible.

[139] In view of the terms of section 78(6) of the Constitution, the Governor-General of
Barbados, acting in accordance with the advice of the Barbados Privy Council, may wish
to stipulate reasonable time-limits in accordance with that sub-section. It is not for us in
this judgment to indicate what is or is not a reasonable time- limit. We have neither
been addressed on whether this is a matter within our purview nor have we been
provided with sufficient evidence upon which to form a view on the substantive issue.
Much may well turn on the experience the Government has had with the international
bodies. We would only note that the cases we have examined appears to suggest that
eighteen months is in practice an insufficient period for the processing of a condemned
man's petition before the Commission. Moreover, one needs to consider that in the case
of the Commission, a petition may ultimately be referred to the Inter-American Court. In
establishing reasonable time-limits therefore, we expect that the Governor-General
would balance these matters with the circumstance that it is still eminently desirable
that a prisoner on death row who has exhausted all appeals open to him domestically
should have his sentence commuted or carried out with reasonable dispatch,
notwithstanding the fact that by virtue of the amendment to section 15 of the
Constitution no delay however long can have the effect of rendering the carrying out of a
death sentence unconstitutional.

[140] We have considered carefully the steps that the BPC should take to assure
procedural fairness to a person who has been sentenced to death. The Constitution of
Barbados has mandated that the BPC may regulate its own procedure. We feel though
that we should express some of our thoughts on this matter especially as the Court of
Appeal at pages 43-44 of its judgment spent some time on the procedure that it
considered should ensue after conviction. Moreover, the role of the BPC in a mandatory
death penalty regime is critical to the individualising of the sentence, an essential
feature of any civilised justice system. We have seen from time to time in relation to a
refusal to exercise the prerogative of mercy in favour of a condemned man, the
expression that one is "allowing the law to take its course". Somehow, mercy is in some
quarters perceived as a deviation from the normal course of the law. This is a most
unfortunate way of viewing the prerogative of mercy, especially in a mandatory death
penalty regime. Mercy and justice are not mutually exclusive concepts and the "course"
of the law includes the principled intervention of the BPC. We would respectfully adopt
the view of Justice Holmes of the United States Supreme Court who, in reference to the
power of the US President to grant pardons, noted that:

"A pardon in our days is not a private act of grace from an individual happening to
possess power. It is a part of the constitutional scheme. When granted it is the

113
determination of the ultimate authority that the public welfare will be better served by
inflicting less than what the judgment fixed". See: Biddle v Perovich[FN75]

----------------------------------------------------------------------------------------------------------------
[FN75] 274 US 480 (1927), 486
----------------------------------------------------------------------------------------------------------------

[141] If we understood Mr.. Shepherd QC for the condemned men, correctly, he

contended that the BPC should meet as soon as possible after the dismissal of an appeal
to the Court of Appeal by a person convicted of murder. The sole purpose of this
meeting, he suggested, should be to determine whether the members of the BPC were
disposed to commute the sentence. In the event that commutation was agreed, then
that advice should forthwith be tendered to the Governor-General. Failing such
agreement, the BPC should postpone further deliberations until the condemned man
had exhausted his domestic appeals or, until all the statutory time-limits within which
such appeals should have been launched, had expired. The BPC should then meet a
second time for the same purpose as that for which their first meeting was held. If at
that second meeting it is agreed to commute, then that advice should forthwith be
tendered to the Governor-General. Otherwise, the BPC should postpone further
deliberations until the processing of any application made to an international body is
completed or the opportunity of making such application no longer exists. When the
report of the international body has been received, the BPC should again meet. Before it
does so, it should make available to the condemned man the material upon which it
proposes to make its decision, give him reasonable notice of the date of the meeting and
invite him, through his attorneys, to make written representations.

[142] There are some advantages in following this procedure. If at any stage,
commutation is clearly warranted, then a decision to grant it can be made early and the
condemned man informed as soon as practicable. That course of action might save the
man and the State the expense and trouble of further unnecessary legal process. The
JCPC in Pratt[FN76] did suggest that the Jamaica Privy Council should "consider the case
shortly after the Court of Appeal hearing and if an execution date is set and there is to be
an application to the [JCPC] it must be made as soon as possible."

----------------------------------------------------------------------------------------------------------------
[FN76] See [1994] 2 A.C. 1 @ 34G
----------------------------------------------------------------------------------------------------------------

[143] Notwithstanding these apparent advantages, we do not support this approach. It

will often be quite unnecessary and unproductive for the BPC to sit on three separate
occasions on the same case. Moreover, there is always a risk that if members of the BPC
form an initial view against commutation, it may be more difficult to persuade them
subsequently to change that stance when ultimately an opportunity is provided to the
condemned man to make written representations. We would recommend that the BPC

114
should meet only once and that they should do so at the very end of all the domestic
and international processes. At that stage they should make available to the condemned
man all the material upon which they propose to make their decision, give him
reasonable notice of the date of the meeting and invite him to submit written
representations. This does not of course preclude the Governor-General in his or her
discretion from convening at any time a meeting of the BPC with a view to achieving a
consensus on commutation if the Governor-General considers there is a strong case for a
commutation. If there is no decision in favour of commutation, then further deliberation
would have to be adjourned.

[144] This appeal is dismissed with costs certified fit for two attorneys-at-law for each
respondent.

/s/M A de la Bastide
Michael A de la Bastide

/s/A Saunders
Adrian D Saunders

JUDGMENT OF THE HONOURABLE MR. JUSTICE NELSON

[1] I have had the advantage of reading the joint judgment of the learned President and
Saunders J in draft and I agree with it. However, I would like to make some observations
of my own to supplement what fell from those learned judges.

THE FACTS

[2] These appeals arise out of the death of Marquelle Hippolyte on April 15, 1999 five
days after he was attacked and beaten with pieces of wood by four men. The
respondents, Joseph and Boyce, were jointly charged with Benn and Murray with the
murder of Hippolyte. At the outset of the trial the prosecution offered to accept guilty
pleas to the lesser charge of manslaughter. Benn and Murray pleaded guilty to
manslaughter. Joseph and Boyce did not. Benn and Murray were sentenced to 12 years'
imprisonment.

[3] It is apparent that the case against Joseph and Boyce was based on a common design
with Benn and Murray to cause grievous bodily harm to the deceased. Joseph and Boyce
were convicted on February 2, 2001 and sentenced to death. Joseph and Boyce appealed
their conviction and sentence, but their appeals were dismissed by the Court of Appeal
on March 27, 2002.

[4] On April 5, 2002 Joseph served the Barbados Privy Council ("BPC") with notice of his
petition to the Privy Council for special leave to appeal in forma pauperis.

115
[5] After the Court of Appeal dismissed the respondents' appeals the BPC met to
consider clemency for the respondents after advising them of the material it had before
it and inviting written representations. The respondents made no written
representations but served notice before the meeting of their application to the Judicial
Committee of the Privy Council ("the Privy Council") for special leave to appeal.

[6] The meeting proceeded nonetheless and death warrants were read to the
respondents although the special leave applications were pending.

[7] The respondents, Joseph and Boyce, immediately filed constitutional motions ("the
first motions") seeking a stay of execution pending the hearing and determination of
their appeals to the Privy Council or until further order. A stay of execution for 28 days
was granted on June 28, 2002. The stay was never extended, and the first motions were
not then proceeded with. However, the appeal, which ultimately became one of a trilogy
of cases heard together by the Privy Council on the constitutionality of the mandatory
nature of the death penalty, was dismissed on July 7, 2004: see Boyce v The Queen[FN1].
By a 5-4 majority the Privy Council held that the mandatory death penalty was not
unlawful or unconstitutional.

----------------------------------------------------------------------------------------------------------------
[FN1] Boyce v The Queen [2005] 1 AC 400; (2004) 64 WIR 37
----------------------------------------------------------------------------------------------------------------

[8] On July 9, 2004 the respondents' solicitors in London gave notice of their intention to
make a complaint to the Inter-American Commission on Human Rights ("IACHR") and
requested a stay of execution. The BPC was formally told on September 4, 2004 that the
IACHR applications were filed. Nevertheless the BPC met on September 13, 2004 and
considered the order of the Privy Council of July 7, 2004 dismissing the respondents'
appeals. The BPC advised against commutation, and death warrants were read to the
respondents a second time.

[9] On September 16, 2004, the respondents filed constitutional motions ("the second
motions") seeking inter alia a stay of execution pending the determination of their
applications before the IACHR. The orders for a stay of execution were eventually
granted.

[10] The first and second motions were consolidated and heard by Greenidge J. The
learned judge dismissed the motions on December 22, 2004 granting a stay of execution
for 6 weeks pending an appeal. An appeal was filed on January 18, 2005. The Court of
Appeal extended the stay until the hearing and determination of the appeals. By order
dated May 31, 2005 the Court of Appeal (Colin Williams, Waterman and Peter Williams JJ
A) allowed the appeals and commuted the death sentences of Joseph and Boyce to life
imprisonment. Pursuant to final leave granted by the Court of Appeal of Barbados on
November 25, 2005 the Crown now appeals the order of the Court of Appeal.

116
[11] Meanwhile on September 17, 2004 the IACHR had admitted the petitions of Joseph
and Boyce and invited the Barbados Government to respond. The IACHR also applied to
the Inter-American Court on Human Rights ("the Inter-American Court") for provisional
measures aimed at preserving the lives of Joseph and Boyce. On September 17, 2004 the
President of the Inter-American Court made that order and the full court of the Inter-
American Court confirmed it on November 25, 2004. These orders came before the
respondents had exhausted the issues raised by their constitutional motions of
September 16, 2004, and no further reference is made to them in this judgment.

[12] I need not rehearse the findings of the Court of Appeal at this stage other than to
say that it held that the decisions of the BPC were subject to judicial review and that the
ratified but unincorporated treaties i.e the American Convention on Human Rights and
the International Covenant on Civil and Political Rights 1966 (ICCPR) gave the
respondents the right to have their petitions to these human rights bodies processed
and the reports of these bodies placed before the BPC for consideration before it made a
decision on clemency. The Court of Appeal therefore considered that the BPC's decisions
in 2002 and 2004 not to recommend clemency constituted a breach of the respondents'
right to the protection of the law (section 11(c) of the Constitution). The Court of Appeal
commuted the death sentences to life imprisonment for the following reasons:

"Judicial deference to the BPC and the limited time before the expiry of the five-year
period therefore dictate that we should not order a stay of execution pending the report
from the IACHR. In view of the time frame and the circumstances of the case, the proper
order is to commute the sentences''

[13] Ultimately the Court of Appeal felt that the real ground for allowing the appeal was
that the delay between conviction and execution was long enough to amount to
"inhuman or degrading punishment" within the meaning of section 15(1) of the
Constitution as explained in the Pratt and Morgan[FN2] guidelines.

[14] By the time this appeal was heard the fifth anniversary of the conviction of Joseph
and Boyce had passed, as the Court of Appeal presciently predicted. Leading counsel for
the Crown, Mr. Forde QC, therefore conceded that if his appeal were successful he could
not properly ask for the reinstatement of the death sentences in the light of Pratt and
Morgan v Attorney-General for Jamaica[FN2]. No issue was taken for this purpose with
the aggregation of the time taken to pursue domestic appeals with the time spent
before international human rights tribunals.

----------------------------------------------------------------------------------------------------------------
[FN2] Pratt and Morgan v Attorney-General for Jamaica [1994] 2 AC 1 (PC); (1993) 43
WIR 340
----------------------------------------------------------------------------------------------------------------

117
AMBIVALENCE OF THE STATUTORY AND CONSTITUTIONAL PROVISIONS

[15] In cases such as the present involving the mandatory death penalty the courts are
faced with a paradox. In the first place, the trial judge must, if the jury finds the accused
guilty, sentence him to death: see section 2 of the Offences Against the Person Act 1994
(No 18). Secondly, section 78(3) of the Constitution commands the Governor General
(upon the sentence of a person to death) to convene a meeting of the BPC to advise him
or her on the exercise of the powers of clemency particularized in section 78(1) of the
Constitution. Although Lord Bingham of Cornhill reminds us that the grant of mercy is an
executive responsibility (Reyes v The Queen[FN3]) the effect of the exercise of a power
of reprieve may be to change a sentence of death into a sentence of a term of years.
Thirdly, as Lord Goff of Chieveley in his dissenting speech in Thomas v Baptiste[FN4] said:
"The commissions espouse a policy of discouraging capital punishment wherever
possible..." Barbados has not incorporated such treaties into domestic law, so that
abolition of capital punishment is not official domestic policy. Nonetheless, on the
international plane Barbados has accorded its citizens the right of access to international
human rights commissions whose declared commitment is toward the abolition of
capital punishment.

----------------------------------------------------------------------------------------------------------------
[FN3] Reyes v The Queen [2002] 2 AC 235, 257; (2002) 60 WIR 42, 68
[FN4] Thomas v Baptiste [2002] 2 AC 1, 35e; (1998) 54 WIR 387, 435
----------------------------------------------------------------------------------------------------------------

[16] Thus, the mandatory death penalty is prescribed, but the Constitution prevents the
sentence from being carried out without a clemency hearing by the BPC, which,
according to Lewis v Attorney-General[FN5], must await the report of international
human rights tribunals which favour abolition before it can decide on clemency. A
further element in the paradox is that pursuant to Pratt and Morgan (supra) after an
approximate period of five years after conviction a sentence which was mandatory
ceases to be so.

----------------------------------------------------------------------------------------------------------------
[FN5] Lewis v Attorney-General [2001] 2 AC 50; (2000) 57 WIR 275
----------------------------------------------------------------------------------------------------------------

[17] Barbados, in relation to persons sentenced to death after September 5, 2002, has
passed the Constitution (Amendment) Act 2002 (No 14) in an attempt to resolve some
elements of the paradox. However, it is not clear that these amendments have resolved
all the difficulties, an issue which need not detain us in the instant appeal.

[18] It is important to remember that the process under scrutiny is one by the executive
i.e the carrying out of a sentence of death with proper regard for the fundamental rights
and freedoms of a condemned man.

118
POWER TO REVIEW DECISIONS OF THE BPC

[19] In Riley v Attorney-General of Jamaica[FN6] Lords Scarman and Brightman in a

dissenting speech later vindicated in Pratt and Morgan (supra) said this of the
constitutional provisions which relate to the prerogative of mercy:

"Though they derive as a matter of history from the Crown's prerogative of mercy, they
are now statutory in character. They are part of the written Constitution... It is to be
noted that this is an executive power subject to the sort of safeguard, i.e the confidential
advice of a distinguished independent body, which is a familiar feature in administrative
and public law."

----------------------------------------------------------------------------------------------------------------
[FN6] Riley v Attorney-General of Jamaica [1983] AC 719; (1982) 35 WIR 279
----------------------------------------------------------------------------------------------------------------

[20] Nor does it matter that the source of the prerogative is the common law, statute or
the Constitution. In CCSU v Minister for the Civil Service[FN7] Lord Scarman for the
majority said:

"The law relating to judicial review has now reached the stage where it can be said with
confidence that, if the subject matter in respect of which prerogative power is exercised
is justiciable... the exercise of the power is subject to review in accordance with the
principles developed in respect of the exercise of statutory power."

----------------------------------------------------------------------------------------------------------------
[FN7] CCSU v Minister for the Civil Service [1985] AC 374, 407
----------------------------------------------------------------------------------------------------------------

[21] It is therefore clear that the procedures of the BPC are subject to judicial review, as
in fact the majority held in Lewis v Attorney-General of Jamaica (supra) where the Privy
Council refused to follow its own decision in de Freitas v Benny[FN8] and Reckley v
Minister of Public Safety and Immigration (No 2)[FN9]. Decisions as to the grant or
refusal of mercy should be arrived at by procedures which are fair and proper.

----------------------------------------------------------------------------------------------------------------
[FN8] de Freitas v Benny [1978] AC 239; (1975) 27 WIR 318
[FN9] Reckley v Minister of Public Safety and Immigration (No. 2) [1996] AC 527; 1996)
47 WIR 9
----------------------------------------------------------------------------------------------------------------

DOES THE OUSTER CLAUSE BAR REVIEW OF BPC DECISIONS?

119
[22] Counsel for the Crown then submitted that the decisions of the BPC were immune
from challenge because of the ouster clause in section 77(4) of the Constitution. Section
77(4) provides:

"The question whether the Privy Council has validly performed any function vested in it
by this Constitution shall not be inquired into in any court."

[23] I endorse what fell from the President and Saunders J in this regard, particularly
their reliance on Thomas v Attorney-General of Trinidad and Tobago[FN10]. However, it
would seem that since all decisions of bodies like the BPC are reviewable for errors of
law, such as alleged breaches of the Constitution, and for procedural fairness, ouster
clauses such as section 77(4) will rarely be effective.

----------------------------------------------------------------------------------------------------------------
[FN10] Thomas v Attorney-General of Trinidad and Tobago (1981) 32 WIR 375, 393-4
----------------------------------------------------------------------------------------------------------------

[24] Whether decisions of the BPC are subject to substantive review on the grounds laid
down by Lord Diplock in CCSU v Minister for the Civil Service (supra) at pp 410-11 i.e.
illegality, irrationality, procedural impropriety or proportionality has not been argued in
the present appeal. In my judgment any unlawfulness found in consequence of a review
on such grounds would also constitute a breach of the constitutional rights of the
condemned man and trigger the wide remedies under section 24 of the Constitution.
Indeed, on the facts of the instant case there may be a serious question as to the
proportionality of the death sentence imposed on the respondents as against the
sentence of 12 years meted out to their fellow perpetrators. The Court of Appeal in my
view properly took this factor into consideration in deciding whether to commute the
death sentences imposed on the respondents.

THE EFFECT OF PETITIONS TO INTERNATIONAL HUMAN RIGHTS BODIES

[25] A major issue between the parties was whether the respondents had the right to
have the report of the IACHR on their case placed before the BPC for consideration and
whether the BPC had a concomitant duty to await such report before taking the
decisions they took in 2002 and 2004 not to recommend commutation of their death
sentences. The Court of Appeal held that it was bound by Lewis v Attorney-General of
Jamaica (supra) and adopted the conclusion of Lord Slynn of Hadfield in Lewis (supra) at
p 85 E:

"Execution consequent upon the Jamaican Privy Council's decision without consideration
of the Inter-American Commission report would be unlawful."

In Lewis (supra) the Privy Council held that as a general rule ratified but unincorporated
treaties afforded no rights to individuals enforceable in domestic courts. However, when

120
a state acceded to such treaties and allowed individuals to petition international human
rights bodies the protection of the law afforded by section 13 of the Constitution entitled
the petitioner not only to complete that procedure and to obtain reports of such bodies
for the consideration of the Jamaica Privy Council before determination of an application
for mercy but also to have a stay of execution till such reports were received and
considered.

[26] The question whether unincorporated human rights treaties signed and ratified by
the executive accord rights to condemned men in death penalty cases has received
inconsistent answers in five Caribbean cases decided by the Privy Council and discussed
by the President and Saunders J.

[27] The dilemma which the Privy Council faced in those cases was how to maintain a
rigid dualist approach to the relationship between international law and municipal law
and yet introduce international human rights norms into municipal law where treaties
embodying those norms were ratified but not incorporated.

[28] That dilemma might be resolved by considering whether there are any exceptions to
the rule that international law and municipal law travel along distinct, non-tangential
paths. In my judgment there is such an exception when there is a legitimate expectation
on the domestic plane that there would be compliance with international obligations not
incorporated into the municipal law. It is well settled that a decision- maker may create a
legitimate expectation in a person by reason of the decision maker's established past
practice: see O'Reilly vMackman[FN11] per Lord Diplock. Other methods of creating a
legitimate expectation may be a specific representation to a person as to how a power
will be exercised or an express or implied policy statement attributable to the decision-
maker.

----------------------------------------------------------------------------------------------------------------
[FN11] O'Reilly v Mackman [1983] 2 AC 237, 275D
----------------------------------------------------------------------------------------------------------------

[29] The legitimate expectation in the instant case is based on the established practice in
Barbados after a condemned man has exhausted his local appeals. The judgment of the
Court of Appeal refers to this "established practice" at paragraph 17 and sets out the
steps to be followed in bringing a complaint before the IACHR or the Inter- American
Court.

[30] Alternatively, the conduct of the Barbados government in complying with its
obligations in respect of this petition to the IACHR amounts in my judgment to a
representation by conduct that the benefit of the Inter-American system of review
would be accorded to the respondents.

[31] In the result I would arrive at the same conclusion as the Privy Council in Lewis

121
(supra) but by the slightly different route of anchoring the need to await the termination
of the Inter-American review process in a legitimate expectation derived from
established practice in Barbados or the representations of the Barbados authorities by
conduct in this case.

[32] I agree with the analysis of the President and Saunders J of the legal consequences
of such a legitimate expectation. If it were necessary to decide the point in this case I
would have held that once an applicant to the BPC has been denied fairness or natural
justice by the BPC it may not be safe in a matter of life and death to remit the same case
to the same body since there would always be a lurking doubt and sense of injustice if
the BPC ignored a report favourable to the respondents and persisted in its refusal of
clemency.

COMMUTATION?

[33] Counsel for the Crown, Mr.. Forde QC, also raised the question whether the Court of
Appeal could properly commute the death sentence. The point now seems academic in
the light of the concession made by him that the decision in Pratt and Morgan v
Attorney-General (supra) applied on the facts of the instant appeal, more than five years
having elapsed since conviction. In any event the Court of Appeal properly regarded
itself as bound by Bradshaw v Attorney-General[FN12] in which the Privy Council
commuted a sentence of death where there was a delay in excess of eight years after
conviction on the basis of the principles in Pratt and Morgan v Attorney- General (supra),
and we have not been invited to depart from Bradshaw v Attorney- General (supra).

----------------------------------------------------------------------------------------------------------------
[FN12] Bradshaw v Attorney-General [1995] 1 WLR 936 (PC); (1995)46 WIR 62
----------------------------------------------------------------------------------------------------------------

[34] In my judgment a breach of the right to the protection of the law occurred when the
BPC made its decisions not to recommend clemency before the respondents could
obtain any material for its consideration from the international bodies they had
petitioned, thus impairing the fairness of the hearing. This breach brought into play the
full range of remedies under the redress clause. Accordingly the Court of Appeal could
properly have made its order pursuant to section 24 of the Constitution on the basis of a
breach of the Constitution other than section 15 if it had been minded to do so.

[35] In any event the powers of the courts under the supreme law clause would appear
to be wide enough to provide a declaration and consequential relief in respect of any law
or executive action in breach of the Constitution. However, in the absence of full
argument I express no concluded view on this point.

CONCLUSION

122
[36] In the final analysis for the reasons given by the President and Saunders J I too
would dismiss this appeal with costs to each of the respondents certified fit for two
attorneys- at-law.

/s/ R. F. Nelson
Rolston F Nelson

JUDGMENT OF THE HONOURABLE MR. JUSTICE POLLARD

[1] The background to this appeal from the Barbados Court of Appeal has been fully set
out in the judgments of my learned colleagues. However, I approach some issues in this
appeal with perspectives different from my learned colleagues even though our
conclusions are essentially similar. The first issue is as follows:

Whether the exercise by the Governor General of the powers under section 78 of the
Constitution of Barbados is justiciable and, if so, to what extent.

JUSTICIABILITY OF THE PREROGATIVE OF MERCY

[2] As concerns this issue the weight of authority supports a finding for the justiciability
of the exercise of the prerogative of mercy. In this context, a clear distinction was made
by Lord Slynn who delivered the majority advice of the Judicial Committee of the Privy
Council ("the Board") in Neville Lewis v Attorney General of Jamaica[FN1] between the
process informing the exercise of discretionary powers and the merits of the exercise of
such powers by a competent authority. In recent decades the courts have determined
that curial intervention in the exercise of executive discretion is less a function of its
source, be it prerogative or statutory, than the subject matter under consideration. In
Council of Civil Service Unions and Ors. v Minister for the Civil Service[FN2] Lord Scarman
captured the prevailing judicial view: "Today, therefore, the controlling factor in
determining whether the exercise of prerogative power is subject to judicial review is
not its source but its subject matter."

----------------------------------------------------------------------------------------------------------------
[FN1] (2000) 57 WIR 275; [2001] 2 AC 50 at p 75
[FN2] [1985] AC 374 p 407
----------------------------------------------------------------------------------------------------------------

[3] In examining the justiciability of the exercise of the prerogative of mercy I propose to
adopt as my point of departure the elucidatory dictum of Lord Diplock in Council of Civil
Service Unions v Minister for the Civil Service[FN3] as follows:

"To qualify as a subject for judicial review the decision must have consequences which
affect some person (or body of persons) other than the decision-maker, although it may
affect him too. It must affect such other person either (a) by altering rights or obligations

123
of that person which are enforceable by or against him in private law or (b) by depriving
him of some benefit or advantage which either (i) he has in the past been permitted by
the decision-maker to enjoy and which he can legitimately expect to be permitted to
continue to do until there has been given an opportunity to comment or (ii) he has
received assurance from the decision-maker will not be withdrawn without giving him
first an opportunity of advancing reasons for contending they should not be withdrawn."

----------------------------------------------------------------------------------------------------------------
[FN3] Ibid at p 408
----------------------------------------------------------------------------------------------------------------

[4] Learned counsel for the appellants, in vigorously submitting that the exercise of the
prerogative of mercy was beyond judicial review, relied heavily on the decision of the
Board in de Freitas v Benny[FN4] which was followed in Reckley v Minister of Public
Safety and Immigration[FN5]. However, the Board in Neville Lewis[FN6] distinguished
those two cases by reference to the personal character of the discretion to be exercised
by the competent Minister in advising the mercy committee as contrasted with the
decision-making power of the Jamaica Privy Council on whose recommendation the
Governor General was required to act. Consequently, the Board determined that in
exercising the prerogative of mercy the requirement to act fairly fully justified curial
intervention in the process preceding a determination on the merits.

----------------------------------------------------------------------------------------------------------------
[FN4] (1975) 27 WLR 318; [1976] AC 239
[FN5] (1996) 47 WIR 9; [1996] AC 527
[FN6] Supra at p 2
----------------------------------------------------------------------------------------------------------------

[5] Similarly, in the instant case, the Court of Appeal found for the justiciability of the
exercise of the powers by the Barbados Privy Council (BPC) under Section 78 of the
Constitution on the premise that the BPC was a quasi-judicial or decision-making body.
Be that as it may, there is good authority for holding that where a body, be it public or
private, judicial, quasi-judicial or administrative is charged with making determinations
affecting the rights or interests of persons, the process employed in reaching such
determinations is subject to judicial review. In Breen v Amalgamated Engineering
Union[FN7] Lord Denning observed:

"even though its functions are not judicial or quasi-judicial, but only administrative, still
it must act fairly. Should it not do so, the courts can review its decision, just as it can
review the decision of a statutory body... If a man seeks a privilege to which he has no
particular claim - such as an appointment to some post or other - then he can be turned
away without a word. He need not be heard. No explanation need be given: See the
cases cited in Schmidt v Secretary of State for Home Affairs (1969) 2 Ch 149, 170-71. But
if he is a man whose property is at stake, or who is being deprived of his livelihood, then

124
reasons should be given why he is being turned down and he should be given a chance
to be heard. I go further: If he is a man who has some right or interest, or some
legitimate expectation of which it would not be fair to deprive him without a hearing, or
reasons given, then these should be afforded him, according as the case may demand"

----------------------------------------------------------------------------------------------------------------
[FN7] [1971] 2 QB 175 at 191
----------------------------------------------------------------------------------------------------------------

[6] Contrary to the submissions of counsel for the appellants, the weight of authority
argues against the need to determine whether the function to be performed by the BPC
was quasi-judicial or administrative since the distinction appears to have lost all
significance for determining the legality of the acts of public authorities, which, in
making determinations affecting the rights or interests of private citizens, are required to
act fairly[FN8].

----------------------------------------------------------------------------------------------------------------
[FN8] See Lord Denning in Schmidt and Another v Secretary of State for Home Affairs
(1969) 2 Ch 149 at p 170
----------------------------------------------------------------------------------------------------------------

[7] Indeed, the principle of procedural fairness is such an imperative of the conduct by
bodies, public or private, called upon to determine rights or interests of parties that its
absence has been determined to constitute a lack of jurisdiction such that the courts will
intervene to ensure compliance therewith[FN9]. Consider in this context the judgment
of the Court of Appeal delivered by Lord Woolf MR. in Regina v Lord Saville of Newdigate
et al, ex parte A & Others[FN10]. In affirming this principle in O'Reilly and Others v
Mackman & Others[FN11] Lord Diplock averred:

"But the requirement that a person who is charged with having done something, which,
if proved to the satisfaction of a statutory tribunal, has consequences that will, or may,
affect him adversely, should be given a fair opportunity of learning what is alleged
against him and of presenting his case is so fundamental to any civilized legal system,
that it is to be presumed that Parliament intended that a failure to observe it should
render null and void any decision reached in breach of this requirement."

----------------------------------------------------------------------------------------------------------------
[FN9] Attorney General v Ryan [1980] AC 718 at 730; Regina v Secretary of State for
Home Department ex parte Fayed [1998] 1 WLR 763 at 772; Anisminic Limited v Foreign
Compensation Commission [1969] 2 AC 147
[FN10] [2000] 1 WLR 1855 at [38]. See also Lloyd v Mc Mahon (1987) AC 625; Regina v SS
for the Environment ex parte Hammersmith & Fulham London Borough Council [1991]
AC 521 and Regina v Secretary of State for Home Dept ex parte Fayed (1998) 1 WLR 1
WLR 763 at pp 774 and 776

125
[FN11] [1983] 2 AC 237 at p 276
----------------------------------------------------------------------------------------------------------------

[8] Developing public law principles establish that it is not important whether the
Barbados Privy Council acting pursuant to powers conferred on it by section 78 of the
Constitution, was required to perform a quasi-judicial or administrative function or
whether the subject matter to be determined was a legal right, a legitimate expectation
or other interest falling short of a legal right, the requirement of procedural fairness
must be satisfied. And it is of no avail to counsel for the appellants to submit that the
source of the power to be exercised was prerogative rather than statutory because the
courts' intervention would not ordinarily address the merits of the determination but
the process involved in reaching it.[FN12] Fitzpatrick JA in Yassin v Attorney General of
Guyana[FN13] said:

"In this case justiciability concerning the exercise of mercy applies not only to the
decision itself but to the manner in which it is reached. It does not involve telling the
Head of State whether or not to commute. And where the principles of natural justice
are not observed in the course of the process leading to its exercise, which processes are
laid down by the Constitution, surely the court has a duty intervene, as the manner in
which it is exercised may pollute the decision itself."

----------------------------------------------------------------------------------------------------------------
[FN12] Anisminic Ltd v Foreign Compensation Commissions (1969) 2 AC 147
[FN13] (1996) 62 WIR at p 98
----------------------------------------------------------------------------------------------------------------

[9] This dictum was approved by the Board in Lauriano v Attorney General of Belize.
[FN14] Refusal of the courts to be shut out by legislation from reviewing the exercise of
discretionary powers which affect the rights of the individual is evidenced in a line of
authorities which drew a distinction between process and the merits of a decision.
[FN15] The critical question to be determined here, however, is whether the courts are
entitled to put shut out clauses set out in national constitutions, which are expressed to
be the supreme law, in the same category as such clauses appearing in ordinary national
legislation. Although this issue was carefully addressed by the Hon. Attorney General in
the court below it was not raised before us by learned counsel for the appellants.

----------------------------------------------------------------------------------------------------------------
[FN14] (1995) 47 WIR 74

[FN15] Anisminic Ltd v Foreign Compensation Commission (1969) 2 AC 147; Breen v

Amalgamated Engineering Union (1971) 2 QB 1751; Attorney General v Ryan (1980) AC
718; Council of Civil Service Unions v Minister of the Civil Service (1984) 3 All ER 935 and
Lauriano v Attorney General and Another (1996) 2 LRC 96; Regina v Secretary of State for
Home Department ex parte Fayed (1998) 1 WLR 763 at pp 774 and 776

126
----------------------------------------------------------------------------------------------------------------

[10] In addressing the ouster clause in his written submissions Mr.. Forde QC, lead
counsel for the appellants, pointed out that this Court should uphold the provision set
out in Section 77(4) of the Constitution of Barbados since it was plain and unambiguous
in meaning. He emphasized that the only other ouster clause employed by the
draftsman in the Constitution was under Section 106. He maintained that both Sections
77(4) and 106 of the Constitution encapsulated powers which were traditionally
prerogative in nature and as such the instant case should be distinguished from
Harrikissoon v Attorney General[FN16] and Endell Thomas v Attorney General of Trinidad
and Tobago[FN17] where the plaintiffs' private rights had been infringed due to certain
procedural irregularities. In effect, the inference to be drawn was that the ouster clauses
set out in Sections 77(4) and 106 of the Barbadian Constitution, encapsulating as they
did prerogative powers, were materially different from those engaged in the
aforementioned cases and should be construed differently by this Court. However,
learned counsel for the appellants declined to produce any authorities to support the
inference that ouster clauses set out in national constitutions were qualitatively different
from those contained in ordinary legislation, requiring different treatment by the courts.

----------------------------------------------------------------------------------------------------------------
[FN16] (1979) 3 WIR 348
[FN17] (1981) 32 WIR 375; [1982] AC 113
----------------------------------------------------------------------------------------------------------------

[11] Consequently, I am constrained to rely on authorities which make no distinction

between these two types of ouster clauses. A case in point turned on the interpretation
of Section 102(4) of the Trinidad & Tobago Constitution (1962) which, mutatis mutandis,
anticipated the provision of Section 77(4) of the Barbados Constitution. The provision
reads as follows:

"(4)The question whether – (a) a commission to which this section applies has validly
performed any function vested in it by or under this Constitution; (b) any member of
such a commission or any other person has validly performed any function delegated to
such member or person in pursuance of the provisions of Section 84(1), or Section 93(1)
or Section 99(1), as the case may be, of this Constitution; or (c) any member of such a
commission or any person has validly performed any other function in relation to the
work of the commission or in relation to any such function as is referred to in the
preceding paragraph; shall not be inquired into in any court."

[12] In delivering the judgment of the Board on this issue in Endell Thomas v Attorney
General of Trinidad & Tobago[FN18] Lord Diplock observed:

"The full doctrine laid down in Smith v East Elloe Rural District Council as to the
effectiveness of 'no certiorari' clauses has since fallen into disfavour and has been

127
whittled down considerably in England after the 1962 Constitution of Trinidad & Tobago
had been drafted, particularly by the decision of the House of Lords in Anisminic Ltd v
Foreign Compensation Commission (1969) 2 AC 147 where one of the few remaining 'no
certiorari' clauses that had survived the Tribunals and Inquiries Act 1958 was held to be
insufficient to oust the jurisdiction of the High Court to set aside an order of an
administrative tribunal that acted outside the limited jurisdiction conferred on it by
Parliament... However, their Lordships do not find it necessary in the instant case to
analyze the speeches in Anisminic and later English cases that have followed it, or to do
more than say that it is plainly for the court and not for the commission to determine
what, on the true construction of the Constitution, are the limits to the functions of the
Commission."

----------------------------------------------------------------------------------------------------------------
[FN18] Ibid at p 393, p 135
----------------------------------------------------------------------------------------------------------------

[13] Consistently with the opinion of Lord Roskill in Council of Civil Service Unions v
Minister for the Civil Service[FN19], the Board in Neville Lewis acknowledged that the
exercise of the prerogative of mercy was for the Governor General acting beyond curial
review. Such a finding, however, did not immunize the entire process from judicial
review since as Lord Diplock in Abbott v Attorney General of Trinidad and Tobago[FN20]
and Lord Goff in Thomas Reckley v Minister of Public Safety & Immigration[FN21] had
intimated, there was a right to have a petition of mercy considered by the Advisory
Committee. The requirement of procedural fairness, which, in the majority advice of the
Board in Neville Lewis, was a function of assimilating "protection of the law" set out in
section 13 of the Jamaican Constitution and "due process of the law" set out in section
4(a) of the 1976 Constitution of Trinidad and Tobago, also prescribed that the Jamaica
Privy Council was obliged to await and consider the recommendations of the
Commission before making a determination in the exercise of the prerogative of mercy.
And since the relevant provisions of the Constitutions of Jamaica and Barbados were
almost identical in object and intent the Court of Appeal correctly held that,
notwithstanding section 77(4) of the Barbados Constitution, which was not replicated in
the Jamaica Constitution, the exercise by the Governor General of the powers conferred
under section 78 was subject to judicial review. I was not persuaded by the submissions
of learned counsel for the appellants that the determination of the Board in Neville
Lewis was not applicable to Barbados since the doctrine of precedent was not, in his
submission, ambulatory in Commonwealth Caribbean states. For the reasons set out
above as well as those adduced by my learned brothers and sister in their judgments, I
concur in the determination of the Court of Appeal that the prerogative of mercy should
be exercised by procedures which are fair and proper and to that end are subject to
judicial review. In so doing the Court of Appeal applied Neville Lewis which was
expressed to be legally binding. I also concur in the Board's determination in Neville
Lewis but I entertain strong reservations about endorsing the reasoning which was
expressed to inform it.

128
----------------------------------------------------------------------------------------------------------------
[FN19] Supra at p 418
[FN20] (1979) 32 WIR 347 at p 350
[FN21] Supra at p 539, p 18
----------------------------------------------------------------------------------------------------------------

[14] Accepting as authoritative Lord Millett's clarification in Briggs v Baptiste[FN22] of

the ratio decidendi in Thomas v Baptiste where he asserted that "(i)t confirmed the
principle that the consideration of a reprieve is not a legal process and is not subject to
the constitutional requirement of due process...", then it does appear to follow, aequo
vigore, in my opinion that by applying the determination in Thomas v Baptiste, mutatis
mutandis, to the facts in Neville Lewis, the Board could not by compelling reasoning
have arrived at the conclusion that the process preceding the exercise of the prerogative
of mercy was justiciable. The flawed reasoning of the majority of their Lordships
probably prompted an exasperated Lord Hoffmann to remark in his vigorous dissenting
advice:

"On the Inter-American Commission issue the majority have found in the ancient
concept of due process of law a philosopher's stone undetected by generations of
judges, which can convert the base metal of executive action into the gold of legislative
power. It does not, however, explain how the trick is done. Fisher v Minister of Public
Safety and Immigration (No. 2) and Higgs and Mitchell v Minister of National Security are
overruled, but the arguments stated succinctly in the former and more elaborately in the
latter are brushed aside rather than confronted..." [FN23]

----------------------------------------------------------------------------------------------------------------
[FN22] (1999) 55 WIR 460 at p 472; (2000) 2 AC 40 at p 54
[FN23] Supra at p 88
----------------------------------------------------------------------------------------------------------------

[15] In Higgs & Mitchell v Minister of National Security[FN24] Lord Hoffmann divined the
ratio decidendi of Thomas v Baptiste as positing "that the due process clause in Section
4(a) of the Trinidad and Tobago Constitution gave the Crown power to accept an
international jurisdiction as part of the domestic criminal justice system." At the material
time he hesitated to say whether the Board's action was right or wrong. In Neville Lewis
the Board, endorsing the determination of the Jamaica Court of Appeal, assimilated "due
process of law" set out in Section 4(a) of the Constitution of Trinidad and Tobago and
"protection of the law" appearing in Section 13 of the Constitution of Jamaica in order to
incorporate the relevant international jurisdiction of the American Convention o Human
Rights ("the Convention") in the domestic criminal justice system and to determine that
the Jamaican Privy Council was obliged to await the reports of the Inter-American
Human Rights Commission (IAHRC) before exercising the prerogative of mercy.[FN25]
The Board's decision was clearly intended to secure for the convicted murderers on

129
death row the common law requirement of procedural fairness and to reflect the
evolving higher standards of international human rights law which have impacted
positively on the administration of domestic criminal justice systems the world over,
especially in relation to matters of life and liberty.

----------------------------------------------------------------------------------------------------------------
[FN24] (1999) 55 WIR 10 at p 22
[FN25] Neville Lewis v Attorney General (2000) 57 WIR 303
----------------------------------------------------------------------------------------------------------------

[16] Many Commonwealth Caribbean states which expressed their intention to make
this Court their court of last resort have internalized the decision of Neville Lewis in their
common law and, in the case of Barbados, in its supreme law. Consequently, I
apprehend that the overriding regional public interest in procedural fairness and stability
in the administration of criminal justice strongly advise adopting the Board's decision
even if this decision does not constitute the conclusion of sound reasoning, subject to
placing it on a juridically feasible basis. Postulated in other terms, the primordial
requirements of legal certainty and procedural fairness in my view must be seen by this
Court to trump the flawed reasoning of the Board with a probable positive impact on
good governance in the sub-region based on the rule of law.

[17] The second issue is as follows:

In what manner, if at all, might unincorporated human rights treaties which give a right
of access to international tribunals, affect the rights and status of a person convicted of
murder and sentenced to the mandatory punishment of death by hanging?

[18] In addressing this issue it may be useful to bear in mind that international treaties,
irrespective of their subject matter, which are not in force for a state nor are being
provisionally applied by that state, may have no legal incidence for that state either at
the international or municipal plane unless, of course, their provisions encapsulate
norms of ius cogens, or in the case of dualist jurisdictions customary international law
which are, ipso facto, incorporated in the common law. Having established that the state
concerned has consented to be bound by a treaty, its legal incidence for persons or
entities within the contemplation of relevant provisions will depend on the adoption,
entry into force or provisional application of the instrument, as the case may be. Where
the instrument has entered into force or is being provisionally applied, actual or
prospective states parties to the regime, as the case may require, would have acquired
rights or assumed obligations under the instrument such that violation of its terms
would engage their international responsibility. Normally, provisions of treaties in force
or provisionally applied are incapable of conferring rights or imposing obligations on
private individuals in dualist jurisdictions in the absence of incorporation. And even in
monist jurisdictions treaty provisions intended to have direct effect must satisfy
specified conditions relating to operability. In effect, unless an unincorporated human
rights treaty has entered into force by signature, ratification, or some other agreed

130
procedure, or is being provisionally applied by prospective parties, it cannot affect the
rights of a private person.

[19] There appears to be a disconnect also between this issue as formulated by learned
counsel for the parties and the facts established in this case. However, given the context
of its elaboration, this issue must be seen to address, inferentially, two questions as
follows:

(a) to what extent, if any, may an unincorporated ratified treaty providing for a personal
right of access to international human rights bodies affect the rights and status of a
convicted murderer sentenced to the mandatory death penalty by hanging?
(b) to what extent may the executive rely on relevant provisions of the constitution of a
state to extend its "protection of the law" provisions by incorporating an international
complaints procedure set out in an unincorporated treaty in its municipal criminal law
system?

[20] As concerns the first question to be addressed, I am of the view that an

unincorporated ratified treaty has legal incidence in the municipal law of interested
parties of the ratifying state subscribing to dualism where the executive concerned have
implemented its provisions by engaging in conduct at the municipal plane engendering
legitimate expectations on the part of representees that the executive will comply with
the relevant provisions of the unincorporated ratified treaty. The second question
addresses the issue of the allocation of state powers among the principal branches of
government in dualist jurisdictions and the competence of the executive to modify by
the exercise of treaty- making prerogative powers the provisions of the constitution
through the employment of procedures not sanctioned by the constitution and whose
effect compromises the separation of powers principle. I shall consider these questions
under various rubrics.

UNINCORPORATED TREATIES AND LEGITIMATE EXPECTATIONS

[21] Treaties normally have legal incidence only at the international plane. Given that
international law and municipal law are ordinarily conceived as two non-convergent
normative regimes, municipal courts maintain that unincorporated treaties are incapable
of creating legal rights for private entities[FN26]. Many Commonwealth Courts following,
somewhat uncritically, the decision in Minister of Immigration and Ethnic Affairs v
Teoh[FN27], have accepted, nevertheless, that a ratified unincorporated treaty
engenders a legitimate expectation at the municipal plane, particularly in the area of
international human rights law, even though as a matter of law, an international act is
normally perceived as incapable, ipso facto, of having legal incidence in the municipal
law of dualist jurisdictions[FN28]. I propose to examine below the issue of treaty-derived
legitimate expectations as a more credible basis for the determination in Neville Lewis
than the reasons adduced by the Board. Before doing so, however, I shall address in a
general way some important features of a legitimate expectation in public law.

131
----------------------------------------------------------------------------------------------------------------
[FN26] Malone v Metropolitan Police Commissioner (1979) Ch 344; Blackburn v Attorney
General (1971) 1 WLR 1037 at p 1040
[FN27] (1995) 183 CLR 273
[FN28] See, for example, the following cases: in Britain Regina v Secretary of State for
Home Department ex parte Brind (1991) 1 AC 696; in New Zealand see Tavita Minister of
Immigration (1994) 2 NZLR 257; Ashby v Minister of Immigration 1 [1981] NZLR 222; in
India, Vishaka v State of Rajasthan AIR 1997 SC 3011 and Peoples Union for Civil Liberties
Union v Union of India AIR 1997 SC 1203; in Canada, Ahani v Attorney General of Canada
(2002) Ont Reports 8.2.02; in Trinidad and Tobago, Ismay Holder v Council of Legal
Education HCA No 732 of 1997; in Jamaica, Seafood and Ting Int Ltd (1999) 58 WIR 269
----------------------------------------------------------------------------------------------------------------

[22] Where public authorities are called upon to exercise discretionary powers, be they
prerogative or statutory, they may engage in conduct creative of legitimate expectations
on the part of representees liable to be affected by such conduct. In the opinion of Lord
Fraser of Tullybelton, the source of a legitimate expectation may be a promise or an
established practice by a public authority indicating how discretionary powers will be
exercised[FN29]. The genesis of the term, which is analogous to the private law principle
of estoppel, has been located, not without considerable historical significance, in Lord
Denning's judgment in Schmidt v Secretary of State for Home Affairs.[FN30] Legitimate
expectations sought to be relied on as a basis of judicial review must emanate from an
unequivocal and unambiguous representation, expressed or implied, of a public
authority indicating the manner of employment of executive discretionary
powers[FN31]. Although a legitimate expectation may not be assimilated to a legal right
amenable to vindication in the courts of law, the claimant must, except otherwise
permitted by statute, establish to the satisfaction of the courts sufficient of a legitimate
interest in order to secure the leave of the court to apply for judicial review.[FN32] In
Barbados, for example, no leave is required to apply for judicial review under the
Administrative Justice Act, Cap 109. Leave is required under Order 53 of the Rules of the
Supreme Court, however, but this is no longer used by anyone. In addressing the
legitimacy of an expectation Sedley J commented:

"Legitimacy in this sense is not an absolute. It is a function of expectations induced by

government and of policy considerations which militate against their fulfilment. The
balance must be in the first instance for the policy-maker to strike; but if the outcome is
challenged by way of judicial review, I do not consider that the court's criterion is the
bare rationality of the policy maker's conclusion. While policy is for the policy-maker
alone, the fairness of his or her decision ... remains the court's concern."[FN33]

----------------------------------------------------------------------------------------------------------------
[FN29] Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at p
401

132
[FN30] (1969) 2 Ch, 149 at p 171
[FN31] R v Jockey Club ex parte Ram Race Courses Ltd [1993] 2 All ER 225; Regina v
Secretary of State for Education & Employment ex parte Begbie (2000) 1 WLR 1115
[FN32] Regina v Secretary of State for the Home Department ex parte Hargreaves [1997]
1 WLR 906 at 917-8
[FN33] Regina v Ministry of Agriculture Fishers & Food ex parte Hamble ( Off Shore)
Fisheries Ltd [1995] 2 All ER 714 at 731
----------------------------------------------------------------------------------------------------------------

[23] The principle of legitimate expectations in public law seeks to ensure for private
individuals procedural fairness[FN34] and legal certainty by preventing public authorities
resiling from the substance of undertakings.[FN35] Sir David Simmons, Chief Justice of
Barbados, stated the essential rationale of the doctrine "as resting upon an all-pervasive
duty to act fairly[FN36] Legitimate expectations may, on the one hand, relate to a
substantive benefit which the competent authority has power to confer when it
exercises its discretionary powers; on the other hand, they may relate to the procedure
to be employed by the executive before exercising its discretionary powers. The courts,
in determining whether or not to offer judicial protection to a legitimate expectation or
allow it to be frustrated by a change of executive policy, are inevitably caught up in a
balancing exercise involving, on the one hand, competing claims of overriding public
interest in legality and administrative autonomy and, on the other hand, of an enduring
private interest in procedural fairness and legal certainty. But, before determining
whether to afford protection to an expectation, the courts will have to be satisfied about
its legitimacy. In order to be legitimate the expectation must derive from lawful,
unambiguous conduct by the executive.[FN37] Further, the claimant must establish that
in all the circumstances the expectation was reasonably entertained at the material time
and justifies the protection of the courts.[FN38]

----------------------------------------------------------------------------------------------------------------
[FN34] Attorney General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629
[FN35] R v North and East Devon Health Authority ex parte Coughlan (2000) QB 213
[FN36] Pearson Leacock v Attorney General of Barbados: No 1712 of 2005 (unreported)
at 26
[FN37] South Buckinghamshire District Council v Flanagan (2002) 1 WLR 2601; R v Inland
Revenue Commissioners ex parte MFK Underwriting Agencies Ltd (1990) 1 WLR 1545 at
1569; R v Jockey Club, ex parte Ram Race Courses Ltd [1993] 2 All ER 225
[FN38] R v Secretary of State for Education & Employment ex parte Begbie [2000] 1 WLR
1115
----------------------------------------------------------------------------------------------------------------

[24] Fundamental to the legitimacy of an expectation is its legality.[FN39] To accord

legitimacy to an unlawful act undermines the principle of legality and compromises the
ultra vires doctrine by unlawfully sanctioning the augmentation of administrative power
by executive fiat. To be legitimate the conduct of the executive must not only be lawful,

133
it must also have been authorized[FN40] or must have been within the ostensible
authority of the decision-maker.[FN41]

----------------------------------------------------------------------------------------------------------------
[FN39] R v Ministry of Agriculture, Fisheries & Food ex parte Hamble (Offshore) Fisheries
Limited [1995] 2 All ER 714 at 735
[FN40] Coghurst Wood Leisure Park Ltd v Secretary of State for Transport (2002) EWHC
1091
[FN41] R v Leicester City Council ex parte Powergen UK Limited (2000) 80 P & CR 176;
South Buckingham District Council v Flanagan (2002) EWCA Civ 690; R v Secretary of
State for Home Depot ex parte Bloggs (2002) EWHC 1921
----------------------------------------------------------------------------------------------------------------

[25] Consistently with the principle of legality the House of Lords held that a public
authority was not competent to give a commitment not to perform its statutory duties.
[FN42] Nonetheless, there is some persuasive authority to the contrary that an ultra
vires act may, in appropriate circumstances, engender a legitimate expectation.[FN43]
But even where the exercise of discretionary powers is intra vires, judicial constraints
may be placed on its exercise. Thus the British Court of Appeal held that a competent
authority may not without warning discontinue an established practice for twenty-five
years since this would defeat unfairly the legitimate expectations of the claimant and
may even constitute an abuse of power.[FN44]

----------------------------------------------------------------------------------------------------------------
[FN42] Attorney General of Hong Hong v Ng Yuen Shiu [1983] 2 AC 629; see also R v
Inland Revenue Commissioners ex parte Preston (1985) AC 835
[FN43] Rowland v The Environment Agency (2004) Ch 1
[FN44] R v Inland Revenue Commissioners ex p Unilever (1996) STC 681
----------------------------------------------------------------------------------------------------------------

[26] In special circumstances a substantive legitimate expectation may be accorded

judicial protection such as where, in a particular case, the decision-maker has, contrary
to an undertaking made to a specific claimant, effected a change in policy.[FN45] The
courts will offer protection to the claimant unless the competent authority had granted a
hearing and overriding considerations of the public interest had advised a change in
policy. Similarly,[FN46] it was held that a public authority was required to act in
accordance with declared policy unless overriding considerations of the public interest
advised a departure therefrom. Where, for example, a claimant relies in good faith on
the representation of a public authority to his prejudice, otherwise referred to as
detrimental reliance, and the authority purports to resile from the resulting legitimate
expectation, the courts would intervene where it can be established that the private
interest in fairness and legal certainty trumps the overriding public interest in the
flexibility of the exercise of discretionary powers. The attempted policy change may even
be construed to constitute an abuse of power by the executive.[FN47]

134
----------------------------------------------------------------------------------------------------------------
[FN45] R v Home Secretary ex parte Khan (1984) 1WLR 1337
[FN46] R v Home Secretary ex parte Ruddock (1987) 1 WLR 1482 and R v Home Secretary
ex parte Gangadeen (1998) 1 FLR 762
[FN47] R v Inland Revenue commissioners ex parte Preston (1985) AC 835 and R v
Ministry of Agriculture, Fisheries and Food ex parte Hamble (Offshore) Fisheries Ltd
(1995) 2 ALL ER 714
----------------------------------------------------------------------------------------------------------------

[27] In several important Commonwealth Caribbean death penalty cases,[FN48] the

public law principle of legitimate expectations was addressed by the Board. However,
this was done in an uneven and marginal manner. For the greater part the principle of
legitimate expectations was perceived by the Board as engendering a mere procedural
interest vulnerable to frustration by a change in executive policy communicated to the
representee and accompanied by the opportunity to make representations. Sometimes
the principle was perceived as deriving from the mere ratification of a treaty and at
other times from both ratification and treaty-compliant executive conduct at the
municipal plane. In either case, however, the Board concluded that such legitimate
expectations could be frustrated by a change in executive policy. The Board did not think
that treaty-derived legitimate expectations could eventuate in the conferment of a
substantive benefit since this would be giving indirect effect to an unincorporated treaty
contrary to the relevant constitutional principle which was well established in the
common law. Unfortunately, in my view, the Board appeared to treat the decision in
Minister of Immigration and Ethnic Affairs v Teoh as having crystallized the principle of
treaty-derived legitimate expectations rather than as expressing an evolving public law
principle with peculiar attributes readily adaptable to changing international human
rights standards.

----------------------------------------------------------------------------------------------------------------
[FN48] Fisher (1998) 53 WIR 27; Fisher v Minister of Public Safety and Immigration (No 2)
(2000) 1 AC 434; Thomas v Baptiste (1998) 54 WIR 387; Thomas v Baptiste (2000) 2 AC 1;
Higgs (1999) 55 WIR 10; Higgs v Minister of National Security (2000) 2 AC 228; Neville
Lewis (2000) 57 WIR 275; Neville Lewis v A-G of Jamaica [2001] 2 AC 50
----------------------------------------------------------------------------------------------------------------

TREATY-DERIVED LEGITIMATE EXPECTATIONS

[28] An examination of the decisions in several Caribbean death penalty cases does
appear to exhibit a measure of ambiguity on the part of their Lordships concerning the
origin of a treaty-based legitimate expectation. For example, in some instances the
Board appeared to focus on the treaty-compliant conduct of the executive at the
municipal plane as engendering the legitimate expectation; but, in so doing they appear
to be applying Teoh whose primary focus is on executive conduct at the international

135
plane, namely, the ratification of a treaty. However, in my view treaty-compliant conduct
of the executive at the municipal plane is necessary to establish a "foothold"[FN49] as
the basis of curial intervention at this level in order to protect the expectation
engendered.

----------------------------------------------------------------------------------------------------------------
[FN49] The concept of a "foothold" at the municipal plane as a basis for municipal courts
exercising jurisdiction was employed in Occidental Exploration and Production Company
v Republic of Ecuador (2005) EWCA Civ 1116 at [43] and [55]
----------------------------------------------------------------------------------------------------------------

[29] In Fisher No 2, for example, the focus was on the treaty-compliant conduct of the
executive at the municipal plane. Here, the executive of the Government of the Bahamas
had, pursuant to Article 51 of the Regulations of the Inter-American Human Rights
Commission (IAHRC) allowed, not unwittingly, convicted murderers to submit petitions
to the IAHRC. The executive had also expressly undertaken not to exercise the
prerogative of mercy before considering the recommendations of the IAHRC. This must
be seen to be treaty-compliant conduct since although the Bahamas did not ratify the
Convention like other Commonwealth Caribbean States, the Statute of the IAHRC
formed part of the international constituent instruments of the Organization of
American States (OAS) of which the Bahamas was a member.

[30] Similarly, in Higgs the Board, also focusing on treaty-compliant executive conduct,
determined that the existence of a treaty may, in appropriate circumstances, engender a
legitimate expectation on the part of a representee. In the dictum of Lord Hoffmann:

"(s)uch legitimate expectations may arise from any course of conduct which the
executive has made it known that it will follow. And as the High Court of Australia made
clear in Teoh's case, the legal effect of creating such a legitimate expectation is
procedural. The executive cannot depart from the expected course of conduct unless it
has given notice that it intends to do so and has given the person affected an
opportunity to make representations"[FN50]

But even Lord Hoffmann did not draw a clear line of distinction between treaty-
compliant executive conduct at the municipal plane and executive conduct at the
international plane.

----------------------------------------------------------------------------------------------------------------
[FN50] Supra per Lord Hoffmann at p 17
----------------------------------------------------------------------------------------------------------------

[31] In Thomas v Baptiste learned counsel for the respondents challenged the public law
principle of legitimate expectations as the basis of a finding in favour of the appellants
on two grounds. Firstly, ratification of the Convention was expressed to be a private act

136
between two subjects of international law unaccompanied by any public statement by
the executive. Secondly, ratification of the Convention was incapable of engendering an
expectation that the Government would enact legislation to incorporate the Convention.
In rejecting the submissions of counsel the Board maintained that the appellants were
not merely relying on the ratification of the Convention but also on its implementation
by relevant treaty-compliant conduct of the executive. The Board, however, relied on
Teoh to determine that the legitimate expectations of the appellants had been
frustrated by the relevant instructions of the executive even though such instructions
were unlawful. The executive were entitled to act inconsistently provided the competent
body acted fairly towards the representee. In the characterization of the Board:

"The short answer to this is that the appellants do not rely on the government's
ratification of the Convention alone. They rely on the fact that the government
implemented the Convention, which did not need the introduction of any legislative
measures to bring it into operation. Condemned men were allowed to petition the
Commission; the government responded to the Commission's request for information;
and confirmed the position by publishing the instructions" [FN51]

----------------------------------------------------------------------------------------------------------------
[FN51] Supra at p 424
----------------------------------------------------------------------------------------------------------------

[32] In Neville Lewis the majority of the Board did not examine the principle of legitimate
expectations in any depth. The Board did focus on the treaty-compliant or implementing
conduct of the executive such as allowing the condemned men to submit petitions to the
international human rights bodies; allowing the Jamaica Privy Council (JPC) to consider
the recommendations of these bodies before exercising the prerogative of mercy;
staying of executions pending determination of petitions by international bodies. The
majority of the Board conceded, however, that despite the legitimate expectations
engendered by these actions, the executive was at liberty to act inconsistently to
frustrate those expectations by issuing contradictory instructions. Furthermore, by
assimilating "protection of the law" set out in section 13 of the Jamaican Constitution
and "due process of law" set out in section 4(a) of the Constitution of Trinidad and
Tobago, the Board was able to determine that the executive, by ratifying the Convention
and engaging in treaty-complaint conduct at the municipal plane, grounded the
entitlement of the condemned men to have the JPC await and consider the
recommendations of the international human rights bodies before exercising the
prerogative of mercy.[FN52]

----------------------------------------------------------------------------------------------------------------
[FN52] Supra
----------------------------------------------------------------------------------------------------------------

[33] I am persuaded, however, that the courts, in addressing the issue of legitimate

137
expectations of condemned felons, should examine the nature and provenance of the
executive conduct relied on; ascertain the private and public interests to be
safeguarded; determine the standard of review applicable to the decision-maker's action
as a basis for according the desired quality of curial protection to the legitimate
expectation of the claimant. Where the legitimate expectations of representees are
being compromised by the arbitrary or abusive exercise of discretionary powers, the
courts should offer the representee the highest level of protection, particularly where
human rights of the representees are involved. In the four death penalty cases issuing
from the Caribbean mentioned above, the Board appeared to have approached the
principle of legitimate expectation, exemplified in Teoh as if it had crystallized.

[34] In analyzing and according curial protection to legitimate expectations deriving from
treaties, reliance is often placed by municipal courts of the Commonwealth on the
majority judgment in Minister of State for Immigration & Ethnic Affairs v Teoh[FN53]
which may be regarded as the locus classicus on this issue. In this case Mason, CJ and
Deane J determined:

"Moreover, ratification by Australia of an international convention is not to be dismissed

as a merely platitudinous or ineffectual act particularly where the instrument evidences
internationally accepted standards to be applied by courts and administrative authorities
in dealing with basic human rights affecting the family and children. Rather, ratification
of a convention is a positive statement by the executive government of this country to
the world and to the Australian people that the executive government and its agencies
will act in accordance with the Convention. That positive statement is an adequate
foundation for a legitimate expectation, absent statutory or executive indications to the
contrary, that administrative decision-makers will act in conformity with the
convention..." It is not necessary that a person seeking to set up such a legitimate
expectation should be aware of the convention or should personally entertain the
expectation..."

----------------------------------------------------------------------------------------------------------------
[FN53] (1995) 183 CLR 273
----------------------------------------------------------------------------------------------------------------

[35] This dictum did not find favour with the Australian Government. The Attorney
General and Foreign Minister of Australia, within five weeks following the judgment in
Teoh's case, averred "on behalf of the Government, that entering into an international
treaty is not reason for raising any expectation that government decision-makers will act
in accordance with the treaty if the relevant provisions of that treaty have not been
enacted into domestic Australian law."[FN54] The joint statement mentioned above was
accompanied by an acknowledgement of the fact that Australia at that time was party to
920 treaties any of which might engender a legitimate expectation. Within three months
of Teoh's decision a bill was introduced in the Parliament intituled The Administrative
Decisions (Effect of International Instruments) Bill 1995, proposing to override the

138
decision of the Court in Teoh's Case. Clearly, this case did not crystallize the law on
legitimate expectations issuing from treaties.

----------------------------------------------------------------------------------------------------------------
[FN54] See Joint Statement by Minister of Foreign Affairs, Senator Gareth Evans and the
Attorney General Michael Lavarch made in 1995: See Allars, (1995) 17 Sydney L Rev 204
at pp 237-41
----------------------------------------------------------------------------------------------------------------

[36] The Board in Fisher (No 2), Higgs, Thomas v Baptiste and Neville Lewis, cited with
approval the relevant determination in Minister of State for Immigration and Ethnic
Affairs v Teoh[FN55] that ratification of an international treaty, ipso facto, engendered a
legitimate expectation. This determination omitted to explain, unfortunately, how such
an unobtrusive and virtually surreptitious a process as ratification of a treaty which,
according to Article 2(1)(b) of the Vienna Convention on the Law of Treaties, is an
international act operating entirely at the international plane, was capable of creating a
legitimate expectation, ipso facto, at the municipal level in dualist jurisdictions
subscribing to the constitutional principle relating to the inability of unincorporated
treaties to have legal incidence in municipal law for private entities. Furthermore, in the
majority advice the executive were free to act inconsistently provided that the
representee was notified in advance of an intention to effect a change of executive
policy and given an opportunity to make representations in order to persuade the
executive against a change of policy. It seems to me, however, that unless appropriate
executive conduct is established at the municipal plane, municipal courts would have no
jurisdiction to accord curial protection to legitimate expectations engendered by
international acts. To invest an international act like ratification with substantive conduct
at the municipal plane must be seen to compromise the constitutional principle that
unincorporated treaties form no part of domestic law in dualist jurisdictions.[FN56]

----------------------------------------------------------------------------------------------------------------
[FN55] Supra at footnote 53
[FN56] R v Secretary of State for the Home Department ex parte Brind (1991) 1 AC 696
----------------------------------------------------------------------------------------------------------------

[37] The foregoing observations notwithstanding, nearly all common law jurisdictions in
the Commonwealth have endorsed the determination in Teoh's case as good law, and
the requirements of legal certainty and stability in the administration of criminal justice
do appear to advise against challenging it at this late stage. Lord Woolf in endorsing the
majority judgment in Minister of State for Immigration & Ethnic Affairs v Teoh (1995)
183 CLR 273 stated:

"I will accept that the entering in a treaty by the Secretary of State could give rise to a
legitimate expectation on which the public in general are entitled to rely. Subject to any
indication to the contrary, it could be a representation that the Secretary of State would

139
act in accordance with any obligations which he accepted under the treaty. This
legitimate expectation could give rise to a right to relief as well as additional obligations
of fairness, if the Secretary of State, without reason, acted inconsistently with the
obligations which the country had undertaken": R v Secretary of State for the Home
Department ex parte Mohammed Husain Ahmed & Others.[FN57]

----------------------------------------------------------------------------------------------------------------
[FN57] Supra
----------------------------------------------------------------------------------------------------------------

[38] However, Lord Woolf was quite emphatic, in rendering his opinion, that the
executive may defeat a legitimate expectation deriving from a treaty by issuing a
contradictory policy statement on the relevant provisions of the instrument. This opinion
as qualified accurately reflects the position of the Board in Fisher v Minister of Public
Safety and Immigration (No 2)[FN58]; Thomas v Baptiste[FN59]; Higgs v Minister of
National Security [FN60] and Neville Lewis v A-G of Jamaica.[FN61]

----------------------------------------------------------------------------------------------------------------
[FN58] Supra
[FN59] Supra
[FN60] Supra
[FN61] Supra
----------------------------------------------------------------------------------------------------------------

[39] As the executive arm of what is indisputably a mini state subscribing to the dualist
system of international law and, ipso facto, vulnerable to informal coercion or the
blandishments of considerably more powerful actors in the community of nations, due in
large measure to an irreversible deficit in relevant capabilities, the appellants must be
assumed to entertain a visceral concern about the innovative juridical postulate relating
to the ability of unincorporated ratified treaties to alter the constitutional provisions of
an independent state. Such a postulate would also operate, somewhat unwittingly, to
facilitate third state intervention in the domestic affairs of weak sovereignties. In
addressing this issue in both his written and oral submissions to this Court, counsel for
the appellant was adamant that small states ratified treaties for various reasons and that
unincorporated treaties were incapable of conferring rights on private persons in
municipal law.

CONVENTION RIGHTS AND LEGITIMATE EXPECTATIONS

[40] The constitutional dilemma likely to confront dualist jurisdictions by postulating that
the exercise of prerogative powers at the international plane may engender, ipso facto,
legitimate expectations at the municipal level appeared to have been overlooked in the
general acceptance of the determination in Teoh's case. Accepting the validity of this
perception, it does appear to follow from the nature of treaties as solemn commitments

140
liable to engage the international responsibility of states, that a legitimate expectation
issuing from Article 4(6) or Article 44 of the Convention conferring legal rights directly on
an ascertainable body of private individuals, reinforced by treaty-compliant executive
conduct implementing relevant treaty provisions at the municipal plane, was
qualitatively different from the generalized expectations engendered by the mere
ratification of a treaty. Such a legitimate expectation in my view may not be easily
frustrated by a mere contradictory statement of policy by the executive at the municipal
plane. What appears to be required in order to frustrate the expectation, reinforced and
validated as it was by treaty-compliant executive conduct implementing the relevant
provisions at the municipal plane, in my opinion, are appropriate normative measures at
the international plane to defeat the relevant treaty commitments, namely,
denunciation or entry of reservations, coupled with effective measures at the municipal
plane. Compare in this context the repeal or amendment of the provisions of an
enactment constituting the source of a legitimate expectation thereby operating to
defeat the same.[FN62] Absent such conditions, the legitimate expectation must be seen
to be indefeasible where a change in executive conduct would work injustice or
unfairness to a current representee without safeguarding an overriding public interest in
the change.

----------------------------------------------------------------------------------------------------------------
[FN62] Rowland v The Environment Agency (2005) Ch 1
----------------------------------------------------------------------------------------------------------------

[41] Legitimate expectations issuing from treaty provisions conferring rights directly on
private entities and reinforced by implementation or treaty-compliant executive conduct
at the municipal plane must be seen, in my opinion, to have a peculiar character
requiring a higher standard of curial protection. For the purpose of this analysis I
propose to employ the term "conclusion of a treaty" in preference to "ratification of a
treaty", since Article 2(1)(b) of the Vienna Convention on the Law of Treaties assimilates
the terms "ratification", "acceptance", "approval", and "accession". And, in any event,
many synallagmatic treaties enter into force on mere signature by competent
authorities. Where the executive, in the exercise of its prerogative powers, conclude a
treaty, relevant case law supportive of Teoh has determined, somewhat curiously for
dualist jurisdictions in my view, that such an act constitutes a statement to potential
beneficiaries at the municipal plane of the state concerned that the executive intend to
pursue a course of conduct specified in the instrument. Consistently with this position
Lord Hoffmann remarked in Higgs vMinister of National Security:[FN63]

"… the existence of a treaty may give rise to a legitimate expectation on the part of
citizens that the Government in its acts affecting them, will observe the terms of a
treaty: see Minister for Immigration and Ethnic Affairs v Teoh (1995) 193 CLR 273. In this
respect there is nothing special about a treaty. Such legitimate expectations may arise
from any course of conduct which the executive has made it known that it will follow...
The executive cannot depart from the expected course of conduct unless it has given

141
notice that it intends to do so and has given the person affected an opportunity to make
representations.

----------------------------------------------------------------------------------------------------------------
[FN63] Supra at p 17
----------------------------------------------------------------------------------------------------------------

[42] However, I have considerable difficulty in admitting that an international act, ipso
facto, engenders a legitimate expectation at the municipal plane in dualist jurisdictions.
Such an admission would, by compelling inference, call into question the validity of the
constitutional principle regarding the inability of unincorporated treaties to have legal
incidence at the municipal plane in dualist jurisdictions. Ratification according to Article
2(1)(b) of the Vienna Convention is "the international act so named whereby a state
establishes on the international plane its consent to be bound by a treaty." Treaty-
derived legitimate expectations from the perspective of Teoh must be seen to have their
provenance in executive conduct which in public law is still immunized from curial
intervention. The public law principle of procedural propriety would not apply in the
absence of compliance with relevant legislative provisions such as set out in the
Ratification of Treaties Act (1989) of Antigua and Barbuda.

[43] Decisions of the Board issuing in death penalty cases from the Caribbean mentioned
above have, questionably, intimated that legitimate expectations deriving from
ratification of the Convention are merely procedural in nature and vulnerable to
frustration by a change in executive policy communicated to death row claimants
accompanied by an opportunity to make representations. Nevertheless, the
requirements of good governance based on the rule of law, in my opinion, prescribe that
where international commitments are implemented by unequivocal executive conduct
at the municipal plane which is compliant with relevant treaty provisions of
unincorporated instruments conferring rights directly on individuals relating to life and
liberty, the legitimate expectations engendered thereby are not only sui generis but
should also be seen to be indefeasible for current representees. In effect, such treaty-
derived legitimate expectations should not be perceived as merely procedural and
amenable to frustration by a change in executive policy communicated to a representee
or a small body of ascertainable representees, such as condemned convicts on death
row, coupled with an opportunity to make representations to the competent authority.
[FN64]

----------------------------------------------------------------------------------------------------------------
[FN64] R v Secretary of State for Education & Employment ex parte Begbie (2000) 1 WLR
1115; R v North & East Devon Health Authority ex parte Coughlan (2000) QB 213
----------------------------------------------------------------------------------------------------------------

[44] Given the finality of the ultimate sanction, where the executive engender legitimate
expectations by treaty-compliant conduct at the municipal plane intended to implement,

142
unequivocally, rights accorded to a representee by Articles 4(6) and 44 of the
Convention and seek to resile therefrom by conduct which works unfairness to a
condemned representee, in the absence of a corresponding overriding benefit to the
public, the courts should accord the highest level of protection to such expectations,
even in the absence of detrimental reliance. Inconsistent executive conduct in this
context must be seen to constitute an impermissible abuse of power. The sui generis
nature of the legitimate expectations within the contemplation of this judgment is
expressed to be engendered by treaty-complaint executive conduct implementing the
provisions of Article 4(b) and 44 of the Convention. These provisions which do not
require legislative enactment for their implementation confer rights directly on the
condemned men which they are liberty to enjoy without the intervention of the state. In
the characterization of Lord Mance, ". treaties may in modern international law give rise
to direct rights in favour of individuals . particularly where the treaty provides a dispute
resolution mechanism capable of being operated by individuals on their own behalf and
without their national states involvement or even consent ... In the area of human rights
a number of treaties provide individuals with rights of access to vindicate the protection
afforded by the treaty"[FN65] Consequently, the legitimate expectations engendered by
established treaty-compliant executive conduct implementing provisions conferring
rights directly on individuals were more akin to rights which could not be unilaterally or
arbitrarily curtailed by the executive. As the majority of the Board said in Thomas v
Baptiste: "Their Lordships accept the general proposition that the executive may
withdraw rights which it has granted. But this principle is not without exception.
Executive action may give rise to a settled practice, and this in turn may found a
constitutional right which cannot lawfully be withdrawn by executive action alone."
[FN66]

----------------------------------------------------------------------------------------------------------------
[FN65] Occidental Exploration and Production Co & Republic of Ecuador [2005] EWCA Civ
1116 at p 10
[FN66] Supra at p 422-423; also Thornhill v Attorney General (1974) 27 WIR 281
----------------------------------------------------------------------------------------------------------------

[45] In my view legitimate expectations do not comprise a homogeneous class of extra-

legal private interests. And, given that treaties comprehend a wide range of subject
matters and are creative of legion rights and obligations, it would not be unreasonable
to assume that the expectations arising from the conclusion of such instruments admit
of classification into various categories. In this case, the legitimate expectations created
by treaty-compliant executive conduct at the municipal plane implementing the
provisions of Article 4(6) and Article 44 of the Convention appear to have singular and
peculiar attributes requiring the highest level of curial protection. In Occidental
Exploration and Production Company v Republic of Ecuador it was held that if two states
agreed in an unincorporated bilateral investment treaty to confer rights intended to be
enforceable domestically by private persons, accompanied by action at the municipal
plane engaging curial intervention, the courts will enforce such rights; for example,

143
where the instrument "makes clear that an investor national of one of the States may
pursue direct rights against the other, without the involvement, presence or even
consent of his own national state,"[FN67] and such rights are given a "foothold" at the
municipal plane by treaty- compliant conduct.

----------------------------------------------------------------------------------------------------------------
[FN67] (2005) EWCA Civ 1116 at [43] and [55]
----------------------------------------------------------------------------------------------------------------

[46] The decision in Teoh's case cannot be regarded as requiring all legitimate
expectations to be treated as homogeneous. Indeed, there is sound reason to conclude
that legitimate expectations aroused by the mere ratification of a treaty should attract a
low level of curial protection, if any, since the majority in Teoh's case determined it was
not necessary for "a person seeking to set up such a legitimate expectation should be
aware of the Convention or should personally entertain the expectation".[FN68] Further,
there is some judicial scepticism whether ratification of a treaty constitutes a
representation by the executive regarding the performance of its functions.[FN69] In my
opinion legitimate expectations engendered by treaty-compliant executive conduct at
the municipal plane implementing provisions purporting to confer treaty rights directly
on the claimant and addressed to the representee are sui generis requiring the highest
standard of curial protection. Such legitimate expectations may only be frustrated by a
change in policy for future representees where the courts, in balancing the public
interest in expeditious enforcement of the law and the private interest of the individual
in legal certainty and procedural fairness are satisfied that the executive have
established an overriding public interest in the policy change. For example, in addressing
the determination in Teoh in their joint dissenting judgment, Lords Slynn and Hope,
consistently with this position, emphasized in Fisher v Minister of Public Safety &
Immigration (No 2)[FN70]: "We fully accept that a change of policy might be announced
to prevent legitimate expectations arising in the future, but we do not read the
judgment as saying that once a procedure like the present has actually begun a
Government can by a unilateral announcement terminate legitimate expectations
already created."

----------------------------------------------------------------------------------------------------------------
[FN68] Supra at p 17
[FN69] Baker v Canada (Minister of Citizenship and Immigration [1999] 2 SCr 817
[FN70] (1998) 53 WIR at 45
----------------------------------------------------------------------------------------------------------------

[47] Where a legitimate expectation is engendered by a ratified unincorporated treaty

whose relevant provisions purport to confer rights directly on private individuals and
which have been implemented by lawful, unequivocal treaty-compliant executive
conduct at the municipal plane, thereby grounding municipal curial intervention, the
requirements of good governance prescribe that such an expectation become, ipso

144
facto, indefeasible for the current representee despite a change of executive policy
communicated to the representee coupled with an opportunity to make
representations. In death penalty cases the indefeasibility of such a legitimate
expectation is eminently justified by the fact that the ultimate sanction is involved, and
"protection of the law" constitutional provisions entitle the condemned man to a
continuing right to procedural fairness which the executive is unable to trump by
establishing an overriding public interest in expeditious execution of the law.[FN71]

----------------------------------------------------------------------------------------------------------------
[FN71] Reckley v Minister of Public Safety (No 2) (1996) 47 WIR 9 at 19B
----------------------------------------------------------------------------------------------------------------

[48] The conduct of the executive in implementing the relevant provisions of the
Convention by allowing access by condemned men to an international complaints
process pursuant to a treaty obligation not violative of a ius cogens norm or other
customary international norm, cannot be seen to compromise the principle of legality
since it is neither unconstitutional nor unlawful at the international nor municipal plane.
Indeed, the applicable rule of construction that in the absence of a contrary intention,
legislation must be construed to bring a state in compliance with its international treaty
obligations does appear to support the legality of such conduct.[FN72] Nor is such
conduct unauthorized since it emanates legitimately from the executive who will be hard
put to establish an overriding countervailing public interest in acting contrary to
generally accepted evolving higher standards of international human rights. Given the
facts in the Neville Lewis case, it would be arbitrary and an abuse of power for the
executive to rely on a change in executive policy to frustrate the legitimate expectation
of the condemned representee to have the competent authority await the report of the
relevant international human rights body for a reasonable period before making its
determination on the exercise of the prerogative of mercy.

----------------------------------------------------------------------------------------------------------------
[FN72] Garland v British Rail Engineering Limited (1983) 2 AC 751 at 771
----------------------------------------------------------------------------------------------------------------

[49] In arriving at this conclusion, I am cognizant of the fact that a municipal appellate
court like the Caribbean Court of Justice has no competence to construe the
Convention[FN73]. There can be no doubt, however, that municipal courts may examine
the relevant treaty provisions of the Convention.[FN74] In my opinion, implementation
of a treaty by treaty- compliant conduct on the part of the executive engenders a
legitimate expectation but does not constitute giving indirect effect to legally binding
rights of an unincorporated treaty.[FN75] Such conduct gives effect to treaty obligations
which do not require legislative enactment to make them operable at the municipal
plane. Legislation to implement treaty provisions is required only where new or
amended enactments are contemplated or expenditure from the national consolidated
fund is needed to implement provisions of a treaty.[FN76]

145
----------------------------------------------------------------------------------------------------------------
[FN73] Malone v Metropolitan Police Commissioner (1979) Ch 344
[FN74] Littrel v The United States (No 2) (1995) 1 WRL 52 at 93
[FN75] Contrast the dictum of Lord Millett in Thomas v Baptise, supra, at 747
[FN76] The Parlement Belge (1879) LR 4 PD 129
----------------------------------------------------------------------------------------------------------------

[50] An indefeasible legitimate expectation within the contemplation of paragraph [40]

must be seen to subsist for a reasonable period corresponding to the duration of an
efficient international review process of the competent human rights body. Such an
expectation must also be seen to require the Barbados executive to allow the petitions
of the respondents to be examined and considered by the competent human rights body
prior to its transmission to the Barbados Privy Council. In this context it is important to
point out that in order to respect the continuing right of the respondents to the
protection of law guaranteed by section 11(c) of the Constitution, the legitimate
expectation engendered by relevant treaty-compliant conduct of the Barbados executive
must be seen to be indefeasible for a reasonable period consistent with procedural
fairness. Procedural and substantive legitimate expectations may be frustrated by a
change of policy communicated to the claimant and whose deleterious effects may be
subsequently ameliorated; in the former case by affording the representee a belated
opportunity to be heard, and in the latter case by appropriate compensation either
voluntarily offered by the executive or mandated by the courts[FN77]. In the latter case
"a payment of money is not an anticipatory payment of damages: it is a practical means
of eliminating unfairness which a policy change is otherwise going to inflict."[FN78] But
since neither of these ameliorative measures may afford the respondents the protection
of the law to which they are constitutionally entitled while they are alive, I would agree,
subject to the conditions and qualifications set out above, that an indefeasible status
must be accorded to the legitimate expectation of the current representees as inferred
from the persuasive joint dissenting opinion of Lords Slynn and Hope in Fisher (No 2).
[FN79]

----------------------------------------------------------------------------------------------------------------
[FN77] R v North & East Devon Health Authority ex parte Coughlan; R (on the application
of Bibi) v Newham LBC, supra
[FN78] Per Sedley LJ in R v Commissioner of Excise ex parte FI Services Limited (2001)
EWCA Civ 762
[FN79] Supra, at Note 70
----------------------------------------------------------------------------------------------------------------

UNINCORPORATED RATIFIED TREATIES AND MUNICIPAL LAW

[51] In what appeared to be a dramatic and remarkable reversal of historical

understanding of dualism and the separation of powers principle, the Board to all intents

146
and purposes determined in Neville Lewis that ratified unincorporated human rights
treaties had direct, determinative legal incidence on the Westminster-type constitutions
of Commonwealth Caribbean States. The Board made this determination despite the
clarifying dicta of Lord Millett in Briggs v Baptiste quoted above where he confirmed that
Thomas v Baptiste "did not overturn the constitutional principle that international
conventions do not alter domestic law except to the extent that they are incorporated
into domestic law by legislation", and authoritative Commonwealth case law to the
contrary[FN80]:

----------------------------------------------------------------------------------------------------------------
[FN80] See The Parlement Belge (1879) 4 PD 129; Garland v British Engineering Ltd
(1983) 2 AC 751; Regina v Secretary of State for the Home Department ex parte; Brind
and Others (1991) 1 AC 696; Chung Chi Cheung v the King (1939) AC 160; JH Rayner
(Mincing Lane) Ltd v Department of Trade & Industry (1990) 2 AC; Higgs v Minister of
National Security (2000) 2 AC 228; R v SS for Foreign and Com Affairs ex parte Rees-
Mogg [1994] QB 552
----------------------------------------------------------------------------------------------------------------

[52] Since this novel juridical postulate articulated by the Board in Thomas v Baptiste
appeared to be at large, I apprehend that it could have farreaching implications for good
governance and structured, social and economic development of Commonwealth
Caribbean States. Firstly, given the peculiar attributes of Westminster-type constitutions
prevalent in the region, this determination boldly challenged the validity of hallowed
constitutional principles generally regarded as indispensable for constitutional
democracy as this system of government was understood and practised in the region,
and analysed by Lord Diplock in Moses Hinds v the Queen[FN81] Secondly, this
innovative determination inadvertently provided a convenient vehicle for third country
interference in the domestic affairs of Caricom States with probable far-reaching
negative implications for the national interest, given their lack of capabilities to ratify
treaties with due diligence. It has been authoritatively established that the status of an
unincorporated international human rights instrument is identical to that of other
treaties and may not be perceived to justify so fundamental a change in the applicable
law. Sir Robert Megarry in addressing the obligation assumed by the United Kingdom in
Article 1 of the European Convention for the Protection of Human Rights and
Fundamental Freedom affirmed: "The United Kingdom as a High Contracting party which
ratified the Convention on March 8, 1951 has thus long been under an obligation to
secure these rights and freedoms to everyone. That obligation, however, is an obligation
under a treaty which is not justiciable in the courts of this Country."[FN82] Similarly, in
Ahani v The Attorney General of Canada[FN83] Dambrot J held in the court below, "if
there is a right protected by section 7 of the Charter not to have the outcome of any
pending appellate or other legal process preempted by executive action, it does not
extend to an analogous legal process such as a petition to an international body whose
advice is not binding domestically." I propose to examine the current and developing
Commonwealth case law on the legal incidence of unincorporated treaties in municipal

147
law, as well as some applicable norms of international law in an attempt to evaluate the
legal legitimacy of this novel juridical postulate of the Board.

----------------------------------------------------------------------------------------------------------------
[FN81] (1975) 24 WIR 326
[FN82] Blackburn v Attorney-General (1971) 1 WLR 1037 at 1040; In Malone v
Metropolitan Police Commissioner (1979) Ch 344 at 328
[FN83] (2002), Ont Reports, Feb 8 (2002) at 115
----------------------------------------------------------------------------------------------------------------

[53] An authoritative judicial determination of the legal incidence of ratified

unincorporated treaties on municipal legislation in Caricom Member States, comprising
as they do common law and civil law jurisdictions, must address the differential impact
of treaties in both the monist and dualist systems of law: For the position in
Commonwealth countries, see Note 28 supra. More importantly, in addressing the
impact of unincorporated ratified treaties in dualist Caricom Member States, courts of
competent jurisdiction cannot be insensitive to the peculiar vulnerability of these states
in the unorganized international community and the critical importance of constitutional
provisions reflecting the foundational commitments of these states designed to promote
generally accepted principles of good governance as intimated by learned counsel for
the appellants.

[54] Constitutions of Member States of the Commonwealth Caribbean invariably

incorporate provisions designating these instruments the supreme law, which, in the
characterization of Lord Diplock ". embody what is in substance an agreement reached
between representatives of the various shades of political opinion in the state as to the
structure of the organs of government through which the plenitude of the sovereign
power of the state is to be exercised in future.": Moses Hinds v The Queen.[FN84]

----------------------------------------------------------------------------------------------------------------
[FN84] (1975) 24 WIR 326 at p 331
----------------------------------------------------------------------------------------------------------------

[55] Such constitutions, given the extremely volatile political environment in which they
were elaborated and are required to operate, axiomatically assumed that the cherished
constitutional principle of the separation of powers providing the basis of good
governance according to conventional wisdom would inform the responsible exercise of
governmental authority. In a majority advice of their Lordships, however, "(t)o say that a
constitution is based upon the principle of the separation of powers is a pithy description
of how the constitution works. But different constitutions apply this principle in their
own ways and a court can concern itself only with the actual constitution and not with
what it thinks might have been an ideal one."[FN85] Notwithstanding the foregoing, it is
common ground that Westminster-type constitutions allocate legislation to the
legislature even though it is very often the case that in several Caricom jurisdictions

148
members of the executive constitute the bulk of the lower House and take the initiative
in the introduction of legislation. But even in such situations, Ministers of Government as
members of the executive, are quintessentially engaged in performing a legislative
function.

----------------------------------------------------------------------------------------------------------------
[FN85] per Lord Hoffmann in Boyce and Anor v R (2004) UK PC 32 at p 17
----------------------------------------------------------------------------------------------------------------

[56] The later Westminster-type constitutions, in the opinion of Lord Diplock "include a
Chapter dealing with fundamental rights and freedoms. The provisions of this chapter
form part of the substantive law of the state and until amended by whatever special
procedure as laid down in the Constitution for this purpose, impose a fetter upon the
exercise by the legislature, the executive and the judiciary of the plenitude of their
respective powers.": Moses Hinds v the Queen.[FN86] And it does appear to follow, a
fortiori, that it is not open to any one branch of Government to take any action whose
legal effect would be tantamount to an amendment of the constitution except in
accordance with prescribed constitutional procedures.[FN87]

----------------------------------------------------------------------------------------------------------------
[FN86] Supra at p 332
[FN87] Independent Jamaica Council for Human Rights Limited v Honourable Syringa
Marshall-Burnett & The Attorney-General of Jamaica (2005) 65 WIR 268
----------------------------------------------------------------------------------------------------------------

[57] In making the relevant determination the test is whether the action under
consideration is in substance different; "for if it is different ... the effect is to alter the
regime[FN88]" established by the constitution, be it by introducing new institutional
arrangements, or by enlarging the scope of existing constitutional provisions.[FN89] In
Neville Lewis the Board in effect determined that the scope of due process provisions of
a national constitution may be enlarged, unilaterally, by the employment of prerogative
powers at the international plane. But in a later decision the Board advised: "...the
Constitution and not, as in the United Kingdom, Parliament is (save in respect of Chapter
III of the Constitution) to be sovereign. It was of course foreseen that with the passage of
time and the benefit of experience alteration of the constitution would on occasion be
necessary, and the framers of the constitution took care to grade the provisions so as to
require differing levels of popular support depending on the structural significance of the
provision to be altered."[FN90] Put another way, the courts, as guardians of the
constitutions, must not be perceived to arrogate the right to effect modifications in the
agreed allocation of governmental powers contrary to politically determined and
constitutionally sanctioned amendment procedures. And it is of particular importance to
note in this context, the acknowledged materiality of the democratic principle in the
amending procedures compliance with which must be perceived as providing the
generally accepted basis for constitutional legitimacy. These diametrically opposite

149
determinations of the Board defy reconciliation.

----------------------------------------------------------------------------------------------------------------
[FN88] Supra at p 332
[FN89] Darrin Roger Thomas and Another v Cipriani Baptiste and Others; Neville Lewis v
Attorney-General of Jamaica supra
[FN90] per Lord Bingham: in Independent Jamaican Council for Human Rights v Syringa
Marshal and Attorney General of Jamaica at p 275; see also Lord Hoffmann in Higgs at
Note 96 infra
----------------------------------------------------------------------------------------------------------------

[58] The clear inference from the institutional arrangements devised for Westminster-
type constitutions is that prominent among the immutable imperatives guiding their
elaboration are sanctity of the separation of powers principle, the inviolability of the
democratic principle and the fundamental importance of the amendment procedures
governing the realignment of the powers of government. Indeed, respect for these
fundamental constitutional principles appears to have provided the essential rationale of
the decision of the Board in Independent Jamaica Council for Human Rights Limited v
Honourable Syringa Marshall-Burnett and the Attorney-General of Jamaica.
Consequently, I would wish to adopt Lord Diplock's authoritative and elucidating analysis
of Caricom Westminster-type constitutions as a peremptory point of departure for an
appreciation of judicial determinations concerning the legal incidence of unincorporated
treaties in the Member States of the Caribbean Community. For such an appreciation
requires unqualified recognition of the nice balance of factors - political, cultural,
economic, moral and psychological among others, which inform the legal parameters of
the constitutions of the complex, vulnerable, culturally-multifaceted societies of the
Commonwealth Caribbean States.

[59] Judicial intervention to amend constitutions reflective of the supreme law, however,
is not ordinarily entertained by competent decision-makers in the Commonwealth
Caribbean even to avoid what Lord Wilberforce felicitously characterized as "the
austerity of tabulated legalism".[FN91] Consistently with this position, the Board has
recently determined that where the legislature undertakes to effect such modification,
applicable constitutional procedures are required to be followed.[FN92] I felt
constrained to comment briefly on Commonwealth Caribbean constitutions in order to
emphasize that an exercise of prerogative powers at the international plane is incapable,
ipso facto, of modifying ordinary municipal legislation, much less the supreme law as
expressed in the national constitution of the state.

----------------------------------------------------------------------------------------------------------------
[FN91] Minister of Home Affairs and Anor v Collins Mac Donald Fisher and Anor [1980]
AC 319 at p 328
[FN92] Independent Jamaica Council for Human Rights Limited v Honourable Syringa
Marshall-Burnett & The Attorney-General of Jamaica

150
----------------------------------------------------------------------------------------------------------------

[60] In Thomas v Baptiste the Board must also be seen to have made a quantum leap in
judicial ratiocination by determining that "due process of law" as expressed in Section
4(a) of the Constitution of Trinidad and Tobago was inherent in the common law thereby
validating, ipso facto, the incorporation of an international complaints procedure in the
domestic criminal justice system. Such a determination, I would venture to suggest, in
addition to transgressing the permissible parameters of interstitial articulation, was
juridically infeasible in the absence of the Board establishing that the relevant provisions
of the Convention, namely Articles 4(6) and 44, encapsulated customary international
law and had become, ipso facto, incorporated in the common law.

[61] This brings me to address the relationship between the common law and customary
international law, which calls to mind the authoritative statement on this issue by Lord
Denning who observed that customary international law, unless in conflict with statute,
constitutes part of the common law without the need for transformation by the
legislature or the courts:

"(s)eeing that the rules of international law have changed -- and do change - and that the
Courts have given effect to the changes without any Act of Parliament, it follows to my
mind inexorably that the rules of international law, as existing from time to time, do
form part of our English law. It follows, too, that a decision of this Court - as to what was
the ruling of international law 50 or 60 years ago, is not binding on this Court today.
International law knows no rule of stare decisis. If this Court today is satisfied that the
rule of international law on a subject has changed from what it was 50 or 60 years ago, it
can give effect to that change - and apply the change in our English law - without waiting
for the House of Lords to do it."[FN93]

----------------------------------------------------------------------------------------------------------------
[FN93] Trendtex Trading Corporation v Central Bank of Nigeria [1977] QB 529 at 592
----------------------------------------------------------------------------------------------------------------

[62] This statement of the law by Lord Denning is supported by internationally

recognized publicists like RY Jennings, former president of the International Court of
Justice who submitted:

"(i)t has always been held that general customary international law is a part of the law of
England and, therefore, will be applied "as such". Thus international law is a matter of
judicial notice, and there is no question of having to prove it by evidence. It is argued
and applied in the same way as any other part of the common law. On the other hand,
for constitutional reasons, a treaty which requires for its carrying into effect an
alteration of English Law, or a charge on public funds, requires an act or other
instrument making the needful changes in English Law if the Courts are to give effect to
it".[FN94]

151
But such customary rules of international law must not conflict with statute which
always prevails: Mortensen v Peters[FN95]

----------------------------------------------------------------------------------------------------------------
[FN94] R Y Jennings, An International Lawyer Takes Stock, ICLQ Vol 39, July 1990 at p 523
[FN95] (1906) 8F 93
----------------------------------------------------------------------------------------------------------------

[63] Addressing the legal incidence of unincorporated ratified treaties on national

legislation in Commonwealth Caribbean States, Lord Hoffmann stated the position
eruditely and persuasively:[FN96]

"(i)n the law of England and the Bahamas (whose constitution is representative of those
in the Caribbean Community), the right to enter into treaties is one of the surviving
prerogative powers of the Crown ... the Crown may impose obligations in international
law upon the state without any participation on the part of the democratically elected
organs of government. But the corollary of this unrestricted treaty-making power is that
treaties form no part of the domestic law unless enacted by the legislature. This has two
consequences. The first is that the domestic courts have no jurisdiction to construe or
apply a treaty: See JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry
(1990) 2 A The second consequence is that unincorporated treaties cannot change the
law of the land. They have no effect upon the rights and duties of citizens in common or
statute law; see the classic judgment of Sir Robert Phillimore in The Parlement Belge
(1879) 4 PD 129. They may, however, have indirect effect upon the construction of
statutes as a result of the presumption that Parliament does not intend to pass
legislation which would put the Crown in breach of its international obligations. Or the
existence of a treaty may give rise to a legitimate expectation on the part of citizens that
the government, in its acts affecting them, will observe the terms of the treaty: see
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273... The rule that
treaties cannot alter the law of the land is but one facet of the more general principle
that the Crown cannot change the law by the exercise of its powers under the
prerogative. This was the great principle which was settled by the Civil War and the
Glorious Revolution in the 17th Century" (emphasis supplied).

----------------------------------------------------------------------------------------------------------------
[FN96] John Junior Higgs v Minister of National Security and Others at p 17
----------------------------------------------------------------------------------------------------------------

[64] This classic statement of the law provides reliable and authoritative guidance for
any court in a dualist jurisdiction and was perceptively anticipated by Lord Oliver who
stated:

"(A)s a matter of the constitutional law of the United Kingdom, the Royal Prerogative,

152
whilst it embraces the making of treaties, does not extend to altering the law or
conferring rights upon individuals or depriving individuals of rights which they enjoy in
domestic law without the intervention of Parliament. Treaties, as it is sometimes
expressed, are not self-executing. Quite simply, a treaty is not part of English law unless
and until it has been incorporated into the law by legislation. So far as individuals are
concerned, it is res inter alios acta from which they cannot derive rights and by which
they cannot be deprived of rights or subjected to obligations; and it is outside the
purview of the court not only because it is made in the conduct of foreign relations,
which are a prerogative of the Crown, but also because as a source of rights and
obligations, it is irrelevant."[FN97]

----------------------------------------------------------------------------------------------------------------
[FN97] JH Rayner (Mincing Lane) Ltd at p 500; Laker Airways v Dept of Trade (1977) 1QB
at 717-18
----------------------------------------------------------------------------------------------------------------

[65] Consistently, with these authoritative statements of the law, it is a well established
principle of construction "that the words of a statute passed after the Treaty has been
signed and dealing with the subject matter of the international obligation . are to be
construed if they are reasonably capable of bearing such a meaning, as intended to carry
out the obligation and not to be inconsistent with it".[FN98] Application of this rule of
construction to the relevant law of the Commonwealth Caribbean States, however,
would have to take into account the date of enactment of relevant instruments,
including their constitutions, and the date of entry into force of the applicable treaty for
the state in question.[FN99] It is important to bear in mind, however, that that this rule
of construction cannot prevail against a clear statement of the statute to the contrary:
The Zamorawo[FN100]

----------------------------------------------------------------------------------------------------------------
[FN98] per Lord Diplock in Garland v British Rail Engineering Limited [1983] 2 AC 751 at
771; see also Regina v Secretary of State for the Home Department ex parte Brind and
Others [1991] 1 AC 696. A similar approach to the interpretation of treaties appears to
have been taken by Canadian Courts: See Baker v Canada (Minister of Citizenship and
Immigration (1999) 2 SCR 817; Pfizer Canada v Canada (Attorney General) (2003) 224
DLR (4th) 178; Reference Re Public Service Employer Relations Act (Alberta) (1987) 1 SCR
513; Canadian Foundation for Children, Youth and the Law v Canada (Attorney Genera)
(2004) SCC 4; and 114 957 Canada Lte e (Spraytech Societe d' arrosage) et al v Town of
Hudson (2001) 2 SCR 241
[FN99] See Fisher v Minister of Public Safety and Immigration supra
[FN100] [1916] 2AC 77 at pp 91-4
----------------------------------------------------------------------------------------------------------------

[66] In Thomas v Baptiste, Lord Millett emphasized that:

153
"(t)he due process clause must therefore be broadly interpreted. It does not guarantee
the particular forms of legal procedure existing when the constitution came into force;
the content of the clause is not immutably fixed at that date. But the right to be allowed
to complete current appellate or other legal process without having it rendered
nugatory by executive action before it is completed is part of the fundamental concept
of due process."[FN101]

----------------------------------------------------------------------------------------------------------------
[FN101] (1998) 54 WIR 387 at p 423
----------------------------------------------------------------------------------------------------------------

[67] But, as Lord Goff wryly observed in his dissenting judgment, although the widest
adoption of humane standards should be sought to be achieved, this should not be done
by subverting the constitutions of states or by a misuse of legal concepts and
terminology. Where, however, the emergence of a new norm of customary international
law may be authoritatively established, there would be ample justification for a finding
that it has been automatically received in the common law so as to affect the rights of
citizens. But their Lordships did not even bother to consider whether a relevant norm of
customary international law was involved and its impact on municipal law.

[68] Consequently, since the Jamaican Court of Appeal had ruled in the Neville Lewis
case that the instructions of the Governor General were unlawful, a ruling which the
Board upheld in rejecting the cross-appeal by the Attorney-General of Jamaica, the
appellants would have been entitled to have their petition heard within the reasonable
time of 18 months established by the Board.[FN102] However, this dictum of Lord Millett
must be appreciated in the context of a finding for an indefeasible legitimate
expectation. In my view, the Board in overruling de Freitas v Benny[FN103] and Thomas
Reckley v Minister of Public Safety and Immigration and Others (No 2)[FN104] on the
basis of a novel legal principle contrary to historical judicial understanding of the legal
incidence of unincorporated treaties must be perceived as transgressing the permissible
parameters of judicial activism in ruling as it did, with probable farreaching negative
consequences for good and stable governance in the small, fragile states of the
Caribbean Community.

----------------------------------------------------------------------------------------------------------------
[FN102] Earl Pratt and Anor v Attorney-General for Jamaica and Anor (1993) 43 WIR 340
[FN103] Supra
[FN104] Supra
----------------------------------------------------------------------------------------------------------------

[69] Incontrovertibly, the Board had earlier held that "(w)hether or not the provisions of
the Convention are enforceable as such in domestic courts, it seems to their Lordships
that the state's obligation internationally is a pointer to indicate that the prerogative of
mercy should be exercised by procedures which are fair and proper and to that end are

154
subject to judicial review."[FN105] In effect, I do not think it was necessary for the Board
to resort to the treaty-making prerogative powers of the state to justify the
determination that the prerogative of mercy was subject to judicial review. The basis for
such a finding had already been persuasively established in English case law[FN106].
Further, their Lordships had pertinently observed that "(e)ven without reference to
international conventions it is clear that the process of clemency allows the fixed penalty
to be dispensed with and the punishment modified in order to deal with the facts of a
particular case so as to provide an acceptable and just result."[FN107]

----------------------------------------------------------------------------------------------------------------
[FN105] per Lord Slynn in Neville Lewis v Attorney General of Jamaica (2000) 57 WIR 275
at p 296; [2001] 2 AC 50 PC at 79
[FN106] Council of Civil Service Unions et al v Minister for the Civil Service supra
[FN107] Per Lord Slynn, Neville Lewis v Attorney General at p 295
----------------------------------------------------------------------------------------------------------------

[70] It is not without some considerable significance that their Lordships in Neville Lewis
adduced the fact in support of their ruling that "Jamaica ratified the American
Convention on Human Rights 1969 on 7 August 1978 and it is now well established that
domestic legislation should as far as possible be interpreted so as to conform to the
state's obligation under such a treaty: Mattadeen v Pointu."[FN108] But what their
Lordships had, unfortunately, omitted to concede was that that principle of construction
may only be applied to legislation enacted after the conclusion of relevant international
instruments. For as Lord Hoffmann intimated: "... unincorporated treaties ... may,
however, have indirect effect upon the construction of statutes as a result of the
presumption that Parliament does not intend to pass legislation which would put the
Crown in breach of its international obligations."[FN109] Clearly, the presumed
conformity of the legislation with the international obligation necessarily pre-supposed
the existence of such an obligation at the material time and suggested, by compelling
inference, that the determination of the Board that the ratification of a treaty could
extend the scope of a pre-existing municipal law instrument possessing the status of a
national constitution must have been juridically misconceived.

----------------------------------------------------------------------------------------------------------------
[FN108] (1999) 1 AC 98, 113 g-h
[FN109] Higgs v Minister of National Security and Others (1999) 55 WIR 10 at p 17;
[2000] 2 AC 228 at p 241
----------------------------------------------------------------------------------------------------------------

[71] Indeed, Lord Diplock had earlier articulated the principle as follows:

"it is a principle of construction of United Kingdom statutes ... that the words of a statute
passed after the Treaty has been signed and dealing with the subject matter of the
international obligation of the United Kingdom, are to be construed if they are

155
reasonably capable of bearing such a meaning as intended to carry out the obligation,
and not to be inconsistent with it"[FN110] (emphasis added)

----------------------------------------------------------------------------------------------------------------
[FN110] Garland v British Rail Engineering Ltd supra at 751
----------------------------------------------------------------------------------------------------------------

[72] This statement of the law was affirmed by the House of Lords in an earlier
decision[FN111] and reaffirmed more recently.[FN112] As pointed out by Lord
Bridge[FN113]

"… like any other treaty obligations which have not been embodied in the law by statute,
the Convention (for the Protection of Human Rights and Fundamental Freedoms) is not a
part of the domestic law, that the courts accordingly have no power to enforce
Convention rights directly and that, if domestic legislation conflicts with the Convention,
the courts must nevertheless enforce it ... When Parliament has been content for so long
to leave those who complain that their Convention rights have been infringed to seek
their remedy in Strasbourg, it would be surprising suddenly to find that the judiciary had,
without Parliament's aid, the means to incorporate the Convention into such an
important area of domestic law and I cannot escape the conclusion that this would be a
judicial usurpation of the legislative function." (emphasis added)

----------------------------------------------------------------------------------------------------------------
[FN111] Waddington v Miah (1974) 59 Cr App R 149
[FN112] Regina v Secretary of State for the Home Department ex parte Brind (1991) 1 AC
696
[FN113] Regina v Secretary of State for Home Department ex parte Brind, supra at 747
----------------------------------------------------------------------------------------------------------------

[73] Viewed in the context of the peculiar and enduring attributes of Westminster – type
constitutions of Commonwealth Caribbean states analysed by Lord Diplock in Moses
Hinds v The Queen,[FN114] the second sentence attributed to their Lordships in Thomas
v Baptiste, namely, "(b)y ratifying a treaty which provides for individual access to an
international body, the government made that process for the time being part of the
domestic criminal justice system and thereby temporarily at least, extended the scope of
the due process clause in the Constitution" must be perceived as an innovative juridical
postulate vulnerable to invalidation by serious legal analysis. Standing alone, this
juridical neologism postulates, by ineluctable inference, that the supreme law of the
state could be amended by unilateral executive action contrary to required
constitutional procedures; that such an amendment of the supreme law need not be
attended by any measure of permanence; and that the executive in its absolute
discretion, and in complete defiance of the hallowed principle of separation of powers
inherent in Westminster-type constitutions, was competent to modify the
administration of criminal justice in the state.

156
----------------------------------------------------------------------------------------------------------------
[FN114] Supra
----------------------------------------------------------------------------------------------------------------

[74] This determination of the Board flies in the face of settled case law commencing
with the landmark decision in The Parlement Belge, affirmed by the British Court of
Appeal in J.H. Rayner (Mincing Lane) Limited v Department of Trade and Industry,
approved by the Board in Fisher v Minister of Public Safety & Immigration (No. 2),
reaffirmed by the Board in Higgs v Minister of National Security and followed by various
Commonwealth courts as indicated above, as well as the Court of Appeal of Jamaica in
National Resources Conservation Authority v Seafood and Ting International
Limited[FN115] and the Supreme Court of Trinidad and Tobago in Ismay Holder v Council
of Legal Education.[FN116] To the extent, therefore, that the Board in Thomas v Baptiste
affirmed that the "appellants were not seeking to enforce the terms of an
unincorporated treaty, but a provision of the domestic law of Trinidad and Tobago
contained in the Constitution.",[FN117] it must be seen to follow, aequo vigore, that the
law regarding unincorporated treaties as set out in the cases mentioned above remains
good law and the offending determinations of the Board in Thomas v Baptiste and
Neville Lewis should be regarded as otiose and juridically unsustainable. In point of fact
in Thomas v Baptiste "(t)heir Lordships recognize the constitutional importance of the
principle that international Conventions do not alter domestic law except to the extent
that they are incorporated into domestic law by legislation. The making of a Treaty in
Trinidad and Tobago as in England, is an act of the executive government, not of the
legislature. It follows that the terms of a treaty cannot affect any alteration to domestic
law or deprive the subject of existing legal rights unless and until enacted into domestic
by or under the authority of the legislature. "[FN118] In the result it is reassuring to
reaffirm that unincorporated treaties do not, ipso facto, have determinative legal
incidence in the municipal law of dualist jurisdictions.

----------------------------------------------------------------------------------------------------------------
[FN115] (1999) 58 WIR 269
[FN116] HCA No 732 of 1997
[FN117] Per Lord Millett, supra at 422
[FN118] Supra, per Lord Millett at p 422
----------------------------------------------------------------------------------------------------------------

The third issue our Court is required to examine and determine reads as follows:

[75] Whether Section 24 of the Constitution authorizes the Court to commute a death
sentence or to give relief similar to any of the measures reserved to the Governor
General under Section 78 of the Constitution and, if so, whether in all the circumstances
it was appropriate for the Court of Appeal to take into account the matters that it did in
deciding whether to commute or give relief.

157
In respect of this issue I concur unreservedly in the judgments of my learned brothers
and sister.

[76] I would dismiss this appeal with costs to each of the respondents certified fit for two
attorneys-at-law.

/s/ Duke Pollard

Duke E E. Pollard

JUDGMENT OF THE HON MME JUSTICE BERNARD

I have had the benefit of reading the joint judgment of the learned President and
Saunders J., and agree with the conclusions reflected in it. My judgment relates only to
the first issue concerning the justiciability of the exercise of the powers of the Governor
General conferred under Section 78 of the Constitution of Barbados.

[1] Section 76 of the Constitution provides for a Privy Council which shall consist of such
persons as the Governor General may appoint after consultation with the Prime
Minister, and it shall have such powers and duties as may be conferred upon it by the
Constitution. The Governor General by virtue of Section 77(1) presides over all meetings
of the Privy Council, and the powers exercisable by him acting in accordance with the
advice of the Privy Council are conferred under Section 78 (1).

THE OUSTER CLAUSE

[2] The issue of justiciability of the exercise of the powers of the Governor General under
Section 78 is inextricably linked to Section 77(4) which is an ouster clause to the effect
that the question whether the Privy Council has validly performed any function vested in
it by the Constitution shall not be inquired into in any court.

[3] Ouster clauses fall within a category of protective and preclusive clauses which
Governments insert in statutes and constitutions to inhibit challenges by courts to
executive or administrative powers. Courts, however, over the years have not been
deterred by such pre-emptive strikes against their authority, and frequently find the
executive and administrative actions which the clauses seek to protect to be justiciable,
for example, on the grounds of excess of jurisdiction or breach of natural justice.

[4] The approach by courts to these clauses has undergone progressive change since the
case of Smith v. East Elloe Rural District Council[FN1] where such a clause in an Act was
held not to give any opportunity to a person aggrieved to question the validity of a
compulsory purchase order made under the Act on the ground that it was made or
confirmed in bad faith. A trend towards change was observed in the landmark decision

158
of Anisminic Ltd. v. Foreign Compensation Commission and Another[FN2], where the
ouster clause was couched in almost similar language to the one in Section 77(4) and
which are referred to as "not to be questioned" clauses. In summary the House of Lords
held, inter alia, that the ouster clause did not protect a determination which was outside
of jurisdiction, and that accordingly the court was not precluded from inquiring whether
or not an order of the Commission was a nullity. The effect of this decision is that a "not
to be questioned" clause prevents judicial review only for such errors as can be said to
be within jurisdiction. It is, however, recognised that a tribunal may act within
jurisdiction but yet act wrongfully thereby rendering its actions a nullity. Lord Reid in his
judgment in Anisminic (supra) at page 171 expressed it this way:

"....there are many cases where, although the tribunal had jurisdiction to enter on the
inquiry, it has done or failed to do something in the course of the inquiry which is of such
a nature that its decision is a nullity. It may have given its decision in bad faith. It may
have made a decision which it had no power to make. It may have failed in the course of
the inquiry to comply with the requirements of natural justice".

----------------------------------------------------------------------------------------------------------------
[FN1] [1956] AC 736
[FN2] [1969] 2 AC 147
----------------------------------------------------------------------------------------------------------------

[5] All of the cases decided in the English courts (except those of the Judicial Committee
of the Privy Council) concerned the reviewability of ouster clauses in Acts of Parliament
and other legislation. Professor Albert Fiadjoe in his book "Commonwealth Caribbean
Public Law", 2nd Edn., pointed out that in the Caribbean the courts have been compelled
to consider the effect of ouster clauses in constitutions which provide for unreviewability
of acts of a Head of State or Service Commissions. Mention was made of the case of
KeMr.ajh Harrikissoon v. Attorney General of Trinidad & Tobago[FN3] which concerned a
"not to be questioned" clause in the Constitution of Trinidad & Tobago, but which the
Board of the Privy Council found per curiam to be wide enough to deprive all courts of
jurisdiction to entertain a challenge to its validity. Lord Diplock expressed the view that
their Lordships did not find that that case provided an appropriate occasion for
considering whether the section in the Constitution, despite its unqualified language, is
nevertheless subject to the same limited kind of implicit exception as was held by the
House of Lords in Anisminic (supra). He thought it was best left to be decided in some
future case if one should arise.

----------------------------------------------------------------------------------------------------------------
[FN3] (1979) 3 WIR 348
----------------------------------------------------------------------------------------------------------------

[6] One did arise two years later in Endell Thomas v. Attorney General of Trinidad &
Tobago[FN4] concerning the same clause in the same Constitution. Lord Diplock again

159
had the opportunity to expatiate definitively on the issue, but because the Board did not
find it necessary to analyse Anisminic since there was no breach of fundamental justice,
he confined his comments to stating only that "it is plainly for the court and not for the
commission to determine what, on the true construction of the Constitution, are the
limits to the function of the commission". He went on to say:

"If the Police Service Commission had done something that lay outside its functions, such
as making appointments to the teaching service or purporting to create a criminal
offence, Section 102 (4) of the Constitution would not oust the jurisdiction of the High
Court to declare that what it had purported to do was null and void."

----------------------------------------------------------------------------------------------------------------
[FN4] (1981) 32 WIR 375
----------------------------------------------------------------------------------------------------------------

[7] What can be gleaned from the dicta in Thomas (supra) is that administrative acts of
State tribunals or commissions committed clearly in excess of statutory powers or in
contravention of the principles of fundamental justice are reviewable by the courts
despite the constitutional and legislative protection from scrutiny which ouster clauses
seek to provide. Lord Diplock in Attorney General v. Thomas d'Arcy Ryan[FN5] expressed
it this way:

"It has long been settled law that a decision affecting legal rights of an individual which is
arrived at by a procedure which offends against the principles of natural justice is
outside the jurisdiction of the decision making authority."

The whole concept of fairness was reiterated later by Lord Woolf, M.R. in Regina v.
Secretary of State for the Home Department ex parte Al-Fayed[FN6]. I am now of the
view that it matters not whether such clauses are statutory or constitutional; the same
principles are applicable with perhaps varying results depending on the power which the
clause seeks to protect.

----------------------------------------------------------------------------------------------------------------
[FN5] [1980] AC 718, 730
[FN6] [1998] 1 WLR 763
----------------------------------------------------------------------------------------------------------------

[8] In light of the above my conclusion is that despite the ouster clause contained in
Section 77(4) of the Constitution of Barbados the functions of the Barbados Privy Council
exercised by the Governor General under Section 78(1) are reviewable by the courts if in
the exercise of these functions it acts in breach of the principles of fundamental justice
thereby acting outside its jurisdiction.

THE PREROGATIVE OF MERCY

160
[9] The powers conferred on the Governor General acting in accordance with the advice
of the Privy Council involve the exercise of the prerogative of mercy as indicated by the
side note to Section 78 (1) which reads as follows:

"(a) grant to any person convicted of any offence against the law of Barbados a pardon,
either free or subject to lawful conditions;
(b) grant to any person a respite, either indefinite or for a specified period, from the
execution of any punishment imposed on that person for such an offence;
(c) substitute a less severe form of punishment for that imposed on any person for such
an offence; or
(d) remit the whole or part of any punishment imposed on any person for such an
offence or any penalty or forfeiture otherwise due to the Crown on account of such an
offence."

[10] The word "prerogative" suggests privilege exclusive to an individual, and historically
prerogative powers resided solely in the Crown: See Blackstone 1825, Book 1. Dicey,
however, expanded the prerogative to include much more than the powers exclusive to
the monarch. He posited that the prerogative appears to be both historically and as a
matter of actual fact nothing else than the residue of discretionary or arbitrary authority,
which is at any given time legally left in the hands of the Crown." (Dicey 1959, p. 424-5).

[11] Whichever theory one prefers the prerogative of mercy was one which the courts
have held to be unsuitable for judicial review as it confers no rights on a condemned
person, mercy being according to Portia in Shakespeare's "The Merchant of Venice"
"enthroned in the hearts of kings". In the case of de Freitas v. Benny[FN7], Lord Diplock
issued his oft-cited dicta that "mercy is not the subject of legal rights", and "it begins
where legal rights end." He elaborated on this by stating that a convicted person has no
legal right even to have his case considered in connection with the exercise of the
prerogative of mercy.

----------------------------------------------------------------------------------------------------------------
[FN7] (1975) 27 WIR 318; [1978] AC 239
----------------------------------------------------------------------------------------------------------------

[12] Over the years the inviolability of the prerogative has been eroded, and it has now
become the subject of judicial review as any other power which is abused. Lord Denning,
M.R. in Laker Airways Ltd. v. Department of Trade[FN8] articulated it thus:

"Seeing that the prerogative is a discretionary power to be exercised for the public good,
it follows that its exercise can be examined by the courts just as any other discretionary
power which is vested in the executive."

----------------------------------------------------------------------------------------------------------------

161
[FN8] [1977] QB 643
----------------------------------------------------------------------------------------------------------------

[13] This represented a later change in his reasoning as a few years earlier in Hanratty v.
Lord Butler[FN9] when an attempt was made to sue a former Home Secretary for
negligence for a decision made while in office, he had concluded that the prerogative of
mercy is "one of the high prerogatives of the Crown", hence, the court could not
interfere in the exercise of this function.

----------------------------------------------------------------------------------------------------------------
[FN9] [1971] 115 SJ 386
----------------------------------------------------------------------------------------------------------------

[FN14] What a difference twenty years makes as time and attitudes change! In 1993 that
same prerogative of mercy was considered in R. v. Secretary of State for the Home
Department, ex parte Bentley[FN10] when judicial review was allowed of the Home
Secretary's refusal to grant a posthumous pardon for a youth hanged for murder forty
years earlier. Ultimately no order was made, but the fact that judicial review of the
Home Secretary's discretion was allowed, indicated that the prerogative of mercy was no
longer sacrosanct. This same approach was taken in Burt v. Governor General[FN11]
where Cooke, P. in a case also involving the prerogative of mercy, expressed the view
that "as to prerogative powers generally, it has become accepted in recent years that the
mere fact that a decision has been made under the prerogative does not exempt it from
review in the courts. The test is rather whether the subject matter of the decision is
justiciable." These cases though not directly related to the death penalty marked a
decided departure from the traditional approach to the prerogative of mercy.

----------------------------------------------------------------------------------------------------------------
[FN10] [1994] QB 349
[FN11] [1992] 3 NZLR 672
----------------------------------------------------------------------------------------------------------------

[15] The test of examining the subject-matter rather than the source originated in the
most significant decision on prerogative powers - Council of Civil Service Unions v.
Minister for the Civil Service[FN12]. .It was held, per Lords Scarman, Diplock and Roskill,
that the controlling factor in determining whether the exercise of the power was subject
to judicial review was the justiciability of its subject matter rather than whether its
source was the prerogative. This did not augur well for the prerogative of mercy which
had been held ten years earlier in de Freitas v. Benny (supra) not to be justiciable as it
was not the subject of legal rights. Lord Roskill opined in CCSU (supra) that "prerogative
powers such as those relating to the making of treaties, the defence of the realm, the
prerogative of mercy as …. well as others, are not susceptible to judicial review because
their nature and subject matter is such as not to be amenable to the judicial process."

162
----------------------------------------------------------------------------------------------------------------
[FN12] [1985] AC 374
----------------------------------------------------------------------------------------------------------------

[16] CCSU was decided in 1984, and one wonders what was the rationale for concluding
that the powers referred to by Lord Roskill were not susceptible to judicial review and
not amenable to the judicial process. I apprehend that the reason for the prerogative of
mercy falling into this category is its inherent character being based on the exercise of a
discretion, and no legal right of a condemned man to have such a discretion exercised in
his favour as was concluded by Lord Diplock in de Freitas (supra). However, modern
thinking suggests that even where a statutory body or person exercises powers
conferred by the executive the decisions of that body or person may attract judicial
scrutiny if the basic principles of fairness are not observed. It was held per Lord Denning,
M.R. in Breen v. Amalgamated Engineering Union and others[FN13] that "if a domestic
body is set up and given a discretion, it is to be implied that the discretion must be
exercised fairly; even though its functions are not judicial or quasi-judicial but only
administrative, still it must act fairly, and should it not do so the courts can review its
decision." Mercy may not and perforce, cannot be regarded as a right, but when its
exercise is formalised by the establishment of a tribunal with statutory powers, that
subject matter (mercy) ceases to be a discretion capable of being exercised capriciously;
it becomes a matter to be determined in accordance with rules of fundamental justice.
The decision-making process of the exercise of the prerogative of mercy must be no
different from the exercise of other prerogative powers when states create tribunals
vested with constitutional powers and procedures to regulate the process of granting
mercy.

----------------------------------------------------------------------------------------------------------------
[FN13] [1971] 2 QB 175, 176
----------------------------------------------------------------------------------------------------------------

[17] This leads me to consider whether tribunals such as the Barbados Privy Council are
merely advisory or are decision-makers. The learned trial judge at first instance came to
the conclusion that it was advisory whereas the Court of Appeal held that it was a quasi-
judicial body and a decision-maker which tenders advice to the Governor General who is
mandated under Section 78(2) of the Constitution to act in accordance with its advice.

[18] Much discussion has centred around what is meant by "quasi-judicial". We all know
what are judicial acts; quasi-judicial acts are not always easy to define. I posit that both
judicial and quasi-judicial acts involve the making of decisions. A judicial act involves
making a decision based on proven facts and applying relevant legal principles; a quasi-
judicial act also involves making a decision maybe based on proven or agreed facts, but
applying and giving effect to administrative policy. One important element which is basic
to all decision makers whether judicial or quasi-judicial is the requirement to act fairly.
This view was expressed by Lord Loreburn as far back as 1911 in the case of Board of

163
Education v. Rice[FN14] when he stated that the duty to act in good faith and listen to
both sides is one lying upon every one who decides anything. Lord Denning, M.R. echoed
similar sentiments in Breen (supra).

----------------------------------------------------------------------------------------------------------------
[FN14] [1911] AC 179
----------------------------------------------------------------------------------------------------------------

[19] I conclude that it matters very little whether the Barbados Privy Council is a quasi-
judicial body. I agree with the finding of the Court of Appeal that it is a decision-making
body, and not an advisory one. Were it advisory the Governor General could elect to
ignore its advice, but as mentioned earlier Section 78(2) mandates him to act in
accordance with its advice; further, he is an integral part of that decision-making process
in that under Sections 77(1) and (2) he has the authority to summon meetings of the
Council and preside at all such meetings.

[20] The character and functions of the Barbados Privy Council contrast sharply in
material particulars with those of the advisory committees on the prerogative of mercy
which were considered in de Freitas (supra) and in Thomas Reckley v. Minister of Public
Safety and Immigration and others (No. 2)[FN15] and which emanated from the
Constitutions of Trinidad & Tobago and the Bahamas respectively. Both of those
committees were advisory in that it was expressly provided in the relevant sections of
both Constitutions that the designated minister was not obliged in any case to act in
accordance with advice tendered by the committees. In both instances they seem to
have been based on the English common law where the granting of mercy was a royal
prerogative exercised solely in the discretion of the sovereign who by constitutional
convention exercised it on the advice of the Home Secretary: See de Freitas (supra). It is
on this premise that Lord Diplock concluded that mercy is not the subject of legal rights.
He observed that the relevant constitutional provision of Trinidad & Tobago was of the
same legal nature as the royal prerogative of mercy, and was exercised by the Governor
General in the name and on behalf of Her Majesty. He concluded that the Trinidad &
Tobago advisory committee was a purely consultative body without any decision-making
power.

----------------------------------------------------------------------------------------------------------------
[FN15] (1996) 47 WIR 9; [1996] AC 527
----------------------------------------------------------------------------------------------------------------

[21] Similarly in Reckley, Lord Goff of Chieveley, considered that the introduction of the
advisory committee and the statutory provisions governing the exercise of its functions,
reinforced Lord Diplock's analysis in de Freitas, and expressed the view in relation to the
Bahamas advisory committee that "despite the obvious intention that the advisory
committee shall be a group of distinguished citizens, and despite the fact that the
minister is bound to consult with them in death sentence cases, he is not bound to

164
accept their advice. This provides a strong indication of an intention to preserve the
status of the minister's discretion as a purely personal discretion."

[22] The Barbados Privy Council clearly does not fall within the category of a purely
consultative body; it is without doubt a decision-making one. The functions and nature
of the Jamaica Privy Council were considered in Neville Lewis v. Attorney General of
Jamaica and another[FN16] and the constitutional provision establishing that Privy
Council mirror those of the Barbados Privy Council with a similar provision that in the
exercise of the powers conferred on the Governor General he shall act on the
recommendations of the Privy Council. Lord Slynn of Hadley in Lewis opined that
"accordingly the decision is not a personal one but is the collective and collegiate
decision of the Jamaican Privy Council over which the Governor General presides." This
lends support for my view that the Barbados Privy Council is a decision-making body.

----------------------------------------------------------------------------------------------------------------
[FN16] (2000) 57 WIR 275; 2 AC 50
----------------------------------------------------------------------------------------------------------------

[23] One of the issues concerning reviewability of the Jamaica Privy Council in Lewis
centred around defects in the procedures adopted in relation to the applicants' petitions
for mercy which had resulted in a breach of the rules of fairness and of natural justice. In
the instant appeal the Barbados Court of Appeal was required to decide whether the
procedures adopted by the Barbados Privy Council in determining the exercise of the
prerogative of mercy were fair and in conformity with the principles of natural justice.
One complaint by the Respondents was that they were not afforded an opportunity to
make oral representations to the Barbados Privy Council. However, this was rejected by
the Court of Appeal who found that the Respondents were not entitled to make oral
representations, and did not avail themselves of the opportunity to make written
representations. In this regard the Court of Appeal found that there was no procedural
impropriety committed by the Barbados Privy Council.

[24] However, there is one troubling aspect of the conduct of the Barbados Privy Council
in relation to the reading of the second warrant for the Respondents' execution. The
record at paragraph [6] indicates that on 6th and 16th April, 2002 both Respondents
were invited to submit written representations after the appeals to the Court of Appeal
were dismissed, and a meeting of the Barbados Privy Council was fixed for the purpose
of advising the Governor General as to the exercise of his powers under Section 78 of the
Constitution which may have resulted in a warrant for their execution being read. It is
admitted by the Respondents that they made no written representations to the Council.
The record at paragraph [7] further indicates that the Respondents were informed that
the Council would be meeting on 24th June, 2002, to advise the Governor General as to
the exercise of the prerogative of mercy. No representations having been submitted by
the Respondents, the Privy Council advised the Governor General against commuting the
sentences, and death warrants were read to them. On 27th June, 2002 the executions

165
were stayed by an order of court.

[25] On 13th September, 2004 after the Respondents' appeals to the Judicial Committee
of the Privy Council were dismissed, following a lapse of over two years, the record
indicates at paragraph [10] that the Barbados Privy Council met to consider the Order in
Council of the Judicial Committee of the Privy Council, and advised the Governor General
that a date for execution should be fixed. The Respondents were not informed of this
meeting nor were they requested to make written representations. Due to the fact that
over two years had elapsed since the first date of execution was fixed the question arises
as to whether the Respondents ought not to have been invited to make written
representations. They may have had a change of heart about insisting on oral
representations or circumstances may have arisen during the interval of time which may
have influenced the Barbados Privy Council to advise the Governor General to exercise
his powers favourably on their behalf.

[26] Sub-sections (5) and (6) which were added to Section 78 by virtue of the
Constitution (Amendment) Act, 2002 came into effect on 5th September, 2002. Other
sections were also amended under the Act, to wit, Section 15 of the Constitution. In
relation to this Section by virtue of Section 5 of the amending Act it was specifically
stated that the amendment made to Section 15 "does not apply in relation to a person
on whom the sentence of death was pronounced before the coming into operation of
this Act." The amendment in relation to Section 15 therefore did not apply to any person
sentenced to death before 5th September, 2002, the date when the amendment came
into effect. This section having been excluded (expressio unius exclusio alterius) I posit
the view that Sub¬sections (5) and (6) would apply to any condemned person awaiting
the exercise of the powers of the Governor General or the Barbados Privy Council under
Section 78 regardless of the date of sentence, in the absence of any provision excluding
its application to persons sentenced to death prior to the commencement of the
amending Act. The cases of In re a Solicitor's Clerk[FN17], La Maachia v. Minister for
Primary Industry[FN18] and Brosseau v. Alberta Securities Commission[FN19] are
supportive of such a statutory interpretation.

----------------------------------------------------------------------------------------------------------------
[FN1] [1953] WLR 1219
[FN2] [1986] 72 ALR 23
[FN19] [1989] 57 DLR (4th) 458
----------------------------------------------------------------------------------------------------------------

[27] The Respondents were accordingly given a constitutional right under Sub-section (5)
to submit written representations to the Governor General or the Council before a death
warrant was read. The Court of Appeal seems to have shared this view when they
reasoned at page 267 of the record that "whereas the applicants were invited in April
2002 to submit representations in writing for the exercise of mercy, after 5 September,
2002, they were given a specific constitutional right to submit written representations".

166
[28] In my view the Respondents ought to have been informed that the Council was
meeting for a second time. A sentence of death stands in a different category from any
other sentence. A condemned man fights for his life until all hope is exhausted, hence he
is entitled to explore all possible avenues available to him. One would expect that if a
warrant for his execution is to be issued those responsible for authorising it to be issued
ought to inform him of the date when this is proposed to be done and give him an
opportunity to make written representations as he is entitled to do. In somewhat similar
circumstances the learned Chief Justice of Belize in Lauriano v. Attorney General and
Another[FN20] held that in order that the principles of natural justice be observed, a
person sentenced to death was to be notified of the sitting of the council to consider his
case; to be notified of his right to make representation in writing at its sitting, and to
have disclosed to him where "other information derived from elsewhere" was supplied
by the Attorney General and which was to be taken into consideration by the council at
its meeting. That case was ultimately heard by the Court of Appeal of Belize on other
grounds, but there was no appeal on the learned Chief Justice's finding in relation to this
aspect of the case.

----------------------------------------------------------------------------------------------------------------
[FN20] (1995) 47 WIR 74; [1996] 2 LRC 96
----------------------------------------------------------------------------------------------------------------

[29] There is no evidence on record that the Respondents were informed of this second
meeting of the Council after their appeals to the Judicial Committee of the Privy Council
were dismissed. In this regard the Barbados Privy Council acted without procedural
propriety thereby rendering its decision subject to being set aside as an infringement of
the rights of the Respondents to the protection of the law. As was stated by Fitzpatrick,
J.A. in Yassin & Thomas v. Attorney General of Guyana[FN21] "justiciability concerning
the exercise of the prerogative of mercy applies not to the decision itself but to the
manner in which it is reached." If the process is flawed the decision is tainted, and must
be set aside by the Court.

----------------------------------------------------------------------------------------------------------------
[FN21] (1996) 62 WIR 98
----------------------------------------------------------------------------------------------------------------

[30] The whole concept of mercy is complex depending as it does on the exercise of a
discretion inherent in some person or authority designated to dispense it. It appeals to
instinctive values of conscience and fair play even in societies within the Caribbean
where the incidence of criminal activity is beyond acceptable limits. In carrying out their
mandates statutory mercy tribunals are expected to facilitate the process by procedures
that are fair in all respects both to the public at large as well as the condemned person.

[31] Lord Mustill in Regina v Secretary of State for the Home Department, Ex parte

167
Doody[FN22] at page 560 summarised the principles of acting fairly in administrative
matters in this way:

"(1) where an Act of Parliament confers an administrative power there is a presumption

that it will be exercised in a manner which is fair in all the circumstances. (2) The
standards of fairness are not immutable. They may change with the passage of time,
both in general and in their application to decisions of a particular type. (3) The
principles of fairness are not to be applied by rote identically in every situation. What
fairness demands is dependent on the context of the decision, and this is to be taken
into account in all its aspects. (4) An essential feature of the context is the statute which
creates the discretion, as regards both its language and the shape of the legal and
administrative system within which the decision is taken. (5) Fairness will very often
require that a person who may be adversely affected by the decision will have an
opportunity to make representations on his own behalf either before the decision is
taken with a view to producing a favourable result, or after it is taken, with a view to
producing its modification, or both."

----------------------------------------------------------------------------------------------------------------
[FN22] [1994] 1 AC 531
----------------------------------------------------------------------------------------------------------------

[32] The sixth principle is not relevant to the present situation, and need not be
mentioned. The Constitution conferred on the Governor General and the Barbados Privy
Council the power, inter alia, to grant a pardon to convicted persons, and it is presumed
that these powers will be exercised in a fair manner. In the instant case the Respondents
who were convicted and sentenced to death had all of their appeals dismissed, and so as
a last resort may have cherished the hope of a favourable exercise in their favour of the
powers of commutation of the sentence of death by the Governor General and the
Barbados Privy Council. The exercise of such a power is exceptional and unique involving
as it does a decision on the termination of life, and in this context there should be a
scrupulous regard for fairness. In light of the principles of fairness enumerated by Lord
Mustill in Doody I reiterate that fairness required that the Respondents be given an
opportunity to make written representations to the Barbados Privy Council as was their
right so to do, and having regard to the particular circumstances of a lapse of two years
since the first warrant for their executions was read. I uphold the findings of the Court of
Appeal at paragraph [70] of the judgment that the death warrants were improperly read
to the Respondents both in 2002 and 2004 at times when they had not exhausted both
their domestic and other remedies, and it was manifestly unfair being a denial of natural
justice.

[33] However, a finding that the Barbados Privy Council acted with procedural
impropriety will have no impact on the final outcome of this appeal in light of the fact
that the Court of Appeal commuted the sentences of death imposed on the
Respondents. One of the factors which influenced their decision to do so pertained to

168
the same issue which I have raised, that is, that within an interval of two years the
Respondents had two death warrants read to them, and it would be undesirable to
expose them to a third reading and the likelihood of further court proceedings. They also
noted the Barbados Government's failure to provide a report in compliance with an
Order of the Inter-American Court on Human Rights dated 17th September, 2004, and
expressed the view that in the circumstances it was "highly unlikely that a report would
be forthcoming within the time frame of Pratt and Morgan."[FN23]

----------------------------------------------------------------------------------------------------------------
[FN23] Pratt and Morgan v. The Attorney General of Jamaica (1993) 43 WIR 340; [1994] 2
AC 1
----------------------------------------------------------------------------------------------------------------

[34] This leads me to make a short comment and to echo the views expressed by the
learned President and Saunders, J in their judgment on the case of Pratt where due to
the peculiar circumstances of that case, involving as it did a delay of approximately 14
years from conviction, the Judicial Committee of the Privy Council saw it appropriate to
issue guidelines to the Governor General and the Jamaica Privy Council in circumstances
where execution is to take place more than five years after sentence. The advice
tendered by the Board was that the Governor General should refer all such cases to the
Jamaica Privy Council who should recommend commutation to life imprisonment,
thereby achieving substantial justice, and avoiding a flood of applications to the
Supreme Court for constitutional relief. The reason for this was the conclusion of their
Lordships that in any such case there will be strong grounds for believing that the delay
is such as to constitute "inhuman or degrading punishment or other treatment."

[35] The impact of this advice reverberated throughout the Caribbean jurisdictions for
which the Judicial Committee of the Privy Council was and still is the final appellate
court. Several prisoners who were on death row for more than five years found
themselves beneficiaries of commutation of sentences. Although the advice of the
Judicial Committee of the Privy Council was intended to be guidance for constitutionally
mandated committees exercising the prerogative of mercy in relation to persons under
sentences of death, it resulted in some instances in renewed efforts being made to
expedite trials and hearings of appeals at the domestic level. Undoubtedly in some
jurisdictions delays had reached unacceptable levels, and in order to avoid a plethora of
constitutional motions alleging inhuman or degrading punishment the process from
conviction and sentence to completion of appeals had to be expedited. Of course, the
guidelines and suggested time limits of Pratt are not immutable or carved in stone, even
though most jurisdictions for which the Judicial Committee of the Privy Council is the
final appellate court seem to regard them as such; they must be viewed in light of the
extraordinary circumstances of that case.

[36] However I endorse the guidance and suggested time limits of Pratt, and commend
them to the other jurisdiction of which this Court is currently the final appellate court.

169
Delays which reach unacceptable levels can deny a condemned person the constitutional
protection of the law which is the Gibraltarian rock on which every judicial system is
built, and in which confidence of the public resides. This must not be confined only to
the post-conviction stage of trials, but efforts must be made to expedite the pre-
conviction process which in most constitutions guarantees to an accused person
protection of the law.

[37] I agree with the learned President and Saunders, J that the Court of Appeal adopted
the correct course in commuting the death sentences of the Respondents.

[38] As mentioned at the commencement of this judgment, I concur in the conclusions

arrived at in the judgment of the learned President and Saunders, J in respect of the
other issues which fell to be determined in this appeal, and I agree that the appeal be
dismissed with costs to each of the Respondents certified fit for two Counsel.

/s/ D.P. Bernard

D. P. Bernard

JUDGMENT OF THE HONOURABLE MR. JUSTICE WIT

[1] On February 2, 2001 two citizens of Barbados, Jeffrey Joseph and Lennox Boyce, the
respondents in this appeal, were convicted of murder and subsequently sentenced to
death. Their appeals against conviction were dismissed by the Court of Appeal on March
27, 2002.

[2] The laws of Barbados make it abundantly clear that there can be only one sentence
for murder: death by hanging. The courts do not have any discretion at the sentencing
stage. Their hands are tied. Usually, when someone is sentenced and all relevant appeals
have been exhausted, the sentence can and should be executed forthwith. Generally, an
execution of a non-capital sentence will not be stayed when the convicted person seeks
the benevolence of mercy. This is, however, significantly different in case of a death
sentence, the only penalty where execution of the sentence comes down to execution of
the person sentenced. In such a case, therefore, the Constitution of Barbados (section
78) dictates that prior to any possible execution the case has to be referred to the
Barbados Privy Council (BPC). That august body, usually presided over by the Governor-
General himself (or herself, as the case may be), will have to decide whether "mercy"
should be bestowed upon the condemned man or not. In other words, they decide
whether the sentence of death, although legally imposed and in an abstract way "just",
should or should not be executed. Only if and when it is decided that the execution must
take place, can death warrants be issued. If that decision is properly made and carried
out, then can the hanging take place.

[3] In the case before us the BPC twice decided (in the constitutionally prescribed form

170
of a binding advice to the Governor-General) that Boyce and Joseph must be hanged. We
do not know how they came to that decision nor do we know what kind of information
they had at that point in time. However, we do know the relevant facts of this case, and
those facts are clear from the record before us. On April 10, 1999, four young men beat
up a fifth in such a brutal way that he died some days later. All four were arrested and
prosecuted. All four were charged with murder. All four were, nevertheless, offered by
the Crown to be tried for the lesser crime of manslaughter in exchange for a guilty plea.
Two of the four, one of them being the person who actually seemed to be at the root of
the problem with the victim and who involved the other three, chose this avenue.

[4] Although manslaughter carries a maximum sentence of life imprisonment, the two
who pleaded guilty to that charge were each sentenced to twelve (12) years. The other
two, the respondents, opted to be tried on a charge of murder on the basis of a not
guilty plea. They came to regret that. They were convicted for murder and subsequently,
one could say automatically, sentenced to death. There are no facts to suggest that the
involvement of the respondents in the crime was more serious than that of the other
two. Joseph did have a criminal record but an unimpressive one. Boyce had no criminal
record whatsoever. Reports by the prison authorities on their behaviour were in neither
case unfavourable. The only relevant difference between the respondents and their
fellow accused seems to be that the latter spared the Crown the time and costs of a trial.

[5] Taking these facts at face value, it would not have surprised me if it had been argued
that no reasonable person in Barbados would claim that this is one of those cases that
clearly demanded the execution of the death penalty or that the respondents were
persons who must be hanged "though the heavens fall". Even given the right of the
people of Barbados to have the death penalty on their law books, a right both
recognised by the Barbados Constitution and by international law, the reality is that the
authority to execute such a sentence has been, and probably will be, used only sparingly.
The legal system of Barbados has a built-in flexibility as to the execution of death
sentences. Executions are never automatic. That means that choices have to be made. It
goes without saying that these choices, which are in fact decisions on life or death, are
extremely difficult and dramatic. But they have to be made and those who have to make
them are charged with a grave responsibility. It follows that these decisions, like all
decisions in the public domain, will have to be rational. Decisions on who will be hanged
and who will be spared are, of course, no longer a matter of turning the imperial thumb
up or down, whether divinely inspired or not. In 21st century Barbados, these are policy
decisions as to how to individualise the impersonal reflection of abstract justice. They
should therefore not only be rational but also unequivocally reflect that rationality.
Although one cannot ignore the fact that the BPC has a very broad discretion as to the
exercise of mercy, in the present case, however, the decision to have these death
sentences executed leaves the objective observer somewhat bewildered as the Crown
apparently seeks to take the lives they initially wanted to spare; seemingly for the reason
that the condemned men could have spared the Crown the time and costs of a trial. That
might very well be a proper reason for a difference in sentencing, but a difference

171
between twelve years and death for that "circumstance" seems clearly disproportionate
and utterly unreasonable (or, in the sometimes obscure vernacular of English law,
Wednesbury unreasonable).

[6] Instead of approaching the case in this straightforward way, the respondents took a
roundabout route. They submitted that the BPC had treated them unfairly and in breach
of the principles of natural justice. In other words, they did not attack the rationality of
the decision of the BPC in advising the Governor-General against commutation of their
death sentences, but they attacked the procedure that was followed by the BPC in
reaching that decision. They argued that the unfairness of this procedure was such that
it amounted to a serious violation of their fundamental right to the protection of the law
as laid down in section 11(c) of the Constitution of Barbados. They were therefore, so it
was argued, entitled to a remedy provided in section 24 of that Constitution,
notwithstanding the fact that this provision can only be invoked if "any of the provisions
of sections 12 to 23 has been, is being or is likely to be contravened." Apart from that, it
was argued that so much time had gone by since the day they had been sentenced to
death that, by now, the execution of that sentence would be "inhuman or degrading"
and thus in contravention of section 15 of the Constitution, a provision clearly covered
by section 24 of the Constitution. It was further argued that in the circumstances of this
case, commutation of the death penalty was the proper thing to do. In terms of case law,
the Courts below were asked to follow the ruling of the Judicial Committee of the Privy
Council (JCPC) in the Jamaican case of Neville Lewis and others v Attorney-General[FN1]
as this was, so the Courts were told, binding precedent.

----------------------------------------------------------------------------------------------------------------
[FN1] (2000) 57 WIR 275
----------------------------------------------------------------------------------------------------------------

[7] What was it that the BPC had done wrong? According to the respondents, the BPC
had twice unnecessarily and unduly triggered the issuance of their death warrants, the
first time in June 2002, after the Court of Appeal had dismissed their appeals on March
27, 2002 and the second time in September 2004, after the JCPC, the then court of final
appeal for Barbados, had dismissed their appeals against the mandatory character of
their death sentences. On the first occasion the BPC had informed the attorneys of both
respondents that the BPC would meet on June 24, 2002 to advise the Governor-General
as to the exercise of the "prerogative of mercy", despite the fact that these attorneys
had already informed the BPC that they had in fact petitioned the JCPC applying for
special leave to appeal the decision of the Court of Appeal (which leave was
subsequently obtained). On the second occasion the BPC had, without further ado, again
advised the Governor-General that a date for execution should be fixed, even though the
BPC was formally informed by the attorneys of the respondents that a complaint had
been filed with the Inter-American Commission on Human Rights (IACHR). The
respondents forcefully argued that the BPC should have awaited the results of this
international law procedure as this outcome, whether in the form of a recommendation

172
of the Commission or, ultimately, of a judgment of the Inter-American Court of Human
Rights, should in good faith be considered before a decision could be reached on the
granting or denying of mercy.

[8] The Court of Appeal agreed with the respondents. It appears to me that they decided
(1) that Lewis was binding precedent, and that, following Lewis, the conclusion must be
(2) that the BPC should have awaited the outcome of the procedure before the IACHR
before deciding on the mercy issue, (3) that the refusal of the BPC to do so amounted to
a violation of the fundamental right of "protection of the law" which was said to be in
effect the same as an entitlement to "due process of law" and that the violation of this
right, although not in so many words mentioned in sections 12 to 23 of the Constitution
of Barbados, was indeed covered by section 24 of that Constitution so that a remedy
under this provision would be available, (4) that, considering the fact that already four
years and four months had gone by after the respondents had been sentenced and that
in the circumstances it was highly unlikely that a report from the IACHR would be
forthcoming within the five year time frame laid down in the case of Pratt and Morgan v
Attorney-General of Jamaica[FN2], a violation of section 15 of the Constitution was
imminent and that this also called for a section 24 remedy, and (5) that the only relief
that could properly be given would be the commutation of the imposed death sentences
to sentences of life imprisonment.

----------------------------------------------------------------------------------------------------------------
[FN2] (1993) 43 WIR 340, [1994] 2 AC 1
----------------------------------------------------------------------------------------------------------------

[9] The Crown has launched strong objections against this decision of the Court of
Appeal. In the first place, although appreciating that Lewis was and is binding precedent
in Jamaica, they vehemently disagree that it was binding in Barbados. They have pointed
out that under the Constitution of Jamaica the courts are not inhibited from considering
"the transaction of business" of the Jamaican Privy Council (JPC), in contradistinction to
Barbados where the Barbados Constitution has an "absolute" ouster clause that excludes
the courts from inquiring into the question whether the BPC "has validly performed any
function vested in it by this Constitution" (See: section 77(4) of the Constitution). The
Crown further argued that even if it was binding in the past, Lewis is not so anymore,
now the Caribbean Court of Justice has replaced the JCPC as the court of final appeal in
Barbados. In the second place, they submit that Lewis cannot even be considered as
persuasive authority, meaning that it cannot and should not be used as a stepping stone
for the further development of the law in Barbados. In their eyes, Lewis is "bad law"
because: (a) it does not appreciate the non-justiciability or non-reviewability of the
"prerogative of mercy" and (b) ratified but unincorporated treaties cannot have any legal
effect on domestic law. In the third place, they argue that even if there was a violation of
"the right to protection of the law" or there was some form of "unfairness" in the
procedure of the BPC, quod non, this could have only attracted the sanction of nullity of
the decision of the BPC (based on section 1 of the Constitution) but not one of the

173
sanctions of section 24 of the Constitution and certainly not commutation of the death
sentences to life imprisonment. The respondents have, unsurprisingly, vigorously
contested these submissions of the Crown.

[10] Why does the Crown so vehemently object to the Lewis decision? That is not
difficult to guess. Lewis is, not wholly without reason, conceived as an ingenious device
to effectively dismantle the application of the death penalty even though that sentence
is still on the books. The decision is seen and felt as a jurisprudential Catch 22 from
which no Caribbean State can escape as it requires them to choose between "a rock and
a hard place" or "the devil and the deep blue sea." Lewis clearly comprises two unlike
poles, although it is open to discussion which of those might be "the devil" and which
"the deep blue sea".

[11] On the one hand Lewis holds that when the State "acceded to the American
Convention and to the International Covenant [without incorporating them into
domestic law] and allowed individual petitions to [the international human rights
bodies], the petitioner became entitled under the protection of the law provision [as
enshrined in the Constitution] to complete [that] procedure and to obtain the reports of
[such] bodies for [in Barbados: the BPC] to consider before it dealt with the application
for mercy and to the staying of execution until those reports had been received and
considered"; that where a petition had been lodged with such a body, execution without
consideration of that body's report would therefore be unlawful.[FN3]

----------------------------------------------------------------------------------------------------------------
[FN3] Supra at p 303
----------------------------------------------------------------------------------------------------------------

[12] On the other hand, Lewis, being the result of a petrifaction process that can be
traced back as early as Bradshaw v Attorney-General of Barbados[FN4], applied a version
of Pratt and Morgan that reduced the latter to its formal fabric. Although the JCPC in
Pratt had said that they "did not purport to set down any rigid timetable", that is exactly
what they did in Lewis. Their Lordships had said in Pratt that when "execution has to
take place more then five years after sentence there will be strong grounds for believing
that the delay is such as to constitute 'inhuman or degrading punishment or other
treatment'." Thus the five year period merely ushered in a rebuttable presumption.
However, in Lewis which actually combined six similar cases they did nothing more than
simply establish the fact that in four of the six cases "the period of five years referred to
in Pratt has already elapsed" and that in the two other cases "it is inevitable that, by the
time the appellant's advisers have been able to see the material which was before the
Privy Council of Jamaica and to make representations on it..., the period of five years will
have elapsed", and that they were "therefore satisfied that the sentences of death
should be set aside in all cases and commuted to ones of life imprisonment." Thus, in
Lewis the form of Pratt got precedence over its substance.

174
----------------------------------------------------------------------------------------------------------------
[FN4] (1995) 46 WIR 62
----------------------------------------------------------------------------------------------------------------

[13] What is the substance of Pratt? It would seem to me that it is this: "a State that
wishes to retain capital punishment must accept the responsibility of ensuring that
execution follows as swiftly as practicable after sentence, allowing a reasonable time for
appeal and consideration of reprieve. It is part of the human condition that a
condemned man will take every opportunity to save his life through use of the appellate
procedure. If the appellate procedure enables the prisoner to prolong the appellate
hearings over a period of years, the fault is to be attributed to the appellate system that
permits such delay and not to the prisoner who takes advantage of it." And: "Their
Lordships are very conscious that the ... government faces great difficulties with a
disturbing murder rate and limited financial resources at their disposal to administer the
legal system. Nevertheless, if capital punishment is to be retained it must be carried out
with all possible expedition." (per Lord Griffiths)[FN5]. See also Lord Goff in Guerra v
Baptiste[FN6]: "problems facing the judicial system ... cannot be allowed to excuse long
delays." In the latter case "the time which had elapsed between sentence of death and
completion of the hearing of the Court of Appeal was four and a half years" and "the
overwhelming reason for this excess was the failure to make available the judge's notes
of the evidence at the trial until four years after the trial was over." On the basis of these
facts the JCPC felt "bound to conclude that there has been a substantial and unjustifiable
period of delay in the disposal of the appellant's appeal, a period which in all probability
exceeds three years." Or, to paraphrase the European Court of Human Rights, it is for
the State to organise their domestic legal system in such a way that it can effectively
ensure the right of every person charged with a criminal offence to be tried without
undue delay or within a reasonable time.[FN7]

----------------------------------------------------------------------------------------------------------------
[FN5] Supra at p 361
[FN6] (1995) 47 WIR 439 at p 451
[FN7] ECHR, Mansur v Turkey, 8 June 1995, Series A, No 319-B, at p. 53 [68]
----------------------------------------------------------------------------------------------------------------

[14] "Trial" in this particular context, in my view, clearly includes the appellate
procedures and even the legal processes for the consideration of reprieve, and beyond
that, up to the final moment of execution itself. It would seem that the broad scope of
this concept, ultimately, flows from the fundamental right which underlies all other
fundamental rights, the right to human dignity and the corresponding prohibition on the
negation of a person's basic humanity, even if that person is a death row prisoner. I will
come back on this point later. For now, it suffices to remark that, whatever the
substance of Pratt, it was that decision in its strictly formal manifestation with its narrow
focus on the "five years' deadline" that constituted the law which the Court of Appeal
had to, and did, apply. That part of Lewis was binding precedent when the Court of

175
Appeal decided the instant case, whatever opinion our Court might now have on this
matter. The question is then: was the other part of Lewis, which was obviously founded
on the case of Thomas v Baptiste[FN8], also at that time binding for the Court of Appeal?

----------------------------------------------------------------------------------------------------------------
[FN8] (1998) 54 WIR 387
----------------------------------------------------------------------------------------------------------------

[15] Before dealing with this question, it seems appropriate and useful to dwell briefly
on the general issues of the interpretation of written constitutions such as the Caribbean
Constitutions in general and the Barbados Constitution in particular. Interestingly, these
constitutions are still portrayed as being of the Westminster Model. They were, and to a
certain extent still are, seen by many as a mere evolutionary, written variant of the
original in the former Mother Country, be it with some additional constitutional
"gadgets" (like a Supremacy Clause and a Chapter on fundamental rights and freedoms).
Thus, the largely unwritten English Constitution shaped by conventions and common law
seemed to have been set in ice in all its perceived magnificence and splendor. From a
more cynical angle it could be, and has been, observed that the older Caribbean
Constitutions contained general "savings clauses" (as they still do after decades of
independence) which brought the existing (mainly English) law, perfect and pristine as it
seemed, beyond the reach of judicial review, whereas newly created local legislation
could always be reviewed judicially all the way up to the trusted and familiar Judicial
Committee of the Privy Council manned by the British Law Lords.

[16] Unsurprisingly, the JCPC and in their footsteps the Caribbean courts themselves for
many years approached these constitutions, in the words of Lord Bingham in Gairy v
Attorney-General of Grenada[FN9], on the assumption "that the rights specified in the
Constitution were already secured to the people and that the object of embodying them
in the Constitution was to restrain future enactments which might derogate from them."
Lord Bingham compared in this context Lord Diplock's "somewhat conservative approach
to the substance of the law" in Jaundoo v Attorney-General of Guyana[FN10] with his
"enlightened approach to the procedural implications of protecting fundamental rights"
in that same case. And he concluded: "In interpreting and applying the Constitution of
Grenada today, the protection of guaranteed rights is a primary objective, to which the
traditional rules of the common law must so far as necessary yield. The Board cannot
regard Jaundoo as an accurate statement of the modern constitutional law applicable in
Grenada." In the same line is the reasoning of Lord Hoffmann in delivering the judgment
of the JCPC in the recent case of State of Trinidad and Tobago v Boyce[FN11] where he
held that there was a substantial difference between the "old common law rule" of "due
process of law" and the "constitutional meaning" of that same concept.

----------------------------------------------------------------------------------------------------------------
[FN9] (1999) 59 WIR 174 at p 198-199
[FN10] [1971] AC 972

176
[FN11] [2006] UKPC 1 [14]
----------------------------------------------------------------------------------------------------------------

[17] Thus, an awareness that the interpretation of Caribbean Constitutions is a legal

activity in its own right seems to be emerging gradually, although there is still, perhaps
understandably, an inclination to take the (English) common law as a point of departure.
One would hope, as I envisage, that these flashes of enlightenment will be taken to their
ultimate conclusion, so that a genuine constitutional law will be developed on the basis
of the Caribbean Constitutions themselves as the embodiments of the democratic
societies they endeavour to establish and guard. That does not mean that the common
law has no role to play in construing these constitutions. The historical and systematic
ties between the legal systems of the Caribbean and that of their former colonial master
are still manifest and multiple. But the common law focused as it is on the unwritten
Constitution of the United Kingdom cannot be the centerpiece of Caribbean
constitutional law as these constitutions, contrary to what was thought for so long and
despite the many similarities at the outset of their governmental systems, are
fundamentally different. This is so because of the very fact that they are written and
because of the fact that the people themselves, and therefore their constitutions, are
deemed to be sovereign and supreme. Further, the legislatures under the Caribbean
Constitutions, although extremely important, cannot, as Parliament can in the United
Kingdom, claim superiority over the other two branches of government. Caribbean
parliaments are not at liberty to legislate whatever or however they see fit without
having regard to the limits enshrined in the constitutions which ultimately have to be
construed, and guarded, by the Judiciary.

[18] I now turn to the Barbados Constitution. This founding document clearly embodies
and constitutes a constitutional democracy. Although this Constitution is largely
concerned with seemingly formal and institutional issues, it is undoubtedly a qualitative
and normative document. This is not only clear from the content of Chapter III on the
protection of fundamental rights and freedoms of the individual, but also from the
Preamble in which the people of Barbados, amongst other things, proudly "proclaim that
they are a sovereign nation founded upon principles that acknowledge the supremacy of
God, the dignity of the human person, their unshakeable faith in fundamental human
rights and freedoms" and "affirm their belief that men and institutions remain free only
when freedom is founded upon respect for moral and spiritual values and the rule of
law." It is in this light that the Barbados Constitution as a whole has to be understood
and interpreted as these words fill the Constitution with meaning reflecting the very
essence, values and logic of constitutional democracies in general and that of Barbados
in particular.

----------------------------------------------------------------------------------------------------------------
[FN12] See about interpretation of constitutions in general: Aharon Barak, The judge in a
Democracy (2006), p 127-135
----------------------------------------------------------------------------------------------------------------

177
[19] These normative parts of the Constitution breathe, as it were, life into the clay of
the more formal provisions in that document. Thus, the fact that the three branches of
government are formally dealt with in separate Chapters and the fact that the Chapter
on the Judiciary contains strong procedural safeguards against undue influence from the
political branches, all taken together with the Supremacy Clause in section 1, establish in
the light of the solemn affirmation of the rule of law the substantive concept of the
separation of powers, which is considered to be the backbone of any constitutional
democracy[FN13]. Some aspects of this principle as a Caribbean constitutional principle
had already been acknowledged in 1977 by Lord Diplock in the well-known case of Hinds
v The Queen[FN14], although that result was reached through his "somewhat
conservative approach" of assuming that the principle was a feature of the original
Westminster Constitution and that the constitution at hand was basically modeled after
that original.

----------------------------------------------------------------------------------------------------------------
[FN13] Op cit, Barak, at p 35
[FN14] (1975) 24 WIR 326
----------------------------------------------------------------------------------------------------------------

[20] The multi-layered concept of the rule of law establishes, first and foremost, that no
person, not even the Queen or her Governor-General, is above the law. It further imbues
the Constitution with other fundamental requirements such as rationality,
reasonableness, fundamental fairness and the duty and ability to refrain from and
effectively protect against abuse and arbitrary exercise of power. It is clear that this
concept of the rule of law is closely linked to, and broadly embraces, concepts like the
principles of natural justice, procedural and substantive "due process of law" and its
corollary, the protection of the law. It is obvious that the law cannot rule if it cannot
protect. The right to protection of the law requires therefore not only law of sufficient
quality, affording adequate safeguards against irrationality, unreasonableness,
fundamental unfairness or arbitrary exercise of power. It also requires the availability of
effective remedies. These requirements are inherent in the Barbados Constitution.
Section 24 which expressly guarantees the right to an effective remedy is, therefore,
merely a reflection of that fundamental right to the protection of the law. Hence, the
existence of that section, cannot, without more, be construed in a manner so as to limit
that right or to frustrate the granting of an effective remedy for a breach of the
Constitution.

[21] These are the principles that I think should guide us in the determination of the
remaining issues which I now turn to. The first question which has to be answered is
whether the exercise of mercy by the BPC is an area which by its nature is unsuited for
any form of adjudication, and, if it can be reviewed as such by the courts, whether the
ouster clause of section 77 (4) of the Barbados Constitution has the effect of declaring
the exercise of the prerogative of mercy non-justiciable or non-reviewable. It is clear

178
that the BPC are part, although being a special branch, of the Executive. It is also clear
that the BPC are not above the law. The BPC discharge their functions under the
Constitution and therefore they cannot, however eminent the members of that body
may be, go unchecked by the courts. But at the same time the courts have to respect the
scope of the discretion afforded to the BPC in the exercise of mercy. Both the executive
acceptance of judicial scrutiny and judicial respect for executive discretion are required
under the rule of law and flow from the separation of powers.[FN15] Generally speaking,
depending on the subject-matter of the executive power, discretion may vary from the
very narrow to the extremely broad. In the case of the latter the exercise of the
discretion, whether called "prerogative" or by any other name, might be so deep in the
realm of being "political" and so far removed from any legal frame-work that the courts
will be strongly inclined to deem the discretion exercisable in this sphere as being non-
justiciable or non-reviewable, meaning that the matter can or should not be adjudicated.
This is usually so in cases of war and peace and foreign affairs in general.

----------------------------------------------------------------------------------------------------------------
[FN15] See, also, Barak, oc, at p.39
----------------------------------------------------------------------------------------------------------------

[22] In the area of decision making on mercy one has to distinguish between those
regimes where the sentencing process was part of the judicial process as a whole,
including the appellate phase, with full judicial discretion as to the mode and severity of
sentence and those where the hands of the courts were tied to such extent that no
discretion whatsoever was afforded to them in meting out sentence. One should also
distinguish between death penalty cases and other cases, given the severity, finality and
irrevocability of the execution of the former. It follows then that the discretion as to the
exercise of mercy in a mandatory death penalty regime would be much narrower than in
cases where the courts have full discretion to tailor the punishment to fit the crime.
However broad the discretion in the exercise of mercy might be though, it is my view
that the BPC can never be discharged of their constitutional duty to be rational,
reasonable or fair and to eschew improper procedures. The broader the discretion the
less chance there is that the courts, bound as they are to respect the scope of that
discretion, will reach the conclusion that the decision is irrational or utterly
unreasonable, but that chance is never zero. Procedural impropriety is, of course, easier
to detect, and an intervention by the courts on this ground will therefore be seen to
occur more regularly.

[23] As every person and institution in Barbados functions under the Barbados
Constitution, being the supreme law of the land, and as therefore all are duty bound to
act rationally, reasonably and fairly and all, including the courts themselves, have to bear
the weight of judicial scrutiny, ouster clauses seeking to relieve that onus must of
necessity be construed as narrowly and restrictively as possible. This is mutatis mutandis
the case with the ouster clause of section 77(4) of the Barbados Constitution which
apparently seeks to shield the BPC from judicial review that might be deemed

179
inappropriate or unnecessary. But in my view this clause does not relieve the BPC from
their constitutional duty of rational and reasonable decision making nor does it mean
that they could freely ignore the law. And it goes without saying that the ouster clause
does not imply that the BPC would be free to indulge in procedural impropriety. The
clause does mean that the confidentiality of their deliberations must and will be
protected, save, perhaps, in exceptional circumstances where the interests of justice so
compellingly require. It follows, then, that the ouster clause does not preclude the
courts from having a look at the proceedings of the BPC or from adjudicating certain
aspects of those proceedings and their outcome. And so, in my opinion the very
existence of this ouster clause can have no relevant negative effect as to the question
whether Lewis was applicable in Barbados. Neither the prerogative character of the
exercise of mercy nor the ouster clause prohibited the application of Lewis in Barbados.
On the contrary, the Court of Appeal was bound to consider the aspect of Lewis that
upheld Thomas v. Baptiste as binding and likewise the aspect of Pratt that Lewis
reinforced. The Court of Appeal simply had to follow the Lewis decision in its entirety,
and they did.

[24] As Lewis reflected the law of Barbados as it then stood, the Court of Appeal rightly
concluded that the BPC should have deferred arriving at its decision until the Inter-
American Human Rights System had run its course and the results produced by that
system were in hand and considered. The Court below also rightly concluded that these
results would not have been received within the five year time-frame. It is a matter of
record that these results were still not in at the time we heard this appeal. This brings us
to the question as to what remedy was available and appropriate in this case. The Court
of Appeal came to the conclusion that the BPC's violation of the principles of natural
justice in this respect justified a stay of execution, and they reasoned, in conformity with
Lewis and quite logically, that this stay would inevitably lead to a transgression of the
five year time limit, which in turn would trigger the remedy of commutation. The Crown,
on the other hand, insisted that violations of sections 11(c) and 77 or 78 of the Barbados
Constitution could only attract the sanction of nullity as section 24 of the Constitution
cannot be resorted to for a breach of section 11 (c).

[25] Quite apart from Lewis, in my view the reasoning of the Crown on this point cannot
be followed. Besides the fact that the Barbados Constitution inherently requires the
courts to give effective protection against violations of its provisions, the procedural
violations of the BPC amounted to a violation of section 12 of the Barbados Constitution.
This provision holds that "no person shall be deprived of his life intentionally save in
execution of the sentence of a court in respect of a criminal offence under the law of
Barbados of which he has been convicted." As we have seen earlier, the Barbados
Constitution has to be understood as a normative document, which means that the
words "save in execution of" must be read as "save in due execution of". Reading this
provision in an anormative or strictly literal way would imply that it is not
constitutionally prohibited to deprive someone of his life by executing him in
contravention of the law or fundamental principles of law. It would mean, for example,

180
that hanging a condemned man pending an appeal, although unlawful, would not be
unconstitutional as the man's life was taken "in execution of the sentence of a court,
etc." In fact, this was exactly what the BPC ostensibly sought to do when in June 2002,
knowing that an application for special leave was pending, they advised against mercy
for the respondents, a point to which I shall return.

[26] In conclusion, in my judgment the decision of the Court of Appeal was in accordance
with the law as it then stood. Of course, that does not necessarily mean that the decision
as such is correct. As indicated above, one can, looking back at how the relevant
jurisprudence has developed, be critical of the way in which the JCPC decisively resorted
to the barren form of Pratt. They unfortunately did so to the detriment of the well-
reasoned and important substance of that decision. Thus, their Lordships austerely
turned Pratt into a legalistic pillar of procedural salt with solemnly engraved time-limits
of tabulated rigidity. Accordingly, the Pratt deadline, being made inflexible, emerged in
Lewis as a virtually indefeasible lifeline. The Court of Appeal had to follow, and correctly
followed Lewis, but our task as a new court of final appeal is quite different from theirs.
We should only follow those earlier decisions if we find them persuasive. Put differently,
we are not to follow but to lead. It should be clear, however, that even if we concluded
that Lewis was completely wrong and that, accordingly, the Court of Appeal should have
come to a decision other than one leading to commutation of the death sentences of the
respondents, our decision could not have the effect of putting the men back on death
row. It is a clear legal principle that no change in the law, whether by means of
legislation or by means of judicial interpretation overturning precedent, detrimental to
the condemned men should affect them negatively[FN16]. That would be unfair,
uncalled for and inhuman. I take it that for that very reason the Crown conceded that
they were no longer seeking the execution of the death sentences in this case. However,
it is still our duty to give our views on, what I summarised as, the Thomas v. Baptiste
aspect of Lewis. The question to be answered here is: how, if at all, may ratified but
unincorporated international human rights treaties which give a right of access to
international tribunals affect the rights and status of a person convicted of murder and
sentenced to the mandatory punishment of death by hanging.

----------------------------------------------------------------------------------------------------------------
[FN16] See, eg, Roodal v State of Trinidad and Tobago (2003) 64 WIR 270 and Matthew v
State of Trinidad and Tobago (2004) 64 WIR 412
----------------------------------------------------------------------------------------------------------------

[27] The State of Barbados has signed and ratified the American Convention on Human
Rights, although it has never incorporated it into its domestic law. This Treaty provides
for the Inter-American Commission on Human Rights and the Inter-American Court of
Human Rights. Barbados has accepted the jurisdiction of that Court. Article 44 of the
Convention gives "any person or group of persons, or any nongovernmental entity
legally recognised in one or more member states of the Organization [of American
States]" the right to "lodge petitions with the Commission containing denunciations or

181
complaints of violation of this Convention by a State Party." Any such petition must be
processed by the Commission, which has to decide whether the petition is admissible. If
it is and no "friendly settlement" can be reached between the parties, the Commission
must draw up a report in which "it may make such proposals and recommendations as it
sees fit." The report should then be transmitted to the State concerned. Within three
months after that transmittal the matter should either be settled or be referred to the
Inter-American Court. If this does not happen, the Commission may decide to pursue the
matter further by making "pertinent recommendations" and prescribing "a period in
which the state is to take the measures that are incumbent upon it to remedy the
situation examined." If the Commission is of the opinion that the measures taken by the
State were not adequate, it can decide to publish the report.[FN17]

----------------------------------------------------------------------------------------------------------------
[FN17] American Convention on Human Rights, articles 46-51
----------------------------------------------------------------------------------------------------------------

[28] On close scrutiny, it is clear that the right to petition the Inter-American Commission
exists whether or not it is authorised or implemented by national legislation. Any person
in Barbados, or elsewhere, who wants to lodge a petition, can do so. The State cannot
prevent anyone from initiating these proceedings. And once the petition has been
received by the Commission, a legal procedure is set in motion which will run its own
course and lead to a legal conclusion of some sort, irrespective of whatever domestic
legislation might be in place in the State whose national filed the petition. Accordingly,
the absence of domestic legislation normally does not pose a problem. However, if the
State were to act in such a manner as to render the international procedure illusory, as
for example where the petitioner is a death row prisoner whom the State decides to
hang without allowing a reasonable time for his petition before the Inter-American
bodies to be concluded, problems do arise. It would seem rather obvious that the State
should not act in this way. States are bound to perform the treaties which they have
ratified in good faith. This obligation, it would seem to me, prohibits the State from pre-
empting the outcome of pending legal processes by executive action, a general legal
principle that also exists in the common law: see Thomas v Baptiste. And as the
Barbados Constitution has a normative structure, this principle should obviously be
regarded as equally forming part of that same constitution. One would have thought,
therefore, that the resolution of this issue should be a fairly simple one, guided as it is in
my view by plain common sense. But, perhaps surprisingly for those not familiar with the
intricacies of legal reasoning, in the Halls of Justice throughout the Commonwealth the
issue has been perceived as being anything but simple.

[29] As constitutional doctrine has it, ratified treaties are, indeed, binding upon the State
on the international plane but they can only be binding on the domestic plane after they
have been incorporated, or enacted, by the Legislature. Unincorporated treaties are said
to be incapable of effectively conferring rights on the citizens of the State, even though
the executive branch of the State has ratified those treaties and, by doing so, has

182
solemnly affirmed the granting of these rights. Most treaties do not need to be enacted
at all as they concern relationships among States themselves. But some treaties, notably
human rights treaties, appear to be mainly concerned with the relationship between the
State and the individuals within its jurisdiction. In terms of the constitutional doctrine,
however, these treaties merely purport to confer rights on citizens. Or sometimes it is
said that these treaties do confer rights on individuals but that these rights are not
enforceable under domestic law. What strikes me, as one hailing from a monist legal
tradition, is that for more than a century this doctrine has been staunchly defended and
upheld by appellate courts with an apparently burning passion. It appears, in a sense,
that the doctrine has obtained a status comparable to that of religious dogma. Any
attempt to subject it to sober analysis seems to be perceived and frowned upon as
heretical. Even in the many instances where the courts did give, allegedly indirect, effect
to unincorporated treaties, they never failed to pay reverence to and, at least formally,
uphold this "firmly established", "sacred" or "hallowed" principle.

[30] Lord Millett, who had proclaimed in Thomas v. Baptiste that "[b]y ratifying a treaty
which provides for individual access to an international body, the government made that
process for the time being part of the domestic system and thereby temporarily at least
extended the scope of the due process clause in the Constitution", went out of his way in
the later case of Briggs v Baptiste[FN18] to assure the parties that his decision in Thomas
"did not overturn the constitutional principle [sic] that international conventions do not
alter domestic law except to the extent that they are incorporated into domestic law by
legislation", although his robust but controversial words in Thomas had been introduced
by a, faint, disclaimer: "The applicants are not seeking to enforce the terms of an
unincorporated treaty, but a provision of the domestic law of Trinidad and Tobago
contained in the Constitution." Another intriguing example of religious adherence to the
doctrine can be found in Lord Hoffmann's philippic in Higgs v Minister of National
Security[FN19] where, after tracing the origins of the doctrine all the way back to "the
great principle which was settled by the Civil War and the Glorious Revolution in the
17th century", he equated "an international court" created "by the Crown in conjunction
with other sovereign states" with England's infamous "Star Chamber", adding that the
objection to both such "prerogative courts" should be "equally strong".

----------------------------------------------------------------------------------------------------------------
[FN18] (1999) 55 WIR 460
[FN19] (1999) 55 WIR 10
----------------------------------------------------------------------------------------------------------------

[31] The bedrock of this judge-made doctrine, when looked at carefully, seems rather
ambiguous. In the many cases that deal with this subject several approaches can be
found. Very often one finds that more than one concept has been used in one and the
same judgment without much clarity as to their logical structure. Sometimes it is said
that the doctrine is founded on the fact that treaties do not form part of our domestic
law and hence form no part of our domestic legal system. On occasions one is made to

183
understand that, as far as individuals are concerned, treaty law is res inter alios acta (a
thing done between others) which is by its nature incapable of affecting them either
positively or negatively, making it irrelevant as a source of rights and obligations. A third
concept points to the fact that treaties are made in the conduct of foreign relations
which are a prerogative of the Crown., and as that activity is said to be non-justiciable,
the domestic courts have no jurisdiction to construe or apply such instruments. A fourth
underpinning of the doctrine has been found in the principle of separation of powers.
This principle has it that under the Constitution the Crown, or rather the Executive, has
an unrestricted power to make, enter into, ratify and withdraw from treaties, whereas
only the democratically elected Legislature can make and unmake laws.

[32] Intriguingly, the courts, although never having relinquished their reverence for the
doctrine that unincorporated treaties "cannot create rights", gradually devised methods
to escape the dire consequences of rigid orthodoxy. These methods invariably led them
to accept concepts that, on closer look, seem to be at variance with the official doctrine.
In this context it has since long been accepted by the courts that it should be presumed
that Parliament intends to legislate in conformity with the international obligations of
the State, unless it was clear that there was not such an intention. Accordingly, domestic
statute law found to be ambiguous or unclear should be construed in conformity with
the State's international obligations. This rather technical approach developed into the
"well established principle that the Courts will [in case of ambiguous legislation] so far as
possible construe domestic law so as to avoid creating a breach of the State's
international obligations", a development that transformed a judicial fiction into a
judicial obligation. This became even clearer when the courts commenced embracing
the proposition "that the principle requires one to construe the constitution and other
contemporary legislation in the light of treaties which the governments afterwards
concluded." (see Boyce and Joseph v the Queen[FN20], per Lord Hoffmann). It is obvious
that with this last development the courts have left the solid ground of legislative
construction. What is more, it comes close to the very negation of the sacred premise
that unincorporated treaties can have no legal effect on the domestic plane.

----------------------------------------------------------------------------------------------------------------
[FN20] (2004) 64 WIR 37, [2005] 1 AC 400
----------------------------------------------------------------------------------------------------------------

[33] Another convenience used by the courts has been the doctrine of legitimate
expectation as it was formulated in the Australian case of Minister for Immigration and
Ethnic Affairs v Teoh[FN21]. In this case the legitimate expectation, which has its origins
in administrative law, was elevated to the level of constitutional law. In Teoh the
Australian High Court considered the ratification by a State of, at least, human rights
treaties as "a positive statement by the Executive government ... to the world and to
the ... people that the Executive government and its agencies will act in accordance with
the [treaty]."[FN22] And the Court added: "That positive statement is an adequate
foundation for a legitimate expectation, absent statutory or executive indications to the

184
contrary, that administrative decision-makers will act in conformity with the [treaty]."
What makes this approach rather remarkable, in my view, is the point that it is
apparently not deemed necessary that the person seeking to rely on the legitimate
expectation actually entertains the expectation. As long as the non-existent expectation
"is reasonable in the sense that there are adequate materials to support it", "it" will be
honoured. The strength of this construction seems to be then, that, de jure, the doctrine
of unincorporated treaties is followed and upheld, as legitimate expectations can
become relevant only where no legal rights exist, whereas, de facto, it provides the
citizens with the protection of these rights, be it in a limited way. The weakness of this
construction is of course that it is highly artificial and that it might easily be made
ineffective by the Executive. From a pragmatic point of view, the "teoh-logical" approach
might, for the time being, be useful. Dogmatically, however, I am afraid it will, in due
time, prove to be untenable.

----------------------------------------------------------------------------------------------------------------
[FN21] [1995] 3 LRC 1
[FN22] Ibid at p 17
----------------------------------------------------------------------------------------------------------------

[34] Unsurprisingly, the courts have always rejected the view that by using these routes
they had been partaking of forbidden fruits. But in 1999, in a lecture titled The Way We
Live Now: Human Rights in the New Millennium, Lord Bingham "confessed" to having
committed that very sin. Speaking about the European Convention on Human Rights and
the ways in which British courts endeavoured to side-step the difficulties caused by the
revered doctrine of the unincorporated treaty, he said: "In these ways the Convention
made a clandestine entry into the British law by the backdoor, being forbidden to enter
by the front."[FN23] This is an interesting metaphor. It raises some profound questions.
Who are the ones that opened the backdoor? Are those not the same courts that once
closed the front door? Why the secrecy? And are courts not required to act against
clandestine entry or trespassing instead of indulging in that very activity? Or have the
courts just been trying to administer justice and doing the proper thing? As Lord
Bingham said in his lecture: "If the United Kingdom binds itself by international treaty to
guarantee these [fundamental] rights to its citizens, it makes no sense that the rights
should not be enforceable in and by British courts." Is that not a simple truth capable of
setting us free from doctrinal idolatry? But if that is so, why use the backdoor? Why not
use the front door which we might very well find not to be locked if only we would push
at it. In this respect it is difficult to resist harking back to Sir Robert Phillimore in The
Parlement Belge[FN24], the authority always cited as the very first case in which it was
held that the Crown is not permitted, by entering into and ratifying a treaty, to legislate
without the authority of Parliament. Sir Robert had said no such thing. In that case, he
said nothing more than that, by ratifying a treaty, the Crown cannot adversely affect the
private rights of its subjects, which is a common sense dictum with which it is difficult to
disagree. But that dictum is far more restricted than it is usually portrayed.

185
----------------------------------------------------------------------------------------------------------------
[FN23] In: Ton Bingham, The Business of Judging: Selected Essays and Speeches (2006),
at p 162-163.
[FN24] [1874-80] All ER Rep 104
----------------------------------------------------------------------------------------------------------------

[35] Returning to the foundations of the doctrine of unincorporated treaties as

summarised in paragraph 31, I should be rather brief as none of this has been the
subject of serious argument. It seems to me that the first three grounds for the doctrine
are all "begging the question" and hence are fallacious. And even if one accepts that
international and domestic law as systems are unable to converge upon each other, this
does not mean that no conflict of legal obligations can occur, where on the domestic
plane the State or one of its branches is unable or reluctant to act in a manner required
by international law, and in particular by treaty law. It does not logically follow that
because negotiations as to the entering into a treaty and the possible conditions under
which the same should take place are probably non-justiciable, the fruits of those
activities, the concluded and ratified treaty itself, its provisions, and in particular any
rights it might confer on individuals and the obligations it may impose on the State,
cannot be adjudicated on the domestic plane. Suffice it to say that I strongly disagree
with the view that domestic courts are in any way inhibited from construing treaties
provided, of course, the treaties themselves do not prohibit such activity (as does, for
example, the Revised Treaty of Chaguaramas by giving the Caribbean Court of Justice
exclusive jurisdiction to interpret and apply its provisions[FN25]).

----------------------------------------------------------------------------------------------------------------
[FN25] Article 211
----------------------------------------------------------------------------------------------------------------

[36] The most solid ground for the doctrine of the unenforceability of unincorporated
treaties is undoubtedly the principle of the separation of powers, which, unlike the
doctrine itself, is by its nature a constitutional principle. This brings us back to a point I
made earlier. It is clear that the doctrine of the unenforceability of unincorporated
treaties was planted and nurtured in the soil and social climate of the unwritten English
Constitution. It is also clear that in many respects the Caribbean Constitutions are
fundamentally different from that unwritten Constitution as are the realities of the
Commonwealth Caribbean compared to those of the United Kingdom. One should
therefore take care not to transplant so precious a doctrine from the one to the other
without regard to those differences. Unfortunately, that is exactly what has happened.

[37] What then are the relevant differences? First and foremost, in the United Kingdom
Parliament is sovereign and supreme. Its powers are unlimited which may explain the
monumental emphasis on the constitutional commandment: "There shall be no
Lawmaker, but Parliament!' In the Caribbean, on the other hand, it is the constitution
that is sovereign and supreme, which causes the Legislature to assume a somewhat

186
more modest role and places this branch of government on the same footing as the
other two. Secondly, although the Constitution of the United Kingdom has never
distinguished itself by a strong separation between the executive and the legislative
branch, as the members of the former are mainly recruited from the ranks of the elected
members of parliament, only a limited group of MP's may, by virtue of statutory
legislation[FN26], form part of the executive branch, whereas in Caribbean States usually
almost all elected members of parliament of the governing party appear to be, at the
same time, members of the Executive. Thirdly, in the United Kingdom time-honoured
legal, conventional and organisational mechanisms are in place that promote and seem
to establish thorough and serious efforts to examine and, if necessary, update existing
legislation prior to the ratification of a treaty, whereas in the day to day reality of most
Caribbean States such mechanisms are practically non¬existent or almost never used.

----------------------------------------------------------------------------------------------------------------
[FN26] The House of Commons Disqualification Act 1975, section 2. See: Colin R. Munro,
Studies in Constitutional Law, second edition (2005), at p 323
----------------------------------------------------------------------------------------------------------------

[38] The doctrine of the unenforceability of unincorporated treaties, as I have made

abundantly clear, is in my view an old, mouldered and creaky structure, unsuitable for
Caribbean climate and soil. Consequently, it would seem to me that it should be
dismantled and that a new structure should be raised on the terra firma of the
Caribbean Constitutions themselves, making use of course of all those parts of the old
structure that are still useful and in good shape. What domestic materials, then, do we
have? At first sight, we are seemingly confronted with an insurmountable problem as
almost all of the Caribbean Constitutions, the Barbados Constitution not excluded,
maintain a deafening silence on the subject of treaties (Guyana, however, forms a
modest exception). This is rather remarkable. Most of the newly created States in the
world do have constitutions that elaborately deal with the relationship between their
domestic law and international law, the treaty-making power of the State and possible
democratic involvement at the ratification stage. Not so in the Commonwealth
Caribbean. In their constitutions these issues are simply ignored. Quite surprisingly,
notwithstanding the fact that in today's globalising world these subjects have become
more important than they already were in the past, even the two recently produced
drafts for a new Constitution of the modern Republic of Trinidad and Tobago are silent
on them. The absence of any provision on these subjects in the constitutions is the more
curious when it is realised that the independent Caribbean States have been forged,
almost without exception, with the support of the same international law their
constitutions so vigorously ignore, having emerged on the basis of the human right of
self-determination enshrined as it was, and still is, in many important treaties and other
international instruments. Thanks to international law even small States have a voice in
the world of nations and thanks to international law they are not likely to be crushed
easily or arbitrarily by other, bigger and more powerful, States. No sovereign State, and
certainly not the small Caribbean States, thriving on tourism and international services

187
as many of them do, can live and breathe outside the sphere of international relations
and international law. So, it seems rather odd that as to these subjects our constitutions
appear to be playing the ostrich. And odd it is when wandering through the provisions of
the Constitutions one tends to get the impression that beyond the skies of the State no
relevant law exists. So, at first blush anyway, these constitutions do not seem to give the
courts much guidance. Nevertheless, it cannot be denied that there is more law between
heaven and earth than we have dreamt of in our own doctrinal philosophy.

[39] All this, again, begs the question: what materials do we have and how are we going
to structure them in order to create a clear, solid and genuine approach as to treaty law
and its effects on our domestic law. Let me first say this. Most of what we call
international law will never reach or penetrate the atmosphere of the domestic State for
the simple reason that it is not meant to have any domestic effect. And the light that,
figuratively speaking, emanates from those treaties creating specific obligations for
States with respect to individuals within their jurisdiction, which obligations reciprocally
mirror the rights conferred on these individuals, will only enter into the State's legal
atmosphere if, when and to the extent that the executive branch of the State "unlocks"
that treaty by signing and ratifying it. By ratifying a treaty the State gives its solemn word
to the other contracting States or the international community as a whole that it will
give due and proper effect to its treaty obligations. Like men and women, States must be
as good as their word. They have to comply, in good faith, with legal obligations. As
democratic States comprise three branches of government, the Executive, the
Legislature and the Judiciary, all three have the obligation, within their respective
possibilities, to make the treaty work. But not all three have the same means and power
to do so. And all three have to stay within their own limited sphere. If the Executive are
unwilling to comply with the obligations stemming from the treaty, and the Legislature is
not acting, it will be the Judiciary that has to hold the State to their word as "pacta sunt
servanda" is a peremptory rule, common to all civilised legal systems. In doing so,
however, the courts can only go so far as the constitution allows them to. The reason for
this is clear. Although in my view municipal courts can, should, and sometimes are
bound to construe and apply relevant treaty law and even have been officially
recognised as creators of international law (see: article 38 (1)(d) of the Statute of the
International Court of Justice), the fact that these courts are created by or, as is the case
with the Caribbean Court of Justice in its capacity of the court of final appeal of
Barbados, have to discharge certain functions under the Constitution, their first loyalty is
and must be owed to that Constitution. Consequently, the effect, the figurative light that
emanates from the ratified treaty does not pour in abundantly but is, as it were, filtered
through the ozone layer of the Constitution with its inherent values, logic and principles.
And that ozone layer might for the most part be so impenetrable that much of the light
will never, on its own, reach the individuals on the domestic ground.

[40] Does the Barbados Constitution allow any of this "light" to enter its legal
atmosphere? As the Constitution seems to be silent on the subject, is this then a silence
that gives consent? Or does the Barbados Constitution in another, indirect, way convey

188
an opinion on the possible effect of treaty law on the domestic plane? In my judgment,
the Constitution leaves the subject completely open. There might have been a restriction
or prohibition in the way the Constitution defines what law is. However, it mentions
"law" in the definition section 117 (1) without saying what "law" really means. The
concept of "law" is not limited, but the definition only states that "law" includes (1) any
instrument having the force of law and (2) any unwritten law. Accordingly, the
Constitution leaves room for other forms of law and hence does not exclude
international law in general or treaty law in particular. The sole section in the Barbados
Constitution where international law is mentioned with so many words is section 79A (2)
(b), that requires the Director of Public Prosecutions to act in accordance with general or
special directions given by the Attorney-General in case of certain offences, inter alia,
those "under an enactment relating to any right or obligation of Barbados under
international law." However, I fail to see how that should lead to the conclusion that
international law or rights conferred upon individuals by such law are thus logically and
as a matter of principle excluded from being considered law under the Barbados
Constitution.

[41] Does not the principle of the separation of powers, so firmly enshrined in the
Barbados Constitution, prohibit us from accepting that by ratifying a treaty the executive
branch could somehow cause legal rights, unknown on the domestic plane, to "fall from
the heavens"? This would indeed have been the case if the Constitution had said that the
Legislature has the exclusive power to make and unmake law. But that is not what the
Barbados Constitution says. Section 48 (1) merely states that "subject to the provisions
of this Constitution, Parliament may make laws for the peace, order and good
government." It is, moreover, a well- established fact that the executive branch, in the
form of subsidiary legislation, also legislates. In terms of quantity such legislation is even
greater than that of the Legislature, although it could of course well be argued that this
legislative activity is only exercised and justified because, and so far as, it has been
delegated by the Legislature itself. In this connection a distinction must be made
between "making laws" and "making law". Although "laws" is the plural of "law", the
latter nevertheless conveys a wider meaning than the former. "Making laws" is merely
one form of "making law". This is clearly appreciated by the Constitution as it expressly
recognises the existence of "unwritten law", meaning the common law as it has been
developed and is being developed exclusively by the judicial branch. There is worldwide
acceptance that the development of unwritten or common law is not simply the
discovery of law and the making of declarations as to "what it is and always has been",
but that it is a form of creating law. This is even true as to the interpretation of statute
law which also, in part, might be regarded as a form of law creating.

[42] Although the Barbados Constitution endows only the Legislature with the authority
to make laws, so that, under that Constitution the Legislature may be considered the
sole creator of laws, they are not the sole creator of law. The Constitution apparently
accepts and leaves some room for law-creating activity by other branches, if, and to the
extent that, such activity is carried out within the boundaries of the respective

189
constitutional sphere of the other branches. However, and this logically flows from the
democratic values that underpin the Barbados Constitution, although the Legislature is
not the sole creator of law, they clearly are, as they must be, the most important law-
maker and they have, as they must have, primacy and hence an overriding power in this
area. This means that they may always rein in the other branches if they think that these
branches have gone too far or have taken an undesirable route in any law-creating
activity which, expressly or impliedly, might have been afforded to them. The Legislature
can thus, on the domestic plane, always unmake or nullify what was made, provided that
the Legislature keeps within the ambit allotted to them by the Constitution. For these
reasons, I would not be inclined to accept that the Barbados Constitution places an
absolute fetter on the enforceability on the domestic plane of rights conferred by ratified
but unincorporated treaties, a disinclination which is fortified by the fact that the
realities of constitutional democracy in the Commonwealth Caribbean do not reflect the
degree of separation between the executive and legislative powers that would justify
such an absolute approach.

[43] This does not mean, however, that drastic changes in the law would flow from this
departure from traditional thinking on this subject. Things are not as radical as they may
seem. The Barbados Constitution has in section 1 an effective protective shield as it
makes clear that the Constitution is the supreme law in Barbados and that any other law,
international law included in my view, that is inconsistent with the Constitution shall, to
the extent of the inconsistency be void (so far as the State of Barbados is concerned).
The Barbados Constitution bestows upon the Legislature the exclusive "power of the
purse". And the principle of the separation of powers that forms part of the Constitution
confers on the Legislature the primacy of law making. It follows then, that ratified but
unincorporated treaties cannot adversely affect the existing rights of the citizens under
the Barbados Constitution (as was rightly decided in The Parlement Belge with respect to
the English Constitution). These treaties can therefore not deprive the citizens of their
existing rights, impose legal duties on them, authorise public expenditure, or create new
crimes, without authorisation by the Legislature, as this would violate the separation of
powers. What they can do, however, is to confer rights on the citizens, provided that
these rights have been formulated in a way that makes them directly applicable and that
they are compatible with the Constitution in general, and do not entail an infringement
on the rights of other citizens in particular. It also follows that in the case of a conflict
between a domestically enforceable provision in an unincorporated treaty and a clear
statutory provision, the latter has to be given precedence by the courts, be it only if the
meaning of the statutory provision is beyond reasonable discussion. In the words of
Dame Rosalyn Higgins, the current President of the International Court of Justice: "[I]f a
statute is truly unambiguous (which can often not be ascertained with confidence until
relevant related texts are examined), then it will necessarily prevail over a contrary
provision in an unincorporated treaty. But that is all."[FN27]. Moreover, international
treaty law undoubtedly has, as it should have, a substantial impact on the development
of the common law - of which customary international law, according to tradition,
already forms part. Furthermore, the rights conferred by ratified but unincorporated

190
treaties may well comprise, and introduce to the domestic plane, strong guiding
principles as to the exercise of discretionary powers by any of the branches of
government. How this eventually will affect the development of the law can, of course,
within the confines of the present case neither be set out nor predicted. Caribbean
constitutional law will majestically and inexorably unfold as it gradually advances from
one case to another.

----------------------------------------------------------------------------------------------------------------
[FN27] See: Professor Rosalyn Higgins QC, The Relationship between International and
Regional Human Rights Norms and Domestic Law, in: Commonwealth Law Bulletin
(October 1992), at p 1274
----------------------------------------------------------------------------------------------------------------

[44] Section 1 of the Constitution ensures that unincorporated treaties, or incorporated

treaties for that matter, cannot, without more, change or amend the Constitution.
Counsel for the Crown took the position that the JCPC had done just that in Thomas v
Baptiste and Lewis where they held that the government by ratifying the American
Convention had temporarily extended the scope of the due process clause and the
protection of the law clauses in the respective Constitutions of Trinidad & Tobago and
Jamaica, and counsel urged us to reject that approach. It has to be admitted that the
formulation that was used was rather unfortunate but I do not think that the JCPC for a
moment meant to say that thereby the Constitution was extended or amended. It seems
to me that the JCPC merely accepted, without explaining why or how, that by ratifying
the American Convention the government made the legal procedure of article 44 "for
the time being" part of the domestic system and thereby made it a domestic legal
procedure. Being a domestic legal procedure, it was of course covered by the existing
due process or protection of the law clause. It was therefore not the constitutional
clause that was extended but the number of legal procedures that fell under this clause.
The "trick"[FN28] that Lord Hoffmann correctly discerned in Lewis was not that the JCPC
miraculously managed to amend the Constitution but that they somehow succeeded in
converting a legal procedure on the international plane into one on the domestic plane.
For Lord Hoffmann, a very articulate and firm believer in the immaculacy of the doctrine
of the unenforceability of unincorporated treaties, that could however be nothing else
but a trick.

----------------------------------------------------------------------------------------------------------------
[FN28] Supra at p 307
----------------------------------------------------------------------------------------------------------------

[45] The above does not imply that ratified unincorporated treaties cannot have any
effect on the interpretation of the Constitution and other domestic law. As the
metaphorical light which radiates from these treaties enters the legal atmosphere of the
State, it illuminates, as we saw, the common law and statute law alike, and so directly or
indirectly influences the content of the domestic law itself. It might also enlighten some

191
of the provisions of the Constitution, most likely those provisions that embody the
fundamental rights and freedoms of the citizens, even if this light is ultimately filtered
out by the constitutional ozone. This is of course hardly surprising, considering the fact
that the fundamental rights and freedoms enshrined in the Constitution have sprung
from the same or similar human rights treaties that are regularly invoked. The
Constitution and human rights treaties share, to a great extent, common values. Given
the special position of the Constitution it is clear, however, that the courts should be
very cautious whenever they find that such a broadening effect should be afforded to a
constitutional provision. Such an effect will most likely be relevant to those provisions
that contain open norms like fair, cruel, inhuman, degrading, (un)due and reasonable.
But caution is required, indeed, especially when courts purport to deduce from their
constitutions "principles" that are in no way expressed or clearly implied in the text of
the documents themselves. Such an endeavour is, a fortiori, extremely precarious when
"constitutional principles" of the unwritten English Constitution, which lack the supreme
and overriding power of those of the Caribbean Constitutions, are read into the latter. If,
for example, the exclusiveness of the executive power to ratify treaties, said to be one of
the pillars of the doctrine of the unenforceability of unincorporated treaties, were a high
principle of Caribbean constitutional law, then any statute limiting the scope of that
executive power, like the Ratification of Treaties Act (1989) of Antigua and Barbuda,
would be unconstitutional and, thus, null and void.

[46] Before returning to the particulars of the case before us, a few last words need to
be said on this subject. International law, as far as applicable in a State, is by definition
never foreign law. Treaty law can only be relevant to us if, and to the extent that, we,
that is our government on behalf of us, sign, enter into and ratify a treaty. But once we
do that, then it is ours. And when it is ours we have to accept responsibility for it. Certain
elements of international law, called customary international law, form part of our law
even without us signing anything. We simply accept those rules on the basis that we are
not alone in the world; that we are, or assume we are, members of a comity, a family of
civilised nations and on the understanding that the rules, emerged within that comity,
have to be followed because they represent what civilised nations consider the proper
thing to do. Because the signing and ratification of treaties have consequences, States
should be cautious before they sign and ratify. But once they do, they are bound, and
they must comply. Maintaining an old and unsound doctrine that stimulates an approach
whereby treaties are ratified but almost never enacted, causes States to be perceived as
having a split personality. A judicial restructuring of the judge- made law on this point
will not completely set us free of this predicament, but it will make us more conscious of
the healthy tensions within our domestic legal system and it will lead to a less contrived
approach towards human rights law. At the same time, it will not prejudice or
compromise our own true values and norms. The restructuring will not turn "our" dualist
system into a monist one. In the latter, an unincorporated treaty, ratified after approval
by the Legislature, will usually prevail over all domestic statute law and in some States it
might even override the constitution itself. This is a far cry from the approach I have
suggested that is one which I trust saves "radical dualism", as practiced in the

192
Commonwealth Caribbean, from appearing to be schizophrenic.

[47] In concluding, it is obvious that the American Convention conferred on the

respondents a right to file a petition with the Inter-American Commission in order to
obtain a determination on a complaint against the Crown of violation of one or more of
the human rights secured by this Convention. By virtue of that same right the
respondents were entitled to expect that the Crown would engage in that procedure in
good faith. It has not seriously been disputed that a good faith attitude in this context
encompasses an obligation on the State to refrain from executing these men, at least for
a reasonable time, while the procedure is still in progress and to allow them the benefit
of having the results of the Inter-American procedure duly considered by the BPC before
that body takes the final decision on their fate. This is clearly a right that does not
interfere with the rights of other citizens. Not even a murder victim's personal
representative or the surviving relatives of the deceased have the legal right to have the
murderer hanged. That is a matter for the Crown. The right of the respondents, or rather
its exercise, might hinder the Crown in their attempts to execute in a timely manner the
sentence of the court but that is just the other side of the coin, which the State accepted
when it ratified the Convention. Following the reasoning as developed above, then, I
must conclude that this right is enforceable and should be respected even at the
domestic plane. Using the word "even" in this context must, from a common sense
perspective, be utterly awkward. How could one tell a condemned man, in deadly
earnestness, that he exists on two planes and that, although he has a right to stay alive
on the one plane, he will be hanged on the other? From the foregoing it is quite clear
that, in my view, notwithstanding the far from satisfactory reasoning of the JCPC, Lewis
was rightly decided and that it was correct, from my perspective, to follow Thomas v
Baptiste.

[48] I wholeheartedly agree with Lord Bingham when he said in R v Lyons and
others[FN29] that "international and national law ... should be seen as complementary
and not as alien or antagonistic systems." Both systems may assist us in achieving the
probably unachievable, respecting the human dignity of every human being. In that
endeavour I think we should be the "bold spirits" that Lord Denning once spoke about,
although I do not believe that giving sufficient attention to legal certainty would make us
"timorous souls". However, in giving meaning to the requirement of legal certainty we
should not indulge in overly formal approaches, while losing sight of the substance.
There is always such a danger. Most probably because of the absolute terms in which
the JCPC had cast their procedural recommendations in Pratt, the BPC in July 2002 felt
themselves obliged to meet shortly after the first decision of the Court of Appeal and to
decide whether or not there should be mercy for the respondents, although they were
aware that an application for special leave to appeal to the JCPC was pending. Of course,
the BPC had no intention of being cruel or inhuman to the respondents. They just
faithfully followed the procedure set out in Pratt. However, the substance, the gist, of
the recommendations was simply that the criminal justice system as a whole should
operate with reasonable expedition in order to avoid unnecessary delays. Given the fact

193
that the final appeal in this case was already on its way, no action by the BPC was,
therefore, really required to comply substantially with Pratt.

----------------------------------------------------------------------------------------------------------------
[FN29] [2002] 4 All ER 1028 at p 1036
----------------------------------------------------------------------------------------------------------------

[49] It is in a sense regrettable that human rights almost always seem to be invoked by
people who themselves have shown little respect for the rights of others. We pride
ourselves, rightly so, that the rule of law embraces even those that live on the seamy
side of society. But it sometimes seems to shake the "unshakable faith in the
fundamental rights and freedoms" when it appears that the application of those rights
has once more "saved the necks" of those that have committed very serious crimes. That
is most unfortunate. The potential, the positive and creative effects of these rights
abound for those who want to see them. They are there for all citizens alike and not only
for condemned murderers.

[50] There can be no doubt that I concur in the conclusions arrived at in the joint
judgment of the President and Saunders J. It is clear that I agree also to a great extent
with the reasoning in their judgment and in the judgments of my other learned
colleagues but that I respectfully disagree with part of their reasoning as to the issue of
the effect and enforceability of unincorporated treaties. Having read their judgments in
draft, I have greatly benefited from them not only where I am in agreement with them
but also, or particularly, where our ways ultimately have parted.

/s/ J. Th. Wit

Jacob Th. Wit

JUDGMENT OF THE HONOURABLE MR. JUSTICE HAYTON

[1] Having had the advantage of reading the joint judgment of the learned President and
Saunders J in draft, for the reasons given by them I agree that: –

(a) the procedural fairness of the exercise of the prerogative of mercy under s 78 of the
Barbados Constitution is subject to judicial review, and this is not ousted by s 77 (4);
(b) the reasoning of the majority of the Judicial Committee of the Privy Council ("JCPC")
in Thomas v Baptiste[FN1], applied by the majority of the JCPC in Neville Lewis v Att-Gen
of Jamaica[FN2], does not justify the JCPC's conclusions that rights purportedly
conferred on individuals by ratification of an international treaty, the American
Convention on Human Rights, have become part of the domestic criminal justice systems
respectively of Trinidad and Tobago (under the "due process of law" clause in s 4(a) of its
Constitution) and of Barbados (under "the protection of the law" clause in s 11(c) of its
Constitution);
(c) the crucial protection provided to condemned murderers by the JCPC in these two

194
cases can, instead, be justified on the basis that the treaty-compliant behaviour of a
Government can give rise, as in this case, to an indefeasible legitimate expectation of the
condemned man that he will not be executed until a reasonable time has been allowed
for the Inter-American Human Rights system to run its course and the results thereof to
have been considered by the Barbados Privy Council (BPC") under s 78 of the Barbados
Constitution;
(d) the Court of Appeal was right to hold itself bound to follow Neville Lewis and to use
its power under s 24 of the Constitution to commute the death sentences of the
respondents to life imprisonment when it was apparent that their imprisonment was
inevitably going to infringe the period laid down in Pratt and Morgan v Att-Gen for
Jamaica[FN3] as contravening s 15 of the Constitution prohibiting inhuman treatment;
and thus
(e) the appeal must be dismissed (with costs to each of the respondents certified as fit
for two counsel).

----------------------------------------------------------------------------------------------------------------
[FN1] [2000] 2 AC 1; (1998) 54 WIR 3 87
[FN2] [2001] 2 AC 50; (2000) 57 WIR 275
[FN3] [1994] 2 AC 1; (1993) 43 WIR 340
----------------------------------------------------------------------------------------------------------------

[2] It is noteworthy that counsel for the respondents rested their submissions simply on
the need to accept the correctness of the reasoning in Neville Lewis and to follow that
decision. Thus, no argument was heard on the possibility of developing judicial review of
the prerogative of mercy in accordance with Wednesbury irrationality principles (named
after Associated Provincial Pictures Ltd v Wednesbury Corporation[FN4]) nor of
developing a broad principle that rights conferred by international human rights treaties
are part of domestic law, irrespective of any alleged "mediation" provided by "due
process" or "protection of the law" clauses in Constitutions. It may be that the law will so
develop but, before coming to any far-reaching conclusions, I consider that full detailed
inter partes argument on these specific points is required. True, we did not have the
benefit of such forensic argument on indefeasible legitimate expectations, but we could
not possibly accept the reasoning of the majority of the JCPC in Thomas, uncritically
applied by the majority in Neville Lewis, because it was based on assertion rather than
analysis, though reaching a just outcome. Necessity thus became the mother of
invention, but the furtherance of justice in this particular case requires only incremental
inventive development of the law.

----------------------------------------------------------------------------------------------------------------
[FN4] [1948] 1 KB 123
----------------------------------------------------------------------------------------------------------------

RELATIVE ROLES OF THE BPC AND THE COURT

195
[3] In this respect, I have some comments on the relationship between s 24 and s 78 of
the Barbados Constitution which concerns the role of the court and the role of the BPC.
On a breach of "the provisions of sections 12 to 23" of the Constitution, s 24 confers on
the Courts exceptionally flexible positive powers (e.g. to commute a death sentence to
some lesser sentence). The question arises as to what is the position if a convicted
murderer successfully alleges that there has been a breach of his right to procedural
fairness in the exercise of the prerogative of mercy under s 78 of the Constitution. Must
the court refer the matter back to the BPC or can it deal with the matter itself?

[4] Back in 1966, when the Constitution of Barbados became law, the orthodox view was
that the exercise of the prerogative of mercy was not judicially reviewable (as witness de
Freitas v Benny[FN5]), while ousting the jurisdiction of the courts could be valid (as
witness Smith v East Elloe RDC[FN6]). Thus the Constitution would have been premised
on there being no possibility of the court's powers under s 24 being applicable to any
exercise of the prerogative of mercy, which was the exclusive preserve of the Governor-
General acting as directed by the BPC. However, we have held - as did the JCPC in Neville
Lewis - that, in the light of modern developments, the exercise of the prerogative of
mercy is judicially reviewable and is not ousted by s 77(4). The court's powers on a
successful judicial review of a disputed decision are, of course, negative powers involving
the quashing of the relevant decision (perhaps, out of an abundance of caution, coupled
with the grant of a prohibitory injunction), so that the decision-making body has to make
a fresh decision, but only acting in a proper fair manner. Moreover, where the decision
concerns the exercise of an executive body's apparently exclusive discretionary power to
commute a mandatory death sentence to one out of a variety of lesser punishments,
one would expect the mandatory nature of the death sentence to oust any inherent
judicial sentencing input.

----------------------------------------------------------------------------------------------------------------
[FN5] [1976] AC 239
[FN6] [1956] AC 736
----------------------------------------------------------------------------------------------------------------

[5] While, as we have held, the right to procedural fairness in s 78 mercy matters (and
other matters) is part of the protection of the law of Barbados in s 11 (c), this section is
merely a preamble reciting the fundamental rights and freedoms of every person in
Barbados before providing "the following provisions of this Chapter shall have effect for
the purpose of affording protection to those rights and freedoms subject to such
limitations of that protection as are contained in those provisions." Section 18, by its
heading and content, is the provision "to secure protection of the law" but, as might be
expected when it was drafted in 1966, its wording does not stretch to the discretionary
exercise of mercy once there has been a due conviction under the protection of the law,
it being considered that it is up to the BPC to exercise mercy (via the Governor-General),
not the court.

196
[6] In these premises it seems that only the standard judicial review powers are available
for breach of procedural fairness in the exercise of the prerogative of mercy under s 78.
On such a breach the BPC's decision will be quashed so that the BPC, as a responsible
body, can re-consider the matter in the light of the court's judgment providing guidance
as to what is a procedurally fair process. It may be suggested that once there has been a
breach of procedural fairness by the BPC it may not be safe to remit the case to the BPC
("one strike and it is out"), so that inevitably the court would have to exercise what was
hitherto the BPC's exclusive prerogative of mercy. To my mind, this tilts the
constitutional balance between the executive and the judiciary further in the judiciary's
favour than contemplated by the Constitution. Even if the law develops on Wednesbury
irrationality lines, it seems to me that the court should go no further than quashing an
irrational decision of the BPC to refuse commutation of a death sentence decision while
making clear that such refusal is not an option available to the BPC, leaving it to the BPC
to determine the appropriate lesser sentence, whether imprisonment for life or 20 or 12
years or some lighter sentence.

[7] It is, of course, open to this Court to find that s 24 of the Constitution confers this
positive power upon the courts and not the BPC once a BPC decision is procedurally
unfair or Wednesbury irrational. Thus, s 12, as part of a living Constitution, could be
interpreted as if either having the word "due" necessarily inserted therein, so as to read
"No person shall be deprived of his life intentionally save in due execution of the
sentence of a court...", as the learned Justice Wit has indicated in his judgment, or as
having "in accordance with the protection of the law" necessarily inserted so as to read
".save in execution, in accordance with the protection of the law, of the sentence of a
court". The powers in s 24 are then available to enable the court directly to exercise the
same flexible powers as the BPC. Alternatively, a "broad brush approach" can be taken
as in the joint judgment of the learned President and Saunders J to find at [65] that "the
courts have an inherent jurisdiction, and a duty, to grant an appropriate remedy for any
breach of that right" to procedural fairness as part of the protection of the law under s
11, though they envisage at [67] that the appropriate relief normally would be to quash
the decision of the BPC and remit the matter to it for a further but procedurally fair
consideration of the matter.

[8] In the circumstances of the present case, where a breach of s 15 of the Constitution
clearly triggers the court's powers under s 24, there is to my mind no need yet to go
down a road that would enable the court to supplant the mercy role of the BPC once the
BPC has come to a procedurally unfair decision.

[9] A further point is that, while endorsing the final section "Disposing of the Appeal" at
[138]-[144] of the joint judgment of the learned President and Saunders J, I think it
should be made clear that, although the BPC must consider any report received from the
Inter-American Human Rights Commission ("the IAHRC"), the Court of Appeal is wholly
wrong at [83] of its judgment in requiring the BPC to state its reasons if it decides not to
follow the Commission's recommendations for clemency. In my view, the BPC is not

197
bound to give any reasons for its decision either to commute or not to commute the
death sentence: the courts are not entitled to require its reasons from the BPC (though it
is free to supply them if it wishes so as to counter possible adverse inferences).
However, the courts, in the light of court records and the further material before the
BPC, can look at the BPC's decision that is the result of reasoning as to which the courts
are in the dark. If it then appears that the decision not to commute the death sentence is
an extraordinary one that no rational properly-informed body could have made if acting
in a procedurally fair fashion, the court will be able quash the decision if it is prepared to
apply Wednesbury principles as earlier mentioned, but this issue is for another day.

PROBLEMS WITH THE IAHRC AND PRATT AND MORGAN

[10] Finally, I believe it appropriate to endorse the criticism of the learned President and
Saunders J of the five year rule developed by Pratt and Morgan, which simply
encouraged the IAHRC to pursue its apparent anti-death penalty agenda by not
producing its reports on condemned murderers in timely fashion. This ensured that the
five year period was exceeded, so that all murderers sentenced to death could
themselves commute their death sentences to life imprisonment simply by petitioning
the IAHRC - and so wholly undermining the Constitutional death penalty.

[11] Just as the poorest of countries have to organise themselves to produce timely
justice for murderers, so should the IAHRC arrange for production of timely reports on
anxious condemned murders on death row, rather than leave their hopes dangling for
considerable periods that are in excess of eighteen months. "Justice delayed is justice
denied", and the least that can be expected of an international body that cares for
murderers on death row is that it should produce reports on them within eighteen
months at the outermost limit. Court-imposed guidelines on bodies should encourage
such bodies to perform their tasks in good faith with as much expedition as possible and
not with the least expedition possible. Thus, there is much to be said for the local Court
of Appeal to be expected to deliver judgment within twelve months of the accused's
conviction for murder (giving priority to murder cases), the Caribbean Court of Justice to
deliver judgment within twelve months of the Court of Appeal's judgment and the IAHRC
to deliver its report within eighteen months of the CCJ's judgment (assuming no delay
has been caused by the tardiness of a Government's response to a request from the
IAHRC). If the IAHRC does then take more than eighteen months to produce a report for
the benefit of the murderer, it and he ought to accept the burden of a longer than
necessary sojourn on death row without this amounting to prohibited cruel and
inhuman punishment which has to be remedied by commutation of the death sentence:
no benefit without the concomitant burden. However, resolving particular time limits
should await detailed inter partes argument with supporting evidence, so this is yet
another issue peripheral to this case but of much significance which remains to be finally
resolved another day.

/S/ David Hayton

198
David Hayton

199
British Railway Board v Picking [1974] 1 All ER 609

British Railways Board and another v Pickin

HOUSE OF LORDS
LORD REID, LORD MORRIS OF BORTH-Y-GEST, LORD WILBERFORCE, LORD SIMON OF
GLAISDALE AND LORD CROSS OF CHELSEA

23, 24, 25, 26, 29, 30, 31 OCTOBER, 1 NOVEMBER 1973, 30 JANUARY 1974
Statute – Validity – Private Act of Parliament – Passage of Act secured by improper means –
Jurisdiction of court – Pleadings challenging validity of private Act – Allegation that Act obtained
by false and misleading recitals in preamble – Application to strike out pleadings – Whether
court having jurisdiction in circumstances to disregard provisions of Act – Whether court having
jurisdiction to enquire into proceedings in Parliament – Whether pleadings raising triable issue.

The land on which a branch railway line ran was vested in the British Railways Board as
successors in title to the company which, under a special Act of 1845, had originally acquired
the land for the purpose of building the line. The 1845 Act incorporated s 259 of an earlier
special Act, the Bristol and Exeter Railway Company Act 1836, which provided that, if the
railway should be abandoned, or for a period of three years cease to be used, the lands taken
under the special Act should vest in the owners for the time being of the adjoining land. In 1968
Parliament passed a private Act (the British Railways Act 1968) which, by s 18(1), provided that
s 259 of the 1836 Act 'shall not apply to any lands vested in the Board'. In 1969 the plaintiff
purchased from the owner of a piece of land adjoining the railway line all his estate and interest
in the piece of land and track forming part of the line. The plaintiff brought an action against
the board claiming, inter alia, a declaration that, under s 259 of the 1836 Act, he was the
owner, or entitled to the possession of, the land forming part of the branch railway line. By
their defence the board relied on s 18(1) of the 1968 Act. By paras 3 and 4 of his reply the
plaintiff alleged in effect that, in obtaining the enactment of s 18 of the 1968 Act in their favour,
the board had fraudulently concealed certain matters from Parliament and its officers and
thereby misled Parliament into granting them the right conferred by s 18(1); and that s 18(1)
was therefore ineffective to deprive the plaintiff of his land or proprietary rights. The board
applied for an order that the reply be struck out under RSC Ord 18, r 19, on the ground that it
was frivolous, vexatious and an abuse of the process of the court. The master ordered that
paras 3 and 4 be struck out and that order was affirmed by the judge. The Court of Appeal,
however, allowed the plaintiff's appeal on the ground that paras 3 and 4 raised a triable issue.
On appeal,
Held – The appeal should be allowed and paras 3 and 4 of the reply struck out, for the
substance of the plea was that the court was entitled to, and should, disregard what Parliament
had enacted. The courts had no power to disregard an Act of Parliament, whether public or

200
private, nor had they any power to examine proceedings in Parliament in order to determine
whether the passing of an Act had been obtained by means of any irregularity or fraud (see p
618 g and j, p 619 e and f, p 620 a and b, p 622 f and g, p 623 a, p 625 f, p 626 h, p 627 b and d,
p 628 c f and g and p 631 a and b, post).
Dicta of Lord Campbell in Edinburgh and Dalkeith Railway Co v Wauchope (1842) 8 Cl & F at
725, of Cockburn CJ in Earl of Shrewsbury v Scott (1859) 6 CBNS at 160, of Wilkes J in Lee v Bude
and Torrington Junction Railway Co (1871) LR 6 CP at 582, of Lord Hannen in Labrador Co v
R [1893] AC at 123 and of Viscount Simon LC in Hoani Te Heuheu Tukino v Aotea District Maori
Land Board [1941] 2 All ER at 97 applied.
M'Kenzie v Stewart (1752) Mor 7443, 15459; on appeal (1754) 1 Pat 578 explained.
Decision of the Court of Appeal sub nom Pickin v British Railways Board [1972] 3 All ER
923 reversed.
[1974] 1 All ER 609 at 610
Notes
For the validity of statutes, see 36 Halsbury's Laws (3rd Edn) 378, para 560, and for cases on the
subject, see 44 Digest (Repl) 190, 199, 335, 15, 121, 1693, 1694.
Cases referred to in opinions
Biddulph v Biddulph (1790) 5 Cru Dig (4th Edn) 26, HL, 40 Digest (Repl) 487, 3.
Bradlaugh v Gossett (1884) 12 QBD 271, 53 LJQB 209, 50 LT 620, DC, 14 Digest (Repl) 139, 1017.
Burdett v Abbot (1811) 14 East 1, 104 ER 501; affd (1812) 4 Taunt 401, Ex Ch; (1817) 5 Dow
165, [1814–23] All ER Rep 101, HL, 14 Digest (Repl) 210, 1763.
Dingle v Associated Newspapers Ltd [1960] 1 All ER 294, [1960] 2 QB 405, [1960] 2 WLR 430; on
appeal [1961] 1 All ER 897, [1961] 2 QB 162, [1961] 2 WLR 523, CA; affd sub nom Associated
Newspapers Ltd v Dingle [1962] 2 All ER 737, [1964] AC 371, [1962] 3 WLR 229, HL, Digest (Cont
Vol A) 1223, 415a.
Dumbarton (Magistrates, Town Council and Community of) v Magistrates and Town Council of
the City of Glasgow (1771) Mor 14769.
Edinburgh and Dalkeith Railway Co v Wauchope (1842) 8 Cl & Fin 710, 1 Bell 252, 3 Ry & Can
Cas 232, 8 ER 279, HL, 44 Digest (Repl) 341, 1771.
Green v Mortimer (1861) 3 LT 642, 35 Digest (Repl) 320, 348.
Hoani Te Heuheu Tukino v Aotea District Maori Land Board [1941] 2 All ER 93, [1941] AC 308,
110 LJPC 17, PC, 44 Digest (Repl) 200, 125.
Labrador Co v R [1893] AC 104, 62 LJPC 33, 67 LT 730, PC, 44 Digest (Repl) 199, 122.
Lee v Bude and Torrington Junction Railway Co (1871) LR 6 CP 576, 24 LT 827, 44 Digest (Repl)
199, 121.
McCormick v Grogan (1869) LR 4 HL 82, HL, 20 Digest (Repl) 273, 182.

201
M'Kenzie v Stewart (1752) Mor 7443, 15459; on appeal (1754) 1 Pat 578, 5 Cru Dig (4th Edn) 23,
HL, 40 Digest (Repl) 487, 2.
Richardson v Hamilton (1732) Canc 8 Jan 1773.
Shrewsbury (Earl) v Scott (1859) 6 CBNS 1, 29 LJCP 34, 33 LTOS 368, 141 ER 350; affd (1860) 6
CBNS 221, Ex Ch, 44 Digest (Repl) 193, 52.
Stead v Carey (1845) 1 CB 496, 14 LJCP 177, 5 LTOS 74, 9 Jur 511, 135 ER 634, 44 Digest (Repl)
335, 1693.
Stockdale v Hansard (1839) 9 Ad & El 1, 3 State Tr NS 723, 2 Per & Dav 1, 8 LJQB 294, 3 Jur 905,
112 ER 1112, 32 Digest (Repl) 127, 1493.
Waterford etc Railway Co v Logan (1850) 14 QB 672, 14 LTOS 416, 14 Jur 346, 117 ER 259,
44 Digest (Repl) 335, 1694.
Interlocutory appeal

The Bristol and Exeter Railway Co was incorporated by the Bristol and Exeter Railway Company
Act 1836a for the purpose of making a railway from Bristol to Exeter with branch lines to
Bridgwater and Tiverton. Section 259 of the 1836 Act provided, inter alia, that on a railway line
being abandoned or given up by the company or, after a period of three years, ceasing to be
used as a railway, the lands acquired by the company for the purpose of the Act should revert
to the owners for the time being of the land on either side of the railway. The Bristol and Exeter
Railway Act 1845b authorised the company to build certain branch railway lines including a line
between Yatton and Clevedon ('the line') in Somerset. Section 2 of the 1845 Act incorporated,
inter alia, s 259 of the 1836 Act.
a
6 Will IV, c xxxvi
b
8 & 9 Vict, c clv

The appellant, the British Railways Board ('the board'), was the successor in title to the
company. In the 1960s the line fell into disuse. No trains had run since October 1966 but the
line remained available for use until October 1969. The land adjacent to the line included a plot
known as 60 Oldville Avenue, Clevedon, which was vested in a Dr and Mrs Keevil. On 20
October 1969 Dr Keevil transferred to
[1974] 1 All ER 609 at 611

the respondent, George William Leonard Pickin, 'ALL THAT his estate and interest in All that
piece of land and track formerly forming part of the Yatton to Clevedon Branch Railway Line'
adjoining 60 Oldville Avenue. On 22 October L A Moore (Builders) Ltd ('the contractors'), who
were contractors employed by the board, started to remove the railway track from that part of
the line which adjoined 60 Oldville Avenue.

Meanwhile, by a petition lodged in Parliament on 24 November 1967 the board had promoted
a private bill. On 27 May 1968 the bill was considered by the Unopposed Bills Committee of the
House of Commons and the truth of the preamble was formally proved on behalf of the board.

202
The bill received the Royal Assent as the British Railways Act 1968 on 26 July 1968 and came
into force on that day. Part III of the Act (ss 13 to 18) was entitled 'Lands'. Section 18(1)
provided: 'As from the passing of this Act, the provisions to which this section applies shall not
apply to any lands vested in the Board'. By s 18(2) the section applied, inter alia, to s 259 of the
1836 Act.

On 23 October 1969 the respondent commenced an action against the board and the
contractors. By his statement of claim as amended the respondent claimed, against the board,
a declaration that he was the owner, or alternatively an equitable tenant in common, or that he
was entitled to possession, of that half of what had formerly been the board's land being part
of the Clevedon-Yatton branch railway which lay immediately adjacent to 60 Oldville Avenue,
and, against both defendants, the return of the railway track or its value, damages for its
conversion and detention, an order for possession of the land and damages for trespass or
alternatively mesne profits. By their defence the board denied that they had abandoned or
given up the line or had ceased to employ it as a railway within s 259 of the 1836 Act before the
provisions of s 18 of the 1968 Act came into force on 26 July 1968 and alleged that, by virtue of
s 18 of the 1968 Act, the respondent's claim to ownership was invalid and that the board had
not ceased to own the land. The respondent's amended reply contained the following
paragraphs:

'3. Further or in the alternative if the [1968] Act purports to bar this action then it falsely recites
in the preamble that plans of the lands authorised to be acquired or used by this Act and a book
of reference to such plans containing the names of the owners and lessees and of the occupiers
of the said land were duly deposited as there stated. Such recital drafted by the [board] was
false (as the [board] well knew) in that no such plans or book of reference was made or
prepared in respect of the [respondent's] land nor deposited with the Clerk to the Somerset
County Council in which County the said land is situate. Furthermore there is no other recital in
the preamble specifically referring to the subject matter of section 18. Furthermore no notice
was given to the owners, occupiers or lessees of the said adjacent lands (including the
[respondent]) nor was any public notice given of the said intended compulsory acquisition
although at the time the Bill was before Parliament the [board] were well aware that the
Railway (if not already abandoned given up or ceased to be employed as such) was about to be
abandoned given up or ceased to be employed as such. By reason of the matters aforesaid
section 18 does not upon its true construction have the effect of barring this action or of
depriving the [respondent] of his interest in land without compensation.

'4. If section 18 on its true construction bars this action either by depriving the [respondent] of
his interest in land without compensation or otherwise, the [board] as promoters of the said Bill
have broken the standing orders of Parliament and have failed to comply with the same and
have included a misleading preamble and have misled Parliament and the said local Act being
solely for the benefit of the [board] and obtained ex parte as an unopposed bill is ineffective to
deprive the [respondent] of his land or proprietary rights and the [board] cannot rely on [the
Act].'
[1974] 1 All ER 609 at 612

203
By a summons dated 8 December 1971 the respondent applied for an order requiring the board
within 14 days to make discovery of the following documents: (i) all material placed before
Parliament by the board and by its servants or agents for the purpose of obtaining a private Act
of Parliament (i e the 1968 Act); (ii) letters sent to enquiries about the Act or proposed Act and
all documents relating thereto. By a summons dated 18 January 1972 the board applied for an
order that the respondent's reply be struck out under RSC Ord 18, r 19, on the ground that it
was frivolous and vexatious and that it was an abuse of the process of the court.
By an order dated 21 February 1972 Master Elton in chambers ordered that paras 3 and 4 of
the reply be struck out and that the respondent have leave to amend the remainder of the
reply. The master refused to make any order on the respondent's summons for discovery. On 1
June 1972 Chapman J in chambers affirmed the master's order and dismissed the respondent's
appeal. The respondent appealed on the ground, inter alia, that paras 3 and 4 of the reply
raised a triable issue. On 3 October 1972 the Court of Appeal ([1972] 3 All ER 923, [1973] QB
219) (Lord Denning MR, Edmund Davies and Stephenson LJJ) allowed the respondent's appeal,
set aside the orders of Chapman J and Master Elton, ordered that paras 3 and 4 of the reply be
allowed to stand and further ordered that within 28 days the board should give discovery of
particular documents, namely, all material placed before Parliament by the board and by its
servants and/or agents for the purpose of obtaining the 1968 Act, and all letters sent to
enquiries about the Act or proposed Act and all documents relating thereto. The court refused
the board leave to appeal to the House of Lords. On 7 March 1973 the appeal committee of the
House gave the board leave to appeal.

John M Rankin QC, G H Hodgson and P E Feinberg for the board.

Leolin Price QC and J A Tackaberry for the respondent.
The Solicitor General (Sir Michael Havers QC), Raymond Kidwell QC and Gordon Slynn as amici
curiae.
Their Lordships took time for consideration
30 January 1974. The following opinions were delivered.

LORD REID.

My Lords, our railway system was built up piecemeal during the 19th century. Generally
promoters obtained from Parliament private Acts authorising comparatively short stretches of
railway and giving compulsory powers to acquire the necessary land. Before 1845 there was no
uniformity in the provision of these Acts but many, we were informed about 100, contained
provisions to the effect that if the proposed railway was abandoned or discontinued the land
acquired for it would revert to the owners for the time being of adjoining land. If the land on
opposite sides of the railway had different owners each would get half of the railway land
between their properties. Apparently such provisions were no longer inserted in private bills
after 1845.

204
The British Railway Board's title to a substantial amount of their railway land flows from these
old pre-1845 Acts. When, some years ago, it became evident that numerous stretches of
railway would have to be closed down, they realised that some of these old reverter provisions
would take effect unless they obtained new rights from Parliament. So they promoted a bill
which, on 26 July 1968, became the British Railways Act 1968. Section 18 of that Act provides:

'(1) As from the passing of this Act, the provisions to which this section applies shall not apply
to any lands vested in the Board.

'(2) This section applies to any provision in an enactment to the effect that, if at any time after
the coming into force of that provision a railway or part of
[1974] 1 All ER 609 at 613

a railway shall be abandoned or given up, or if after the same shall have been completed it shall
cease (whether for a specified period or not) to be used or employed as a railway, the lands
taken for the purposes of such railway or part of a railway, or over which the same shall pass,
shall vest in the owners for the time being of the adjoining lands, being a provision in an
enactment relating to an existing or former railway or part of a railway comprised in the
undertaking of the Board and not being a provision for the protection or benefit of a named
person or the successors of a named person or for the protection of the owner, lessee or
occupier of specified lands.'

For reasons which will appear later it would not be proper to make any decision as to the
proper construction of that section. But I can say that at first sight it appears to take away
without compensation all rights of adjoining owners to a reversion of land to them on the
closing down of any part of our railway system.

The respondent is interested in the preservation of railways and in order to be in a position to

test the board's right in court he took advantage of the closing of the Clevedon-Yatton branch
line in Somerset, and on 20 October 1969 purchased for 10s from the owner of lands adjoining
the railway—

'ALL THAT his estate and interest in All that piece of land and track formerly forming part of the
Yatton to Clevedon Branch Railway Line of British Rail Together with the fixtures and
appurtenances attached thereto including the metal rails the sleepers and the ballast laid on
the said track TO HOLD the same unto the Purchaser in fee simple.'

Then on 23 October 1969 he raised the action with which we are concerned. He founds on s
259 of the Bristol and Exeter Railway Act 1836, which is in these terms:

'… if the said Railway or any Part thereof shall at any Time hereafter be abandoned or given up
by the said Company, or after the same shall have been completed shall for the Space of Three
Years cease to be used and employed as a Railway, then and in such Case the Lands so
purchased or taken by the said Company for the Purposes of this Act, or otherwise the parts
thereof over which the said Railway or any part of such railway which shall be so abandoned or
given up by the said Company shall pass, shall vest in the Owners for the Time being of the Land

205
adjoining that which shall be so abandoned or given up in the manner following; (that is to say)
One Moiety thereof in the Owners of the Land on the one Side, and the Remainder thereof in
the Owners of the Land on the other Side thereof.'

He has two alternative grounds of action. First he says that under s 259 this piece of railway
land reverted to his predecessor in title and now belongs to him because, on the facts, this
section came into operation before the passing of the 1968 Act which repealed it. That is
denied by the board and admittedly that issue must go to trial whatever be the outcome of the
present case.

The respondent's alternative ground of action is not easy to state concisely. He appears to
allege that in obtaining the enactment of s 18 of the 1968 Act in their favour the board
fraudulently concealed certain matters from Parliament and its officers and thereby misled
Parliament into granting this right to them.
This case arises because by summons of 18 January 1972 the board sought an order that part of
the respondent's pleadings be struck out under RSC Ord 18, r 19, on the ground that it is
frivolous and vexatious and that it is an abuse of the process of the court. Thereupon by order
of the master in chambers of 21 February 1972, paras 3 and 4 of the respondent's amended
reply were struck out. These were the parts which raised the respondent's alternative grounds
of action. An appeal to Chapman J was dismissed. But a further appeal to the Court of Appeal
([1972] 3 All ER 923,[1973] QB 219) was allowed on
[1974] 1 All ER 609 at 614

3 October 1972 and the board now appeal to this House to have the order of the master
restored.

I do not think it necessary to set out these paragraphs in full because admittedly the position
now is that if by amendment of these paragraphs the respondent can plead an arguable case he
is entitled to succeed and to have this issue sent to trial.

As the respondent's case developed in argument it appeared that he seeks one or other of two
methods of relief against s 18. First he says that s 18 confers a benefit on the board and that if
he can prove that Parliament was fraudulently misled into enacting this benefit the court can
and should disregard the section. And, secondly, he says that even if the court cannot do that
and the section has taken effect, the court can on proof that Parliament was so misled nullify
the resulting benefit to the board by requiring them to hold in trust for him the benefit which
the section has given to the board to his detriment.

The idea that a court is entitled to disregard a provision in an Act of Parliament on any ground
must seem strange and startling to anyone with any knowledge of the history and law of our
constitution, but a detailed argument has been submitted to your Lordships and I must deal
with it.

I must make it plain that there has been no attempt to question the general supremacy of
Parliament. In earlier times many learned lawyers seem to have believed that an Act of

206
Parliament could be disregarded insofar as it was contrary to the law of God or the law of
nature or natural justice but since the supremacy of Parliament was finally demonstrated by the
revolution of 1688 any such idea has become obsolete.
The respondent's contention is that there is a difference between a public and a private Act.
There are of course great differences between the methods and procedures followed in dealing
with public and private bills, and there may be some differences in the methods of construing
their provisions. But the respondent argues for a much more fundamental difference. There is
little in modern authority that he can rely on. The mainstay of his argument is a decision of this
house, M'Kenzie v Stewart in 1754.

The case is reported in Morison's Dictionary of Decisions and in this House in Paton, and a
number of documents in connection with this case have been preserved. The facts are not
altogether clear but I think I can state them in this way. In 1688 the Earl of Cromarty disponed
the lands of Royston to his third son, Sir James Mackenzie (who became Lord Royston) and the
heirs male of his body whom failing, to his second son Sir Kenneth Mackenzie and the heirs
male of his body whom failing, to other substitutes. This was a strict entail containing
prohibitory irritant and resolutive clauses against altering the order of succession, contracting
debts and selling or disponing the lands. The deeds contained a provision obliging Sir James and
the heirs of entail to pay 20,000 merks to Lady Anne Mackenzie. This debt appears to have
been paid or discharged.

Lord Royston wanted to free himself from the fetters of the entail. To do that he had to get an
Act of Parliament which authorised the sale of the lands. To get such an Act he had to shew that
the lands were so burdened with debts that selling them and paying off the debts was the only
or at least the best way of dealing with the situation. In fact, the lands were not burdened with
any debts. So he was a party to the creation of a fictitious bond antedated to 1688 in favour of
Lady Anne for 20,000 merks and, in a manner not clear, he made it appear that a bond in favour
of Lundie for 8,250 merks was a valid burden on the lands. Further he made it appear that there
were large arrears of interest on these bonds so that in all 51,350 merks Scots or £2,852 sterling
was recoverable out of the estate.

Then he succeeded in 1739 in obtaining the Actc. The Act in a long preamble narrated the
existence of those debts and stated that it would be for the advantage of
c
12 Geo II c vii
[1974] 1 All ER 609 at 615

all concerned that the lands should be sold and the debts paid. Then it enacted that the land
should be sold and—
'that the Monies arising by such Sale or Sales, should be vested in, and settled upon, and the
same were thereby vested in the said Trustees, or any two or more of them, or the Survivor, or
any two or more of them, should and would, immediately after such Sale or Sales, or as soon as
conveniently might be, apply and dispose of the Monies arising by such Sale or Sales, in the first
Place, for paying and defraying the Charges and Expenses attending the passing this Act; and

207
afterwards, and in the next place, to pay off and discharge the said Sum of 51,350 Merks Scots,
or £2852. 15s. 6d. Sterling with which the said Premises stood then charged and incumbered as
aforesaid, with the Arrears of Interest; and should, with the like Privity and Consent, lay out the
Residue and Surplus of the Money arising by such Sale, in the Purchase of other Lands and
Hereditaments in Fee Simple; and which said other Lands and Hereditaments so to be
purchased, should immediately after such Purchase or Purchases as aforesaid, be settled,
disponed and provided to and for the Use and Behalf of the said Sir James Mackenzie of
Royston, and the other surviving Heirs of Entail, according to the different Rights and Interests,
and in the same Order and Course of Succession, secured, ascertained, and established to and
for them respectively in and by the said Deed of Tailzie, as far as the same might be capable of
taking Effect, with the Powers, and subject to the Restrictions and Limitations therein
contained; and in the mean time, until such Purchase could be made, to place out such Residue
or Surplus at Interest upon real or other sufficient Security.'

Lord Royston had so contrived matters that the beneficial interest in these supposed debts had
vested in himself. So when the lands were sold he simply put the purchase price in his own
pocket.

Some time after Lord Royston's death, Sir Kenneth Mackenzie, who would have been the heir of
entail in possession if the lands had not been sold, brought an action against Stewart, the
grandson and heir of Lord Royston, requiring him to account for the money which Lord Royston
had wrongfully obtained. In the Court of Session Stewart did not attempt to dispute these facts.
His plea was that Parliament had found the facts narrated in the preamble to be true and that it
was incompetent for any court to reopen the matter. Mackenzie's plea was that the Act did not
require these debts to be paid whether due or not.

'Had the Act of Parliament said, that these Sums should be paid to the nominal Creditors,
whether they were Creditors or not, the Pursuer would not pretend to dispute the Authority of
Parliament. But the Act has neither said so, nor was it so intended by the Legislature.'

I quote from the information, a written pleading submitted to the Court of Session.

It is rare to find any reasons reported for decisions of that period and there is no report of
anything except the interlocutor of the court of 1 July 1752 (See Mor at 15460):

'The Lords found, That those debts that, by act of Parliament, are appointed to be paid out of
the price of the estate of Royston must be stated to exhaust the said price; and that, the price
of the estate being exhausted by those debts, there is no ground for a further count and
reckoning.'

We have the cases submitted by the parties when the case was appealed to this House. They
are not so clear as the pleadings in the Court of Session but they appear to me to raise the
same arguments.
[1974] 1 All ER 609 at 616

208
The Journals of the House of Lords of 14 March 1754 state that the case was argued in two days
and set out the order of the House:
'It is ORDERED and Adjudged, by the Lords Spiritual and Temporal in Parliament assembled,
That the said Interlocutor complained of in the said Appeal be, and the same is hereby,
reversed; and that the Interlocutor of the Lord Ordinary, of the 20th of January 1747, be, and
the same is hereby, affirmed: And it is hereby further ORDERED, That the Court of Session
in Scotland do proceed thereupon, according to Justice and the Rules of that Court, without
Prejudice to any Question that may hereafter arise, concerning the Relief to which the
Appellant may be entitled, and against what Persons or Subjects such Relief (if any) ought to be
extended.'

The interlocutor of the Lord Ordinary referred to allowed Mackenzie to prove that the debts
narrated in the Act were fictitious.

At that period there were no contemporary reports of Scots appeals in this House. It would
seem that quite often no other peer with legal experience sat with the Lord Chancellor and it
seems to me to be probable that frequently no formal speech giving reasons was made at the
conclusion of the argument. In comparatively few cases there have been preserved
observations made in the House: sometimes these appear to have been observations made in
the course of the argument. In the present case we have a note made by Lord Kames in his
Select Decisions reported in Morison (Mor at 7445):

'The Lord Chancellor, in delivering his opinion, expressed a good deal of indignation at the
fraudulent means of obtaining the act; and said that he never would have consented to such
private acts, had he ever entertained a notion that they could be used to cover fraud.'

Lord Kames's Select Decisions cover the earlier period of his long tenure of office as a judge. We
do not know how he came to add this passage at the end of his report of the case in the Court
of Sessions. He must have got it, perhaps at second-hand, from someone present during the
arguments: so these observations may have been made during the argument or in a speech.
Lord Hardwicke was, I think, Lord Chancellor both in 1754 and in 1739 when the Act was
passed, so he may have had some part in passing the Act. In any case I do not read his
observations as indicating the ground of decision but rather as a comment on what took place
when the Act was passed.

I must notice some other comments in the case made within a few years after its decision. Lord
Elchies in an appendix to a work on Tailzie says with regard to the case (No 46):
'vide Lord Chancellor's speech with the cases by which it seems that notwithstanding such
private acts fraud either in obtaining them or in the execution may be tried as well as in private
contracts.'

Again, we do not know what information Lord Elchies had about the case. The facts must have
been generally known but no detailed account of proceedings in this House would have been
available.

209
We were also referred to some observations by the judges who took part in Magistrates of
Dumbarton v Magistrates of Glasgow. Lord Hailes in his Reportsd gives short notes of the
opinions of the judges who sat with him in hearing the case. Lord Kames is reported as saying:
d
Volume 1, p 446
'In the case of Royston an Act of Parliament said that debts were true debts. The Courts here
would not find the contrary. But this judgment was reversed upon Lord Hardwick's opinion,'
[1974] 1 All ER 609 at 617

The Lord President is reported as saying:

'The case of Roystoun is not in point; for there was a private Act of Parliament upon a false
narrative. The heir of entail was found to have right to the value of the subject, because the
debts of the entailer were fictitious. Yet still the Court could not have stopped the execution of
the Act of Parliament because it proceeded upon a false narrative.'

I do not think that any of these observations can be relied on as indicating what was Lord
Hardwicke LC's ground of judgment.

My noble and learned friend, Lord Wilberforce, has dealt with Blackstone's comments on the
case. He gives no citation except the Journal of this House and it is impossible to get from the
entry which I have quoted any indication of the grounds of the judgment.

It appears to me that far the most probable explanation of the decision is that it was a decision
as to the true construction of the Act. The operative provision was—

'to pay off and discharge the said Sum of 51,350 Merks Scots, or £2,582. 15s. 6d. Sterling with
which the said Premises stood then charged and incumbered as aforesaid, with the Arrears of
Interest'.

This is I think easily susceptible of the construction that if there were no sums with which the
premises were encumbered then there was nothing to pay off. There was no direction to pay
off anything except incumbrances and if there were no incumbrances the direction had no
operative effect. That was the argument for Mackenzie and it seems to me much more likely
that Lord Hardwicke LC adopted it than that he laid down some new constitutional principle
that the court had the power to give relief against the provision of a statute.
If the decision was only as to the construction of a statutory provision that would explain why
the case had received little attention in later cases. I do not think it necessary to refer to the
few later references to the case which have been unearthed by the researches of counsel. And I
shall not repeat what is said by my noble and learned friends about other cases relied on by the
respondent. If M'Kenzie v Stewart is found to afford no support to the respondent's argument
the rest of the authorities are negligible.
In my judgment the law is correctly stated by Lord Campbell in Edinburgh and Dalkeith Railway
Co v Wauchope. Mr Wauchope claimed certain wayleaves. The matter was dealt with in a
private Act. He appears to have maintained in the Court of Session that the provisions of that
Act should not be applied because it had been passed without his having had notice as required

210
by standing orders. This contention was abandoned in this House. Lord Brougham and Lord
Cottenham said that want of notice was no ground for holding that the Act did not apply. Lord
Campbell based his opinion on more general grounds. He said (1 Bell at 278, 279):

'My Lords, I think it right to say a word or two before I sit down, upon the point that has been
raised with regard to an act of Parliament being held inoperative by a court of justice because
the forms, in respect of an act of Parliament, have not been complied with. There seems great
reason to believe that notion has prevailed to a considerable extent in Scotland, for we have it
here brought forward as a substantive ground upon which the act of the 4th and 5th William
the Fourth could not apply: the language being, that the statute of the 4th and 5th William the
Fourth being a private act, and no notice given to the pursuer
[1974] 1 All ER 609 at 618

of the intention to apply for an act of Parliament, and so on. It would appear that that defence
was entered into, and the fact was examined into, and an inquiry, whether notice was given to
him personally, or by advertisement in the newspapers, and the Lord Ordinary, in the note
which he appends to his interlocutor, gives great weight to this. The Lord Ordinary says, “he is
by no means satisfied that due parliamentary notice was given to the pursuer previous to the
introduction of this last act. Undoubtedly no notice was given to him personally, nor did the
public notices announce any intention to take away his existing rights. If, as the Lord Ordinary is
disposed to think, these defects imply a failure to intimate the real design in view, he would be
strongly inclined to hold in conformity with the principles of Donald, 27th November, 1832, that
rights previously established could not be taken away by a private act, of which due notice was
not given to the party meant to be injured.” Therefore, my Lord Ordinary seems to have been
most distinctly of opinion, that if this act did receive that construction, it would clearly take
away the right to this tonnage from Mr Wauchope, and would have had that effect if notice had
been given to him before the bill was introduced into the House of Commons; but that notice
not having been given, it could have no such effect, and therefore the act is wholly inoperative.
I must express some surprise that such a notion should have prevailed. It seems to me there is
no foundation for it whatever; all that a court of justice can look to is the parliamentary roll;
they see that an act has passed both Houses of Parliament, and that it has received the royal
assent, and no court of justice can inquire into the manner in which it was introduced into
parliament, what was done previously to its being introduced, or what passed in parliament
during the various stages of its progress through both Houses of Parliament. I therefore trust
that no such inquiry will hereafter be entered into in Scotland, and that due effect will be given
to every act of Parliament, both private as well as public, upon the just construction which
appears to arise upon it.'

No doubt this was obiter but so far as I am aware no one since 1842 has doubted that it is a
correct statement of the constitutional position.

The function of the court is to construe and apply the enactments of Parliament. The court has
no concern with the manner in which Parliament or its officers carrying out its standing orders
perform these functions. Any attempt to prove that they were misled by fraud or otherwise

211
would necessarily involve an enquiry into the manner in which they had performed their
functions in dealing with the bill which became the British Railways Act 1968.

In whatever form the respondent's case is pleaded he must prove not only that the board acted
fraudulently but also that their fraud caused damage to him by causing the enactment of s 18.
He could not prove that without an examination of the manner in which the officers of
Parliament dealt with the matter. So the court would, or at least might, have to adjudicate on
that.

For a century or more both Parliament and the courts have been careful not to act so as to
cause conflict between them. Any such investigations as the respondent seeks could easily lead
to such a conflict, and I would only support it if compelled to do so by clear authority. But it
appears to me that the whole trend of authority for over a century is clearly against permitting
any such investigation.

The respondent is entitled to argue that s 18 should be construed in a way favourable to him
and for that reason I have refrained from pronouncing on that matter. But he is not entitled to
go behind the Act to shew that s 18 should not be enforced. Nor is he entitled to examine
proceedings in Parliament in order to shew that the board by fraudulently misleading
Parliament caused him loss. I am therefore clearly of opinion that this appeal should be allowed
and the judgment of Chapman J restored.
[1974] 1 All ER 609 at 619

LORD MORRIS OF BORTH-Y-GEST.

My Lords, the question which is before us is whether paras 3 and 4 of the amended reply
should be struck out in accordance with the order made by the master and affirmed by the
judge. There are certain issues of fact in the action which are not affected by those paragraphs.
The respondent asserts that the provisions of s 259 of the Bristol and Exeter Railway Act 1836
were applicable to the track of the Clevedon-Yatton railway line and that the railway was
abandoned or given up or for three years had ceased to be used and that as a consequence a
very small part of the track came into the ownership of a Dr Keevil who for a consideration of
10s sold that part to the respondent on 20 October 1969. If certain issues of fact are decided
adversely to the respondent then he will be in great difficulty if, as the British Railways Board
assert, the provisions of s 259 ceased to apply to the track as from 26 July 1968, as a result of
the enactment on that date of the British Railways Act 1968. Section 18(1) of that Act is in the
following terms: 'As from the passing of this Act, the provisions to which this section applies
shall not apply to any lands vested in the Board.' Subsection (2) appears to describe such
provisions in such a way as to include s 259.

In their defence to the respondent's claims in the action British Railways Board have pleaded
that insofar as the respondent's purported ownership of the piece of land in question was
alleged to rest on the provisions of s 259 his claim to ownership was invalid by reason of the

212
provisions of s 18 of the 1968 Act. It was in order to meet the prospect of defeat by reason of
those provisions that paras 3 and 4 of the reply were drafted.

In my view, it is beyond question that the substance of the plea advanced by the two
paragraphs is that the court is entitled to and should disregard what Parliament has enacted in
s 18. The question of fundamental importance which arises is whether the court should
entertain the proposition that an Act of Parliament can so be assailed in the courts that matters
should proceed as though the Act or some part of it had never been passed. I consider that
such doctrine would be dangerous and impermissible. It is the function of the courts to
administer the laws which Parliament has enacted. In the processes of Parliament there will be
much consideration whether a bill should or should not in one form or another become an
enactment. When an enactment is passed there is finality unless and until it is amended or
repealed by Parliament. In the courts there may be argument as to the correct interpretation of
the enactment: there must be none as to whether it should be on the statute book at all.

In para 3 of the amended reply there is an allegation that a recital in the preamble was false.
Whether on a fair reading of the whole Act this is arguable has not now to be decided. There
follows an allegation of fraud (ie that the board knew that there was a false recital) and an
allegation that no notice was given of 'intended compulsory acquisition'. Whether or not it is
apt to describe the effect of s 18 as compulsory acquisition does not now arise. But whether or
not there are any points of construction of the Act that can be formulated, what para 4 of the
amended reply proceeds to assert is (a) that the board broke the standing orders of Parliament
and (b) failed to comply with the standing orders of Parliament and (c) included a misleading
preamble and (d) 'misled Parliament' and (e) obtained ex parte as an unopposed bill an Act
which was solely for their benefit, and that as a result 'the Act is ineffective to deprive the
[respondent] of his land and proprietary rights' and furthermore that the board 'cannot rely' on
the Act.

Though here and there in the two paragraphs there occurs the word 'construction' I do not
think that it can be doubted that the effect and the purpose of the two paragraphs is to assert
that the courts could and should for the reasons which I have set out under (a) to (e) above
disregard certain enacting provisions of the Act which is cited as the British Railways Act 1968,
and which as is recited in the Act was 'enacted, by the Queen's most Excellent Majesty, by and
with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled,
[1974] 1 All ER 609 at 620

and by the authority of the same … ' While any legitimate point may be taken as to the proper
construction of what Parliament has enacted I have no doubt that paras 3 and 4 of the
amended reply should not be allowed to stand inasmuch as they assert and claim the exercise
by the courts of a power to disregard what Parliament has enacted.

There is a clear distinction between recitals to an Act which are mere recitals and the enacting
provisions of an Act. The recital may be examined when the enacting provisions are being
construed but even if in some particular instance the recitals to an Act were thought to be

213
faulty that would give no warrant for disobeying or ignoring or varying the clear enacting
provisions of an Act.

Nor, in my view, should any redrafted pleading be allowed which revives in altered form an
attack on the validity of the enacting provisions of an Act of Parliament. Nor, in my view, should
the same attack be allowed in shrouded form by asserting that if the Act is effective and if as a
consequence some rights were taken away from some people, the board should hold their
lands subject to some style of burden or equity on the basis that Parliament ought not to have
enacted as it did and only did so enact as a result of what the two paragraphs of the amended
reply alleged.

We are not in the present case concerned with any question as to any possible personal rights
resulting from some contract or arrangement made between parties in relation to or in
connection with some prospective legislation.

The conclusion which I have reached results, in my view, not only from a settled and sustained
line of authority which I see no reason to question and which should I think be endorsed but
also from the view that any other conclusion would be constitutionally undesirable and
impracticable. It must surely be for Parliament to lay down the procedures which are to be
followed before a bill can become an Act. It must be for Parliament to decide whether its
decreed procedures have in fact been followed. It must be for Parliament to lay down and to
construe its standing orders and further to decide whether they have been obeyed; it must be
for Parliament to decide whether in any particular case to dispense with compliance with such
orders. It must be for Parliament to decide whether it is satisfied that an Act should be passed
in the form and with the wording set out in the Act. It must be for Parliament to decide what
documentary material or testimony it requires and the extent to which Parliamentary privilege
should attach. It would be impracticable and undesirable for the High Court of Justice to
embark on an enquiry concerning the effect or the effectiveness of the internal procedures in
the High Court of Parliament or an enquiry whether in any particular case those procedures
were effectively followed.
Clear pronouncements on the law are to be found in a stream of authorities in the 19th
century. In Edinburgh and Dalkeith Railway Co v Wauchopepoints of construction called for
decision but in the course of the proceedings a point was taken to the effect that a private Act
which affected a vested right could not be made applicable to a person who had had no notice
served on him of the introduction of the bill. Though the point was abandoned in this House,
Lords Brougham, Cottenham and Campbell felt that it was important to make it clear that any
such doctrine was wholly without foundation. Lord Campbell expressed his surprise that such a
notion should ever have prevailed ((1842) 8 Cl & Fin at 725):

'There is no foundation whatever for it. All that a Court of Justice can do is to look to the
Parliamentary roll: if from that it should appear that a bill has passed both Houses and received
the Royal Assent, no Court of Justice can inquire into the mode in which it was introduced into
Parliament, nor into what was done previous to its introduction, or what passed in Parliament
during its progress in its various stages through both Houses. I trust, therefore, that no such
inquiry will again be entered upon in any Court in Scotland, but that due effect will be
214
 [1974] 1 All ER 609 at 621

given to every Act of Parliament, private as well as public, upon what appears to be the proper
construction of its existing provisions.'
In pursuance of that pronouncement were the words of Cockburn CJ when in 1859 in Earl of
Shrewsbury v Scott ((1859) 6 CBNS 1 at 160) he said:

'These observations illustrate the question which is now before us, and make it clear, that, if an
act of parliament, by plain, unambiguous, positive enactment, affects the rights even of parties
who were not before the House (those parties being clearly pointed out by the bill, and
expressly excepted from the saving clause), it is not for a court of law to consider whether the
forms of parliament have been pursued, whether those provisions which the wisdom of either
House of parliament has provided for the prevention of any deception on itself, or of injury to
the rights of absent parties, have been followed: it is enough for us if the provisions of the act
are clear, express, and positive: if they are, we have only to carry the act into effect.'
In the earlier case of Waterford Railway Co v Logan the court disallowed a plea that an Act of
Parliament was obtained by the fraud of the plaintiffs.
Of equal clarity was the passage in the judgment of Willes J in 1871 when in Lee v Bude and
Torrington Junction Railway Co ((1871) LR 6 CP 576 at 582) (in which case it was alleged that
Parliament had been induced to pass an Act by fraudulent recitals) he said:

'Are we to act as regents over what is done by parliament with the consent of the Queen, lords
and commons? I deny that any such authority exists. If an Act of Parliament has been obtained
improperly, it is for the legislature to correct it by repealing it: but, so long as it exists as law,
the Courts are bound to obey it. The proceedings here are judicial, not autocratic, which they
would be if we could make laws instead of administering them.'
In Labrador Company v R ([1893] AC 104 at 123) Lord Hannen in delivering the judgment of the
Privy Council said:

'Even if it could be proved that the legislature was deceived, it would not be competent for a
court of law to disregard its enactments. If a mistake has been made, the legislature alone can
correct it.'
This statement of principle was accepted and applied in the judgment of the Privy Council
in Hoani Te Heuheu Tukino v Aotea District Maori Land Board ([1941] 2 All ER 93 at 97, [1941]
AC 308 at 322) where Viscount Simon LC in delivering the judgment of the board further said:

'It is not open to the court to go behind what has been enacted by the legislature and to inquire
how the enactment came to be made, and whether it arose out of incorrect information, or,
indeed, out of actual deception by someone on whom it placed reliance. The court must accept
the enactment as the law unless and until the legislature itself alters such enactment on being
persuaded of its error.'

Unless the authority of these pronouncements is for some reason to be eroded there cannot be
a triable issue in the courts whether an Act of Parliament was improperly obtained.

215
It has, however, been contended that the firm rule that the courts must accept and give full
binding effectiveness to an Act of Parliament relates only to public general Acts and that this
results from a consideration of M'Kenzie v Stewart. The various
[1974] 1 All ER 609 at 622
accounts and reports of that case were very fully examined in the course of the submissions
made in the present case. Though much documentary material exists there is no record of any
reasons which may have been expressed in this House. Though Blackstone e stated somewhat
ambiguously that a private Act obtained on fraudulent suggestions had 'been relieved against'. I
do not think that the decision in the case involved that any departure had been made from the
acting provisions of the Act in question. I have had the advantage of reading and considering
the speech of my noble and learned friend, Lord Reid, with its full examination of the case and I
am in entire agreement with the conclusions expressed. The case gives no basis for any
suggestion that there is any limitation to public general Acts of the rule that the courts must
give full binding effectiveness to the enacting provisions of an Act of Parliament. As was said in
1842 in Edinburgh and Dalkeith Railway Co v Wauchope ((1842) 8 Cl & Fin at 725) due effect
must be given to every Act of Parliament 'private as well as public' on what appears to be the
proper construction of its existing provisions.Green v Mortimer is no authority to the contrary.
An Act had included a provision which the Lord Chancellor described as 'quite absurd' because
it purported to give the court power to do that which was quite impossible.
e
Commentaries on the Laws of England (14th Edn, 1803), vol 2, p 346

In the result I have not been persuaded that any doubt has been cast on principles which are
soundly directed as being both desirable and reasonable and which furthermore have for long
been firmly established by authority.

I would allow the appeal and restore the order made by the learned judge.

LORD WILBERFORCE.
My Lords, the nature and history of the respondent's claim in this action, and its legal
foundation, have been stated by my noble and learned friend, Lord Reid. Clearly this claim to a
few yards of one railway line, under an Act of 1836, acquired for 10s by a private citizen, against
the British Railways Board, fortified by an Act of Parliament of 1968 which or part of which the
respondent claims to be invalid, is the very stuff of which constitutional law is made. But I
regret—and I use the word because it is legitimate to admire a courageous assertion of
individual right—that the respondent has no case in this respect. The idea, which seems to have
had some currency, mainly in Scotland, that an Act of Parliament, public or private, or a
provision in an Act of Parliament, could be declared invalid or ineffective in the courts on
account of some irregularity in parliamentary procedure, or on the ground that Parliament in
passing it was misled, or on the ground that it was obtained by deception or fraud, has been
decisively repudiated by authorities of the highest standing from 1842 onwards. The remedy for
a parliamentary wrong, if one has been committed, must be sought from Parliament, and

216
cannot be gained from the courts. The law in my opinion is correctly summed up in Halsbury's
Laws of Englandfin these words:
f
3rd Edn, vol 36, p 378, para 560

'If a Bill has been agreed to by both Houses of Parliament, and has received the royal assent, it
cannot be impeached in the and has received the royal assent, t cannot be impeached in the
courts on the ground that its introduction or passage through Parliament, was attended by an
irregularity, or even on the ground that it was procured by fraud.'
The authorities on which this paragraph is based include Edinburgh and Dalkeith Railway Co v
Wauchope ((1842) 8 Cl & Fin at 725), Stead v Carey((1845) 1 CB 496 at 516), Waterford Railway
Co v Logan, Lee v Bude and Torrington Junction Railway Co ((1871) LR 6 CP 576 at 582 per Willes
J),Labrador Co v R ([1893] AC 104 at 123), Hoani Te Heuheu Tukino v Aotea District Maori
[1974] 1 All ER 609 at 623
Land Board. I do not quote from these authorities passages which are well enough known, but I
would note that between them they expressly negative the admissibility in law of every
allegation made by the respondent in the two relevant paragraphs of his reply. It is to be
noticed that insofar as a distinction is sought to be made between public and private Acts, on
which I shall comment later, the first four of those cited were concerned with private
legislation; that an allegation of a false recital was involved in Lee's case; that in the same case
the allegation was that the recital was false to the knowledge of the plaintiffs who procured the
Act, that an allegation that the Act was obtained by fraud was disallowed in theWaterford case
as well as in Tukino's case and a similar allegation as to suppressio veri or suggestio falsi was
repudiated in Stead v Carey: that alleged irregularity of procedure was not admitted
in Wauchope's case.
In this state of authority, it is not surprising that an application was made by the board to strike
out from the respondent's pleading (sc reply) the two paragraphs attacking the validity or effect
of s 18 of the 1968 Act, nor that the application should be granted by the master and by the
judge in chambers. But their decision was reversed by the Court of Appeal ([1972] 3 All ER
923, [1973] QB 219) who considered that the issue on this point should go to trial. It is clear
that the consequence of allowing the trial to proceed on the basis of the law as stated by the
Court of Appeal would be to require the court to embark on far-reaching enquiries as to the
proceedings in Parliament which led to the enactment of the 1968 Act. For this reason it was,
exceptionally, necessary for this House to review the matter at the present stage.
My Lords, the basis on which the Court of Appeal thought that it was possible to re-open what
would generally be thought to be settled law was that of one case—a Scottish 18th century
appeal which came to this House, in which, as was usual at the time, no reasons were given for
the House's decision. This case is M'Kenzie v Stewart. (I do not overlook that two other cases
were cited but these are of no value. Biddulph v Biddulphis clearly an application of an Act, not
'relief' against an Act. Green v Mortimer was a case where the court was directed to make an
estate inalienable so far as its jurisdiction allowed—which it did not allow—a case of no value
for the present purpose.) Even if this case, M'Kenzie v Stewart, contained a clear ratio
decidendi, it would be difficult to sustain it against the chain of explicit later decisions from

217
1842 to 1943. The so-called per incuriam doctrine, to which appeal has been made several
times recently, looks even more sickly when invoked against Lord Cottenham, Lord Brougham,
Lord Campbell, Willes J and Viscount Simon LC. But the case itself does not resist examination.
Your Lordships were treated to an exhaustive and certainly interesting scrutiny of M'Kenzie v
Stewart in all its stages, through digests, differing reports, subsequent comments and citations.
We examined the parties' contentions in the Court of Session and in this House. None of this
material in the least persuaded me that it will bear the weight sought to be put on it, or indeed
any weight, or that it justifies a new look at the law. The Actg in question was an estate Act, the
object of which, as stated in the long title, was to enable entailed lands to be sold for payment
of debts and incumbrances affecting them: a type of Act similar, as Blackstone h
g
12 Geo II c vii
h
Commentaries on the Laws of England (14th Edn, 1803), vol 2, p 346
[1974] 1 All ER 609 at 624

explains, to a private assurance. The result arrived at after lengthy court proceedings was
simply to decide that, there being money in the hands of Lord Royston, arising from the sale,
which ought to have been applied in payment of debts, this money, when it appeared that the
debts were fictitious, must be applied in the purchase of lands, as the residue was directed by
the Act to be applied. One may ask of this, what else should be done? Should Lord Royston be
allowed to put the money—which incidentally should have been paid to his trustees and not to
him at all—in his own pocket? My noble and learned friend, Lord Reid, has discussed the case
more fully and I am happy to accept his conclusions. Like him I quite fail to understand how this
case, with, I repeat, no reported judgment in this House, can be regarded as any authority for
invalidating an Act of Parliament or any provision in an Act of Parliament. The indignation of
Lord Hardwicke LC, reported by Lord Kames (See Mor at 7445), at the 'fraudulent means of
obtaining the act' is understandable enough, and so Lord Royston's estate had to account for
the money, but that is all.
An attempt to inject authority into M'Kenzie v Stewart ((1754) 1 Pat 578, 9 Mor 7443, 15459)
was made by references to Blackstone and Sir William Holdsworth. I have already referred to
Blackstone who first commented on it in his fourth edition (1771). (His first edition (1766)
though published well after the House of Lords decision makes no reference to it.) But he deals
with the Act—under a title Alienation by matter of Record—in these words i:
i
Commentaries on the Laws of England (14th Edn, 1803), vol 2, p 346
'Acts of this kind are however at present carried on, in both houses, with great deliberation and
caution; particularly in the House of Lords they are usually referred to two judges to examine
and report the facts alleged, and to settle all technical forms. Nothing also is done without the
consent, expressly given, of all parties in being, and capable of consent, that have the remotest
interest in the matter: unless such consent shall appear to be perversely and without reason
withheld. And, as was before hinted, an equivalent in money or other estate is usually settled
upon infants, or persons not in esse, or not of capacity to act for themselves, who are to be
concluded by this act. And a general saving is constantly added, at the close of the bill, of the
right and interest of all persons whatsoever; except those whose consent is so given or
218
purchased, and who are therein particularly named; though it hath been holden, that, even if
such saving be omitted, the act shall bind none but the parties. [Co 138] A law, thus made,
though it binds all parties to the bill, is yet looked upon rather as a private conveyance, than as
the solemn act of the legislature. It is not therefore allowed to be a public, but a
mereprivate statute; it is not printed or published among the other laws of the session; it hath
been relieved against when obtained upon fraudulent suggestions; [Richardson v
Hamilton (Canc 8 Jan 1773); M'Kenzie v Stewart ((1754) 1 Pat 578, 9 Mor 7443, 15459)] it hath
been holden to be void if contrary to law and reason [4 Rep 12]; and no judge or jury is bound
to take notice of it, unless the same be specially set forth and pleaded to them. It remains
however enrolled among the public records of the nation, to be for ever preserved as a
perpetual testimony of the conveyance or assurance so made or established.'

The words 'it hath been relieved against' are not precise and must be related to what was done:
they are no warrant for a proposition that the Act in any respect was declared or treated as
invalid. Blackstone limits what he says to 'estate Acts' regarded as comparable with private
assurances; it would be surprising if he had not, having regard to his generally strong views as
to the sovereignty of Parliament.
[1974] 1 All ER 609 at 625
Professor Holdsworthj follows his Vinerian predecessor in a more extended passage and
treats M'Kenzie v Stewart ((1752) Mor 7443, 15459; on appeal 91754) 1 Pat 578) in a similar
manner. But he does continue with a passage of some interest in which he refers to the
principle applied by courts of equity if imposing a trust on rights obtained at law where any
undue or unconscientious advantage has been obtained by the legal owner. He quotes a
passage from a speech of Lord Westbury in McCormick v Grogan ((1869) LR 4 HL 82 at 97), in
the following terms:
j
History of English Law (1938) vol 11, pp 354 et seq
'The Court of Equity has, from a very early period, decided that even an Act of Parliament shall
not be used as an instrument of fraud; and if in the machinery of perpetrating a fraud an Act of
Parliament intervenes, the Court of Equity, it is true, does not set aside the Act of Parliament,
but it fastens on the individual who gets a title under that Act, and imposes upon him a
personal obligation, because he applies the Act as an instrument for accomplishing a fraud. In
this way the Court of Equity has dealt with the Statute of Frauds, and in this manner, also, it
deals with the Statute of Wills.'

This is widely expressed and the context must be understood; the references, though general,
to an Act of Parliament are references to the Wills Act or the Statute of Frauds—public Acts—
and to such equitable doctrines as secret trusts or part performance. The doctrine may well be
admitted that equity, when faced with an appeal to a regulatory public statute, which requires
compliance with formalities, will not allow such a statute (assumedly passed to prevent fraud)
to be used to promote fraud, and will do so by imposing a trust or equity on a legal right.
Moreover, it is settled and wholesome law that, if circumstances are shown which give rise to
an equitable claim by one person against another, by reason of fraudulent or unconscientious
behaviour of that other, equity may impose a trust, or personal obligation, even when that

219
other has a title at law, or by statute. The first of these propositions, which Lord Westbury was
asserting, has no relevance here. And acceptance of the second goes no way towards the
invalidation on account of fraud or otherwise, of what Parliament has enacted, if what is relied
on as founding an equity claim consists of action by way of misleading Parliament into the
passing of the Act. An attack at law is firmly excluded by the basic authorities and this cannot be
remounted by reframing the attack in equitable terms. There is no warrant in authority, or, in
my opinion, in principle, for allowing a person against the provisions of a statute to achieve in
equity a result which, on the same facts, he cannot achieve at law. I therefore consider that the
respondent, in paras 3 and 4 of his reply, has no maintainable or arguable case.

Before I deal specifically with the pleading there are some matters which merit perhaps some
brief supplementary comments. First, I must say that, though for the present purpose, we are
called on to assume the truth of any facts alleged, I am far from convinced, as a matter of
construction, that there is any substance whatever in the contention that the fifth recital of the
1968 Act was false or misleading in any way. The recital is in the common form of private Acts
which are designed to confer powers to acquire land compulsorily and there seems to be an
obvious distinction between those provisions in the Act which concern 'lands authorised to be
acquired and used' (I quote from the recital), namely, ss 13–17, and s 18 which is not so
concerned and to which, on the face of it, the recital does not refer. For my part, I have grave
doubt whether the necessity to assume the truth of pleaded facts extends so far as to require
the acceptance of an unconvincing argument on construction. But assuming the contrary, I do
not understand how the courts can enquire whether Parliament was misled by this recital into
enacting s 18. How can we know how Parliament understood the recital—who is 'Parliament'
for this purpose—the members of both
[1974] 1 All ER 609 at 626

Houses or of either House—the members of the Committee on Private Bills—the counsel who
advise the chairmen of these committees—the officials whose business it is to look at recitals
and at the bill? We know nothing, and by no process short of summoning some or all of these
persons and examining their records can we find out on what view of the facts or on what
consideration of policy s 18 was enacted: yet the respondent, in undertaking to show that the
recital was false, and that Parliament was misled and (presumably) would not have enacted the
section had it known the facts and realised what it was doing, must commit the courts to the
process described. This analysis of what the respondent's contentions involve demonstrates, in
my opinion, and validates, the reasons for the court's firm refusal to embark on any enquiry of
this kind. To do so involves them both in a potential clash with Parliament and in a series of
steps which can lead to no result.

Secondly, as to the nature of the 1968 Act. This was a private bill promoted by the British
Railways Board and enacted through private bill procedure. Private bills have a long history: in
early times they were more numerous than public Acts. They represented the response of the
King in Parliament to petitions of his subjects, either for relief against some general law, or for
the authorisation to dispose of property by tenants in chief under the feudal system (these
categories are not exhaustive).

220
At the present time there are various categories some of which, personal bills, concern the
rights of individuals, estate bills being effectively the only survivors; others affect, in various
degrees, the interests of the public, inasmuch as they authorise the execution of works or the
acquisition of land, or confer general powers (cf Stead v Carey ((1845) 1 CB at 522 per Coltman
J)). Because of the pressure on parliamentary time, a number of modern private bills, promoted
by public undertakings, are not confined to provisions of local application, such as the execution
of specified works, or the acquisition of specified lands, but contain legislation of general
application: for example, railway bills have been passed dealing generally with level crossings.
The present Act is of this character; it contains much of local character; but in addition it
presents, in s 18, an enactment in general terms dealing with a large number of pre-existing
Acts and affecting railway lines all over the country. It may be questioned whether the
procedure of putting such a clause into a private bill is desirable or whether, on the contrary,
such a provision ought to be brought in through a public bill, and so exposed to debate and
amendment on the floor of either House. The courts cannot enter into this de ate. But it is open
to them to notice that, even though the private bill procedure may, in principle, be
inappropriate, the procedure laid down in standing orders of both Houses embodies extensive
safeguards, which, if properly used, can prevent any use of that procedure which may be
detrimental to the interest of individuals or of the public.

Whether in any particular case, or in this case, these safeguards were made use of, whether the
attention of Parliament, its committees or officers, was called to the provision in question, or
what decisions (right or wrong) were taken, are not matters into which the courts can enquire.
Private Acts, such as the 1968 Act, as the authorities already cited show, are as fully Acts of
Parliament as public Acts, and compel acceptance by the courts.

On the legal foundations so established it is necessary to deal with the pleading. It should be
made clear that there are issues and contentions raised in the action which are perfectly
legitimate and which may properly go to trial. This appeal is only concerned with paras 3 and 4
of the amended reply. The relevant allegations can be stated as the following: 1. The 1968 Act
contains a false recital, drafted by the British Railways Board, as promoters, which was known
by the board to be false. 2. No notice was given to adjoining owners of lands which might be
effected by
[1974] 1 All ER 609 at 627

s 18; and no public notice was given of the board's intended 'compulsory acquisition'. 3. For the
reasons stated in (1) and (2), s 18 does not in its true construction bar this action or deprive the
respondent of his interest in land without compensation. 4. Alternatively, the board as
promoters have broken the standing orders of Parliament and included a misleading preamble
and misled Parliament: accordingly, this Act is ineffective to deprive the respondent of his land
or proprietary rights and the board cannot rely on it.

The whole of this is on the clearest authority which I have stated impermissible, and unless
capable of amendment must be struck out.

221
In this House, for the first time, a fresh series of possible amendments was produced in draft
which, it was claimed, showed a maintainable case even if the existing pleading did not. In my
opinion, they are no more sustainable in law than the paragraphs they would replace. The
proposed new para 3 introduced, in support of an argument as to construction, the same
matters, all bearing on the proceedings in Parliament leading to the enactment of s 18 of the
1968 Act, as were previously raised. For the reasons already stated, they cannot be regarded as
stating a maintainable case. The proposed new para 4 adduced, in support of a claim to
equitable relief against the board as promoter of the bill, the same matters, all related to the
proceedings in Parliament which led to the enactment of s 18, as have already been set out in
new para 3. It was admitted that the only support in law for these contentions was provided
by M'Kenzie v Stewart ((1752) Mor 7443, 15459; on appeal (1754) 1 Pat 578). For the reasons
discussed above, I am of the opinion that M'Kenzie v Stewart ((1752) Mor 7443, 15459; on
appeal (1754) 1 Pat 578) is no authority for the granting of any such relief, and that no other
ground exists for allowing the case so proposed to be stated to proceed.

I would allow the appeal and restore the judgment of Chapman J.

LORD SIMON OF GLAISDALE.

My Lords, I have had the advantage of reading in draft the speeches prepared by my noble and
learned friends, with which I entirely agree,—except that I would prefer to be taken as
indicating no opinion whatever on any question of construction that might hereafter arise in
this action.
The system by which, in this country, those liable to be affected by general political decisions
have some control over the decision-making is parliamentary democracy. Its peculiar feature in
constitutional law is the sovereignty of Parliament. This involves that, contrary to what was
sometimes asserted before the 18th century, and in contradistinction to some other
democratic systems, the courts in this country have no power to declare enacted law to be
invalid. It was conceded before your Lordships (contrary to what seems to have been accepted
in the Court of Appeal ([1972] 3 All ER 923, [1973] QB 219)) that the courts cannot directly
declare enacted law to be invalid. That being so, it would be odd if the same thing could be
done indirectly, through frustration of the enacted law by the application of some alleged
doctrine of equity.
A second concomitant of the sovereignty of Parliament is that the Houses of Parliament enjoy
certain privileges. These are vouchsafed so that Parliament can fulfil its key function in our
system of democratic government. To adapt the words of Lord Ellenborough CJ in Burdett v
Abbott ((1811) 14 East 1 at 152): '… they [the Houses] would sink into utter contempt and
inefficiency without [them].' Parliamentary privilege is part of the law of the land (see Erskine
May's Parliamentary Practicek). Among the privileges of the Houses of Parliament is the
exclusive right to determine the regularity of their own internal proceedings l.
k
18th Edn (1971), ch V
l
Ibid, pp 176, 195, 197

222
 [1974] 1 All ER 609 at 628
'What is said or done within the walls of Parliament cannot be inquired into in a court of law.
On this point all the judges in the two great cases which exhaust the learning on the subject,—
Burdett v. Abbott ((1811) 14 East 1 at 148) and Stockdale v. Hansard;—are agreed, and are
emphatic.'
(Lord Coleridge CJ in Bradlaugh v Gossett ((1884) 12 QBD 271 at 275)). The rule, indeed, is
reflected in the Bill of Rights 1688, art 9, s 1, of which I italicise the words which are relevant to
this appeal:
'That the freedome of speech and debates or proceedings in Parlyament ought not to be
impeached or questioned in any … place out of Parlyament.'

I have no doubt that the respondent in paras 3 and 4 of his reply (even as sought to be
amended) is seeking to impeach proceedings in Parliament, and that the issues raised by those
paragraphs cannot be tried without questioning proceedings in Parliament.
It is well known that in the past there have been dangerous strains between the law courts and
Parliament—dangerous because each institution has its own particular role to play in our
constitution, and because collision between the two institutions is likely to impair their power
to vouchsafe those constitutional rights for which citizens depend on them. So for many years
Parliament and the courts have each been astute to respect the sphere of action and the
privileges of the other—Parliament, for example, by its sub judice rule, the courts by taking care
to exclude evidence which might amount to infringement of parliamentary privilege (for a
recent example, see Dingle v Associated Newspapers Ltd). The respondent to the instant appeal
claimed that he could discharge the onus of proving the allegations in paras 3 and 4 of the reply
merely by reliance on presumptions, so that proceedings in Parliament need not, so far as he
was concerned, be forensically questioned. Even if this were so, it would still leave unanswered
how the board could proceed in rebuttal without calling parliamentary proceedings in question.
I am quite clear that the issues would not be fairly tried without infringement of the Bill of
Rights 1688 and of that general parliamentary privilege which is part of the law of the land.
The respondent claims, however, that, whatever may be the position as regards a public Act of
Parliament, it is open to a litigant to impugn the validity (or, at least, by invoking jurisdiction in
equity, nullify the operation) of an enactment in a private Act of Parliament. But the
considerations of parliamentary privilege to which I have referred would undoubtedly seem to
extend to private bill procedure; and the authorities to which my noble and learned friends
have adverted are clearly contrary to the respondent's submissions. What was said
in Edinburgh and Dalkeith Railway Co v Wauchope seems to me to be particularly apposite and
authoritative: even though counsel there did not finally venture to argue that the validity of a
provision in a private Act could be impugned on the ground that it had been obtained by fraud,
the point was formally before the House; nor is it possible to conceive that Lord Cottenham,
Lord Brougham and Lord Campbell were all entirely oblivious to what had appeared in later
editions of Blackstone.

223
Moreover, the distinction that the respondent sought to draw between public and private Acts
of Parliament breaks down when one considers that there is a third, intermediate, class of
proceedings in Parliament between public and private bills—
[1974] 1 All ER 609 at 629

namely, hybrid bills. These are public bills some provisions of which affect private rights. Those
particular provisions are subject to the procedure of private bill legislation; though the bills
finally emerge as public Acts. For the purpose of his argument counsel for the respondent
sought to distinguish a hybrid bill from a private bill on the ground that only the latter had a
promoter on whom a constructive trust could be imposed arising from his having misled
Parliament. But it is difficult to see how the position of a Minister in relation to the private bill
procedures applicable to a hybrid bill differs from that of the ordinary promoter of a private bill.

A further practical consideration is that if there is evidence that Parliament may have been
misled into an enactment, Parliament might well—indeed, would be likely to—wish to conduct
its own enquiry. It would be unthinkable that two enquiries—one parliamentary and the other
forensic—should proceed concurrently, conceivably arriving at different conclusions; and a
parliamentary examination of parliamentary procedures and of the actions and understandings
of officers of Parliament would seem to be clearly more satisfactory than one conducted in a
court of law quite apart from considerations of parliamentary privilege.

For the foregoing reasons, as well as for those set out in the speeches of my noble and learned
friends, I would allow the appeal. If the respondent thinks that Parliament has been misled into
an enactment inimical to his interests, his remedy lies with Parliament itself, and nowhere else.

LORD CROSS OF CHELSEA.

My Lords, the pleas in paras 3 and 4 of the amended reply proceed on the assumption that the
rights of reverter which were extinguished by s 18 of the British Railways Act 1968 were 'lands'
which the Act authorised the board to acquire. That being assumed to be so, it is said that the
sixth recital in the preamble was false since no plans of the lands in respect of which the rights
of reverter existed had been deposited as there alleged. It is further alleged that the board
knew that the recital was false in this respect, that they broke the standing orders of Parliament
and that they misled Parliament. It emerged in the course of argument that what was meant by
this was that by inserting the false recital they induced Parliament to think that orders 13 and
27 of the House of Commons Standing Orders relating to Private Business, which provide that
where by a bill it is proposed to authorise the acquisition of any land, notice in writing of the
proposal shall be given to the persons affected and plans of the lands in question deposited,
had been complied with whereas in fact they had not been complied with. To my mind, the
basic assumption is unjustified. The Act draws a distinction between the lands and easements
referred to in ss 13 and 14 which the board is authorised to acquire compulsorily if it wishes to
do so (though under s 16 the powers of compulsory acquisition cease on 31 December 1971, if
not previously exercised) and the rights of reverter which are automatically extinguished under
s 18 on the passing of the Act. The Act does not give to the board authority to acquire these

224
rights of reverter so that they would be extinguished if the board chose to exercise their power
to acquire them but would remain in existence if the board chose not to acquire them. The Act
simply destroys the rights of reverter, and I cannot believe that those whose duty it was to
consider the bill in its passage through Parliament could have thought that the lands referred to
in the sixth recital in the preamble included the interests in land constituted by the rights of
reverter or that the servants or agents of the board who were responsible for drafting the bill
and representing the board in its passage through Parliament—however anxious they may have
been to secure that the rights of reverter should be extinguished without notice to those
entitled to them—entertained the hope that anyone would read the sixth recital as relating to
the rights of reverter as well as to the lands referred to in ss 13 and 14. The court might, I think,
have well
[1974] 1 All ER 609 at 630

been justified in striking out paras 3 and 4 of the amended reply on the ground that they
contained allegations of fraud which were based on a false hypothesis and were patently
misconceived. But as this point has not hitherto been taken we must deal with the appeal on
the footing that in enacting s 18 of the Act Parliament was misled by fraudulent
misrepresentations made by the board through its servants and agents.
Even if one makes that assumption I am clearly of opinion that the paragraphs in question
should be struck out. The sheet anchor of the respondent's argument is, of course, the decision
of this House in M'Kenzie v Stewart. That case and the cases of Biddulph v Biddulph ((1790) 5
Cru Dig (4th Edn) 26) and Green v Mortimer which were also relied on by the respondent, all
related to estate Acts. Such Acts—dealing with the property of private individuals—were
common in the 18th and 19th centuries but have now become rare owing to the powers to deal
with settled estates given to limited owners by the Settled Land Acts and to the powers now
given to the court by the Variation of Trusts Act 1958. Today such Acts are only called for where
the property in question has been itself settled by Act of Parliament. The provisions contained
in such an Act, obtained at the instance of some of those interested in the settled estate, are
obviously analogous to those contained in a disposition inter partes and if it were the law that,
as Blackstonem suggests, a personal Act can be 'relieved against when obtained upon fraudulent
suggestions', it would not follow in the least that such an Act as the British Railways Act 1968
could be 'relieved against' just because it happened to be a private and not a public Act. But I
agree with your Lordships that the rule laid down in such cases as Edinburgh and Dalkeith
Railway Co v Wauchope and Lee v Bude and Torrington Junction Railway Co is applicable to all
Acts of Parliament including estate Acts. I also agree with all that has been said by my noble and
learned friend, Lord Reid, with regard to M'Kenzie v Stewart ((1752) Mor Dict 7443, 15459; on
appeal (1754) 1 Pat 578). We do not know what were the reasons for the decision; the case
could easily have been decided on construction; and it should be treated as having been so
decided. I would say the same of Biddulph v Biddulph ((1790) 5 Cru Dig (4th Edn) 26). Green v
Mortimer does not touch the present problem at all. Parliament could have empowered the
courts to make the life estate inalienable; but what it did do was to empower the courts to
make it inalienable 'so far as the rules of law and equity and the jurisdiction and the authority

225
of the Court admit'. That, as Lord Campbell pointed out, was absurd since the rules of law and
equity and the jurisdiction and authority of the court did not give the court any such power.
m
Commentaries on the Laws of England (14th Edn, 1803), vol 2, p 578
Before us counsel for the respondent submitted that even if s 18 on its true construction
extinguished the rights of reverter and the courts were not entitled to 'go behind the Act' but
were bound to accept that as a result of it the board as from the date of its passing held the
legal estate in fee simple in the lands in question free from the right of reverter yet any
adjoining owner who chose to do so could, on proof of the facts alleged in paras 3 and 4 of the
reply, obtain a declaration that the board held the legal estate in the strip of line adjoining his
land on trust for him. This argument adopts the explanation of M'Kenzie v Stewart ((1752) Mor
Dict 7443, 15459; on appeal (1754) 1 Pat 578) given by Holdsworth's History of English Law n.
Equity, Holdsworth says, while accepting that the private Act, although obtained by fraud, gave
the promoter the legal estate in the property in question will not permit it to be used as an
instrument of fraud and will force the promoter to hold the advantage which he has gained by
deceiving Parliament on trust for the person defrauded. To accept this argument would enable
the respondent
n
(1938), vol 11, pp 354–358
[1974] 1 All ER 609 at 631

when he has been refused entry by the front door to get in by the back. In order to establish
the personal equity he would have to prove the same facts as to the misleading of Parliament
as he would have to prove if a direct attack on the Act were open to him, and the objections
which are fatal to a direct attack on the Act—namely, that the court will not enquire into what
passed in the course of the passage of the bill through Parliament—must be equally fatal to any
attempt to establish the alleged personal equity. I agree entirely with everything which has
been said by my noble and learned friend, Lord Wilberforce, on this aspect of the case.

Paragraph 3 of the amended reply professes to relate only to construction, but the fact that it is
struck out because the matters alleged in it are not admissible in considering the true
construction of the Act will not preclude the respondent from advancing any arguments on
construction which are legitimately open to him; the striking out of paras 3 and 4 does,
however, entail the consequence that the application for discovery made on 8 December 1971
should be dismissed.

I would add in conclusion that the fact that I think, as I stated at the beginning of this speech,
that the allegations of fraud made by the respondent are misconceived does not mean that I
also think that his sense of grievance that Parliament should by a private Act have summarily
deprived the adjoining owners of their rights to reverter without notice to them is necessarily
wholly unjustified. We do not and cannot know whether the question of giving him notice was
raised during the passage of the bill. It may have escaped attention; on the other hand,
Parliament may have addressed its mind to the point and decided that in all the circumstances
the giving of notice was not necessary. That is a matter into which it is impossible for us to
enquire. I would allow the appeal.

226
 Appeal allowed; judgment of Chapman J restored.
Solicitors: Evan Harding (for the board); Field, Fisher & Martineau (for the respondent); Treasury
Solicitor.
S A Hatteea Esq Barrister.

227
R v Allen (1872) L.R. 1 C.C.R. 367

[COURT FOR CROWN CASES RESERVED]

THE QUEEN v. HENRY ALLEN.

1872 May 23.

COCKBURN, C.J.
Bigamy - Second Marriage invalid independently of the First - 24 & 25 Vict. c. 100, s. 57.

Where a person, already bound by an existing marriage, goes through with another person a
form of marriage known to and recognized by the law as capable of producing a valid marriage,
for the purpose of a pretended and fictitious marriage, such person is guilty of bigamy,
notwithstanding any special circumstances which, independently of the bigamous character of
the marriage, may constitute a legal disability in the parties, or make the form of marriage
resorted to inapplicable to their case.

The prisoner, having a wife living, went through the ceremony of marriage with another
woman, who was within the prohibited degrees of affinity; so that the second marriage, even if
not bigamous, would have been void under 5 & 6 Wm. 4, c. 54, s. 2:-
Held, that the prisoner was guilty of bigamy.
Reg. v. Fanning (17 Ir. C. L. 289; 10 Cox Cr. C. 411) disapproved.

CASE stated by Martin, B.

Indictment for bigamy.

At the trial before Martin, B., at the Manchester Spring Assizes, 1872, it was proved that on the
24th of February, 1853, the prisoner married one Sarah Cunningham. She died in August, 1866,
leaving a niece named Harriet Crouch. On the 30th of November, 1867, he married one Ann
Pearson Gutteridge, and on the 2nd of December, 1871, and in the lifetime of Ann Pearson
Gutteridge, he married the above-named Harriet Crouch.
(1872) L.R. 1 C.C.R. 367 Page 368

It was objected by the learned counsel for the prisoner that the marriage with Harriet Crouch,
his first wife's niece, was void, and that the crime of bigamy was not committed. It was stated
that the Court of Criminal Appeal in Ireland had so decided, and in deference to this decision, at
the request of the prisoner's counsel, the learned Judge stated this case.

The question for the Court was, whether the prisoner was guilty of bigamy (1)

April 27. THE COURT (Kelly, C.B., Willes, Grove, and Quain, JJ., and Cleasby, B.) reserved the
case for the consideration of all the Judges.

228
May 4. The case was argued before Cockburn, C.J., Bovill, C.J., Kelly, C.B.; Martin, Bramwell,
Channell, Pigott, and Cleasby, B.B.; Willes, Byles, Blackburn, Mellor, Lush, Hannen, Grove, and
Quain, JJ.
E. U. Bullen appeared for the prisoner.
Warry for the prosecution.
The following authorities were cited:- Reg. v. Fanning (2); Reg. v. Braun (3); Burt v. Burt (4); Beg.
v. Millis (5); Reg. v. Allison (6); 1 Russell on Crimes, 4th ed. by Greaves, p. 307.
Cur. adv. vult.

May 23. The judgment of the Court was delivered by Cockburn, C.J. :-

This case came before us on a point reserved by Martin, B., at the last assizes for the county of
Hants. The prisoner was indicted for having married one Harriet Crouch, his first wife being still
alive. The indictment was framed upon the statute 24 & 25 Vict. c. 100, s. 57, which enacts that
"whosoever being married
(1) By 24 & 25 Vict. c. 100, s. 57: "Whosoever, being married, shall marry any other person
during the life of the former husband or wife .... shall be guilty of felony."

By 5 & 6 Wm. 4, c. 54, s. 2: "All marriages between persons within the prohibited degrees of
consanguinity or affinity shall be absolutely null and void to all intents and purposes
whatsoever."

(2) 17 Ir. C. L. 289; 10 Cox Cr. C. 411.

(3) 1 C. & K. 144.

(4) 2 Sw. & Tr. 88; 29 L. J. (P.M. & A.) 133.

(5) 10 Cl. & F. at p. 689.

(6) R. & R. C. C. 109.

(1872) L.R. 1 C.C.R. 367 Page 369
shall marry any other person during the life of the former husband or wife shall be guilty of
felony." The facts of the case were clear. The prisoner had first married one Sarah Cunningham,
and on her death he had married his present wife, Ann Parson Gutteridge. The second wife
being still living, he, on the 2nd of December, 1871, married one Harriet Crouch. So far the case
would appear to be clearly one of bigamy within the statute; but, it appearing that Harriet
Crouch was a niece of the prisoner's first wife, it was objected, on his behalf, that since the
passing of 5 & 6 Wm. 4, c. 54, s. 2, such a marriage was in itself void, and that to constitute an
offence, within 24 & 25 Vict. c. 100, s. 57, the second marriage must be one which,
independently of its bigamous character, would be valid, and, consequently, that the
indictment could not be sustained. For the proposition that, to support an indictment for

229
bigamy, the second marriage must be one which would have been otherwise valid, the case
of Reg. v. Fanning (1), decided in the Court of Criminal Appeal in Ireland, was cited, and, in
deference to the authority of the majority of the judges in that Court, Martin, B., has stated this
case for our decision.
It is clear that, but for the statutory inability of the parties to marry one another if free, the
marriage of the prisoner with Harriet Crouch would have been within the 57th section of the
Act. The question is, whether that circumstance alters the effect of the prisoner's conduct in
going through the ceremony of marriage with Harriet Crouch while his former wife was still
living. The same question arose in the case of Reg. v. Brawn (2), which was tried before Lord
Denman on the earlier statute of 9 Geo. 4, c. 31, s. 22, the language of which was precisely the
same as that of the present. In that case the prisoner, a married woman, had, during her
husband's lifetime, married a man who had been the husband of her deceased sister. The same
point as is now raised being taken on behalf of the prisoner, Lord Denman overruled the
objection. "I am of opinion," said his Lordship, "that the validity of the second marriage does
not affect the question. It is the appearing to contract a second marriage, and the going
through the ceremony, which constitutes the crime of bigamy; otherwise it could never exist in
the ordinary cases, as

(1) 17 Ir. C. L. 289; 10 Cox Cr. C. 411.

(2) 1 C. & K. 144.

(1872) L.R. 1 C.C.R. 367 Page 370
a previous marriage always renders null and void a marriage that is celebrated afterwards by
either of the parties during the lifetime of the other. Whether, therefore, the marriage of the
two prisoners" - the male prisoner had been included in the indictment as an accessory - "was
or was not in itself prohibited, and therefore null and void, does not signify; for the woman,
having a husband then alive, has committed the crime of bigamy by doing all that in her lay by
entering into marriage with another man." In the earlier and analogous case of Reg. v.
Penson (1), a similar objection had been taken, on the ground that the second marriage was
invalid, by reason that the woman whom the prisoner was charged with having married whilst
his first wife was alive, had, for the purpose of concealing her identity, been described as Eliza
Thick, her true name being Eliza Brown. But Gurney, B., who tried the case, overruled the
objection, being of opinion "that the parties could not be allowed to evade the punishment for
such an offence by contracting a concertedly invalid marriage."
We should have acted without hesitation on these authorities had it not been for the case,
already referred to, of Reg. v. Fanning (2), decided in the Court of Criminal Appeal in Ireland, a
case which, if not on all fours with the present, is still closely analogous to it, and which, from
the high authority of the Court by which it was decided, was entitled to our most attentive
consideration. We therefore took time to consider our judgment.
The facts in Reg. v. Fanning (2) were shortly these. The prisoner, being a Protestant, and having
within twelve months been a professing Protestant, was married, having a wife then living, to
another woman, who was a Roman Catholic, the marriage being solemnized by a Roman
Catholic priest.

230
Independently of the second marriage being bad as bigamous, it would have been void under
the unrepealed statute of the 19 Geo. 2, c. 13, which prohibits the solemnization of marriage by
a Roman Catholic priest where either of the parties is a Protestant, and declares a marriage so
solemnized null and void to all intents and purposes.

On an indictment against the prisoner for bigamy, the invalidity of the second marriage was
insisted on as fatal to the prosecution.

(1) 5 C. & P. 412.

(2) 17 Ir. C. L. 289; 10 Cox, Cr. C. 411.

(1872) L.R. 1 C.C.R. 367 Page 371

The point having been reserved, seven judges against four in the Court of Criminal Appeal held
the objection to be fatal, and quashed the conviction. After giving our best consideration to the
reasoning of the learned judges who constituted the majority of that Court, we find ourselves
unable to concur with them, being unanimously of opinion that the view taken by the four
dissentient judges was the right one.
The reasoning of the majority of the Court in Reg. v. Fanning (1) is founded mainly on the verbal
criticism of the language of the 24 & 25 Vict. c. 100, s. 57; and the words being that "if any
person, being married, shall marry any other person," it was insisted that whatever sense is to
be given to the term "being married," the same must be given to the term "marry" in the
subsequent part of the sentence, and that consequently, it being admitted that the term "being
married" implies a perfect and binding marriage, the second marriage must also be one which,
but for the prohibition of the statute, would, be - whether as regards capacity to contract
marriage or the manner in which the marriage is solemnized - binding on the parties.
Two authorities were relied on in support of this reading of the statute, namely, the language of
Tindal, C.J., in delivering the opinion of the judges in the House of Lords in the well-known case
of Reg. v. Millis (2), and the decision of the Judge Ordinary of the Divorce Court in the case
of Burt v. Burt. (3) In the first of these cases Tindal, C.J., undoubtedly says that the words "being
married" in the first part of the sentence, and the words "marry any other person," in the
second, must of necessity point at and denote "marriage of the same kind and obligation." But
it must be borne in mind that the question before the House of Lords was, whether the first
marriage, not the second, was valid, the invalidity of the second not being in question at all. In
order to shew that the first marriage, which had been solemnized by a Presbyterian minister, at
his own house, between a member of the Established Church in Ireland and a Presbyterian,
amounted to no more than a contract per verba de præsenti, and had failed to constitute a

(1) 17 Ir. C. L. 289; 10 Cox, Cr. C. 411.

(2) 10 Cl. & F. at p. 689.

(3) 2 Sw. & Tr. 88; 29 L. J. (P.M. & A.) 133.

(1872) L.R. 1 C.C.R. 367 Page 372

231
valid marriage, the Chief Justice of the Common Pleas insists that, if such a marriage had
occurred in the second instance instead of the first, it would not have been held sufficient to
support an indictment for bigamy. The case put by the Chief Justice was not the point to be
decided; it was only used for the purpose of argument and illustration. Whether the incapacity
of the parties to contract a binding marriage independently of the bigamy would take a case
like that of Reg. v. Fanning (1) out of the statute, was not present to his mind or involved in the
decision of the case before the House. And the Chief Justice expressly states that, though the
conclusion he had arrived at was concurred in by the rest of the judges, his reasoning was
entirely his own. The language of the learned Chief Justice must therefore be taken as extra-
judicial, and cannot bind us in expounding the statute now under consideration. The case
of Burt v. Burt (2), in like manner, falls altogether short of the question we have now to decide.
It was a suit for a divorce instituted by a married woman against her husband on the ground of
bigamy, adultery, and desertion. To establish the bigamy, evidence was given that the husband
had married a woman in Australia according to the form of the Kirk of Scotland, but there was
no proof that the form in question was recognized as legal by the local law. Upon this latter
ground the Judge Ordinary held that a second marriage was not proved so as to make good the
allegation of bigamy. All, therefore, that this case shews is, that a second marriage by a form
not recognized by law will not amount to bigamy under the Divorce Act. Admitting, as we are
disposed to do, that the construction of the two statutes should he the same, the decision
in Burt v. Burt (2) will not, as will presently appear, be found to conflict with our judgment in
the present case, the second marriage having here been celebrated according to a form fully
recognized by the law.
We may, therefore, proceed to consider what is the proper construction of the statutory
enactment in question, unfettered by these authorities. Before doing so it should, however, be
observed, that there is this difference between the case of Reg. v. Fanning (1) and the present,
that the form of marriage there resorted to was

(1) 17 Ir. C. L. 289; 10 Cox, Cr. C. 411.

(2) 2 Sw. & Tr. 88; 29 L. J. (P. M. & A). 133.

(1872) L.R. 1 C.C.R. 367 Page 373
one which, independently of the bigamous character of the marriage, was, by reason of the
statutory prohibition, inapplicable to the special circumstances of the parties, and ineffectual to
create a valid marriage, whereas, in the case before us, independently of the incapacity, the
form would have been good and binding in law. This distinction is expressly adverted to by
Christian, J., in his judgment as distinguishing the case before the Irish judges from that of Reg.
v. Brawn (1), and it may be doubted whether, but for this distinction, the learned judge would
not have come to a different conclusion. The other judges, constituting the majority, do not,
however, rest their judgment on this distinction, but plainly go the length of overruling the
decision of Lord Denman in Reg. v. Brawn. (1) Their judgments proceed on the broad intelligible
ground, that to come within the statutes against bigamy the second marriage must be such as
that, but for its bigamous character, it would have been in all respects, both as to the capacity
of the parties and the ceremonial adopted, as binding as the first. Differing altogether from this
view, and being prepared to hold that, so long as a form of marriage has been used which the

232
law recognizes as binding, whether applicable to the particular parties or not - and further than
this it is not necessary to go - the offence of bigamy is committed, we have only adverted to the
distinction referred to in order to point out that our decision in no degree turns upon it, but
rests on the broader ground taken by the dis sentient judges in the Irish court.

When it is said that, in construing the statute in question, the same effect must be given to the
term "marry" in both parts of the sentence, and that, consequently, as the first marriage must
necessarily be a perfect and binding one, the second must be of equal efficacy in order to
constitute bigamy, it is at once self evident that the proposition as thus stated cannot possibly
hold good; for if the first marriage be good, the second, entered into while the first is subsisting,
must of necessity be bad. It becomes necessary, therefore, to engraft a qualification on the
proposition just stated, and to read the words "shall marry," in the latter part of the sentence,
as meaning "shall marry" under such circumstances as that the second marriage would be good
but for the

(1) 1 C. & K. 144.

(1872) L.R. 1 C.C.R. 367 Page 374
existence of the first. But it is plain that those who so read the statute are introducing into it
words which are not to be found in it, and are obviously departing from the sense in which the
term "being married" must be construed in the earlier part of the sentence. But when once it
becomes necessary to seek the meaning of a term occurring in a statute, the true rule of
construction appears to us to be, not to limit the latitude of departure so as to adhere to the
nearest possible approximation to the ordinary meaning of the term, or to the sense in which it
may have been used before, but to look to the purpose of the enactment, the mischief to be
prevented, and the remedy which the legislature intended to apply. Now, we cannot agree
either with Fitzgerald, B., in his judgment in Reg. v. Fanning (1), that the purpose of the statutes
against bigamy was simply to make polygamous marriages penal, and that, consequently, it was
only intended to constitute the offence of bigamy where the second marriage would, but for
the existence of the first, be a valid one; or with those judges who, in Reg. v. Fanning (1), found
their judgments on the assumption that, in applying the statute against bigamy, the second
marriage must be one which, but for the first, would be binding. Polygamy, in the sense of
having two wives or two husbands, at one and the same time, for the purpose of cohabitation,
is a thing altogether foreign to our ideas, and which may be said to be practically unknown;
while bigamy, in the modern acceptation of the term, namely, that of a second marriage
consequent on an abandonment of the first while the latter still subsists, is unfortunately of too
frequent occurrence. It takes place, as we all know, more frequently where one of the married
parties has deserted the other; sometimes where both have voluntarily separated. It is always
resorted to by one of the parties in fraud of the law; sometimes by both, in order to give the
colour and pretence of marriage where the reality does not exist. Too often it is resorted to for
the purpose of villainous fraud. The ground on which such a marriage is very properly made
penal is, that it involves an outrage on public decency and morals, and creates a public scandal
by the prostitution of a solemn ceremony, which the law allows to be applied only to a
legitimate union, to a marriage

233
(1) 17 Ir. C. L. 289; 10 Cox, Cr. C. 411.
(1872) L.R. 1 C.C.R. 367 Page 375

at best but colourable and fictitious, and which may be made, and too often is made, the means
of the most cruel and wicked deception. It is obvious that the outrage and scandal involved in
such a proceeding will not be less, because the parties to the second marriage may be under
some special incapacity to contract marriage. The deception will not be the less atrocious,
because the one party may have induced the other to go through a form of marriage known to
be generally binding, but inapplicable to their particular case. Is the scandal or the villany the
less because the man, having represented to the woman, who is his dupe, and to the priest,
that he is a Roman Catholic, turns out afterwards to be a Protestant? Such instances as those
we have referred to, thus involving public scandal or deception, being plainly within the
mischief which we may reasonably assume it must have been the purpose of the legislature to
prevent, we are of opinion that we ought not to frustrate the operation of a very salutary
statute, by putting so narrow a construction on it as would exclude such a case as the present, if
the words are legitimately capable of such a construction as would embrace is Now the words
"shall marry another person" may well be taken to mean shall "go through the form and
ceremony of marriage with another person." The words are fully capable of being so construed,
without being forced or strained; and as a narrower construction would have the effect of
leaving a portion of the mischief untouched, which it must have been the intention of the
legislature to provide against, and thereby, as is fully admitted by those who contend for it, of
bringing a grave reproach on the law, we think we are warranted in inferring that the words
were used in the sense we have referred to, and that we shall best give effect to the legislative
intention by holding such a case as the present to be within their meaning. To assume that the
words must have such a construction as would exclude it, because the second marriage must
be one which, but for the bigamy, would have been as binding as the first, appears to us to be
begging the entire question, and to be running directly counter to the wholesome canon of
construction, which prescribes that, where the language will admit of it, a statutory enactment
shall be so construed as to make the remedy co-extensive with the mischief it is intended to
prevent.
(1872) L.R. 1 C.C.R. 367 Page 376
In thus holding it is not at all necessary to say that forms of marriage unknown to the law, as
was the case in Burt v. Burt (1), would suffice to bring a case within the operation of the statute.
We must not be understood to mean that every fantastic form of marriage to which parties
might think proper to resort, or that a marriage ceremony performed by an unauthorized
person, or in an unauthorized place, would be a marrying within the meaning of the 57th
section of 24 & 25 Vict. c. 100. It will be time enough to deal with a case of this description
when it arises. It is sufficient for the present purpose to hold, as we do, that where a person
already bound by an existing marriage goes through a form of marriage known to and
recognized by the law as capable of producing a valid marriage, for the purpose of a pretended
and fictitious marriage, the case is not the less within the statute by reason of any special
circumstances, which, independently of the bigamous character of the marriage, may

234
constitute a legal disability in the particular parties, or make the form of marriage resorted to
specially inapplicable to their individual case.
After giving the case of Reg. v. Fanning (2) our best consideration, we are unanimous in holding
that the conviction in the case before us was right, and that the verdict must stand good.
Conviction affirmed.
Attorneys for prosecution: Lamb & Son, Andover.
Attorneys for prisoner: Footner & Son, Andover.

(1) 2 Sw. & Tr. 88; 29 L. J. (P. M. & A.) 133.

(2) 17 Ir. C. L. 289; 10 Cox, Cr. C. 411.

235
R v Sigworth (1939) CH 89

[CHANCERY DIVISION]
In re SIGSWORTH. BEDFORD v. BEDFORD. [1934. S. 949.]

1934 Oct. 5.

CLAUSON J.
Public Policy - Murderer disqualified from benefiting under Victim's Intestacy.

The rule of public policy which precludes a sane murderer from taking any benefit under his
victim's will precludes him also from taking any benefit under the trusts declared by the
Administration of Estates Act, 1925, s. 46, of the residuary estate of his victim in case of
intestacy.
The views expressed by Fry L.J. in Cleaver v. Mutual Reserve Fund Life Association [1892] 1 Q. B.
147, 156 and by Farwell J. in In re Pitts [1931] 1 Ch. 546, 550 preferred to the view expressed by
Joyce J. in In re Houghton [1915] 2 Ch. 173, 177 that the rule of public policy cannot contravene
the positive provisions of the statute law.
Adjourned summons.

Mary Ann Sigsworth by her will dated July 31, 1911, left the whole of her property (of
considerable value) to her son Thomas Bedford Sigsworth.

On September 23, 1933, an inquest was held at Frome, in the county of Somerset, touching the
death of the testatrix, at which a verdict was returned that she died some time between
September 17 and September 21, 1933, that the cause of her death was fracture of the spine
caused by her son Thomas Bedford Sigsworth, and that some time between those dates he
murdered the testatrix.

By another verdict of the same date returned at the inquest touching the death of Thomas
Bedford Sigsworth, it was found that he died some time between September 18 and September
21, 1933, and that he feloniously killed himself.

Thomas Bedford Sigsworth, having by his will made in 1910 left the whole of his property to his
father and his mother, the testatrix, both of whom predeceased him, therefore died intestate.

On November 17, 1933, letters of administration to the respective estates of the testatrix and
her son were granted to the plaintiff, Thomas Edwin Bedford, the brother of the testatrix.
[1935] Ch. 89 Page 90

236
Thomas Bedford Sigsworth left him surviving, besides the plaintiff, his maternal uncle, and a
maternal aunt, a paternal uncle and aunt and descendants of another paternal aunt who had
died in 1910.
This summons was taken out by the plaintiff, the maternal aunt and the paternal uncle and
aunt of Thomas Bedford Sigsworth being made defendants: and the questions raised were (1.)
whether Thomas Bedford Sigsworth became entitled to the residuary estate of his mother, the
testatrix under her will; or, if he did not, (b) whether he became entitled under the
Administration of Estates Act, 1925, to her estate as to which she died intestate.

It was not disputed that Thomas Bedford Sigsworth by murdering his mother had become
disqualified from claiming any benefit under her will.

L. W. Byrne for the plaintiff. It is submitted that it is questionable whether the findings of fact
by the coroner's jury at the inquests are admissible as evidence of those facts in this Court.
In Bird v. Keep (1) the Court of Appeal refused to admit in evidence the findings of a coroner's
jury as to the cause of the death of a workman upon a claim under the Workmen's
Compensation Act, 1906.
Hon. Trevor Roberts for the defendant, Beatrice Wilson Bedford, the maternal aunt of Thomas
Bedford Sigsworth. The same principle of public policy which precluded Thomas Bedford
Sigsworth from claiming to benefit under his mother's will applies equally to preclude him from
claiming to benefit under her intestacy, and he is incapable of taking as her next of kin under
the provisions of s. 46 of the Administration of Estates Act, 1925. This view is supported by a
statement of the law made by Fry L.J. in Cleaver v. Mutual Reserve Fund Life Association (2), and
the same view was taken by Farwell J. in In re Pitts (3): see also statement by Sir Samuel Evans
P. in In the Estate of Crippen (4) and In the Estate of Hall. (5)
(1) [1918] 2 K. B. 692.
(2) [1892] 1 Q. B. 147, 156.
(3) [1931] 1 Ch. 546, 550.
(4) [1911] P. 108, 112.
(5) [1914] P. 1.
[1935] Ch. 89 Page 91

In the particular circumstances of this case, Thomas Bedford Sigsworth is rendered incapable of
taking any benefit owing to the death and intestacy of his mother brought about by his own
crime. Further, the distribution of her estate under the statute must be upon the footing that
the son had never been born, with the result that her estate passed to her brother, the plaintiff,
and the defendant Beatrice Wilson Bedford, her sister.
Milner Holland for the defendants, the paternal uncle and aunt of the testatrix. The murder of
the testatrix by her son does not justify the Court in disregarding the statute regulating the
descent of her estate on her death intestate. Sect. 46 of the Administration of Estates Act,
1925, is peremptory; it says: "The residuary estate of an intestate shall be distributed in the
manner or be held on the trusts mentioned in this section, namely:-". Then by virtue of sub-s. 1

237
(ii.), in the events which happened, her son became entitled to her residuary estate. This view
received the support of Joyce J. in In re Houghton (1), in which he expressed his approval of the
reasoning in an American case of Carpenter's Estate (2), where it was decided that the murder
of his father by a son did not justify the Court in disregarding the statute of descents under
which the son inherited as his father's heir.

CLAUSON J. In my opinion the findings of fact by the coroner's jury at the inquests held upon
the respective deaths of the testatrix and her son are not admissible in this Court as evidence of
those facts. In the absence of such evidence as I can accept in this Court, and in the absence of
some of the parties interested, I am not prepared to decide either that Thomas Bedford
Sigsworth murdered his mother or that she died before him: but I am willing, for the guidance
of the administrator, to decide the question of law which arises if Thomas Bedford Sigsworth
murdered his mother and also died before him; but to decide only on that assumption. The
administrator, if he acts on my decision, will take the
(1) [1915] 2 Ch. 173, 177.

(2) (1895) 50 Am. St. Rep. 765.

[1935] Ch. 89 Page 92

risk that the assumption of fact may conceivably hereafter turn out to be erroneous.

There can be no question, nor has it been disputed, that the claim of the plaintiff, as the
personal representative of the son, to the estate of the mother under her will is bound to fail by
reason of the well settled principle that public policy precludes a sane murderer from taking a
benefit under his victim's will. The result of that must be that the testatrix's estate which she
left to her son was undisposed of at her death and passed, as upon her intestacy (subject to the
question with which I proceed to deal), in accordance with the provisions of s. 46 of the
Administration of Estates Act, 1925.

The question, however, which I have to decide is whether the principle grounded on public
policy which prevents a sane murderer from benefiting under the will of his victim applies with
equal force to the case of the victim dying intestate so as to preclude the murderer (or his
personal representative) from claiming, under the provisions of s. 46 of the Act, the property in
respect of which his victim died intestate.
In my judgment the principle of public policy which precludes a murderer from claiming a
benefit conferred on him by his victim's will precludes him from claiming a benefit conferred on
him, in case of his victim's intestacy, by statute. The principle (to quote the language of Fry L.J.)
must be so far regarded in the construction of Acts of Parliament that general words which
might include cases obnoxious to the principle must be read and construed as subject to it. This
view of the law is adopted by Fry L.J. in Cleaver's case (1) and by Farwell J. in In re Pitts (2), and
must in my judgment prevail over the view taken by Joyce J. in In re Houghton (3); and whether
or not the opinions so expressed are binding on me, I agree with them and adopt them as my
own.

The further question may arise whether the effect of my

238
(1) [1892] 1 Q. B. 147, 156.
(2) [1931] 1 Ch. 546, 550.
(3) [1915] 2 Ch. 173, 177.
[1935] Ch. 89 Page 93

so deciding will be that the son should be treated as struck out of the Act, with the result of
letting in the testatrix's brother and sister as the persons entitled to her estate under cl. (v.) of
sub-s. 1 of s. 46 of the Act, or whether her estate passed as bona vacantia to the Crown. In the
absence of His Majesty's Attorney-General, that question cannot now be decided; but I will
order that the plaintiff be at liberty to add the Attorney-General as a defendant to the
summons for the purpose of enabling him to claim the mother's estate on behalf of the Crown.
Solicitors for all parties: C. V. Young & Cowper, for H. W. Faulkner, Frome.
H. C. H.

239
R v R (maritime)

240
241
Cassel v Broome (1972)AC 1027
Cassell & Co Ltd v Broome and another [1972] 1 All ER 801

HOUSE OF LORDS
LORD HAILSHAM OF ST MARYLEBONE LC, LORD REID, LORD MORRIS OF BORTH-Y-GEST,
VISCOUNT DILHORNE, LORD WILBERFORCE, LORD DIPLOCK AND LORD KILBRANDON

26, 29, 30 NOVEMBER, 1, 2, 3, 6, 7, 8, 9, 10, 13, 15, 16, 17, 20 DECEMBER 1971, 23 FEBRUARY
1972
Libel – Damages – Exemplary or punitive damages – Principles on which exemplary damages
awarded – Whether appropriate cases for award restricted to categories laid down in Rookes v
Barnard ([1964] 1 All ER 367).
Libel – Damages – Exemplary or punitive damages – Categories in Rookes v Barnard ([1964] 1
All ER 367) – Calculation that profit would exceed compensation payable to the injured person –
Necessity to show knowledge that what was done was against law and decision to persist with
it because prospects of material advantage outweighed prospects of material loss –
Unnecessary to show defendant had made arithmetical calculation that profit would exceed
loss.
Libel – Damages – Exemplary or punitive damages – Categories in Rookes v Barnard ([1964] 1
All ER 367) – Direction to jury – Direction that exemplary damages to be awarded 'if, but only if'
proposed compensatory damages insufficient to punish defendant – Direction to jury that
exemplary damages to be additional to compensatory damages – Whether sufficient.
Libel – Damages – Exemplary or punitive damages – Joint defendants – Award of single sum –
Degrees of blameworthiness – One defendant more blameworthy than other – No necessity to
split damages between defendants according to blameworthiness – Sum to be that appropriate
for least blameworthy.
Damages – Exemplary damages – Oppressive, arbitrary or unconstitutional conduct by servants
of the government – Servants of the government – Class extending to local government officials,
police and others exercising governmental functions.
Damages – Exemplary damages – Deceit – Whether exemplary damages can be awarded.
Pleading – Damages – Exemplary damages – No need to plead.
Judgment – Judicial decision as authority – Decision of House of Lords – Decision per incuriam –
Whether Court of Appeal bound to follow decision.

A wrote a book entitled 'The Destruction of Convoy PQ17'. The book was about one of the great
naval disasters of the second world war in which a large number of merchant vessels in convoy
PQ17 were destroyed and many lives lost. B was the officer commanding the naval ships
escorting the convoy at the time of the disaster. The book placed the blame for the disaster on
B, and contained grave imputations on his conduct. In writing the book A knew fully what he
was doing and persisted with it in spite of repeated warnings from the most authoritative

242
sources that the relevant passages in the book were defamatory of B. A's view was that it was
possible to say 'some pretty near the knuckle things about' B and others involved in the episode
'but if one says it in a clever enough way, they cannot take action'. Nevertheless A's thesis was
stated sufficiently plainly for an experienced publisher to understand perfectly well its meaning.
A's original publishers, W K Ltd, refused to publish the book on the ground that it was 'a
continuous witch hunt of B'. They had been advised that 'the book reeks of defamation'. A then
offered the book to C Ltd who
[1972] 1 All ER 801 at 802
agreed to publish it. C Ltd were warned by W K Ltd that they had rejected the book on the
ground that it was libellous. B himself also warned C Ltd on several occasions that if they
published the book without substantial modification they must expect an action for libel from
him. Nevertheless C Ltd went ahead and published a hardback edition of the book with a dust
jacket, the advertisement on which in terms indicated that C Ltd were well aware of the full
implication of the passages complained of and were prepared to sell the book on the basis of
this sensational interpretation of the naval disaster. B issued a writ for libel against C Ltd and A
and included in his reamended statement of claim the following plea: '[B] will assert that the
defendants and each of them calculated that the money to be made out of the said book
containing the passages complained of would probably exceed the damages at risk (if any) and
that [B] is consequently entitled to exemplary damages'. In his summing-up the judge directed
the jury that having considered whether B was entitled to compensatory damages they were to
go on and ask whether B had proved that he was entitled to exemplary damages and to ask,
'What additional sum should be awarded him by way of exemplary damages?' The judge asked
them to underline the word 'additional' because he wanted to know 'how much more do you
award over and above the compensatory damage'. He also directed the jury that they should
award a single sum by way of exemplary damages and stated that, if they were to ask whether
they should award a larger sum against one of the defendants if they thought him more
blameworthy, the answer to that question was No. He further explained that a single sum was
to be awarded against both defendants. The jury, having found that the words complained of
were defamatory and untrue, awarded B damages of £40,000 against both defendants,
assessing the compensatory damages at £15,000 and the exemplary damages at £25,000. A and
C Ltd appealed against the award of damages contending inter alia that the judge's direction on
the question of exemplary damages failed to comply with the requirements laid down by the
House of Lords in Rookes v Barnard ([1964] 1 All ER 367). The Court of Appeal ([1971] 2 All ER
187) dismissed the appeal, holding that the decision of the House in Rookes v Barnard ([1964] 1
All ER 367) was not good law since it had been arrived at per incuriam and without argument on
the point by counsel. The court further held that in any event the judge's direction complied
with the requirements ofRookes v Barnard ([1964] 1 All ER 367). C Ltd appealed on the question
of exemplary damages to the House of Lords.
Held – (i)(Viscount Dilhorne and Lord Wilberforce dissenting) The decision of the House
in Rookes v Barnard ([1964] 1 All ER 367) had correctly formulated the principles of law
governing the circumstances in which exemplary damages, ie damages by way of punishment of
the defendant in excess of those necessary to compensate the plaintiff for the injury done to
him, might be awarded to a plaintiff in the case of certain torts; the principles enunciated in

243
that decision were applicable to defamation cases; the decision could not be said to have been
made per incuriam since it had been arrived at after a full consideration of the authorities and
the House was not bound to limit its conclusions within any formulation which counsel had
thought fit to formulate (see p 807 f, p 823 c, p 827 d to g, p 833 j, p 835 j to p 836 a, p
841 g and h, p 842 h, p 846 f, p 847 c, p 870f and g, p 872 c, p 873 d and e, p 875 a and b and p
877 f, post).
Rookes v Barnard [1964] 1 All ER 367 followed.
McCarey v Associated Newspapers Ltd [1964] 3 All ER 947, Broadway Approvals Ltd v Odhams
Press Ltd [1965] 2 All ER 523, Fielding v Variety Incorporated [1967] 2 All ER 497 and Mafo v
Adams [1969] 3 All ER 1404 approved.
E Hulton & Co v Jones [1908–10] All ER Rep 29 and Ley v Hamilton (1935) 153 LT 384
distinguished.
Uren v John Fairfax & Sons Pty Ltd (1967) 117 CLR 118 and Australian Consolidated Press Ltd v
Uren [1967] 3 All ER 523 considered.
[1972] 1 All ER 801 at 803
(ii) (Viscount Dilhorne, Lord Wilberforce and Lord Diplock dissenting) On the basis of the
principles formulated in Rookes v Barnard ([1964] 1 All ER 367) the jury's award of £25,000
exemplary damages against the defendants should be upheld for the following reasons—
(a) there was ample evidence to leave to the jury on which they could find that the case fell
within the second category of cases laid down inRookes v Barnard([1964] 1 All ER 367) in which
it was permissible to award exemplary damages, ie that the defendants, conduct had been
calculated to make a profit for them which might well exceed the compensation payable to B as
damages; to bring a case within the second category it was necessary to show (1) knowledge
that what was proposed to be done was against the law or a reckless disregard whether what
was proposed to be done was illegal or legal, and (2) a decision to carry on doing it because the
prospects of material advantage outweighed the prospects of material loss; it was not
necessary that the defendant should have made an arithmetical calculation that the plaintiff's
damages if he sued to judgment would be smaller than the defendant's profit (see p
812 a and b, p 813 d and g to j, p 830 g and h, p 831 a to d, p 839 b and c, p 843 e to h and p 875
to p 876 c and e, post);
(b) although not as clear as it might have been, the judge's direction was adequate to convey to
the jury that they should make an award of exemplary damages 'if, but only if' they were
satisfied that the sum they had in mind to award as compensation was inadequate to punish
the defendants for their conduct; the emphasis placed by the judge on the word 'additional' in
explaining to the jury that an award of exemplary damages would be additional to any
compensatory damages was sufficient, taken in the context of the summing-up as a whole, to
convey to the jury the necessary requirements for an award of exemplary damages (see p
816 a to e, p 839 h, p 844 g and h, p 845 c and e and p 877 h, post);
(c) when a plaintiff elected to sue more than one defendant in the same action in respect of the
same publication only one sum could be awarded against the defendants by way of exemplary
damages; in such circumstances the sum awarded could not be higher than the lowest sum for
244
which any of the defendants could be held liable; the judge's direction was sufficient to make
clear to the jury that, if different sums by way of exemplary damages were appropriate for each
of the two defendants, they were to award the lower against both (see p 817 c to f, p
818 e and f, p 840 d to g, p 845 f, and p 877 h, post);
(d) since the jury was the only legal and constitutional tribunal for deciding on the award of
damages in libel cases an appellate court should only interfere with an award where it was so
manifestly too large that no reasonable jury, properly directed, could possibly have come to it;
although the award of exemplary damages was exceptionally high it was impossible to say that
no jury of reasonable men could have reached that sum (see p 819 a to d, p 820 f, p 841 b, p
845 f and h, p 846 b and p 878 b, post).
Per Lord Hailsham of St Marylebone LC, Lord Reid, Lord Wilberforce, Lord Diplock and Lord
Kilbrandon. Decisions of the House of Lords are binding on the Court of Appeal and it is not
open to that court to advise judges to ignore decisions of the House on the ground that they
were decided per incuriam or are unworkable (see p 809 d to g, p 835 h, p 859 h, p 874 f and p
878 f, post. Furthermore (per Lord Hailsham of St Marylebone LC and Lord Diplock) although it
is open to an appellate court to decline to follow one of its own previous decisions on the
ground that it was decided per incuriam, the Court of Appeal is not entitled to disregard a
decision of the House of Lords, nor is a judge of the High Court entitled to disregard a decision
of the Court of Appeal, on that ground (see p 809 h and p 874 h, post).

Per Lord Hailsham of St Marylebone LC, Lord Reid, Lord Diplock and Lord Kilbrandon. The first
category of cases in which exemplary damages may be awarded, ie cases of oppressive,
arbitrary or unconstitutional action by servants of the
[1972] 1 All ER 801 at 804
government, should not be limited to servants of the government in the strict sense of the
word but should be extended to others, such as local government officials or the police, who
may be described as exercising governmental functions (see p 829 j to p 830 a, p 838 f, p
873 h and p 877 d, post).
Per Lord Hailsham of St Marylebone LC and Lord Diplock. The decision in Rookes v
Barnard ([1964] 1 All ER 367) did not have the effect of extending the power to award
exemplary damages to torts, such as deceit or negligence, where exemplary damages could not
previously have been awarded (see p 828 g and h and p 874 f, post); dictum of Lord Widgery LJ
in Mafo v Adams [1969] 3 All ER at 1410 disapproved.
Per Lord Hailsham of St Marylebone LC. The jury should normally be asked to award a single
sum whether as solatium, ie full compensation to the plaintiff, or as exemplary damages. If, in
order to avoid a second trial, they are asked a second question, they should be asked, in the
event of their awarding exemplary damages, what smaller sum they would have awarded if
they had confined themselves to solatium (see p 833 h, post).
Per Lord Hailsham of St Marylebone LC. In accordance with current practice exemplary
damages need not be pleaded (see p 834 h, post).

245
Decision of the Court of Appeal sub nom Broome v Cassell & Co Ltd [1971] 2 All ER 187 affirmed
on different grounds.
Notes
For the award of exemplary damages, see 11 Halsbury's Laws (3rd Edn) 223–225, para 391, and
for cases on the subject, see 17 Digest (Repl) 76, 11–13.
For appeals in relation to excessive damages in actions for libel, see 24 Halsbury's Laws (3rd
Edn) 121, para 225, and for damages against joint tortfeasors, see ibid 115, para 213, and for
cases on these subjects, see 17 Digest (Repl) 180–189, 752–859, 175–177, 691–717.
Cases referred to in opinions
Addie (R) & Sons (Collieries) Ltd v Dumbreck29] AC 358, [1929] All ER Rep 1, 98 LJPC 119, 140 LT
650; rvsg sub nom reck v Robert Addie & Sons (Collieries) Ltd8 SC 547, 36 Digest (Repl) 120, 604.
Addis v Gramophone Co Ltd [1909] AC 488, [1908–10] All ER Rep 1, 78 LJKB 1122, 101 LT 466,
17 Digest (Repl) 74, 1.
Ashby v White (1703) 2 Ld Raym 938, Holt KB 524, 6 Mod Rep 45, 1 Salk 19; rvsd on other
grounds (1704) 1 Bro Parl Cas 62, 17 Digest (Repl) 79,22.
A-G for New South Wales v Perpetual Trustee Co Ltd [1955] 1 All ER 846, [1955] AC 457, [1955] 2
WLR 707, 119 JP 312, Digest (Cont Vol A) 978, *372a.
Australian Consolidated Press Ltd v Uren [1967] 3 All ER 523, [1969] AC 590, [1967] 3 WLR
1338, Digest (Cont Vol C) 285, 13b.
Bell v Midland Ry Co (1861) 10 CBNS 287, 30 LJCP 273, 4 LT 293, 17 Digest (Repl) 105, 200.
Benham v Gambling [1941] 1 All ER 7, [1941] AC 157, 110 LJKB 49, 164 LT 290, 36 Digest (Repl)
231, 1227.
Bocock v Enfield Rolling Mills Ltd [1954] 3 All ER 94, [1954] 1 WLR 1303, [1954] 2 Lloyd's Rep
103, Digest (Cont Vol A) 471, 763a.
Broadway Approvals Ltd v Odhams Press Ltd [1965] 2 All ER 523, [1965] 1 WLR 805, Digest (Cont
Vol B) 493, 1910a.
Bulli Coal Mining Co v Osborne [1899] AC 351, [1895–99] All ER Rep 506, 68 LJPC 49, 80 LT 430,
33 Digest (Repl) 788, 618.
Chapman v Ellesmere (Lord) [1932] 2 KB 431, [1932] All ER Rep 221, 101 LJKB 376, 146 LT 538,
17 Digest (Repl) 175, 698.
Clark v Newsam (1847) 1 Exch 131, 16 LJEx 296, 9 LTOS 199, 11 JP 840, 17 Digest (Repl)
176, 704.
[1972] 1 All ER 801 at 805
Crouch v Great Northern Ry Co (1856) 11 Exch 742, 25 LJEx 137, 26 LTOS 293, 8 Digest (Repl)
16, 79.
Dawson v M'Clelland [1899] 2 IR 486, 50 Digest (Repl) 445, 1431.
Dougherty v Chandler (1946) 46 SR (NSW) 370.

246
Egger v Viscount Chelmsford (or Davies) [1964] 3 All ER 406, [1965] 1 QB 248, [1964] 3 WLR
714, Digest (Cont Vol B) 493, 1998a.
English and Scottish Co-op Properties Mortgage and Investment Society Ltd v Odhams Press
Ltd [1940] 1 All ER 1, [1940] 1 KB 440, 109 LJKB 273, 162 LT 82, 32 Digest (Repl) 88, 1103.
Fay v Parker (1873) 53 NH 342.
Fielding v Variety Incorporated [1967] 2 All ER 497, [1967] 2 QB 841, [1967] 3 WLR
415, Digest (Cont Vol C) 632, 2127b.
Forsdike v Stone (1868) LR 3 CP 607, 37 LJCP 301, 18 LT 722, 17 Digest (Repl) 193, 902.
Greenlands Ltd v Wilmshurst and London Association for Protection of Trade [1913] 3 KB 507, 83
LJKB 1, 109 LT 487; rvsd HL sub nom London Association for Protection of Trade v Greenlands
Ltd [1916] 2 AC 15, [1916–17] All ER Rep 452, 17 Digest (Repl) 175, 697.
Heydon's Case (1612) 11 Co Rep 5a, 77 ER 1150, 17 Digest (Repl) 175, 692.
Hill v Goodchild (1771) 5 Burr 2790, 98 ER 465, 17 Digest (Repl) 175, 691.
Huckle v Money (1763) 2 Wils 205, 95 ER 768, 17 Digest (Repl) 188, 832.
Hulton (E) & Co v Jones [1910] AC 20, [1908–10] All ER Rep 29, 79 LJKB 198, 101 LT 831,
32 Digest (Repl) 18, 84.
James v Baird 1916 SC 510.
Jones v Secretary of State for Social Services, Hudson v Secretary of State for Social Services p
145 ante [1972] 2 WLR 210.
Leith v Pope (1779) 2 Wm Bl 1327, 96 ER 277, 17 Digest (Repl) 188, 836.
Lewis v Daily Telegraph Ltd, Same v Associated Newspapers Ltd [1963] 2 All ER 151, [1964] AC
234, [1963] 2 WLR 1063; affg [1962] 2 All ER 698, [1963] 1 QB 340, [1962] 3 WLR 50,
32 Digest (Repl) 85, 1073.
Ley v Hamilton (1935) 153 LT 384; rvsg (1934) 151 LT 360, 17 Digest (Repl 188, 838.
Livingstone v Rawyards Coal Co (1880) 5 App Cas 25, 42 LT 334, 44 JP 392, 17 Digest (Repl)
80, 30.
Loudon v Ryder [1953] 1 All ER 741, [1953] 2 QB 202, [1953] 2 WLR 537, 17 Digest (Repl) 76, 13.
McCarey v Associated Newspapers Ltd [1964] 3 All ER 947, [1965] 2 QB 86, [1965] 2 WLR
45, Digest (Cont Vol B) 492, 1769a.
M'Grath v Bourne (1876) IR 10CL 160, 17 Digest (Repl) 184, *652.
Mafo v Adams [1969] 3 All ER 1404, [1970] 1 QB 548, [1970] 2 WLR 72, Digest (Cont Vol C)
706, 583a.
Manson v Associated Newspapers Ltd [1965] 2 All ER 954, [1965] 1 WLR 1038, Digest (Cont Vol
B) 494, 2121a.
Mechanical and General Inventions Co Ltd and Lehwess v Austin and the Austin Motor Co
Ltd [1935] AC 346, [1935] All ER Rep 22, 104 LJKB 403, 153 LT 153, 51 Digest (Repl) 863, 4134.

247
Mediana (Owners) v Comet (Owners etc), The Mediana [1900] AC 113, [1900–3] All ER Rep 126,
69 LJP 35, 82 LT 95, 9 Asp MLC 41, 17 Digest(Repl) 76, 10.
Merest v Harvey (1814) 5 Taunt 442, [1814–23] All ER Rep 454, 1 Marsh 139, 128 ER 761,
17 Digest (Repl) 105, 203.
Minister of Social Security v Amalgamated Engineering Union [1967] 1 All ER 210, [1967] AC
725, [1967] 2 WLR 516, Digest (Cont Vol C) 704,4585a.
Morey v Woodfield [1963] 3 All ER 533n, [1964] 1 WLR 16n, Digest (Cont Vol A) 1190, 1051b.
Praed v Graham (1889) 24 QBD 53, 59 LJQB 230, 38 WR 103, 17 Digest (Repl) 101, 160.
Rookes v Barnard [1964] 1 All ER 367, [1964] AC 1129, [1964] 2 WLR 269, Digest (Cont Vol B)
217, 13a.
[1972] 1 All ER 801 at 806
Scott v Musial [1959] 3 All ER 193, [1959] 2 QB 429, [1959] 3 WLR 437, Digest (Cont Vol A)
464, 165b.
Sears v Lyons (1818) 2 Stark 317, 2 Digest (Repl) 302, 98.
Smith v Streatfeild [1913] 3 KB 764, [1911–13] All ER Rep 362, 82 LJKB 1237, 109 LT 173,
17 Digest (Repl) 176, 706.
Smith's Newspapers Ltd v Becker (1932) 47 CLR 279, 6 ALJ 195, [1933] ALR 196, 33 Digest (Repl)
541, *192.
Uren v John Fairfax & Sons Pty Ltd (1967) 117 CLR 118, [1967] ALR 25, Digest (Cont Vol C) 285,
*6d.
Ward v James [1965] 1 All ER 568, [1966] 1 QB 289, [1965] 2 WLR 461, [1965] 1 Lloyd's Rep
145, Digest (Cont Vol B) 219, 783a.
Wilkes v Wood (1763) Lofft 1, 98 ER 489, 17 Digest (Repl) 105, 194.
Williams v Currie (1845) 1 CB 841, 135 ER 774, 17 Digest (Repl) 105, 204.
Williams v Settle [1960] 2 All ER 806, [1960] 1 WLR 1072, Digest (Cont Vol A) 313, 685a.
Young v Bristol Aeroplane Co Ltd [1944] 2 All ER 293, [1944] KB 718, 113 LJKB 513, 171 LT
113; affd HL [1946] 1 All ER 98, [1946] AC 163, 115 LJKB 63, 174 LT 39, Digest (Cont Vol A)
967, 698a.
Youssoupoff v Metro-Goldwyn-Meyer Pictures Ltd (1934) 50 TLR 581, 32 Digest (Repl) 11, 26.
Appeal
This was an appeal by Cassell & Co Ltd against an order of the Court of Appeal (Lord Denning
MR, Salmon and Phillimore LJJ) dated 4 March 1971 and reported [1971] 2 All ER 187 dismissing
an appeal by the appellants against so much of the verdict and judgment for the first
respondent, John Egerton Broome ('Captain Broome'), before Lawton J and a jury on 17
February 1970, as awarded Captain Broome £25,000 by way of exemplary damages for libel, in
addition to an award of £15,000 by way of compensatory damages, against the appellants and
second respondent, David Irving ('Mr Irving'), the publishers and author respectively of a book

248
entitled 'The Destruction of Convoy PQ17' in which the libels were contained. The facts are set
out in the opinion of Lord Hailsham of St Marylebone LC.

R J Parker QC and Robert Alexander for the appellants.

David Hirst QC, A J Bateson QC and Michael Tugendhat for Captain Broome.
Mr Irving did not appeal and was not represented.
Their Lordships took time for consideration
23 February 1972. The following opinions were delivered.

LORD HAILSHAM OF ST MARYLEBONE LC.

NATURE OF THE PROCEEDINGS

My Lords, this appeal arises out of two consolidated actions for libel on the publication of a
book. The first action was in respect of the 60 proof copies of the book, the second in respect of
the principal or hardback edition of the book. We were told that there are separate
proceedings still pending in respect of a paperback edition, published under licence by separate
publishers. This paperback edition was mentioned at all stages in the proceedings as being
potentially relevant to the question of damages. The House is not otherwise concerned with it.

The plaintiff in the action (the first respondent to this appeal) is a retired captain in the Royal
Navy of unblemished reputation, who, at the time of the matters referred to in the book, held
the rank of commander, and occupied the responsible position of officer commanding the
escorts in the ill-fated convoy PQ17. He held active command throughout the war, and ended
his wartime naval career with his present rank of captain in command of the battleship
Ramillies. The subject-matter of the book, and its title, was 'The Destruction of Convoy PQ17'
which, as is well known, was one of the great naval disasters of the war, in which all but 11 out
of over 35 merchant vessels were sunk on their way to the Soviet Union and about 153
merchant seamen killed by enemy action and a vast quantity of war material lost. The
[1972] 1 All ER 801 at 807

defendants in the action were respectively the author of the book, David Irving, who is the
second respondent in the appeal, and was not represented before us, and the publishers of the
book, Cassell & Co Ltd, who are the appellants.
THE RESULT OF THE TRIAL

The trial of the action took, we were told, 17 days before Lawton J and a jury. In the result, on
17 February 1970, the jury found a verdict for the plaintiff and awarded against both
defendants (1) the sum of £1,000 in respect of publication of the proof copies of the book,
counsel for the plaintiff having waived any claim to exemplary damages on the proof copies, (2)
£14,000 described as 'compensatory damages' in respect of the hardback edition, and, (3) in
respect of the hardback edition a further sum of £25,000, described as 'by way of exemplary

249
damages'. Judgment was entered for the sum of £40,000 against both defendants. The present
appeal relates solely to the above sum awarded 'by way of exemplary damages' of £25,000.
So far as relevant to this appeal, the entire proceedings before Lawton J were conducted by all
the counsel concerned and summed up by the judge to the jury on the basis of the remarks of
Lord Devlin in Rookes v Barnard ([1964] 1 All ER 367 at 407, 408, [1964] AC 1129 at 1220–1223)
and of the direction following Lord Devlin's remarks by Widgery J in Manson v Associated
Newspapers Ltd. This was not surprising since all the other members of the House of Lords had
expressly concurred in Lord Devlin's opinion on this point, although without adding reasons of
their own, and the opinion in Rookes v Barnard which was strictly an intimidation case,
although obviously intended to apply generally, had been expressly applied to defamation
proceedings by the Court of Appeal in McCarey v Associated Newspapers Ltd by Willmer,
Pearson and Diplock LJJ; in Broadway Approvals Ltd v Odhams Press Ltd by Sellers, Davies and
Russell LJJ; in Fielding v Variety Incorporated, by Lord Denning MR, Harman and Salmon LJJ; and
inMafo v Adams, a case of deceit and other causes of action, the principles enunciated
in Rookes v Barnard were accepted as applicable where the evidence justified it by Sachs,
Widgery LJJ and Plowman J.
Except for two important passages and one minor passage of which complaint is made, and to
which I will come later, Lawton J's direction to the jury was unexceptionable as an exposition of
the law as it has been declared in the House of Lords by an unanimous House in Rookes v
Barnard and applied by the Master of the Rolls, ten Lords Justices and one puisne judge in the
above cases in the Court of Appeal and as it had been expounded by Widgery J in his direction
to the jury in Manson v Associated Newspapers Ltd.
THE APPEAL TO THE COURT OF APPEAL

At the end of the 17 day trial the costs of the proceedings which, as between party and party,
followed the event, must have already been enormous. Both defendants accepted the verdict
on liability. The defendant Irving appealed on all the damages awarded. The present appellants
appealed on the award of £25,000 'by way of exemplary damages'. The appeal lasted nine days
before the Court of Appeal (Lord Denning MR, and Salmon and Phillimore LJJ) and judgment
was given on 4 March 1971 dismissing both appeals with costs, which must by this time, with
the costs of the trial, even on a party and party basis, have greatly exceeded the amount of the
award. Before the appellate committee of this House the appeal
[1972] 1 All ER 801 at 808

lasted 13 working days, thus again greatly increasing the sum at stake, although by this time the
defendant Irving had given up the struggle.
JUDGMENT OF THE COURT OF APPEAL

The Court of Appeal took a somewhat unusual course. On the view which they formed of the
matter, which, as will appear, I have come to share although with greater hesitation than they
expressed, they were for dismissing the appeal on the grounds that the criticisms of the
direction by Lawton J failed, and that the mere size of the award was not one which, on
accepted principles, could be attacked. If they had stopped there, it is possible, and perhaps

250
likely, that the proceedings would have come to an end. It is doubtful if leave to appeal to this
House would have been given, and if it had not, the two remaining parties would have been
spared the costs of the 13 days' hearing in your Lordships' House. Even if leave to appeal had
been given in the above circumstances a great deal of the time occupied before us would have
been saved.
The Court of Appeal, however, did not stop at dismissing the appeal on these grounds. Whether
or not they were encouraged by the zeal of plaintiff's counsel, they put in the forefront of their
judgments the view that Rookes v Barnard was wrongly decided by the House of Lords and was
not binding even on the Court of Appeal. It was, so they said, arrived at per incuriam and
without argument from counsel. It ignored, they claimed, two previous decision, in the House
of Lords, Ley v Hamilton and E Hulton & Co v Jones, which had approved awards of punitive or
exemplary damages on lines inconsistent with Lord Devlin's opinion in Rookes v Barnard. They
felt themselves fortified in this view with the somewhat cool reception in the Commonwealth
of Rookes v Barnard, particularly in the Australian Supreme Court decision in Uren v John
Fairfax & Sons Pty Ltd which had been affirmed, so far as regards Australian law, by the Judicial
Committee of the Privy Council in the associated case of Australian Consolidated Press Ltd v
Uren. Neither Lord Denning MR nor Salmon LJ seem to have been in any way inhibited or
embarrassed by the fact that each had been party to at least one of the decisions of the Court
of Appeal applying Rookes v Barnard without question. Not content with all this, all three
members of the Court of Appeal went further still and, besides declaring Rookes v Barnard to
have been decided per incuriam and ultra vires, proceeded to say that it was 'unworkable', and,
in the meantime, therefore, 'judges should direct juries in accordance with the law as it was
understood before Rookes v Barnard which the court considered, to use the phrase of Lord
Denning MR, as 'settled'.
As sent to us by the Court of Appeal, therefore, the appeal before us raised several questions of
wide ranging importance. Quite apart from the merits of the respective litigants, these
questions include the status of judgments and the relevance of precedent in this House, the
circumstances when, if at all, decisions of this House may be questioned by the Court of Appeal,
and judges of first instance directed by the Court of Appeal to disregard them. There is also the
whole question of exemplary damages as canvassed in Rookes v Barnard and subsequent
decisions. What began as a simple proceeding between a plaintiff and two defendants has
assumed, at the expense of two of the litigants, the dimensions of a constitutional question and
a general enquiry into one aspect (and perhaps more than one aspect) of the law of damages.
THE COURSE TAKEN BY THE COURT OF APPEAL

In view of their importance it is unavoidable that before entering into the merits
[1972] 1 All ER 801 at 809

of the appeal I should discuss in a few paragraphs both the propriety and the desirability of the
course taken by the Court of Appeal. I desire to do so briefly and with studied moderation.
From the point of view of the litigants it is obvious, I would have thought, that, on the view
taken by the Court of Appeal, the course taken was unnecessary. Private litigants have been put
to immense expense, of which most must be borne by the loser, discussing broad issues of law
251
unnecessary for the disposal of their dispute. If the Court of Appeal felt, as they were well
entitled to do, that in the light of the Australian and other Commonwealth decisions Rookes v
Barnard ought to be looked at again by the House of Lords, either generally or under the
practice declaration of 1966 (See Note [1966] 3 All ER 77, [1966] 1 WLR 1234) they were
perfectly at liberty to say so. More, they could have suggested that so soon as a case at first
instance arose in which the ratio decidendi of Rookes v Barnard was unavoidably involved, the
parties concerned might wish to make use of the so-called 'leap-frogging' procedure now
available to them under the Administration of Justice Act 1969, and thus avoid one stage in our
three-tier system of appeals. But to impose on these litigants, to whom the question was, on
the court's view, unnecessary, the inevitable burden of further costs after all they had been
through up to date was not, in my view, defensible.
Moreover, it is necessary to say something of the direction to judges of first instance to
ignore Rookes v Barnard as 'unworkable'. As will be seen when I come to examine Rookes v
Barnard in the latter part of this opinion, I am driven to the conclusion that when the Court of
Appeal described the decision in Rookes v Barnard as decided 'per incuriam' or 'unworkable'
they really only meant that they did not agree with it. But, in my view, even if this were not so,
it is not open to the Court of Appeal to give gratuitous advice to judges of first instance to
ignore decisions of the House of Lords in this way and, if it were open to the Court of Appeal to
do so, it would be highly undesirable. The course taken would have put judges of first instance
in an embarrassing position, as driving them to take sides in an unedifying dispute between the
Court of Appeal or three members of it (for there is no guarantee that other Lords Justices
would have followed them and no particular reason why they should) and the House of Lords.
But, much worse than this, litigants would not have known where they stood. None could have
reached finality short of the House of Lords, and, in the meantime, the task of their professional
advisers of advising them either as to their rights, or as to the probable cost of obtaining or
defending them, would have been, quite literally, impossible. Whatever the merits, chaos
would have reigned until the dispute was settled, and, in legal matters, some degree of
certainty is at least as valuable a part of justice as perfection.
The fact is, and I hope it will never be necessary to say so again, that, in the hierarchical system
of courts which exists in this country, it is necessary for each lower tier, including the Court of
Appeal, to accept loyally the decisions of the higher tiers. Where decisions manifestly conflict,
the decision in Young v Bristol Aeroplane Co Ltd offers guidance to each tier in matters affecting
its own decisions. It does not entitle it to question considered decisions in the upper tiers with
the same freedom. Even this House, since it has taken freedom to review its own decisions, will
do so cautiously. That this is so is apparent from the terms of the declaration of 1966 itself
where Lord Gardiner LC said (See Note [1966] 3 All ER 77, [1966] 1 WLR 1234):

'Their lordships regard the use of precedent as an indispensable foundation upon which to
decide what is the law and its application to individual cases. It provides at least some degree of
certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for
orderly development of legal rules.
[1972] 1 All ER 801 at 810

252
Their lordships nevertheless recognise that too rigid adherence to precedent may lead to
injustice in a particular case and also unduly restrict the proper development of the law. They
propose therefore to modify their present practice and, while treating former decisions of this
House as normally binding, to depart from a previous decision when it appears right to do so. In
this connexion they will bear in mind the danger of disturbing retrospectively the basis on
which contracts, settlements of property and fiscal arrangements have been entered into and
also the especial need for certainty as to the criminal law. This announcement is not intended
to affect the use of precedent elsewhere than in this House.'
It is also apparent from the recent case of Jones v Secretary of State for Social Services (Page
145 ante, [1972] 2 WLR 210), where the decision inMinister of Social Security v Amalgamated
Engineering Union came up for review under the 1966 declaration (See Note [1966] 3 All ER 77,
[1966] 1 WLR 1234), that the House will act sparingly and cautiously in the use made of the
freedom assumed by this declaration. In addition, the last sentence of the declaration
(See Note [1966] 3 All ER 77, [1966] 1 WLR 1234) as quoted above clearly affirms the continued
adherence of this House to the doctrine of precedent as it has been hitherto applied to and in
the Court of Appeal.
THE MERITS OF THE APPEAL
It is now possible to turn to the merits of the case so far as these were canvassed before us on
the assumption of the continued authority of theRookes v Barnard decision. Before us the
appellants made three contentions: (i) that there was no evidence to be left to the jury that the
conditions were fulfilled to bring the case within one of the three 'categories' of case listed by
Lord Devlin in Rookes v Barnard ([1964] 1 All ER at 410, 411, [1964] AC at 1226, 1227) as being
appropriate for an award of punitive damages, and in particular the second, which was
admittedly the only relevant category; (ii) that, even on the assumption that the first contention
was wrong, Lawton J had misdirected the jury in at least two important matters; (iii) that in any
event the award of £25,000 was excessive, and could not be sustained. In order to understand
these contentions it is necessary to say something about the facts.
THE FACTS ON WHICH THE BOOK WAS FOUNDED

The fate of the PQ 17 convoy is one of the most publicised, as well as one of the most tragic,
naval operations of the second world war. The evidence showed that it had been written about
many times, notably by Captain Roskill, RN, the official naval historian, and by the late Mr
Godfrey Winn, whose book was said to have sold half a million copies. It is unnecessary to
recapitulate the facts here. They are graphically described in the judgment of Lord Denning MR.

It is sufficient to say that the primary cause of the disaster flowed from an order to the convoy
to scatter, which made the ships in it an easy prey to the aircraft and submarines by which they
were attacked. This order to scatter was issued by the Admiralty in Whitehall and was due to a
faulty appreciation by the Naval Staff, in particular, as is now known, by the then First Sea Lord
himself, that the German battleship Tirpitz was at sea, and to a decision, also by the then First
Sea Lord, to take the responsibility for the order on himself rather than leave the decision to
the discretion of the naval officers on the spot. The naval officers on the spot, including Admiral

253
Hamilton in command of the cruiser squadron, and Captain Broome, had no option but to obey,
and the convoy was thus left to fan out on individual courses covering a vast area of sea.

So far there can be no controversy. But the two naval officers, rightly considering that the order
to scatter must denote the approach of a superior hostile surface force
[1972] 1 All ER 801 at 811

sailed west in company. Admiral Hamilton was acting under precise orders from the Admiralty.
Captain Broome was not. Captain Broome had proposed and Admiral Hamilton accepted that
he should put himself under command of the Admiral commanding the cruisers. That this
decision was courageous there can be no doubt. What has been subsequently disputed was
whether it was as wise as it was certainly brave. Some have thought that it was no more than
the inevitable reaction of gallant and experienced naval officers to the threat of surface action.
Others have thought that its effect was to remove from the area of the convoy the only naval
elements, which might have countered the U boat and air attacks, and thus to contribute to the
extent of the convoy's losses. Which of these two views be correct it is not appropriate here to
discuss. But what is relevant to the present appeal is that those who criticised the decision had
previously fastened the responsibility on Admiral Hamilton. It was one of the distinctive
features of Mr Irving's book (which it may have shared with a German work with whose author
he had collaborated) that it attempted to place responsibility for the withdrawal of the
destroyers entirely or mainly on the shoulders of Captain Broome. This was a difficult thesis to
sustain since Captain Broome was the junior officer of the two, and had only 'proposed' the
course which both forces ultimately pursued. It also involved the propositions, both disputable,
that the decision was wrong in the light of the information then available, and that the absence
of the destroyers made a significant difference to the loss of life and material.

From the start Captain Broome contended that the passages in the book relating to himself
which it is not necessary to set out at length were defamatory. In his statement of claim he said
that they meant and were intended and understood to mean:

'… that [Captain Broome] was disobedient, careless, incompetent, indifferent to the fate of the
merchants ships and/or by virtue thereof had wrongly withdrawn his destroyer force from the
convoy and/or taken it closer to the German airfields than he had been ordered to and had
thereby been largely responsible for or contributed extensively to the loss of the aforesaid ships
and the effective destruction of more than two-thirds of the Convoy P.Q.17.'

In addition, at the trial it was contended that the ordinary and natural meaning of one of the
relevant passages was that Captain Broome was a coward and for this reason 'needed no
second bidding' to desert the convoy. The defendants both disputed that the book bore any of
these meanings, but contended that without them the passages in the book were true. It is
evident from their verdict and from the magnitude of the award of damages that the jury
rejected the contentions of the defence, although how far and to what extent must be to some
extent a matter of speculation.
THE MATERIAL BEFORE THE JURY

254
From the commencement of the trial it was contended for Captain Broome that
notwithstanding the limitations of Rookes v Barnard, he was entitled to 'exemplary' or 'punitive'
damages. The trial judge ruled (although on this point he was subsequently overruled by the
Court of Appeal) that, if so, he was bound to include a plea to this effect in his statement of
claim, and the pleading consequently introduced into the statement of claim by way of
reamendment affords a convenient summary of the way the case was then put. The pleader
wrote:

'The plaintiff will assert that the defendants and each of them calculated that the money to be
made out of the said book containing the passages complained of would probably exceed the
damages at risk (if any) and that the plaintiff is consequently entitled to recover exemplary
damages.'
[1972] 1 All ER 801 at 812
He then went on to give particulars. If established, the plea clearly puts the case within the
second of the three exceptional categories listed by Lord Devlin in Rookes v Barnard ([1964] 1
All ER 367 at 410, 411, [1964] AC 1129 at 1226, 1227). The question for the judge was whether
there was evidence to leave to the jury on which they could find that the case was indeed to be
placed in this category. If there was such evidence, and if the jury were not misdirected,
inclusion within the second category would have entitled (although not compelled) them to
make some award on this account.

The appellants contended before the Court of Appeal and before us that there was no such
evidence. In my opinion, this contention wholly fails. To convince us, they would in practice
have to establish that there was no evidence on which a properly directed jury could find that
at the time of publication they were fully aware the words bore and were intended and
understood to bear the meanings, attached to them, in the statement of claim, since, if at the
time of publication the words were known to bear these meanings, they were false to the
knowledge of the appellants and published with that knowledge for profit. In my view, the
meanings, or most of them, are sufficiently obvious from a casual reading of the book, and the
inadequate attempts by the author or the publishers to provide an alternative meaning or an
escape route by which they could argue the alternative before a jury by small modifications or
carefully phrased ambiguities, are less an indication of innocence or naiveté than a clear-
sighted appreciation of the danger that they faced. Mr Irving was not represented before us,
but his case was strenuously advanced before the Court of Appeal, and in another context (to
be discussed later) we had to consider his case when counsel for the appellants expressly
accepted as accurate Lord Denning MR's colourful account of his behaviour. It is abundantly
plain from this account that Mr Irving at least knew, and carefully planned, what he was doing,
that he went on with it in spite of repeated warnings from the most authoritative sources, that
he conceived the book 'as a book with a difference as all men [that is including Captain Broome]
were shown to be cowards', and that he prided himself on being able to say—

'some pretty near the knuckle things about these people [he was directly referring to Captain
Broome's threat of proceedings] but if one says it in a clever enough way, they cannot take
action'.

255
The rules of evidence preclude us from taking these admissions of his state of mind as evidence
against the appellants. But, in my opinion, the 'near the knuckle things' said about Captain
Broome in the course of this book, including the allegation that he was a coward, were said
sufficiently plainly for an experienced publisher to know perfectly well what their meaning was
and the fact that they were said 'in a clever enough way' should have told them plainly that
they were said with deliberate intent to convey the meanings without incurring heavy damages.

But the case against the appellants does not stop at the obvious meanings to be attached to the
passages in the book. Even if, which I could not easily accept, they did not understand the drift
of the book at a first reading, they acquired the right to publish and they went on actually to
publish in circumstances from which the jury were clearly entitled to infer that they went ahead
with the most cold-blooded and clear-sighted appreciation of what they were doing.

The appellants were not the first publishers selected by Mr Irving. His original publishers were
William Kimber Ltd, who ultimately refused to publish the book on the ground that the book
was 'a continuous witch hunt of Captain Broome' having been advised by Captain Roskill, who
gave evidence for Captain Broome, and perhaps by others, that 'the book reeks of defamation'.
In the absence of evidence by either defendant at the trial, it is impossible to say how much of
this was known to the
[1972] 1 All ER 801 at 813

appellants. But it is certain that Mr William Kimber warned the appellants in unmistakable
terms that his house had rejected the book precisely on the grounds that it was libellous,
amongst others of Captain Broome. The undisputed response of the appellants was either
flippant or cynical. Moreover, Captain Broome himself had warned them on several occasions
that, if they published the book, as they did, in substantially the form in which he had seen it,
they must expect an action for libel from himself. That they took these threats seriously can be
seen from their reaction to the latest of them which followed the issue of the proof copies. On
receipt of this, the appellants placed a stop on the book in the following terms:

'Will you please note that absolutely and positively not one single copy, on any pretext
whatsoever, is to be removed from the House without reference to me.'

In attempts to sell the serial rights their efforts were 'shot down' by three national Sunday
newspapers presumably on the same grounds.

What the full explanation of their subsequent publication may have been will never be known,
since the appellants did not elect to give evidence. But, in the absence of any explanation, the
jury were perfectly entitled to infer that they had calmly calculated that the risks attendant on
publication did not outweigh the chances of profit. What is certain is that, insofar as they were
aware that the passages complained of could be reasonably understood to bear the meanings
attached to them by Captain Broome, including the allegation of cowardice, they published
them knowing them in this sense to be false, since no effort was made at any stage to suggest
that there was any material on which a reasonable publisher could base the belief that the
passages complained of, if they bore these meanings, were true. In his judgment in the Court of

256
Appeal Lord Denning MR lists other features of the case against the appellants on which the
jury were entitled to base inferences. With most of these, except the reference to the
paperback edition, which, contrary to what he says (perhaps per incuriam), was not published
by the appellants but under licence by another publisher, I find myself in agreement. In
particular, I concur in what was said in the Court of Appeal about the dust cover of the book,
which, making every allowance for the popular style in such productions, and putting the most
favourable interpretation on every phrase in it, seems, to my mind, in the absence of
explanation, to indicate that the appellants were well aware of the full implication of the
passages complained of and were prepared to sell the book on this sensational interpretation.
In such circumstances to argue that there was no evidence from which the jury could infer that
—

'the appellants had calculated that the money to be made out of the book containing the
passages complained of would probably exceed the damages at risk (if any)'
was, to my mind a somewhat forlorn hope, and nothing which counsel for the appellants said in
the course of his strenuous and ably conducted argument has convinced me to the contrary. I
will refer to the passage from Lord Devlin's speech in Rookes v Barnard ([1964] 1 All ER 367 at
410, 411, [1964] AC 1128 at 1226, 1227) relating to the categories later for its proper
interpretation, but I cannot see how, on any view, if these facts were proved to the satisfaction
of a jury, properly directed, they are not sufficient to enable the jury to base inferences bringing
the publication within the second category.
THE DIRECTION ON THE RELATION BETWEEN THE TWO AWARDS

There was much more substance in, and I find much greater difficulty in deciding on, the
appellants' second contention, which was based, not on Lord Devlin's three
[1972] 1 All ER 801 at 814

listed categories, but on his exposition of the general conditions under which exemplary
damages may be awarded after the conclusion of the three 'considerations' listed in the report
([1964] 1 All ER at 411, [1964] AC at 1227, 1228), which, he says, ought always to be borne in
mind. At this point, Lord Devlin said ([1964] 1 All ER at 411, [1964] AC at 1228):
'Thus a case for exemplary damages must be presented quite differently from one for
compensatory damages; and the judge should not allow it to be left to the jury unless he is
satisfied that it can be brought within the categories which I have specified. But the fact that
the two sorts of damage differ essentially does not necessarily mean that there should be two
awards. In a case in which exemplary damages are appropriate, a jury should be directed that if,
but only if, the sum which they have in mind to award as compensation (which may of course be
a sum aggravated by the way in which the defendant has behaved to the plaintiff) is inadequate
to punish him for his outrageous conduct, to mark their disapproval of such conduct and to
deter him from repeating it, then they can award some larger sum. [The italics are mine.] If a
verdict given on such direction has to be reviewed on appeal, the appellate court will first
consider whether the award can be justified as compensation, and, if it can, there is nothing
further to be said. If it cannot, the court must consider whether or not the punishment is in all
the circumstances excessive. There may be cases in which it is difficult for a judge to say
257
whether or not he ought to leave to the jury a claim for exemplary damages. In such
circumstances and in order to save the possible expense of a new trial, I see no objection to his
inviting the jury to say what sum they would fix as compensation and what additional sum, if
any, they would award if they were entitled to give exemplary damages. That is the course
which he would have to take in a claim to which the Law Reform (Miscellaneous Provisions) Act,
1934, applied.'
In my opinion, this passage contains a most valuable and important contribution to the law of
exemplary damages which, prior to Rookes v Barnard, had not, so far as I am aware, been
adequately stressed in any previous case, and which, in my view, would retain, and possibly
even increase, its value even if the categories in Rookes v Barnard were to be wholly rejected.
In essence the doctrine is that the award of a punitive element in damages, if it is ever
permissible, must also remain discretionary, and, in order to give effect to the second of the
three 'considerations' ([1964] 1 All ER at 411, [1964] AC at 1227), the judge should always warn
a jury that they need not award anything, and must not do so unless they are satisfied that a
purely compensatory award (in a sense which I will explain) is inadequate. It follows that
whatever they do award should only be a sum which has taken into account the award of
damages already notionally allowed as compensation, including, where appropriate, the
'aggravated' element required by a defendant's bad conduct, and should never exceed the
amount by which the required penalty (if that is the right word) exceeds the required
compensation. I shall revert to this feature of Rookes v Barnard later. But what is said in
substance by the appellants in this case is that the summing-up failed to give effect to this
important and, in my view, vital principle.

The learned judge directed the jury over two days and much that he said was irrelevant to the
question of exemplary damages. Of what was relevant to exemplary damages, most was a
direction to the jury about the second category and the evidence in the case relevant to it. This
reflected the balance of argument by counsel during the case and it appears from a remark in
the judgment of Phillimore LJ in the Court of Appeal ([1971] 2 All ER at 214, [1971] 2 WLR at
887) that, in some sense at least, both counsel agreed that, dependent on the view which the
jury took of the facts, Lawton J should leave the question of exemplary
[1972] 1 All ER 801 at 815

damages to the jury. But there were two passages in the summing-up relevant to the present
issue. The first was a passage on the first day of the summing-up when the judge, having
directed the jury that punitive damages were in the nature of a fine, went on to give two
examples from the criminal law carrying the moral that the punishment must neither be
excessive nor inadequate to the gravity of the offence and said:
'If you are going to punish a man to show him that libel does not pay, provided, of course, it
comes within Mr. Justice Widgery's definition [he was referring to Manson v Associated
Newspapers Ltd], what you do must be reasonable in all the circumstances, bearing in mind
that it is a penalty.'

The second, and more important, of the passages was on the second day of the summing-up
when, after leaving an agreed list of questions to the jury, the learned judge said:
258
'… as you will see, the issue of damages has been divided into two questions. The first one is
No. 3, “What compensatory damages do you award the plaintiff?” You will remember that
compensatory damages are compensation for something, they are not given to you. When you
come to consider that question you must remember that this is a joint publication by [the
appellants] and Mr. Irving. You do not award two different sums. You award one sum and you
will leave the lawyers to work out what it means, but it is one sum. Do you all follow that? Then
having decided what are the proper additional compensatory damages then you will go on and
consider the fourth question, namely, “Has [Captain Broome] proved that he is entitled to
exemplary damages?“. It is for him to prove that he is entitled to it, not for the defendants to
prove that he is not. This question has got to be divided up into a number of subsidiary
questions and the reason for this is problems of law which arise, but you do not have to
concern yourselves with those. That is my responsibility. There are two defendants and, as I
have been at pains to point out to you during my summing-up, the case against each defendant
on the issue of punitive damages is different, so you will have to consider the case against each
defendant separately. I suggest you start with Mr. Irving and then go on to [the appellants]. In
respect of each of them you will ask yourselves this question: “Has [Captain Broome] proved his
entitlement against that defendant?“. If the answer is Yes then you will have to go on and
assess how much punitive damages should be awarded. If the answer is No he will get no
punitive damages. At least that will be your finding. What the law is is another matter, but that
will be your finding. Having carried out that operation in relation to Mr. Irving you should carry
out exactly a similar operation in relation to [the appellants]. Remember all the time that letters
written by Mr. Irving or to Mr. Irving, other than by [the appellants], are not evidence against
[the appellants]. I cannot stress that too much. You will have to ask yourselves: “Has he proved
that he is entitled to punitive damages against [the appellants]?“. If the answer is No that is
that. If the answer is Yes you will have to assess the damages. I have put all that into an
omnibus lawyers' series of questions. I could have put it all into one question, but I came to the
conclusion that it would probably be better for you. I will read paragraph 4 again. “Has [Captain
Broome] proved that he is entitled to exemplary damages? If Yes, has he proved his entitlement
against one or both of the defendants? If one only, against which one?“. Then you see the last
question under this heading, “What additional sum should be awarded him by way of
exemplary damages?“. Would you be good enough to underline the word “additional”, because
I want to know, and learned counsel want to know, if you do decide to award punitive
damages, how much more do you award over and above the compensatory damage.'
[1972] 1 All ER 801 at 816
What was said against this passage on behalf of the appellants was that this summing-up was
defective in that it did not make it absolutely plain to the jury that before making any punitive
award against the defendants they must first take into account and assess the punitive effect of
any compensatory award (including any element of 'aggravated' damage) and only award such
amount (if any) by which the appropriate penalty exceeded such award.

I am bound to say that I have found the greatest difficulty in accepting the summing up on this
point as adequate, and my difficulties were increased by two passages in the final speech of
counsel for Captain Broome which, as counsel for the appellants persuasively argued, seemed
to indicate that the respective awards of compensatory and punitive damages were entirely

259
separate assessments and that one should not be balanced against the other. Insofar as counsel
said this, and he appears to have done so, he was, in my opinion, entirely wrong. In the end,
however, I have come to the conclusion that the judge's direction was just adequate to convey
the impression intended in the passage of Lord Devlin's speech ([1964] 1 All ER at 411, [1964]
AC at 1228) which had been accurately read to the jury by counsel for Mr Irving and that the
jury were not in fact misled. In coming to this conclusion I have been impressed, as was the
Court of Appeal, by the stress the judge laid on the word 'additional' in the passage cited, by
the fact that the form of the questions left to the jury (which did not include as it should have
done, the words 'if any' in that relating to punitive damages) was agreed by counsel and by the
fact that the line of the judge's summing-up was entirely in accord with the case for the
appellants as it was put to the jury on their behalf, and that everyone seems to have assumed
that the result of the jury's answers was that which in fact obtained. I desire, however, to say
that the direction on this point, if sufficient, as I am constrained to say it was, was only barely
sufficient, and that I trust that in future cases of this kind trial judges will stress the matter a
good deal more clearly and with greater emphasis than was done here. In the present case I do
not think that the judge can be blamed for putting the matter compendiously in a form which
seems to have misled no one, which accorded with the way and with the emphasis with which
it had been put to the jury on behalf of the appellants, and which, according to Phillimore LJ's
observation ([1971] 2 All ER at 214, [1971] 2 WLR at 887. See footnote 16, p 814, ante) refered
to above had, in some sense, been agreed.
A SINGLE AWARD OR TWO?

Less meritorious, in my view, was the second criticism of the direction put before us. This was in
effect that the judge did not correctly direct the jury as to the principles on which a joint award
of exemplary damages can be made against two or more defendants guilty of the joint
publication of a libel in respect of which their relevant guilt may be different, and their means
of different amplitude. With high regard for the judgments of Lord Denning MR and of Salmon
LJ, I differ from both in what they said on this aspect of the matter, both as to the effect of the
judge's summing-up and to what it ought to be in such cases. Lord Denning MR said ([1971] 2
All ER at 201, [1971] 2 WLR at 873):
'There is, of course, a difficulty. How is a jury to assess the one figure against two
defendants? Are they to fix it at a high sum which they think the more blameworthy ought to
pay or a low sum for the least blameworthy? That must be left to the jury. They may, if they
choose, fix a figure in between. The judge can, I think, tell them that they can fix it as against
the more blameworthy, expecting him to pay it; and leave the least blameworthy (if he is called
on to pay) to recover contribution. In this case the judge left it to them without any specific
direction. That was, I think, quite legitimate; and is no ground for disturbing the verdict.' [The
italics are mine.]

Lord Denning MR then added:

[1972] 1 All ER 801 at 817

'In any case, however, I think [the appellants] are not at liberty to take this point. They did not
ask judge or jury to split the damages. The judge told counsel the question he was going to put
260
to the jury; and asked for their comments. That was the time for counsel to ask for the
exemplary damages to be split. Not having asked, it is too late to ask in this court.'

Salmon LJ appears to have thought that the award should reflect the amount due by the most
guilty of the tortfeasors and he said ([1971] 2 All ER at 210, [1971] 2 WLR at 882):
'… it is well settled that where there are several defendants who have all committed a joint tort,
there can be only one award of one sum of damages against all of them:Greenlands Ltd v
Wilmshurst. It may bear hardly on one or more of the defendants. The moral may be that you
must be as careful in choosing your companions in tort as you are in choosing your companions
when you go out shooting.' [The italics are again mine.]
With respect to both judgments which, as will be seen, are arguably not quite consistent with
one another, I think the effect of the law is exactly the opposite and that awards of punitive
damages in respect of joint publications should reflect only the lowest figure for which any of
them can be held liable. This seems to me to flow inexorably both from the principle that only
one sum may be awarded in a single proceeding for a joint tort, and from the authorities which
were cited to us by counsel for the appellants in detail in the course of his argument. Counsel
referred us to Heydon'scase, Clark v Newsam, Hill v Goodchild, Dawson v M'Clelland,
Greenlands Ltd v Wilmshurst ([1913] 3 KB 507, especially at 521), Smith v Streatfeild([1913] 3 KB
764 at 769, [1911–13] All ER Rep 362 at 364), Chapman v Lord Ellesmere ([1932] 2 KB 431 at
471, [1932] All ER Rep 221 at 237) per Slesser LJ, Dougherty v Chandler, Egger v Viscount
Chelmsford ([1964] 3 All ER 406 at 411, [1965] 1 QB 248 at 262) and to the current edition of
Gatleya. I think that the inescapable conclusion to be drawn from these authorities is that only
one sum can be awarded by way of exemplary damages where the plaintiff elects to sue more
than one defendant in the same action in respect of the same publication, and that this sum
must represent the highest common factor, that is the lowest sum for which any of the
defendants can be held liable on this score. Although we were concerned with exemplary
damages, I would think that the same principle applies generally and in particular to aggravated
damages, and that dicta or apparent dicta to the contrary can be disregarded. As counsel
conceded, however, plaintiffs who wish to differentiate between the defendants can do so in
various ways, for example, by electing to sue the more guilty only, by commencing separate
proceedings against each and then consolidating, or, in the case of a book or newspaper article,
by suing separately in the same proceedings for the publication of the manuscript to the
publisher by the author. Defendants, of course, have their ordinary contractual or statutory
remedies for contribution or indemnity so far as they may be applicable to the facts of a
particular case. But these may be in applicable to exemplary damages.
a
Libel and Slander, 6th Edn, para 1390

Having established this principle, counsel for the appellants went on to argue that the judge
had misdirected the jury, seeking to encourage us in this belief by the submission that, if he had
persuaded at least two members of the Court of Appeal
[1972] 1 All ER 801 at 818

261
to defend it on one of two possibly inconsistent and erroneous bases, the learned judge might
well have succeeded in making the jury accept one of them as the ground of their award.

The passage in the summing-up on which the appellants relied for this purpose was as follows.
It occurs immediately after the passage already quoted in which the judge directs the jury to
regard the exemplary damages as a sum additional to the compensatory award. Lawton J went
on:
'You may be saying to yourselves: if we do take the view that both these defendants should pay
something by way of punitive damages, should we take into consideration the relative
culpability of each one? Again, and I merely say this by way of illustration, and certainly not by
way of guidance to you, say, for example you took the view that Mr. Irving was more to blame
than [the appellants], or to be fair, you took the view that [the appellants] being an
experienced firm of publishers were more to blame than this young man, Mr. Irving, should you
make [the appellants] pay a larger sum by way of punitive damages than Mr. Irving? The
answer to that is No. [The italics are mine.] Whatever damages, if any, you decide should be
awarded by way of punitive damages must be the same sum in respect of both Mr. Irving and
[the appellants], if you find them both liable to pay punitive damages. Have I made that clear?'

This direction is in many ways defective as a piece of clear English prose. In particular, it
contains an ambiguity, later cured by an exchange in the presence of the jury between counsel
and the bench as to whether the jury is to award a single sum against both defendants or two
sums, each against one of the defendants. But, on the crucial point whether this sum, when
awarded, should represent the higher or the lower figure for which the jury found either guilty,
I myself find no difficulty in thinking that the jury would have been clear that they were to
award the lower. I would hope that on other occasions this would be made even plainer, but I
find it difficult to criticise an experienced judge for not being absolutely crystal clear on this
point at the end of a two day direction over a wide range of different topics following a 17 day
trial. I would not disturb the verdict on these grounds.

I also consider that, having agreed to the form of the questions left to the jury, it was not really
open to the appellants to contend, on appeal, that the awards should be split. In any case I am
fortified in my view of the matter by the fact that I find the same difficulty as did the Court of
Appeal in differentiating in any way between the moral culpability of the two defendants. Mr
Irving may have been the author of the defamatory matter. But the appellants published it, on
the jury's finding, with their eyes open as to what it contained. It may be that Mr Irving had
fewer means, and, if the jury were looking on the exemplary damages from the point of view of
deterring him, they could have awarded a smaller sum. But there seems to have been no
evidence concerning the means of either party, and I do not see how at this late date we can
properly be invited to speculate. The enterprise was essentially a joint one, and if the appellants
had not all the information available to Mr Irving, they had enough to make sure that they
knew exactly what they were doing. It is difficult to know on what principle the jury could have
differentiated between the two defendants.
WAS THE AWARD EXCESSIVE?

262
The final point taken for the appellants was that the award of £25,000 exemplary damages or,
as it was equally properly and possibly better put, the total award of £40,000(which included
the exemplary element) was so far excessive of what 12 reasonable men could have awarded
that it ought to be set aside and a new trial ordered. I cannot disguise from myself that I found
this an extremely difficult point in the case, and have only decided that the verdict should not
be disturbed with great
[1972] 1 All ER 801 at 819

hesitation because I am very conscious of the fact that I would certainly have awarded far less
myself, and possibly, to use a yardstick which some judges have adopted as a rule of thumb,
less than half the £25,000.
A number of factors lead me, however, to the belief that the verdict should not be disturbed.
The first, and paramount, consideration in my mind is that the jury is, where either party
desires it, the only legal and constitutional tribunal for deciding libel cases, including the award
of damages. I do not think the judiciary at any level should substitute itself for a jury, unless the
award is so manifestly too large, as were the verdicts in Lewis v Daily Telegraph Ltd, or
manifestly too small, as in English and Scottish Co-op Properties Mortgage and Investment
Society Ltd v Odhams Press Ltd, that no sensible jury properly directed could have reached the
conclusion. I do not think much depends on the exact formula used to describe the test to be
applied, whether the traditional language 'so large [or small] as that twelve sensible men could
not reasonably have given them' (per Lord Esher MR in Praed v Graham ((1889) 24 QBD 53 at
55)) or that of Palles CB in M'Grath v Bourne ((1876) IR 10 CL 160 at 164) cited by Lord Wright
inMechanical and General Inventions Co Ltd and Lehwess v Austin and the Austin Motor Co
Ltd ([1935] AC 346 at 378, [1935] All ER Rep 22 at 37), that 'no reasonable proportion existed
between it and the circumstances of the case'. The point is that the law makes the jury and not
the judiciary the constitutional tribunal, and if Parliament had wished the roles to be reversed
in any way, Parliament would have said so at the time of theAdministration of Justice
(Miscellaneous Provisions) Act 1933, since s 6 of that Act expressly excepts defamation actions
(otherwise than in a limited class of case) from the general change which it then authorised.
In addition to the above cases counsel for Captain Broome cited Youssoupoff v Metro-Goldwyn-
Meyer Pictures Ltd ((1934) 50 TLR 581 at 583, 584),Bocock v Enfield Rolling Mills Ltd, Scott v
Musial ([1959] 3 All ER 193 at 194, [1959] 2 QB 429 at 436), Morey v Woodfield, McCarey v
Associated Newspapers Ltd and Broadway Approvals Ltd v Odhams Press Ltd ([1965] 2 All ER at
536, 537, [1965] 1 WLR at 818, 820). I do not see anything in the above cases which alters the
principle involved, nor am I aware of anything in the nature of exemplary damages to alter it in
this limited class of case. It may very well be that, on the whole, judges, and the legal profession
in general, would be less generous than juries in the award of damages for defamation. But I
know of no principle of reason which would entitle judges, whether of appeal or at first
instance, to consider that their own sense of the proprieties is more reasonable than that of a
jury, or which would entitle them to arrogate to themselves a constitutional status in this
matter which Parliament has deliberately withheld from them, for aught we know, on the very
ground that juries can be expected to be more generous on such matters than judges. I speak
with the greater conviction because my own view is that the legal profession is right to be

263
cautious in such matters and juries are wrong if they can be said to be more generous. But that
is not law and I do not think that judges who hold my view are any more entitled to change the
law on this topic than they have been in the past.
Counsel very rightly drew our attention to observations of Lord Devlin in Rookes v
Barnard ([1964] 1 All ER at 411, [1964] AC at 1227) when he said:

'I should not allow the respect which is traditionally paid to an assessment of damages by a jury
to prevent me from seeing that the weapon is used with
[1972] 1 All ER 801 at 820
restraint. It may even be that the House may find it necessary to follow the precedent it set for
itself in Benham v. Gambling, and place some arbitrary limit on awards of damages that are
made by way of punishment.'
I regard Benham v Gambling as setting an absolutely necessary but wholly arbitrary rule to
solve an absolutely insoluble problem, and I do not think it could readily be extended to
exemplary damages for libel simply on the ground that judges do not agree with juries on
quantum. I do not think the first sentence in Lord Devlin's observation means more than that
the House will use its legitimate powers to interfere with awards by juries with particular regard
to the need for preserving liberty, which he was concerned to express, and, if it means that the
House was conferring on itself greater powers than it previously possessed, I would have
regarded it as an usurpation of the function of the legislature as a whole. We were also referred
to the observations of the Court of Appeal in Ward v James ([1965] 1 All ER 568 at 575, [1966] 1
QB 289 at 301). If the passage quoted there means more than that court, in exercising its
undoubted right to interfere with unreasonable verdicts, will have more regard than heretofore
to the general level of damages in cases of a similar nature, and particularly personal injury
cases, it may need further consideration.

The second reason which leads me to decline to interfere with the jury's verdict in this case is
the peculiar gravity of the facts of this case. I share with Phillimore LJ the view that the jury
must have found that ([1971] 2 All ER at 215, [1971] 2 WLR at 887)—

'these were grave libels perpetrated quite deliberately and without regard to their truth by a
young man and a firm of publishers interested solely in whether they would gain by the
publication of this book. They did not care what distress they caused.'

It is true, and I have been constrained to say, that I would have treated this heinous offence
against public decency with far less severity than did the jury in this case. But, at the end of the
hearing, I found myself as unable to say as were the three eminent judges in the Court of
Appeal that no 12 reasonable jurors could have come to a different conclusion from myself.
These matters are very highly subjective, and I do not feel myself entitled to substitute my own
subjective sense of proportion for that of the constitutional tribunal appointed by law to
determine such matters.

I should add, lest I be thought to have overlooked the point that, to avoid the expense and
anxieties of a new trial counsel on both sides agreed to leave to us, in case the appeal should

264
succeed, the assessment of any sum to be awarded. I doubt myself how satisfactory this would
have been but, quite obviously, before we embarked on such a task we should have to be first
satisfied that the original verdict could not stand, and to this preliminary issue the agreement
between counsel is necessarily irrelevant.
THE DECISION IN ROOKES V BARNARD

These considerations really conclude the result of this appeal. It must, in my view, be dismissed.
But, lest other litigants be put to expense and uncertainty comparable to that which the parties
to this case have, in my view, unnecessarily suffered, it is now unavoidable that I should deal at
length with the wider issues in the law of damages on which the Court of Appeal founded the
greater part of its judgment. Before I do so I ought to remark that, although counsel for the
appellants took the point that the trial judge should have withdrawn the question of the
paperback edition from the jury, I regard the way in which he left it to them as so favourable to
the appellants as not to justify a new trial on that ground alone.

The judgment of the Court of Appeal was based on the simple proposition that
[1972] 1 All ER 801 at 821
the decision in Rookes v Barnard so far as it affected punitive or exemplary damages was made
per incuriam and without prior argument by counsel and that judges should in future ignore it
as unworkable, and that, in directing juries, judges of first instance should return to the status
quo anteRookes v Barnard as if that case had never been decided at all. I have already said, and
will not repeat, what I think about the propriety of the Court of Appeal in doing this at all, and
the appropriateness, in view of the consequences to the parties, of their doing it in this case. I
now proceed to consider how far their opinions are correct.
I make no complaint of their view that Rookes v Barnard clearly needs reconsideration by this
House, if only because of the reception it has received in Australia, Canada and New Zealand. I
view with dismay the doctrine that the common law should differ in different parts of the
Commonwealth, which is the effect of the decision in Australian Consolidated Press Ltd v
Uren and anything one can do in this case to bring the various strands of thought in different
Commonwealth countries together ought to be done. Moreover, as I shall show, many of Lord
Devlin's statements have been misunderstood, particularly by his critics, and the view of the
House may well have suffered to some extent from the fact that its reasons were given in a
single speech. Whatever the advantages of a judgment of an undivided court delivered by a
single voice, the result may be an unduly fundamentalist approach to the actual language
employed. Phrases which were clearly only illustrative or descriptive can be treated in isolation
from their context, as being definitive or exhaustive. I am convinced that this has happened
here and that to some extent at least, the purpose and nature of Lord Devlin's exposition has
been misunderstood.
THE LAW BEFORE ROOKES V BARNARD
Whatever else may be said, the Court of Appeal's judgment is based on one assumption which
is plainly incorrect. This assumption is, to quote its most characteristic expression on the lips of
Lord Denning MR ([1971] 2 All ER at 197, [1971] 2 WLR at 868): 'Prior to Rookes v Barnard, the

265
law as to exemplary damages was settled.' In point of fact, it was nothing of the kind. Lord
Denning MR went on immediately to quote from Mayne and MacGregor on Damages the
following passageb:
b
12th Edn (1961), paras 207, 208

'Such damages are variously called punitive damages, vindictive damages, exemplary damages,
and even retributory damages. They can apply only where the conduct of the defendant merits
punishment, which is only considered to be so when his conduct is wanton, as when it discloses
fraud, malice, violence, cruelty, insolence, or the like, or, as it is sometimes put, where he acts
in contumelious disregard of the plaintiff's rights … Such damages are recognised to be
recoverable in appropriate cases in defamation … '
If Lord Denning MR had gone on to quote from a subsequent passage c of the same edition he
would have read the following passage, inconsistent with his construction of the foregoing,
under the heading 'A Double Rationale' which should, I hope, have disabused him of the idea
that the law of punitive damages was in fact settled prior to Rookes v Barnard. The passage is as
follows:
c
Para 212
'3. A DOUBLE RATIONALE
'Through all these various cases, however, runs another thread, giving a very different
explanation of the position. For indeed it cannot be said that English law has committed itself
finally and fully to exemplary damages, and many of the above
[1972] 1 All ER 801 at 822
cases point to the rationale not of punishment of the defendant but of extra compensation for
the plaintiff for the injury to his feelings and dignity. This is, of course, not exemplary damages
at all. It is another head of non-pecuniary loss to the plaintiff.'

Indeed, in the well-known American textbook on the law of damages by the late Professor
Charles T McCormick, published in 1935 by the West Publishing Co of Minnesota, occurs the
following passage to the same effectd:
d
Page 278

'In England, where exemplary damages had their origin, it is still not entirely clear whether the
accepted theory is that they are a distinct and strictly punitive element of the recovery, or they
are merely a swollen or “aggravated” allowance of compensatory damages permitted in cases
of outrage. It is only in America that the cases have clearly separated exemplary from
compensatory damages, and it is only here that the doctrine, thus definitely isolated, has been
attacked and criticised.'
More characteristic than either of these passages and more illustrative of the confusion which
reigned before Rookes v Barnard is the paragraph on the subject in Lord Simonds's edition
of Halsbury's Laws of Englande:
e
11 Halsbury's Laws (3rd Edn) 223, para 391

266
'Exemplary damages. Where the wounded feeling and injured pride of a plaintiff, or the
misconduct of a defendant, may be taken into consideration, the principle of restitutio in
integrum no longer applies. Damages are then awarded not merely to recompense the plaintiff
for the loss he has sustained by reason of the defendant's wrongful act, but to punish the
defendant in an exemplary manner, and vindicate the distinction between a wilful and an
innocent wrongdoer. Such damages are said to be “at large”, and, further, have been called
exemplary, vindictive, penal, punitive, aggravated, or retributory.'
This passage clearly shows the extraordinary confusion of terminology reflecting differences in
thinking and principle which existed up to 1964. Apart from anything else, 'aggravated'
damages, classed as compensatory by Mayne and MacGregor, and by Professor McCormick, are
assimilated to exemplary or punitive damages as such, as is the phrase damages 'at large'—an
expression so indefinite in its connotation that counsel for the appellants in argument felt able
to include within it (as this passage suggests inappropriately) even the general damages for pain
and suffering in a personal injuries case. Clearly, before Rookes v Barnard, the thinking and the
terminology alike called aloud for further investigation and exposition, and, since in such cases
it is the classic function of this House to make such reviews, I cannot accept the simplist
doctrine of the Court of Appeal either that there was no need to make it, or that the only thing
to restore clarity is to go back to the state of the law as it was in 1963. In passing, I may say that
I do not attach so much importance as did the Court of Appeal to the circumstances that the
two categories mentioned by Lord Devlin had never been discussed in argument by counsel.
The cases and textbooks on exemplary damages had been exhaustively read, and when this
House undertakes a careful review of the law it is not to be described as acting per incuriam or
ultra vires if it identifies and expounds principles not previously apparent to the counsel who
addressed it or to the judges and textbook writers whose divergent or confusing expressions
led to the necessity for the investigation. Of course, in a sense, it would be easy enough to
direct a jury under the old law if one simply said to them that any conduct of which they chose
on rational grounds to disapprove would give rise to an award of exemplary damages and that
any sum they chose to think appropriate as the penalty would be acceptable. But no one in
recent years has ever
[1972] 1 All ER 801 at 823

thought this, although it is noteworthy that as recently as 1891 the author of Sedgwick's 'A
Treatise on the Measure of Damages' was writingf:
f
8th Edn, pp 502 et seq
'Until comparatively recent times juries were as arbitrary judges of the amount of damages as
of the facts … Even as late as the time of Lord Mansfield it was possible for counsel to state the
law to be that “The Court cannot measure the ground on which the jury find damages that may
be thought large: they may find upon facts within their own knowledge” … The doctrine of
exemplary damages is thus seen to have originated in a survival in this limited class of cases of
the old arbitrary power of the jury.'
Clearly modern juries must be given adequate professional guidance and the object of Lord
Devlin's opinion in Rookes v Barnard was to enable them to have it. Speaking for myself, and
whatever view I formed of the categories, I would find it impossible to return to the chaos

267
which is euphemistically referred to by Phillimore LJ ([1971] 2 All ER at 214, [1971] 2 WLR at
887) as 'the law as it was before Rookes v Barnard'.
Before I examine the actual decision in Rookes v Barnard I would now propose to make two sets
of observations of a general character. The first relates to the context in which damages must
be awarded, the second to the terminology to be used in particular classes of case.
THE SUBJECTIVE ELEMENT IN DAMAGES

Of all the various remedies available at common law, damages are the remedy of most general
application at the present day, and they remain the prime remedy in actions for breach of
contract and tort. They have been defined as 'the pecuniary compensation, obtainable by
success in an action, for a wrong which is either a tort or a breach of contract'. They must
normally be expressed in a single sum to take account of all the factors applicable to each cause
of action and must of course be, expressed in English currency g.
g
Mayne and McGregor on Damages, 12th Edn, para 1

In almost all actions for breach of contract, and in many actions for tort, the principle of
restitutio in integrum is an adequate and fairly easy guide to the estimation of damage, because
the damage suffered can be estimated by relation to some material loss. It is true that where
loss includes a pre-estimate of future losses, or an estimate of past losses which cannot in the
nature of things be exactly computed, some subjective element must enter in. But the estimate
is in things commensurable with one another, and convertible at least in principle to the English
currency in which all sums of damages must ultimately be expressed.
In many torts, however, the subjective element is more difficult. The pain and suffering
endured, and the future loss of amenity, in a personal injuries case are not in the nature of
things convertible into legal tender. The difficulties arising in the paraplegic cases, or,
before Benham v Gambling, in estimating the damages for loss of expectation of life in a person
who died instantaneously, are only examples of the intrinsically impossible task set judges or
juries in such matters. Clearly the £50,000 award upheld in Morey v Woodfield could never
compensate the victim of such an accident. Nor, so far as I can judge, is there any purely
rational test by which a judge can calculate what sum, greater or smaller, is appropriate. What
is surprising is not that there is difference of opinion about such matters, but that in most cases
professional opinion gravitates so closely to a conventional scale. Nevertheless, in all actions in
which damages, purely compensatory in character, are awarded for suffering, from
[1972] 1 All ER 801 at 824

the purely pecuniary point of view the plaintiff may be better off. The principle of restitutio in
integrum, which compels the use of money as its sole instrument for restoring the status quo,
necessarily involves a factor larger than any pecuniary loss.
In actions of defamation and in any other actions where damages for loss of reputation are
involved, the principle of restitutio in integrum has necessarily an even more highly subjective
element. Such actions involve a money award which may put the plaintiff in a purely financial
sense in a much stronger position than he was before the wrong. Not merely can he recover the

268
estimated sum of his past and future losses, but, in case the libel, driven underground, emerges
from its lurking place at some future date, he must be able to point to a sum awarded by a jury
sufficient to convince a bystander of the baselessness of the charge. As Windeyer J well said
in Uren v John Fairfax & Sons Pty Ltd ((1967) 117 CLR 118 at 150):
'It seems to me that, properly speaking, a man defamed does not get compensation for his
damaged reputation. He gets damages because he was injured in his reputation, that is simply
because he was publicly defamed. For this reason, compensation by damages operates in two
ways—as a vindication of the plaintiff to the public, and as consolation to him for a wrong done.
Compensation is here a solatium rather than a monetary recompense for harm measurable in
money.'
This is why it is not necessarily fair to compare awards of damages in this field with damages for
personal injuries. Quite obviously, the award must include factors for injury to the feelings, the
anxiety and uncertainty undergone in the litigation, the absence of apology, or the
reaffirmation of the truth of the matters complained of, or the malice of the defendant. The
bad conduct of the plaintiff himself may also enter into the matter, where he has provoked the
libel, or where perhaps he has libelled the defendant in reply. What is awarded is thus a figure
which cannot be arrived at by any purely objective computation. This is what is meant when the
damages in defamation are described as being 'at large'. In a sense, too, these damages are of
their nature punitive or exemplary in the loose sense in which the terms were used before
1964, because they inflict an added burden on the defendant proportionate to his conduct, just
as they can be reduced if the defendant has behaved well—as for instance by a handsome
apology—or the plaintiff badly, as for instance by provoking the defendant, or defaming him in
return. In all such cases it must be appropriate to say with Lord Esher MR in Praed v
Graham ((1889) 24 QBD at 55):

'… in actions of libel … the jury in assessing damages are entitled to look at the whole conduct
of the defendant [I would personally add “and of the plaintiff”] from the time the libel was
published down to the time they give their verdict. They may consider what his conduct has
been before action, after action, and in court during the trial.'
It is this too which explains the almost indiscriminate use of 'at large', 'aggravated' 'exemplary',
and 'punitive' before Rookes v Barnard. To quote again from Professor McCormick's work, it
was originally only in America that the distinction between 'aggravated' damages (which take
into account the defendant's bad conduct for compensating the plaintiff's injured feelings) and
'punitive' or 'exemplary' damage was really drawn. My own view is that no English case, and
perhaps even in no statute, where the word 'exemplary' or 'punitive' or 'aggravated' occurs
before 1964 can one be absolutely sure that there is no element of confusion between the two
elements in damages. It was not until Lord Devlin's speech in Rookes v Barnard that the
expressions 'aggravated' on the one hand and 'punitive' or 'exemplary' on the other acquired
separate and mutually exclusive meanings as terms of art in English law.
[1972] 1 All ER 801 at 825
The next point to notice is that it has always been a principle in English law that the award of
damages when awarded must be a single lump sum in respect of each separate cause of action.
Of course, where part of the damage can be precisely calculated, it is possible to isolate part of

269
it in the same cause of action. It is also possible and desirable to isolate different sums of
damages receivable in respect of different torts, as was done here in respect of the proof
copies. But I must say I view with some distrust the arbitrary subdivision of different elements
of general damages for the same tort, as was done in Loudon v Ryder, and even, subject to what
I say later, what was expressly approved by Lord Devlin in Rookes v Barnard([1964] 1 All ER at
411, [1964] AC at 1228) for the laudable purpose of avoiding a new trial. In cases where the
award of general damages contains a subjective element, I do not believe it is desirable or even
possible simply to add separate sums together for different parts of the subjective element,
especially where, as was done by agreement in this case, the subjective element relates under
different heads to the same factor, in this case the bad conduct of the defendant. I would think
with Lord Atkin in Ley v Hamilton ((1935) 153 LT 384 at 386):
'The “punitive” element is not something which is or can [the italics are mine] be added to
some known factor which is non-punitive',
or in the words of Windeyer J in Uren v John Fairfax & Sons Pty Ltd ((1967) 117 CLR at 150):
'The variety of the matters which, it has been held, may be considered in assessing damages for
defamation must in many cases mean that the amount of a verdict is the product of a mixture
of inextricable considerations.' [The italics again are mine.]

In other words the whole process of assessing damages where they are 'at large' is essentially a
matter of impression and not addition. When exemplary damages are involved, and even
though, in theory at least, it may be possible to winnow out the purely punitive element, the
dangers of double counting by a jury or a judge are so great that, even to avoid a new trial, I
would have thought the dangers usually out-weighed the advantages. Indeed, although it must
be wholly illegitimate to speculate in such a matter, the thought crossed my mind more than
once during the hearing that it may even have happened in this case.
TERMINOLOGY

This brings me to the question of terminology. It has been more than once pointed out the
language of damages is more than usually confused. For instance, the term 'special damage' is
used in more than one sense to denominate actual past losses precisely calculated (as in a
personal injuries action), or 'material damage actually suffered' as in describing the factor
necessary to give rise to the cause of action in cases, including cases of slander, actionable only
on proof of 'special damage'. If it is not too deeply embedded in our legal language, I would like
to see 'special damage' dropped as a term of art in its latter sense and some phrase like
'material loss' substituted. But a similar ambiguity occurs in actions of defamation, the
expressions 'at large', 'punitive', 'aggravated', 'retributory', 'vindictive' and 'exemplary' having
been used in, as I have pointed out, inextricable confusion.
In my view it is desirable to drop the use of the phrase 'vindictive' damages altogether, despite
its use by the county court judge in Williams v Settle. Even when a purely punitive element is
involved, vindictiveness is not a good motive for awarding punishment. In awarding
'aggravated' damages the natural indignation of the court at the injury inflicted on the plaintiff
is a perfectly legitimate motive in making a
[1972] 1 All ER 801 at 826
270
generous rather than a more moderate award to provide an adequate solatium. But that is
because the injury to the plaintiff is actually greater and as the result of the conduct exciting
the indignation demands a more generous solatium. Likewise the use of 'retributory' is
objectionable because it is ambiguous. It can be used to cover both aggravated damages to
compensate the plaintiff and punitive or exemplary damages purely to punish the defendant or
hold him up as an example.

As between 'punitive' or 'exemplary', one should, I would suppose, choose one to the exclusion
of the other, since it is never wise to use two quite interchangeable terms to denote the same
thing. Speaking for myself, I prefer 'exemplary', not because 'punitive' is necessarily inaccurate,
but 'exemplary' better expresses the policy of the law as expressed in the cases. It is intended
to teach the defendant and others that 'tort does not pay' by demonstrating what
consequences the law inflicts rather than simply to make the defendant suffer an extra penalty
for what he has done, although that does, of course, precisely describe its effect.
The expression 'at large' should be used in general to cover all cases where awards of damages
may include elements for loss of reputation, injured feelings, bad or good conduct by either
party, or punishment, and where in consequence no precise limit can be set in extent. It woud
be convenient if, as the appellants' counsel did at the hearing, it could be extended to include
damages for pain and suffering or loss of amenity. Lord Devlin uses the term in this sense
in Rookes v Barnard ([1964] 1 All ER at 407, [1964] AC at 1221), when he defines the phrase as
meaning all cases where 'the award is not limited to the pecuniary loss that can be specifically
proved'. But I suspect that he was there guilty of a neologism. If I am wrong, it is a convenient
use and should be repeated.

Finally, it is worth pointing out, although I doubt if a change of terminology is desirable or

necessary, that there is danger in hypostating 'compensatory', 'punitive', 'exemplary' or
'aggravated' damages at all. The epithets are all elements or considerations which may, but
with the exception of the first need not, be taken into account is assessing a single sum. They
are not separate heads to be added mathematically to one another.
ANALYSIS OF ROOKES V BARNARD
This being said, it is necessary to analyse the decision in Rookes v Barnard, a case, it must be
remembered, of intimidation and not libel. The only actual decision on damages must be
looked for in the passage where Lord Devlin says ([1964] 1 All ER at 414, [1964] AC at 1232):

'I doubt whether the facts disclosed in the summing-up show even a case for aggravated
damages; a different impression may be obtained when the facts are fully displayed on a new
trial. At present there seems to be no evidence that the respondents were motivated by
malevolence or spite against the appellant. They wronged him, not primarily to hurt him, but so
as to achieve their own ends. If that had not been their dominating motive, then what they did
would not have been done in furtherance of a trade dispute and the whole case has been
fought on the basis that it was. It is said that they persisted in believing that their closed shop
position was endangered by the appellant's conduct, even when their official leaders told them
that it was not. Be it so; pig-headedness will not do. Again, in so far as disclosed in the
summing-up, there was no evidence of offensive conduct or of arrogance or insolence. It was, I
271
think, suggested that some impolite observations were made about the appellant, but that is
not enough; in a dispute of this sort feelings run high and more than hard words are need for
aggravated damages. Counsel for the appellant relied strongly on the flagrant breach of
contract with B.O.A.C. and the respondents' open disregard of their pledges and their lack of
consideration. But this was not conduct
[1972] 1 All ER 801 at 827

that affected the appellant. He was no more distressed or humiliated by it than any of
B.O.A.C.'s passengers whose convenience, it might be said, and interests were brushed aside by
the respondents in their determination to secure their object.'
Although, as will be seen, I prefer much of what Lord Devlin said on the subject of exemplary
damages to what has been said by his subsequent critics, and propose to follow it, the decision
in Rookes v Barnard must be viewed in the light of these conclusions. It is not verbally inspired.
But it is a careful and valuable decision not lightly to be set aside.

The passages which have given rise to criticism and discussion ([1964] 1 All ER at 407–413,
[1964] AC at 1220–1231) can be divided conveniently into the following parts. The first part
consists in exposition of the authorities and principles ([1964] 1 All ER at 407–409, [1964] AC at
1220–1225) where Lord Devlin begins to draw his conclusions. These conclusions, which form
the second portion of his opinion, include the three 'alleged categories' ([1964] 1 All ER at 409–
411, [1964] Ac at 1225–1227), the three 'considerations' ([1964] 1 All ER at 411, 412, [1964] AC
at 1227–1230) and finally ([1964] 1 All ER at 412, 413, [1964] AC at 1230, 1231) the
commentary and exposition of the consequences of what he has said and these occupy the rest
of the passage under discussion.
WAS THE DECISION PER INCURIAM?

Now, I think I must protest at the outset at the theory that Lord Devlin (or those members of
the House who agreed with him) was speaking 'per incuriam'. I have already dealt with the
argument that his conclusions did not follow the actual submissions of counsel on either side.
Lord Devlin was, of course, perfectly well aware that, in drawing these conclusions from the
authorities, he was making new law in the sense in which new law is always made when an
important new precedent is established. Thus, he said ([1964] 1 All ER at 410, [1964] AC at
1226):

'I am well aware that what I am about to say will, if accepted, impose limits not hitherto
expressed on such awards and that there is powerful, though not compelling, authority for
allowing them a wider range. I shall not therefore conclude what I have to say on the general
principles of law without returning to the authorities and making it clear to what extent I have
rejected the guidance which they may be said to afford.'

But a judge is always entitled to do this when the exact limits, rationale, and the extent of a
principle is being discussed, and when those limits, rationale, and extent have never been
authoritatively defined.

272
Nor can it be said fairly that he had ignored Ley v Hamilton. In fact he quoted from it at length
and treated it, making allowance for the confusion in the legal terminology at the time to which
I have already drawn attention, as a case of 'aggravated' damages. I think he was right in so
doing; although I also think Salmon LJ was almost certainly right in thinking ([1971] 2 All ER at
207, [1971] 2 WLR at 879) that the inverted commas in which Lord Atkin h puts 'punitive' are not
a guide to its meaning. The word is in inverted commas for the same reason that 'real' in the
earlier passage is in inverted commas. They are quotation marks and Lord Atkin was quoting
the actual words in the judgment of Maugham LJi which he was criticising.
h
In Ley v Hamilton (1835) 153 LT at 386
i
In Ley v Hamilton in the Court of Appeal (1934) 151 LT 360 at 374
[1972] 1 All ER 801 at 828
It is a fairer criticism of Lord Devlin to say that he did not mention E Hulton & Co v Jones. Both
counsel for the plaintiff in argument in that case and Lord Loreburn LC, in his speech ([1910] AC
at 24, [1908–10] All ER Rep at 47) which may have been ex tempore, reflect a view of the law of
damages for libel apparently at variance with the law as Lord Devlin has now declared it to be.
But, as I shall show, the difference is more apparent than real. It is difficult to square either
counsel for the plaintiff's argument or the passage of Lord Loreburn LC's speech with the
explicit admission made in the Court of Appeal and repeated in the facts stated ([1910] AC at
20), that the use of the name 'Artemus Jones' by the editor and author was innocent, and it is
on this basis that the case is normally cited as an authority. Judging the use made of the case in
the Court of Appeal by their own criteria of Lord Devlin, the case is certainly not a binding
authority on the law of exemplary damages. It was never argued as such, although the
observations of Lord Loreburn LC can be fairly used as testimony, and even as persuasive
authority, for the state of legal thinking at the time. In law, however, if Lord Devlin be right, the
law of exemplary damages was still evolving, and Hulton v Jones made no pretence at altering
or defining it, nor did either counsel in the case argue the case in terms which raised the
question in its present form.
DID ROOKES V BARNARD EXTEND EXEMPLARY DAMAGES TO FRESH TORTS?
Having rejected the theory that Lord Devlin's speech can be pushed aside as having been
delivered per incuriam, I hope I may now equally dispose of another misconception. I do not
think that he was under the impression either that he had completely rationalised the law of
exemplary damages, nor by listing the 'categories' was he intending, I would think, to add to the
number of torts for which exemplary damages can be awarded. Thus I disagree with the dictum
of Widgery LJ in Mafo v Adams ([1969] 3 All ER at 1410, [1970] 1 QB at 558) (which, for this
purpose, can be treated as an action for deceit) when he said:
'As I understand LORD DEVLIN's speech, the circumstances in which exemplary damages may be
obtained have been drastically reduced, but the range of offences in respect of which they may
be granted has been increased, and I see no reason since Rookes v. Barnard why, when
considering a claim for exemplary damages, one should regard the nature of the tort as
excluding the claim.'

273
This would be a perfectly logical inference if Lord Devlin imagined that he was substituting a
completely rational code by enumerating the categories and stating the considerations. It is
true, of course, that actions for deceit could well come within the purview of the second
category. But I can see no reason for thinking that Lord Devlin intended to extend the category
to deceit, and counsel on both sides before us were constrained to say that, although it may be
paradoxical, they were unable to find a single case where either exemplary or aggravated
damages had been awarded for deceit, despite the fact that contumelious, outrageous,
oppressive, or dishonest conduct on the part of the defendant is almost inherently associated
with it. The explanation may lie in the close connection that the action has always had with
breach of contract (see the discussion in Mayne and MacGregor j).
j
Chapter 41, especially at para 968
WHERE SOLATIUM IS ENOUGH
The true explanation of Rookes v Barnard is to be found in the fact that, where damages for loss
of reputation are concerned, or where a simple outrage to the individual or to property is
concerned, aggravated damages in the sense I have explained can, and should in every case
lying outside the categories, take care of the
[1972] 1 All ER 801 at 829

exemplary element, and the jury should neither be encouraged not allowed to look beyond as
generous a solatium as is required for the injuria simply in order to give effect to feelings of
indignation. It is not that the exemplary element is excluded in such cases. It is precisely
because in the nature of things it is, and should be, included in every such case that the jury
should neither be encouraged nor allowed to look for it outside the solatium and then to add to
the sum awarded another sum by way of penalty additional to the solatium. To do so would be
to inflict a double penalty for the same offence.
The surprising thing about Rookes v Barnard is not that Lord Devlin restricted the award of
exemplary damages viewed as an addition to or substitution for damages by way of solatium to
the three so-called categories, but that he allowed the three so-called categories to exist by
way of exception to the general rule. That he did this is due at least in part to the fact that he
felt himself bound by authority to do so, but partly also because he thought that there were
cases where, over and above the figure awarded for loss of reputation, for injured feelings, for
outraged morality, and to enable a plaintiff to protect himself against future calumny or
outrage of a similar kind, an additional sum was needed to vindicate the strength of the law and
act as a supplement to its strictly penal provisions k.
k
Cf what Lord Devlin says [1964] 1 All ER at 410, 412, [1964] AC at 1226, 1230
IS ROOKES V BARNARD UNWORKABLE?

I confess I am quite unable to see why such a view of the matter is 'unworkable'. As I have
already pointed out, it has been worked in fact for nearly eight years. On the contrary, by
insisting on a single sum being awarded for outrageous behaviour in nearly every case of tort,
and allowing the jury full vent to their legitimate feelings within the proportions set by the
injury involved, it seems to me that judge and jury are set an inherently less difficult task than if

274
they were told first to take into account the aggravating factors, and then to impose an
additional 'fine' for the size of which they have neither the qualifications, nor any measure by
which they can limit their discretion, particularly since neither counsel nor the judge can
mention particular figures which can have any relevance to the actual case. The difficulty
consists, not in working the system of aggravated and purely compensatory damages, where
they apply, as they do in almost every case of contumelious conduct under Lord Devlin's
opinion, but in working a system of punitive damages alongside the system of aggravated and
compensatory damage. This difficulty exists whether Lord Devlin's limitation to the categories
be right or wrong and, if it were wrong, would exist in every case, and not only in a small
minority of cases. The difficulty resides in the fact that the thinking underlying the two systems
is as incompatible as oil and vinegar, the one based on what the plaintiff ought to receive, the
other based on what 12 reasonable, but otherwise uninstructed, men and women think the
defendant ought to pay.
THE MEANING OF THE CATEGORIES

As regards the meaning of the particular categories, I have come to the conclusion that what
Lord Devlin said was never intended to be treated as if his words were verbally inspired, and
much of the criticism of them which has succeeded reports of the case has been based on
interpretations which are false to the whole context and unduly literal even when taken in
isolation from it.
The only category exhaustively discussed before us was the second, since the first could
obviously have no application to the instant case. But I desire to say of the first that I would be
surprised if it included only servants of the government in the strict sense of the word. It would,
in my view, obviously apply to the police, despite A-G for New South Wales v Perpetual Trustee
Co Ltd, and almost as certainly to local
[1972] 1 All ER 801 at 830
and other officials exercising improperly rights of search or arrest without warrant, and it may
be that in the future it will be held to include other abuses of power without warrant by
persons purporting to exercise legal authority. What it will not include is the simple bully, not
because the bully ought not to be punished in damages, for he manifestly ought, but because
an adequate award of compensatory damages by way of solatium will necessarily have
punished him. I am not prepared to say without further consideration that a private individual
misusing legal powers of private prosecution or arrest as in Leith v Pope, where the defendant
had the plaintiff arrested and tried on a capital charge, might not at some future date be
assimilated into the first category. I am not prepared to make an exhaustive list of the
emanations of government which might or might not be included. But I see no reason to extend
it beyond this field, to simple outrage, malice or contumelious behaviour. In such cases a
properly directed jury will not find it necessary to differentiate between what the plaintiff ought
to receive and the defendant ought to pay, since the former will always include the latter to the
extent necessary to vindicate the strength of the law.
When one comes to the second category we reach a field which was more exhaustively
discussed in the case before us. It soon became apparent that a broad rather than a narrow

275
interpretation of Lord Devlin's words was absolutely essential, and that attempts to narrow the
second category by a quotation out of context of one sentence from the passage wherein it is
defined simply will not do. Lord Devlin founded his second category on a sequence of cases
beginning with Bell v Midland Ry Co, and on the judgment of Maule J in Williams v
Currie ((1845) 1 CB 841 at 848) and the dictum of Martin B in Crouch v Great Northern Ry
Co ((1856) 11 Exch 742 at 759). None of these were examples of precise calculation of the
balance sheet type. They he said ([1964] 1 All ER at 410, 411, [1964] AC at 1227):
'It [i e the motive of making a profit] is a factor also that is taken into account in damages for
libel; one man should not be allowed to sell another man's reputation for profit. Where a
defendant with a cynical disregard for a plaintiff's rights has calculated that the money to be
made out of his wrongdoing will probably exceed the damages at risk, it is necessary for the law
to show that it cannot be broken with impunity. This category is not confined to moneymaking
in the strict sense. It extends to cases in which the defendant in seeking to gain at the expense of
the plaintiff some object,—perhaps some property which he covets,—which either he could not
obtain at all or not obtain except at a price greater than he wants to put down. Exemplary
damages can properly be awarded whether it is necessary to teach a wrongdoer that tort does
not pay.' [The italics are mine.]

Even a casual reading of the above passage shows that the sentence:

'Where a defendant with a cynical disregard for a plaintiff's rights has calculated that the
money to be made out of his wrongdoing will probably exceed the damages at risk, it is
necessary for the law to show that it cannot be broken with impunity'

is not intended to be exhaustive but illustrative, and is not intended to be limited to the kind of
mathematical calculations to be found on a balance sheet. The sentence must be read in its
context. The context occurs immediately after the sentence ending: 'one man should not be
allowed to sell another man's reputation for profit', where the word 'calculation' does not
occur. The context also includes the final sentence: 'Exemplary damages can properly be
awarded whenever it is necessary to teach a
[1972] 1 All ER 801 at 831

wrongdoer that tort does not pay.' The whole passage must be read sensibly as a whole,
together with the authorities on which it is based.
It is true, of course, as was well pointed out by Widgery J in Manson v Associated Newspapers
Ltd ([1965] 2 All ER at 960, [1965] 1 WLR at 1045), that the mere fact that a tort, and
particularly a libel, is committed in the course of a business carried on for profit is not sufficient
to bring a case within the second category. Nearly all newspapers, and most books, are
published for profit. What is necessary in addition is (i) knowledge that what is proposed to be
done is against the law or a reckless disregard whether what is proposed to be done is illegal or
legal, and (ii) a decision to carry on doing it because the prospects of material advantage
outweigh the prospects of material loss. It is not necessary that the defendant calculates that
the plaintiff's damages if he sues to judgment will be smaller than the defendant's profit. This is
simply one example of the principle. The defendant may calculate that the plaintiff will not sue

276
at all because he has not the money (I suppose the plaintiff in a contested libel action like the
present must be prepared nowadays to put at least £30,000 at some risk), or because he may
be physically or otherwise intimidated. What is necessary is that the tortious act must be done
with guilty knowledge for the motive that the chances of economic advantage outweigh the
chances of economic, or perhaps physical, penalty.
At this stage one must examine some of the counter-arguments which found favour in the
Court of Appeal. How, it may be asked, about the late Mr Rachman, who is alleged to have used
hired bullies to intimidate statutory tenants by violence or threats of violence into giving vacant
possession of their residences and so placing a valuable asset in the hands of the landlord? My
answer must be that if this is not a cynical calculation of profit and cold-blooded disregard of a
plaintiff's rights, I do not know what is. It is also argued that the second category does not take
care of the case of a man who pursues a potential plaintiff to ruin out of sheer hatred and
malice. The answer is that it does not do so because this is already taken care of in the full
compensation or solatium for the injuria involved in which the jury can give full rein to their
feeling of legitimate indignation without going outside the bounds of compensatory damages in
the sense in which I have explained the phrase, that is, damages of sufficient size to enable the
plaintiff to point to the size of the award to indicate the baselessness of the false charge, and
damages for the outrage inflicted in exact proportion as it was unprovoked, unatoned for, or
malicious. I would have thought the second category was ample to cover any form of injury
committed within the scope of those torts for which aggravated and exemplary damages may
be awarded where the motive was material advantage. Mafo v Adams is not really an authority
to the contrary, although I would have thought that the damages there awarded for
inconvenience, breach of covenant, and loss of a regulated tenancy were perhaps at present
day values too small for the wrong committed. What was at issue in Mafo v Adams was the
award of exemplary damages in an action for deceit (see from Sachs LJ ([1969] 3 All ER at 1407,
[1970] 1 QB at 555)) and this, in the event, was never decided. What was decided in that case
that the plaintiff had not discharged the onus of proof that the defendant's motives were such
as to bring the case within the second category. This is clear from the fact that both Sachs and
Widgery LJJ based their judgments on a passage from the decision of the county court judge,
where he said: 'The defendant's reasons for his actions are obscure' (see per Sachs LJ ([1969] 3
All ER at 1408, [1970] 1 QB at 556), and per Widgery LJ ([1969] 3 All ER at 1411, [1970] 1 QB at
559)). I am far from saying that insofar as it could have been shown that the defendant was
actuated by hope of gain, and if the action had been one of trespass, exemplary damages could
not have been awarded under the second category, and even though
[1972] 1 All ER 801 at 832

in the absence of authority I am of opinion that exemplary damages cannot be awarded in an

action for deceit, I cannot claim that that matter has been finally determined.
The main criticisms of Lord Devlin's speech are thus shown to have been unfounded. That he
went beyond the existing law he had no doubt, and nor have I. But, as I have shown, he was
entitled to do so. It may very well be that, in deciding in favour of the two exceptional
categories, he was making an unnecessary concession to tradition. But he made the concession
after a careful analysis of the authorities and, speaking for myself, and given the cautious

277
approach indicated in Lord Gardiner LC's practice declaration (See Note [1966] 3 All ER 77,
[1966] 1 WLR 1234), and by a majority of this House in Jones v Secretary of State for Social
Services (Page 145 ante, [1971] 2 WLR 210), I do not think there is any reason for disturbing
them. I regard the Australian cases, and in particular Uren v John Fairfax & Sons Pty Ltd, as
deciding no more than that on the particular facts of that case the award of exemplary
damages was not acceptable. Insofar as they claim to establish that exemplary damages can be
awarded for any contumelious disregard of the plaintiff's rights I may not, of course, comment
so far as regards the law of Australia, but, so far as regards the law of England, I would say that
an adequate award of compensatory damages in such a case must of necessity include, and
perhaps more than include, any punitive or exemplary element. The proposition, as a
proposition, would have been perfectly acceptable so long as the looser terminology prevalent
before Rookes v Barnard was in use. So far as regards the more strict terminology now to be
employed, the proposition is not to be treated as acceptable in the English courts.
Before turning to the so-called 'considerations' I desire to say a word concerning the decision
in Williams v Settle and Loudon v Ryder, on which Lord Devlin also commented. Williams v
Settle was a case under s 17(3) of the Copyright Act 1956. I agree with Lord Devlin that it is for
consideration in the light of subsequent cases whether that section, which does not use the
phrase 'exemplary damages', does in fact give a right to damages which are exemplary in the
narrower sense used since Rookes v Barnard. If it does, the case should be regarded as a second
category case, since the defendant's motive was profit. If it does not, and it is to be regarded as
still authoritive, Williams v Settle can only be regarded as an extreme example of aggravated
damages, although the language of the county court judge was so strong as to lead me to think
that I would not myself have been prepared to make so large an award
Loudon v Ryder is the earliest instance which I have been able to find where a split award was
made of exemplary and compensatory damages for the same tort, and the split was made in
circumstances which are not altogether plain from the report, after an award of a lump sum
had been announced. What would have happened if Devlin J had summed up to the jury in
favour of a generous award of aggravated damages on the lines of his later speech in Rookes v
Barnard is, of course, a question which no one can possibly answer. The answer might well have
been, substituting 'trespass' for 'defamation', what Windeyer J said in Uren v John Fairfax &
Sons Pty Ltd ((1967) 117 CLR at 152):

'Telling the jury in a defamation action that compensation is to be measured having regard to
aggravating circumstances the result of the defendant's conduct might not result in a verdict
different from that which they would return if they were told that because of that conduct they
could give damages by way of example.'
[1972] 1 All ER 801 at 833
What is certain is that the summing-up by Devlin J in that case could not, as Lord Devlin himself
surmised, now survive the analysis by Lord Devlin inRookes v Barnard of the theoretical basis of
exemplary damages in the sense in which the term should now be employed.
THE 'CONSIDERATIONS'

278
I turn now to Lord Devlin's three 'considerations'. It is worth pointing out that neither the Court
of Appeal nor any of the counsel who appeared before us attacked these as such. Nor, so far as
I am aware, have these been attacked in the cases in which Commonwealth judges have felt
constrained to criticise Rookes v Barnard. This alone would be a good reason against a simple
return to the status quo ante proposed by the Court of Appeal, because the first and second
'considerations' coupled with the passage from which I have already quoted ([1964] 1 All ER at
409, [1964] 1 AC at 1225) are themselves, and quite independently of the 'categories', an
important, and I think original, contribution to the law on exemplary damages. Whilst, as I have
indicated, I cannot myself follow what Lord Devlin says on the second category so far as regards
the right of appellate courts to interfere with jury awards on principles different from the
traditional, nor, I think, with the proposal that Benham v Gambling offers a precedent for
arbitrary limits imposed by the judiciary in defamation cases, I regard it as extremely important
that, for the future, judges should make sure in their direction to juries that the jury is fully
aware of the danger of an excessive award. A judge should first rule whether evidence exists
which entitles a jury to find facts bringing a case within the relevant categories, and, if it does
not, the question of exemplary damages should be withdrawn from the jury's consideration.
Even if it is not withdrawn from the jury, the judge's task is not complete. He should remind the
jury (i) that the burden of proof rests on the plaintiff to establish the facts necessary to bring
the case within the categories; (ii) that the mere fact that the case falls within the categories
does not of itself entitle the jury to award damages purely exemplary in character; they can and
should award nothing unless (iii) they are satisfied that the punitive or exemplary element is
not sufficiently met with the figure which they have arrived at for the plaintiff's solatium in the
sense I have explained and (iv) that, in assessing the total sum which the defendant should pay,
the total figure awarded should be in substitution for and not in addition to the smaller figure
which would have been treated as adequate solatium, that is to say, should be a round sum
larger than the latter and satisfying the jury's idea of what the defendant ought to pay. (v) I
would also deprecate, as did Lord Atkin inLey v Hamilton ((1935) 153 LT 384 at 386), the use of
the word 'fine' in connection with the punitive or exemplary element in damages, where it is
appropriate. Damages remain a civil, not a criminal remedy, even where an exemplary award is
appropriate, and juries should not be encouraged to lose sight of the fact that, in making such
an award they are putting money into a plaintiff's pocket, and not contributing to the rates, or
to the revenue of central government.

If this be correct, the agreed list of questions submitted to the jury in the present case is not the
ideal procedure for ensuring that the jury keep their verdict within bounds. They should
normally be asked to award a single sum whether as solatium or as exemplary damages. If, in
order to avoid a second trial, they are asked a second question, they should be asked, in the
event of their awarding exemplary damages, what smaller sum they would have awarded if
they had confined themselves to solatium in the sense explained.
It follows from what I have said that I am not prepared to follow the Court of Appeal in its
criticisms of Rookes v Barnard, which I regard as having imposed valuable limits on the doctrine
of exemplary damages as they had hitherto been understood in English law and clarified
important questions which had previously

279
 [1972] 1 All ER 801 at 834
been undiscussed or left confused. From one point of view, there is much to be said for the
interpretation put on Lord Devlin's speech by Windeyer J in Uren v John Fairfax & Sons Pty
Ltd ((1967) 117 CLR at 152) immediately before the passage I have just quoted:

'What the House of Lords has now done is, as I read what was said, to produce a more distinct
terminology. Limiting the scope of terms that often were not distinguished in application makes
possible an apparently firm distinction between aggravated compensatory damages and
exemplary or punitive damages.'
But it is not to be inferred from this that the ruling in Rookes v Barnard is a pure question of
semantics. It may well be true that in most individual cases the precise terminolgoy in which
the question is asked of the jury may not make much difference to the amount of the award.
Both Windeyer J in the passage just cited and Lord Devlin ([1964] 1 All ER at 412, [1964] AC at
1230) were evidently of this view. But the following positive advantages can be gained from
adhering to the rules he laid down, if properly interpreted: (i) The danger of double counting, of
adding a pure 'fine' to what has already been awarded as solatium, without regarding the
deterrent or punitive effect of the latter, has been eliminated, or at least reduced to a
minimum. (2) In all cases where the categories do not apply, the jury must be told to confine
the punitive or deterrent element in their thinking within the limits of a fair solatium. In other
words, to borrow the language, though not the sentiments, expressed in Forsdike v
Stone((11868) LR 3 CP 607 at 611) the jury must be told to consider only what the plaintiff
should receive after giving full allowance to the need to re-establish his reputation and for the
outrage inflicted on him, and not what the defendant should pay independently of this
consideration. (3) In cases where the categories do apply, juries can be given directions a little
more informative and regulatory than was the case up to and including the new analysis.
Rookes v Barnard had not perhaps proved quite the definitive statement of the law which was
hoped when it was decided. This is often the case. I remember with suitably mixed feelings of
filial piety and inherited caution, that in his judgment in R Addie & Sons (Collieries) Ltd v
Dumbreck my father believed he was putting a final end to doubts about the limits of occupiers'
liability to trespassers, licensees, and invitees. But the way forward lies through a considered
precedent and not backwards from it. I would hope very much that, in the light of observations
made on Rookes v Barnard in this case, Commonwealth courts might see fit to modify some of
their criticisms of it. I do not know how far it can be of value in the United States of America
where it seems to me that the decisions of the Supreme Court have been influenced greatly by
the terms of the First Amendment to the Constitution, and by the unsatisfactory rules prevalent
in American courts as to the recovery of costs. However that may be, we cannot depart
fromRookes v Barnard here. It was decided neither per incuriam nor ultra vires this House; we
could only depart from it by tearing up the doctrine of precedent, and this was not the object of
this House in assuming the powers adopted by the practice declaration of 1966
(See Note [1966] 3 All ER 77, [1966] 1 WLR 1234).
Lest I should have been thought to have forgotten it, I would observe that the Court of Appeal
overruled the decision of Lawton J that a claim for exemplary damages should be pleaded. I am
content to accept their view on the basis of the present practice. But in the light of the decision

280
of this House in the instant case I propose to refer to the Rule Committee the question whether
in the light of Rookes v Barnard and the present decision the present practice should not be
altered.
[1972] 1 All ER 801 at 835

There is much to be said for the view that a defendant against whom a claim of this kind is
made ought not to be taken by surprise.

My Lords, it follows from what I have said in my opinion this appeal should be dismissed and
that costs should follow the event.

LORD REID.

My Lords, the appellants published a book 'The Destruction of Convoy PQ17' which according to
their advertisement on the dust jacket was the result of five intensive years of meticulous
research by the author. It contained many statements about the conduct of Captain Broome
who was the naval officer in command of the convey. He sued the appellants and the author for
damages for libel. After a trial which lasted for some 17 days a number of questions were left to
the jury. They found that the words complained of were defamatory of Captain Broome. and
were not true in substance and in fact. They were asked what compensatory damages they
awarded, and they awarded £15,000. Then they were asked 'Has the plaintiff proved that he is
entitled to exemplary damages?' Their answer was Yes against both defendants. Next they
were asked 'What additional sum should be awarded him by way of exemplary damages?' Their
answer was £25,000. So judgment was entered against both defendants for £40,000.

Others of your Lordships have dealt in detail with these statements and I do not think it
necessary to say more than that in my opinion the jury were well entitled to find that they
conveyed imputations of the utmost gravity against the character and conduct of Captain
Broome as a naval officer. Indeed the appellants do not now seek to disturb the award of
£15,000 as 'compensatory damages'. Their contention before your Lordships is twofold: first
that the jury were not entitled to award any exemplary damages and secondly that the amount
awarded under this head was much too great. As no objection was taken at the time to the
form of the question there cannot now be any objection to the jury having been asked in this
case to consider separately compensatory and exemplary damages.
The whole matter of exemplary damages was dealt with in this House in Rookes v Barnard in a
speech by Lord Devlin with which all who sat with him, including myself, concurred. The Court
of Appeal dealing with the present case held that if they applied the law as laid down in Rookes
v Barnard the appellants' appeal must fail and the jury's verdict must stand. They could have
stopped there, but they chose to go on and attack the decision of this House as bad law. They
were quite entitled to state their views and reasons for reaching that conclusion but very
unfortunately Lord Denning MR, apparently with the concurrence of his two colleagues, went
on to say ([1971] 2 All ER at 201, 202, [1971] 2 WLR at 873):

281
'This case may, or may not, go on appeal to the House of Lords. I must say a word, however, for
the guidance of judges who will be trying cases in the meantime. I think the difficulties
presented by Rookes v Barnard are so great that the judges should direct the juries in
accordance with the law as it was understood before Rookes v Barnard. Any attempt to
follow Rookes v Barnard is bound to lead to confusion.'

It seems to me obvious that the Court of Appeal failed to understand Lord Devlin's speech, but
whether they did or not I would have expected them to know that they had no power to give
any such direction and to realise the impossible position in which they were seeking to put
those judges in advising or directing them to disregard a decision of this House. That aberration
of the Court of Appeal has made it necessary to re-examine the whole subject and incidentally
has greatly increased the expense to which the parties to this case have been put.

The very full argument which we have had in this case has not caused me to
[1972] 1 All ER 801 at 836
change the views which I held when Rookes v Barnard was decided or to disagree with any of
Lord Devlin's main conclusions. But it has convinced me that I and my colleagues made a
mistake in simply concurring with Lord Devlin's speech. With the passage of time I have come
more and more firmly to the conclusion that it is never wise to have only one speech in this
House dealing with an important question of law. My main reason is that experience has shown
that those who have to apply the decision to other cases and still more those who wish to
criticise it seem to find it difficult to avoid treating sentences and phrases in a single speech as if
they were provisions in an Act of Parliament. They do not seem to realise that it is not the
function of noble and learned Lords or indeed of any judges to frame definitions or to lay down
hard and fast rules. It is their function to enunciate principles and much that they say is
intended to be illustrative or explanatory and not to be definitive. When there are two or more
speeches they must be read together and then it is generally much easier to see what are the
principles involved and what are merely illustrations of it.

I am bound to say that, in reading the various criticisms of Lord Devlin's speech to which we
have been referred, I have been very surprised at the failure of its critics to realise that it was
intended to state principles and not to lay down rules. But I suppose that those of us who
merely concurred with him ought to have foreseen that this might happen and to have taken
steps to prevent it. So I shall try to repair my omission by stating now in a different way the
principles which I, and I believe also Lord Devlin, had in mind. I do not think that he would have
disagreed with any important part of what I am now about to say.

Damages for any tort are or ought to be fixed at a sum which will compensate the plaintiff, so
far as money can do it, for all the injury which he has suffered. Where the injury is material and
has been ascertained it is generally possible to assess damages with some precision. But that is
not so where he has been caused mental distress or when his reputation has been attacked—
where to use the traditional phrase he has been held up to hatred, ridicule or contempt. Not
only is it impossible to ascertain how far other people's minds have been affected, it is almost
impossible to equate the damage to a sum of money. Any one person trying to fix a sum as

282
compensation will probably find in his mind a wide bracket within which any sum could be
regarded by him as not unreasonable—and different people will come to different conclusions.
So in the end there will probably be a wide gap between the sum which on an objective view
could be regarded as the least and the sum which could be regarded as the most to which the
plaintiff is entitled as compensation.

It has long been recognised that in determining what sum within that bracket should be
awarded, a jury, or other tribunal, is entitled to have regard to the conduct of the defendant.
He may have behaved in a high-handed, malicious, insulting or oppressive manner in
committing the tort or he or his counsel may at the trial have aggravated the injury by what
they there said. That would justify going to the top of the bracket and awarding as damages the
largest sum that could fairly be regarded as compensation.
Frequently in cases before Rookes v Barnard when damages were increased in that way but
were still within the limit of what could properly be regarded as compensation to the plaintiff, it
was said that punitive, vindictive or exemplary damages were being awarded. As a mere matter
of language that was true enough. The defendant was being punished or an example was being
made of him by making him pay more than he would have had to pay if his conduct had not
been outrageous. But the damages although called punitive were still truly compensatory; the
plaintiff was not being given more than his due.

On the other hand when we came to examine the old cases we found a number which could
not be explained in that way. The sums awarded as damages were more—sometimes much
more—than could on any view be justified as compensatory, and courts, perhaps without fully
realising what they were doing, appeared to have
[1972] 1 All ER 801 at 837

permitted damages to be measured not by what the plaintiff was fairly entitled to receive but
by what the defendant ought to be made to pay as punishment for his outrageous conduct.
That meant that the plaintiff, by being given more than on any view could be justified as
compensation, was being given a pure and undeserved windfall at the expense of the
defendant, and that insofar as the defendant was being required to pay more than could
possibly be regarded as compensation he was being subjected to pure punishment.

I thought and still think that that is highly anomalous. It is confusing the function of the civil law
which is to compensate with the function of the criminal law which is to inflict deterrent and
punitive penalties. Some objection has been taken to the use of the word 'fine' to denote the
amount by which punitive or exemplary damages exceed anything justly due to the plaintiff. In
my view the word 'fine' is an entirely accurate description of that part of any award which goes
beyond anything justly due to the plaintiff and is purely punitive.
Those of us who sat in Rookes v Barnard thought that the loose and confused use of words like
'punitive' and 'exemplary' and the failure to recognise the difference between damages which
are compensatory and damages which go beyond that and are purely punitive had led to
serious abuses, so we took what we thought was the best course open to us to limit those
abuses. Theoretically we might have held that as purely punitive damages had never been

283
sanctioned by any decision of this House (as to which I shall say more later) there was no right
under English law to award them. But that would have been going beyond the proper function
of this House. There are many well established doctrines of the law which have not been the
subject of any decision by this House. We thought we had to recognise that it had become an
established custom in certain classes of case to permit awards of damages which could not be
justified as compensatory, and that that must remain the law. But we thought and I still think it
well within the province of this House to say that that undesirable anomaly should not be
permitted in any class of case where its use was not covered by authority. In order to determine
the classes of case in which this anomaly had become established it was of little use to look
merely at the words which had been used by the judges because, as I have said, words like
'punitive' and 'exemplary' were often used with regard to damages which were truly
compensatory. We had to take a broad view of the whole circumstances.

I must now deal with those parts of Lord Devlin's speech which have given rise to difficulties. He
set out two categories of cases which in our opinion comprised all or virtually all the reported
cases in which it was clear that the court had approved of an award of a larger sum of damages
than could be justified as compensatory. Critics appear to have thought that he was inventing
something new. That was not my understanding. We were confronted with an undesirable
anomaly. We could not abolish it. We had to choose between confining it strictly to classes of
cases where it was firmly established, although that produced an illogical result, or permitting it
to be extended so as to produce a logical result. In my view it is better in such cases to be
content with an illogical result than to allow any extension.

It will be seen that I do not agree with Lord Devlin's view that in certain classes of case
exemplary damages serve a useful purpose in vindicating the strength of the law. That view did
not form an essential step in his argument. Concurrence with the speech of a colleague does
not mean acceptance of every word which he has said. If it did there would be far fewer
concurrences than there are. So I did not regard disagreement on this side issue as preventing
me from giving my concurrence.

I think that the objections to allowing juries to go beyond compensatory damages are
overwhelming. To allow pure punishment in this way contravenes almost every principle which
has been evolved for the protection of offenders. There is no definition of the offence except
that the conduct punished must be oppressive, high-handed, malicious, wanton or its like—
terms far too vague to be admitted to any criminal
[1972] 1 All ER 801 at 838

code worthy of the name. There is no limit to the punishment except that it must not be
unreasonable. The punishment is not inflicted by a judge who has experience and at least tries
not to be influenced by emotion; it is inflicted by a jury without experience of law or
punishment and often swayed by considerations which every judge would put out of his mind.
And there is no effective appeal against sentence. All that a reviewing court can do is to quash
the jury's decision if it thinks the punishment awarded is more than any 12 reasonable men
could award. The court cannot substitute its own award. The punishment must then be decided
by another jury and if they too award heavy punishment the court is virtually powerless. It is no
284
excuse to say that we need not waste sympathy on people who behave outrageously. Are we
wasting sympathy on vicious criminals when we insist on proper legal safeguards for them? The
right to give punitive damages in certain cases is so firmly embedded in our law that only
Parliament can remove it. But I must say that I am surprised by the enthusiasm of Lord Devlin's
critics in supporting this form of palm tree justice.

Lord Devlin's first category is set out in the passage where he said ([1964] 1 All ER at 410, [1964]
AC at 1226):

'The first category is oppressive, arbitrary or unconstitutional action by the servants of the
government. I should not extend this category,—I say this with particular reference to the facts
of this case,—to oppressive action by private corporations or individuals.'
This distinction has been attacked on two grounds: first, that it only includes Crown servants
and excludes others like the police who exercise governmental functions but are not Crown
servants and, secondly, that it is illogical since both the harm to the plaintiff and the
blameworthiness of the defendant may be at least equally great where the offender is a
powerful private individual, With regard to the first I think that the context shows that the
category was never intended to be limited to Crown servants. The contrast is between 'the
government' and private individuals. Local government is as much government as national
government, and the police and many other persons are exercising governmental functions. It
was unnecessary in Rookes v Barnard to define the exact limits of the category. I should
certainly read it as extending to all those who by common law or statute are exercising
functions of a governmental character.

The second criticism is I think misconceived. I freely admit that the distinction is illogical. The
real reason for the distinction was, in my view, that the cases showed that it was firmly
established with regard to servants of 'the government' that damages could be awarded against
them beyond any sum justified as compensation, whereas there was no case except one that
was overruled where damages had been awarded against a private bully or oppressor to an
amount that could not fairly be regarded as compensatory, giving to that word the meaning
which I have already discussed. I thought that this House was therefore free to say that no
more than that was to be awarded in future.

We are particularly concerned in the present case with the second category. With the benefit of
hindsight I think I can say without disrespect to Lord Devlin that it is not happily phrased. But I
think the meaning is clear enough. An ill disposed person could not infrequently deliberately
commit a tort in contumelious disregard of another's rights in order to obtain an advantage
which would outweigh any compensatory damages likely to be obtained by his victim. Such a
case is within this category. But then it is said, suppose he commits the tort not for gain but
simply out of malice why should he not also be punished. Again I freely admit there is no logical
reason. The reason for excluding such a case from the category is simply that firmly established
authority required us to accept this category however little we might like it, but did not require
us to go farther. If logic is to be preferred to the desirability of cutting down the scope for
punitive damages to the greatest extent
[1972] 1 All ER 801 at 839
285
that will not conflict with established authority then this category must be widened. But as I
have already said I would, logic or no logic, refuse to extend the right to inflict exemplary
damages to any class of case which is not already clearly covered by authority. On that basis I
support this category.

In my opinion, the conduct of both defendants in this case was such that the jury were clearly
entitled, if properly directed, to hold that it brought them within the second category. Again, I
do not intend to cover ground already covered by my noble and learned friends. So I say no
more than that the jury were fully entitled to hold that the appellants knew when they
committed this tort that passages in this book were highly defamatory of Captain Broome and
could not be justified as true and that it could properly be inferred that they thought that it
would pay them to publish the book and risk the consequences of any action Captain Broome
might take. It matters not whether they thought that they could escape with moderate
damages or that the enormous expense involved in fighting an action of this kind would prevent
Captain Broome from pressing his claim.

It was argued that to allow punitive damages in this case would hamper other publishers or
limit their freedom to conduct their business because it can always be inferred that publishers
publish any book because they expect a profit from it. But punitive damages could not be given
unless it was proved that they knew that passages in the book were libellous and could not be
justified or at least deliberately shut their eyes to the truth. I would hope that no publisher
would publish in such circumstances. There is no question of curtailing the freedom of a
reputable publisher.

The next passage in Lord Devlin's speech which has caused some difficulty is what has been
called the 'if, but only if' paragraph ([1964] 1 All ER at 411, [1964] AC at 1228). I see no difficulty
in it but again I shall set out the substance of it in my own words. The difference between
compensatory and punitive damages is that in assessing the former the jury or other tribunal
must consider how much the plaintiff ought to receive whereas in assessing the latter they
must consider how much the defendant ought to pay. It can only cause confusion if they
consider both questions at the same time. The only practical way to proceed is first to look at
the case from the point of view of compensating the plaintiff. He must not only be
compensated for proved actual loss but also for any injury to his feelings and for having had to
suffer insults, indignities and the like. And where the defendant has behaved outrageously very
full compensation may be proper for that. So the tribunal will fix in their minds what sum would
be proper as compensatory damages. Then if it has been determined that the case is a proper
one for punitive damages the tribunal must turn its attention to the defendant and ask itself
whether the sum which it has already fixed as compensatory damages is or is not adequate to
serve the second purpose of punishment or deterrence. If they think that that sum is adequate
for the second purpose as well as for the first they must not add anything to it. It is sufficient
both as compensatory and as punitive damages. But if they think that sum is insufficient as a
punishment then they must add to it enough to bring it up to a sum sufficient as punishment.
The one thing which they must not do is to fix sums as compensatory and as punitive damages
and add them together. They must realise that the compensatory damages are always part of
the total punishment.

286
It was argued that the jury were not properly directed by the trial judge on this matter. I agree
with your Lordships that that argument must fail. A judge's direction to a jury is not to be
considered in vacuo. It must be read in light of all the circumstances as they then existed and I
cannot believe that the jury were left in any doubt as to how they must deal with this matter.

Next there are questions arising from the fact there were two defendants. When dealing with
compensatory damages the law is quite clear. There was one tort of which both defendants
were guilty. So one sum is fixed as compensation and judgment is given for that sum against
both defendants leaving it to the plaintiff to sue whichever he chooses and then leaving it to
the defendant who has paid to recover a
[1972] 1 All ER 801 at 840

contribution if he can from the other. But when we come to punitive damages the position is
different. Although the tort was committed by both only one may have been guilty of the
outrageous conduct or if two or more are so guilty they may be guilty in different degrees or
owing to one being rich and another poor punishment proper for the former may be too heavy
for the latter.

Unless we are to abandon all pretence of justice, means must be found to prevent more being
recovered by way of punitive damages from the least guilty then he ought to pay. We cannot
rely on his being able to recover some contribution from the other. Suppose printer, author and
publisher of a libel are all sued. The printer will probably be guiltless of any outrageous conduct
but the others may deserve punishment beyond compensatory damages. If there has to be one
judgment against all three then it would be very wrong to allow any element of punitive
damages at all to be included because very likely the printer would have to pay the whole and
the others might not be worth suing for a contribution. The only logical way to deal with the
matter would be first to have a judgment against all the defendants for the compensatory
damages and then to have a separate judgment against each of the defendants for such
additional sum as he should pay as punitive damages. I would agree that that is impracticable.
The fact that it is impracticable to do full justice appears to me to afford another illustration of
how anomalous and indefensible is the whole doctrine of punitive damages. But as I have said
before we must accept it and make the best we can of it.

So, in my opinion, the jury should be directed that, when they come to consider what if any
addition is to be made to the compensatory damages by way of punitive damages, they must
consider each defendant separately. If one any of the defendants does not deserve punishment
or if the compensatory damages are in themselves sufficient punishment for any one of the
defendants, then they must not make any addition to the compensatory damages. If each of
the defendants deserves more punishment than is involved in payment of the compensatory
damages then they must determine which deserves the least punishment and only add to the
compensatory damages such additional sum as that defendant ought to pay by way of
punishment. I do not pretend that that achieves full justice but it is the best we can do without
separate awards against each defendant.

287
It was argued that here again there was misdirection of the jury because all that was not made
plain to them. But again I agree with your Lordships that in the whole circumstances we ought
not to hold the direction of the learned trial judge to be inadequate. Again the jury can have
been in no doubt as to what was required of them.

There remains what is perhaps the most difficult question in this case—whether the additional
award of £25,000 as punitive damages is so excessive that we can interfere. I think it was much
too large, but that is not the test. I would like to be able to hold that the court has more control
over an award of punitive damages than it has over an award of compensatory damages. As
regards the latter it is quite clear that a court can only interfere if satisfied that no 12
reasonable men could have awarded so large a sum and the reason for that is plain. The court
has no power to substitute its own assessment for the verdict of a jury. If it interferes it can
only send the matter back to another jury. So before it can interfere it must be well satisfied
that no other jury would award so large a sum. I do not see how this House could arrogate to
itself any wider power with regard to punitive damages. We could not deprive the plaintiff of
his right to a new trial so we must adhere to the established test. Any diminution or abolition of
the functions of a jury in libel cases can only come from Parliament. If this case brings nearer
the day when Parliament does taken action I for one shall not be sorry.

Whether or not we can interfere with this award is a matter which is not capable of much
elaboration. In considering how far 12 reasonable men might go, acting as jurors commonly do
act, one has to bear in mind how little guidance the court is entitled to give them. All that they
can be told is that they must not award a sum
[1972] 1 All ER 801 at 841

which is unreasonable. In answer to questions whether anything more definite could properly
be said neither counsel in this case was able to make any suggestion and I have none to offer.
The evidence in this case is such that the jury could take an extremely unfavourable view of the
conduct of both defendants. I do not say that they ought to have done so, but they were
entitled to do so. And they must have done so. I find it impossible to say that no jury of
reasonable men, inexperienced but doing their best with virtually no guidance, could reach the
sum of £25,000. Or, to put it in another way, I would feel no confidence that if the matter were
submitted to another jury they must reach a substantially different result. So with considerable
regret I must hold that it would be contrary to our existing law and practice if this House
refused to uphold this verdict.

It is true that in this case the parties agreed that if the verdict for £25,000 were quashed they
would leave it to this House to substitute another figure. But that agreement cannot justify us
in doing otherwise than we would have done if the parties had stood on their legal rights. The
obvious reason for that agreement was a common desire to avoid the enormous expense of a
new trial. This is not the first occasion on which I have felt bound to express my concern about
the undue prolixity and expense of libel actions. I would not blame any individuals. It may arise
from the conduct of a trial before a jury being more expensive than a trial before a judge. If so
that is an additional argument for taking these cases away from juries. Or it may be that it suits
wealthy publishers of newspapers, books and periodicals that the cost of fighting a libel action
288
is so great that none but a person with large financial backing can sue them effectively.
Whatever be the reason the costs of this case have already reached a figure which many
laymen would call scandalous. I think that those in a position to take effective action might take
note.
Finally, I must say something about a strange misconception which appears in the judgments of
the Court of Appeal in this case. Somehow they reached the conclusion that the decision of this
House in Rookes v Barnard was made per incuriam, was ultra vires, and had produced an
unworkable position. It must be noted that in at least three earlier cases the Court of Appeal
were able without difficulty or question to apply that decision(McCarey v Associated
Newspapers Ltd, Broadway Approvals Ltd v Odhams Press Ltd and Fielding v Variety
Incorporated). What has caused their change of mind does not appear but I must deal with
their new view. As regards the present position being unworkable, of course many difficulties
remain in this branch of the law, but these difficulties are an inheritance from the confusion of
the past. I have dealt fairly fully with the proper interpretation of Rookes v Barnard and it
appears to me that that decision removes many old difficulties and creates few, if any, new
ones.
I need not deal separately with the novel idea that a decision of this House can be ultra vires
because that charge appears to be consequential on the charge that this House acted per
incuriam in reaching its decision. It is perfectly legitimate to think and say that we were wrong
but how anyone could say we acted per incuriam in face of the passage ([1964] 1 All ER at 412,
413, [1964] AC at 1230) in which reference is made to Ley v Hamilton I fail to understand.
This charge is really based on what appears to me to be a misreading by the Court of Appeal of
two decisions of this House, E Hulton & Co v Jonesand Ley v Hamilton. Hulton's case has always
been regarded as the leading authority for the proposition that a defamatory description
intended to apply to a fictional person may in fact be a libel on a real person and therefore a
subject for damages. I see nothing in the speeches in this House to indicate that punitive
damages in the modern sense were being considered. It was said that there was an element of
recklessness in the failure of the defendants to realise that there was a real Artemus Jones and
that this justified
[1972] 1 All ER 801 at 842

a rather high sum of damages but I see nothing to indicate any view that the damages went
beyond anything that could be justified as compensation and could only be justified as being
punitive in the modern sense.
Ley v Hamilton requires rather fuller consideration. But again I see nothing to indicate that this
House held that the damages went beyond compensation or that there had been outrageous
conduct justifying a punitive award which went beyond compensation. The majority in the
Court of Appeal certainly held that the £5,000 damages awarded was punitive in the modern
sense. They held that the real damage was trifling and the rest punishment. Greer LJ said
((1934) 151 LT 360 at 369) that if Mr Hamilton had been prosecuted for criminal libel it was
inconceivable that he would have been fined £5,000. Maugham LJ said ((1934) 151 LT at 374)
that the damages could not be described as a fair and reasonable compensation but were in the

289
nature of a fine. In this House only Lord Atkin delivered a speech. I read it as intended to show
that elements properly included in compensatory damages were far wider than the majority in
the Court of Appeal had thought and that the whole of this £5,000 was in fact justified as being
compensatory. He said ((1935) 153 LT at 386):

'The fact is that the criticism with great respect seems based upon an incorrect view of the
assessment of damages for defamation. They are not arrived at as the Lord Justice seems to
assume by determining the “real” damage and adding to that a sum by way of vindictive or
punitive damages. It is precisely because the “real” damage cannot be ascertained and
established that the damages are at large. It is impossible to track the scandal, to know what
quarters the poison may reach: it is impossible to weigh at all closely the compensation which
will recompense a man or a woman for the insult offered or the pain of a false accusation. No
doubt in newspaper libels juries take into account the vast circulations which are justly claimed
in present times. The “punitive” element is not something which is or can be added to some
known factor which is non-punitive. In particular it appears to present no analogy to
punishment by fine for the criminal offence of publishing a defamatory libel.'

By saying that compensation for insult or the pain of a false accusation cannot be weighed at all
closely and that there was nothing here analogous to punishment by fine, he was to my mind
making it as clear as words can make it that the whole of this £5,000 was truly compensatory in
character. So I think that Lord Devlin was perfectly right in saying that there is no decision of
this House which recognises punitive damages in the modern sense of something which goes
beyond compensation. Where the Court of Appeal went wrong was in failing to realise that in
the older cases damages were frequently referred to as exemplary or punitive although they
were in reality compensatory.

On the whole matter I would dismiss this appeal.

LORD MORRIS OF BORTH-Y-GEST.

My Lords, at the trial of this action questions arose whether, if the plaintiff, Captain Broome,
succeeded, he was entitled to recover exemplary damages in addition to compensatory
damages. The law relating to exemplary damages was considered in your Lordships' House in
1964 and was laid down in the decision in Rookes v Barnard. That decision bound the learned
judge. It bound the Court of Appeal. It continues to be binding authority in all courts unless and
until it appears to your Lordships to be right to depart from it.

In presiding at the trial the learned judge set himself loyally and faithfully to follow the binding
authority of the decision. His directions to the jury followed the approach laid down in the
decision though it is contended that in regard to one or two matters there was faulty exposition
which was sufficiently serious to vitiate
[1972] 1 All ER 801 at 843

the award made by the jury of exemplary damages. These matters call for separate
consideration. If the contentions concerning them do not succeed, there remains an issue

290
whether the award of the jury was excessive and should be set aside. If it is held that there was
nothing amiss at the trial and that the law as laid down in your Lordships' House l was properly
applied by the learned judge it would be an unhappy conclusion if it were now held that the
trial had in fact been conducted on wrong or at least on unnecessary lines but that this had only
been so because the law which had to be followed had been wrongly laid down. If that were
the conclusion it is by no means certain that it would be possible to avoid ordering a new trial
which would then be conducted on the basis of the law as newly laid down. But a result so
lamentable (and for the parties so calamitous) must be contemplated as at least a possibility if
it is decided that the law was wrongly declared in 1964 and must now be changed or changed
back again.
l
In Rookes v Barnard [1964] 1 All ER 367, [1964] AC 1129
Before considering this aspect of the matter further I must express my view in regard to the
main contentions which are raised by the appellants. They for their part do not in any way
question the validity of Rookes v Barnard. Their appeal relates only to the award of exemplary
damages. The jury found that the words complained of in the hardback edition were
defamatory of Captain Broome and that the words were not true in substance or in fact. They
found similarly in regard to the proof copies. They awarded compensatory sums respectively of
£14,000 and £1,000. No challenge as to such results is made. No criticism is advanced in regard
to the very careful summing-up of the learned judge dealing with the facts and with the issues
as to liability. No suggestion is made that the awards of compensation can be attacked as being
excessive or unreasonable.
The learned judge left three questions to the jury on the issue of exemplary damages. First they
were asked whether Captain Broome had proved that he was entitled to exemplary damages.
Here the learned judge was carefully following Rookes v Barnard. There may be exemplary
damages if a defendant has formed and been guided by the view that though he may have to
pay some damages or compensation because of what he intends to do yet he will in some way
gain (for the category is not confined to money-making in the strict sense) or may make money
out of it, to an extent which he hopes and expects will be worth his while. I do not think that
the word 'calculated' was used to denote some precise balancing process. The situation
contemplated is where someone faces up to the possibility of having to pay damages for doing
something which may be held to have been wrong but where nevertheless he deliberately
carries out his plan because he thinks that it will work out satisfactorily for him. He is prepared
to hurt somebody because he thinks that he may well gain by so doing even allowing for the
risk that he may be made to pay damages. As the learned judge put it in reference to
defamation there may be exemplary damages in cases where someone wilfully or knowingly or
recklessly peddles untruths for profit. There must be evidence fit to be left to the jury but if
there is then it is for the jury to decide whether there is entitlement to exemplary damages on
the basis to which I have referred.

It was contended on behalf of the appellants that there was no evidence fit to be left to the jury
in this case on this issue. In my view this contention wholly fails. There was ample evidence. It
was painstakingly recounted in the summing-up of the learned judge. It is helpfully referred to

291
and summarised in the judgment of Lord Denning MR. It is reviewed in the speech of Lord
Hailsham LC which I have had the advantage of reading in advance.

Similar considerations apply to the question which was put to the jury and which they
answered by saying that entitlement to exemplary damages was proved against both
defendants. It is in regard to the next question and answer that the greatest
[1972] 1 All ER 801 at 844

doubts and difficulties in my view arise. Being asked, what additional sum should be awarded
him by way of exemplary damages? the answer of the jury was £25,000. So there were three
awards: one being (for the hardback edition) the compensatory figure of £14,000; another
being the exemplary damages figure of £25,000. For the total of £40,000 judgment was
entered.
I must confess that for my part I should greatly regret it if the practice became general of
having a separate award of exemplary damages in this manner (I will return to this question
later). But the learned judge was only following the guidance specifically given in Rookes v
Barnard. There it was said ([1964] 1 All ER at 411, [1964] AC at 1228) that the fact that the two
sorts of damage differ essentially does not necessarily mean that there should be two awards.
But it was said that there may be cases in which it is difficult for a judge to say whether he
ought or ought not to leave a claim for exemplary damages to the jury. I can quite see that in
such a case it will be easier for an appellate court (where an issue is raised whether there was
evidence which could justify an award of exemplary damages) if there are two awards. The
award of exemplary damages could be set aside without the necessity for a new trial if the
appellate court considered that the evidence was not such as to have been fit for the
consideration of the jury so as to entitle them to award exemplary damages. For this reason it
was stated in Rookes v Barnard that if a judge is in doubt whether he ought to leave a claim for
exemplary damages to a jury then he could invite them to say 'what sum they would fix as
compensation and what addition sum, if any, they would award if they were entitle to give
exemplary damages'. It was this course that the learned judge followed in the present case. But
if this course is followed the words 'if any' become of importance. They were not included in
the question which was put to the jury.

There are three very important issues which arise. (1) Did the learned judge give an adequate
direction to the jury to ensure that they understood that they should only award an 'additional'
sum if they were satisfied that the amount they were awarding as compensatory damage was
in itself not enough to punish the defendants? (2) Did the learned judge give an adequate
direction to meet the situation where (as in this case) there are two defendants? and (3) In any
event is the sum of £40,000 excessive as an award of exemplary damages and a figure which no
reasonable jury could award—with the result that although the purely compensatory part
£15,000 is not challenged the award of an additional £25,000 must be set aside? (1) The
relevant sentences in the summing-up have been referred to in the speech of Lord Hailsham LC
and I need not set them out. I would have been happier if the direction on this point (which
came towards the end of what I venture to think was a masterly review of the case) had been
ampler and more explicit than it was. But the learned judge did emphasise the word

292
'additional'. He asked the jury to underline it. He said that they should underline it because
both the court and counsel would want to know 'if you do decide to award punitive damages,
how much more do you award over and above the compensatory damage'. Even so it would
have been better to have made it abundantly clear that the punitive element is not to be
considered in isolation: an enforced obligation to pay a large sum by way of compensation has
itself a punitive impact. So a jury ought fully to understand that only if a sum awarded as
compensation is inadequate as a punishment should any larger sum be awarded.

Much earlier in his summing-up the learned judge had dealt with this matter in an introductory
way. He told the jury that they were being asked—

'not only to give Captain Broome compensatory damages, that is, a reasonable sum for the
injury to his reputation and the exacerbation of his feelings: but in addition to fine [the
appellants] and Mr. Irving for having done what they have done. The money which you decide
—if you do decide—to award by way of punitive damages will not go into the National
Exchequer. It will have to go into Captain Broome's pocket.'
[1972] 1 All ER 801 at 845

Here again there was an omission to emphasise that an award of compensation must always
and inevitably be a part of the 'fine' in cases where the imposition of a 'fine' is warranted.

Although a study of the shorthand note of what was said has led me to the view that there
should have been amplification in the way to which I have referred, the important question
now is whether it should be held that the jury were misled with the result that their award
cannot stand. The emphasis placed on the word 'additional' could not have been lost sight of by
the jury. Additional to what? Quite clearly, additional to the amount of compensation awarded.
The jury were asked 'how much more' they would award. The 'more' was to be 'over and above'
the compensation. It surely must have been clear to the jury that any 'more' that they decided
on or any 'additional' sum would have to be paid by those against whom they awarded it on top
of the sum that they were first awarding. Here was a jury that listened to the case over a period
of 17 days. They deliberated for nearly five hours. They awarded a sum of £25,000 to be
'additional' to their award of £15,000. They knew that the total was £40,000. Thereafter they
heard both counsel agree that there should be a single judgment for that amount. No
suggestion was made (or I think could possibly have been made) that the £25,000 included the
£15,000. I would find it difficult to accept that at the stage in their deliberations when they
were considering whether the present appellants and Mr Irving should be punished by being
made to pay money they should at that stage have left out of account one part of the money
that they themselves were awarding. If having decided that it was a case for punishment the
jury were considering the monetary sum which, as such punishment, should be paid the point
would surely have been raised by one member if not by all members of the jury: are we not
punishing them enough by saying that they must pay £15,000? They could have recorded that
as their view had they entertained it. I am not prepared to assume that something which at that
stage must really have been quite obvious was overlooked by the jury.

293
(2) There is nothing in regard to this question which I could usefully add to what Lord Hailsham
LC has said in reviewing the authorities and in formulating his conclusion. I express my
concurrence.
(3) The approach which should be followed by an appellate court in considering whether an
award of damages made by a jury should be assailed on the ground that the sum awarded is
excessive has been clearly defined in authoritative decisions. They are referred to in the speech
of Lord Hailsham LC. I am bound to say that the figure of £40,000 appears to me to be a high
figure. Certainly it must be a very unusual case in which on a correct application of the law as
laid down in Rookes v Barnard the amount which defendants must pay should so greatly exceed
the amount which is reasonably to be received by the plaintiff by way of compensation. It is this
disparity between the £40,000 and the £15,000 that has caused disquiet as to whether the jury
may have been caused or allowed to be under a misunderstanding. But if the conclusion is
reached that the jury knew what they were about and chose their figures advisedly then I do
not think that I ought to conclude that their 'additional' figure of £25,000 was so high that no
reasonable jury could award it. To translate injury to and attack on reputation into monetary
terms is at all times a difficult exercise. But it was the same jury that fixed the 'additional' figure
of £25,000 that also—without being impeached for so doing—fixed the compensatory figure of
£15,000. If they did not go wide when fixing the latter why should it be determined that they
went wide in fixing the former. The conclusion which I think can be drawn is that the jury took a
very serious view of the conduct and attitude of the defendants. If, after hearing all the relevant
features of the case probed and examined over a period of 17 days and hearing the evidence of
such of the parties as decided to call or give evidence, the jury did take a very serious view
there was evidence which entitled them to do so. They may have regarded the conduct and
attitude of each of the
[1972] 1 All ER 801 at 846

defendants with equally sharp disfavour. If it was their considered collective view that the
defamation was grave and that publication was deliberately undertaken by those who had
regard for their own advantage but none for the honour and renown of one whom they
traduced then the jury were warranted in deciding that such conduct should be heavily
penalised. Whatever might have been my personal assessment had I been on the jury I have
not been persuaded that it must be decided that the penalty imposed was beyond the limit to
which a reasonable jury could go. Nor can it be said with any assurance that an estimation of a
figure by a learned judge would necessarily have superior validity. A learned judge has
experience and knowledge of other cases but in a matter so elusive as fixing in monetary terms
a reflection of feelings of disapproval there is no norm. It may be difficult to give guidance but a
judge should be able to express to a jury the same guidance as he would give to himself.
For the reasons which I have given I consider that the appeal should be dismissed. As I have
indicated, the appellants in no way sought to impugn the decisions in Rookes v Barnard. Such
ardour in criticism as may have been evinced in the Court of Appeal by counsel for Captain
Broome became tempered and modified by the reflection that an assault on Rookes v
Barnard was not essential for his success in this appeal and that the overturning of Rookes v
Barnard might at least possibly involve the jettisoning of all the proceedings to date and a

294
complete new trial on a fresh basis. But as so much was said about Rookes v Barnard and
because in the printed case of the respondent, Captain Broome, the first reason set out was
that your Lordships' House should depart from its decision in Rookes v Barnard (insofar as that
decision altered the law on exemplary damages generally or at least in defamation cases) I must
record my opinion.
In Rookes v Barnard one submission that was made was that exemplary damages could not be
awarded in that case. Other submissions led to a somewhat general consideration of the law
relating to exemplary damages. The report of the arguments ([1964] AC at 1158–1164) shows
that certain authorities and certain textbooks were referred to and were examined. There were
citations of some 30 cases. In the result the House examined and reviewed the law and came to
certain conclusions. The House was not bound to limit those conclusions within any formulation
which counsel had thought fit to formulate.
It would be idle to deny that a very considerable pruning operation was decided on. It may be
that there are some who would not have pruned so much and so drastically. It may be that
there are some who would have pruned more severely. What was done was done in the hope
of removing from the law 'a source of confusion between aggravated and exemplary damages'.
It may be that there are some who feel that though the previous law (built up, as the common
law is, as a result of particular decisions given in particular sets of circumstances) was in very
many respects imprecise and even illogical yet it was somehow found in practice to work and to
be no serious cause of confusion. It may be that there are some who consider that manifest
variations and divergencies in terminology did not reflect any really fundamental differences of
approach: that for example when in The Mediana (Owners) v Comet (Owners) ([1900] AC 113 at
118, [1900–3] All ER Rep 126 at 129) Lord Halsbury LC made a reference, although only a
passing and incidental one, to punitive damages:

'I put aside cases of trespass where a high-handed procedure or insolent behaviour has been
held in law to be a subject of aggravated damages, and the jury might give what are called
punitive damages'
[1972] 1 All ER 801 at 847
he had much the same conception in mind as had Lord Atkinson when in Addis v Gramophone
Co Ltd ([1909] AC 488 at 496, [1908–10] All ER Rep 1 at 5), he made an incidental reference to
circumstances of malice, fraud, defamation or violence which would sustain an action of tort in
which a person might no doubt 'recover exemplary damages, or what is sometimes styled
vindictive damages' or as had Lord Loreburn LC when he said inHulton v Jones ([1910] AC 20 at
25, [1908–10] All ER Rep 29 at 47):

'In the second place the jury were entitled to say this kind of article is to be condemned. There
is no tribunal more fitted to decide in regard to publications, especially publications in the
newspaper Press, whether they bear a stamp and character which ought to enlist sympathy and
to secure protection. If they think that the licence is not fairly used and that the tone and style
of the libel is reprehensible and ought to be checked, it is for the jury to say so … '
But even if some of the thoughts above referred to are in fact entertained, do they give warrant
for re-opening now the debate that led to the decision in Rookes v Barnard. I do not think so. I

295
do not think that the power that was referred to in the statement of 26 July 1966
(See Note [1966] 3 All ER 77, [1966] 1 WLR 1234) was intended to encourage a tendency
periodically to chop and change the law. In branches of the law where clarification becomes
necessary there may well be decisions which as a matter of policy are not universally welcome
or where some may think that some variant of the decision one way or the other would have
been more acceptable. But this does not mean that decisions of this House should readily be
reviewed whenever a case presents itself which is covered by a decision. There must be
something much more.
In his book on damagesm Professor Street poses the question whether awards of exemplary
damages are ever justified. He outlines seven arguments against them and with mathematical
impartiality seven arguments in their favour concluding that one cannot say whether or not
exemplary damages are desirable. Whatever general views may be entertained or whatever
inclination there may be in different personal views I see no advantage in refusing at this
juncture to recognise that a deliberate pronouncement was made in Rookes v Barnard.
m
Principles of the Law of Damages, 1962, at pp 34–36
Although I consider that no reason has been shown for denying to that pronouncement the
authority of a decision of this House it is not inconsistent with this approach to express the
hope that a necessity for a separate and isolated assessment of exemplary damages will be
rare. In the search for authority only one case was found prior to Rookes v Barnard in which
there was such a result. That was Loudon v Ryder now overruled. The present case is I think the
first one subsequent to Rookes v Barnard in which such a separate award has actually been
made.

In the older cases the 'vindictive' or 'exemplary' or 'punitive' aspect merely became one
element in a composite whole. Thus the law as it was in 1877 was summarised in Mr Mayne's
Treatise on Damagesn. He pointed to the difference between damages in cases of contract
(where they were only a compensation) and in cases of tort. In the latter 'if there were no
circumstances of aggravation they 'are generally the same'. But where he said:
n
3rd Edn, p 37

'… the injury is to the person, or character, or feelings, and the facts disclose fraud, malice,
violence, cruelty, or the like, they operate as a punishment, for the benefit of the community,
and as a restraint to the transgressor.'

In the various cases citedo one amount only of damages was assessed. For a later general
summary of the law (as it was in 1895) reference may be made to Sir Frederick
o
See pp 36, 37, 514, 515, 516
[1972] 1 All ER 801 at 848

Pollock's book on tortsp. He refers to cases where there is great injury without the possibility of
measuring compensation by any numerical rule. In such cases he said:
p
The Law of Torts, 4th Edn, p 174

296
'… juries have been not only allowed but encouraged to give damages that express indignation
at the defendant's wrong rather than a value set upon the plaintiff's loss. Damages awarded on
this principle are called exemplary or vindictive.'

He went on to explain that—

'the kind of wrongs to which they are applicable are those which, besides the violation of a right
or the actual damage, import insult or outrage.'

The cases cited, to which I need not refer in detail, again appear to me to be cases in which only
one figure of damages was assessed.
When juries came to award damages in such cases of tort they did therefore give and indeed
were 'encouraged' to give a sum which marked displeasure or indignation or which was to serve
as a deterrent or as an example or which vindicated the law or which was a way of punishing
the defendant. But juries were not invited to isolate such element as was purely punitive. I do
not expect that they did in practice. In some cases their displeasure or indignation would
operate as a kind of topping-up process. But if the process by which they had arrived at a figure
could have been analysed (which normally it could not have been) while it would probably have
been found that there had been nothing in the nature of a mathematical addition of separate
sums yet it would have been recognised that some (wholly unascertainable) part of the whole
must have been purely punitive. Stated otherwise such (unascertained) part was a fine. Logical
analysis forces the conclusion therefore that in the result there would in a civil action have
been punishment for conduct not particularised in any criminal code and that such punishment
had taken the form of a fine not receivable by the state but as a sort of bonus by a private
individual who would apart from it be solaced for the wrong done to him. There may be much
to be said for making it permissible in a criminal court to order in certain cases that a convicted
person should pay compensation. There is much to be said against a system under which a fine
becomes payable in a civil court without any of the safeguards which protect those charged
with crimes. If therefore the working of the law before Rookes v Barnard is exposed to a
relentless logical examination it has to be conceded that some features of it were not in
principle acceptable. Yet it may be that no serious injustice resulted. And indeed as we have
been told the life of the law often lies not in logic but in experience. It would however be an
unfortunate and bizarre result if a wholly laudable attempt to rationalise the law had brought it
about that the element which it was most sought to suppress was so brought into sharp relief
that it attained a significance never before exhibited.

I would regard the present case as exceptional in the sense that the jury must have considered
that the conduct of the defendants merited very special condemnation. In other than an
exceptional case where exemplary damages are to be awarded I would hope that a jury would
be unlikely to award a total sum which exceeded its purely compensatory component element
to an extent in any way comparable to that which is revealed in the present case.

I would dismiss the appeal.

297
VISCOUNT DILHORNE.
My Lords, the main issues to be determined in this appeal are (1) whether what was said by my
noble and learned friend Lord Devlin in Rookes v Barnard with regard to exemplary damages,
and with which all the other members of the House then sitting agreed, correctly states the law;
(2) if it does, whether Lawton J erred in leaving the question of exemplary damages to the
[1972] 1 All ER 801 at 849
jury; (3) having left it to them, whether he misdirected them with regard thereto; and (4)
whether the sum of £40,000 awarded by them, of which £25,000 was exemplary damages, was
so excessive that that verdict cannot be allowed to stand. I propose to consider the first of
these questions last. Although Rookes v Barnard was not concerned with damages for libel, I
consider the other questions on the assumption that what was said in that case is not to be
regarded as obiter in relation to libel cases and is to be regarded as binding on all inferior
courts.

Lord Devlin expressed the view ([1964] 1 All ER at 410, 411, [1964] AC at 1226, 1227) that there
were only three categories of cases in which exemplary damages could be awarded, namely:—
(1) where there had been oppressive, arbitrary or unconstitutional action by servants of the
government; (2) where the defendant's conduct had been calculated by him to make a profit
for himself which might well exceed the compensation payable to the plaintiff; and (3) where
exemplary damages are expressly authorised by statute.

The appellants contended that this case did not come within the second category. They called
no evidence at the trial and the question whether it should have been left to the jury to
consider exemplary damages, depends on whether there was evidence given or adduced on
behalf of the plaintiff on which the jury were entitled to infer and conclude that the defendant's
conduct was of that character.
I do not think that Lord Devlin ever envisaged that, to bring a case within the second category,
the plaintiff would have to show that there had been something in the nature of a
mathematical calculation by the defendant, an assessment of the profit likely to ensue from the
publication of defamatory matter and an estimation of the risk of being sued and the damages
likely to be awarded if an action was brought. If a plaintiff had to prove that, it would be seldom
that he would be in a position to do so. Newspapers and books are usually published for profit
and that fact does not by itself make the publisher liable to pay exemplary damages. I think that
Widgery J was right when he said in Manson v Associated Newspapers Ltd([1965] 2 All ER 954 at
957, [1965] 1 WLR 1038 at 1040, 1041):
'… it is perfectly clear, from those authorities [McCarey v Associated Newspapers
Ltd and Broadway Approvals Ltd v Odhams Press Ltd], that in a case in which a newspaper quite
deliberately publishes a statement which it either knows to be false or which it publishes
recklessly, careless whether it be true or false, and on the calculated basis that any damages
likely to be paid as a result of litigation will be less than the profit which the publication of that
matter will give, then LORD DEVLIN's conditions are satisfied and exemplary damages are
permissible.'

298
He went on to say that he proposed to tell the jury that they could consider exemplary
damages—

'if, having considered what material there is before them, they are driven to the inference that
this was an article published by the defendants when conscious of the fact that it had no solid
foundation and with the cynical and calculated intention to use it for what it was worth, on the
footing that it would produce more profit than any possible penalty in damages was likely to
be.'

I think too that Lawton J put the matter correctly when he said in the course of his summing-up:

'A man is liable to pay damages on a punitive basis if he wilfully and knowingly, or recklessly
peddles untruths for profit.'

In my opinion, there was ample evidence on which the jury was entitled to come to the
conclusion that the case came within the second category. On 9 December
[1972] 1 All ER 801 at 850

1966 Mr Irving, the author, sent the manuscript of the book to the appellants with a letter in
which he said that Captain Broome had threatened legal action if the manuscript was
published, and on 23 December he sent them a long letter in which he quoted an extract from a
letter he had received from Kimbers, the publishers to whom he had first submitted the
manuscript. That extract stated:—

'… if the book goes to a legal man as it is, he could only tell you that half is libellous. We could
not possibly publish the book as it is … '.

The manuscript submitted to the appellants was identical with that which Kimbers had seen.
Perusal of it by any intelligent publisher must, even without the advantage of having the views
of another publisher, have led to the conclusion that it contained many very grave and serious
libels on Captain Broome and the jury were fully entitled to conclude that the appellants
realised this.

Mr Kimber gave evidence that about 8 March 1967 he had telephoned Mr Parker, a director of
the appellants and told him that they had had one or two threats of libel actions if they
published the book; to which Mr Parker's response was 'In that case we will tighten up the
indemnity clause in Mr Irving's agreement'. On 27 December 1967 Captain Broome wrote to
the appellants saying that the manuscript was 'unquestionably libellous'. They replied saying
that in the light of his comments 'drastic revisions' had been made. In fact, as the appellants
must have known, the revisions that were made did not materially affect the passages
defamatory of Captain Broome. On 16 February 1968 the business director of the appellants
circulated a memorandum in the following terms, to all concerned:

'It is anticipated that early copies of THE DESTRUCTION OF CONVOY P. Q 17 will start coming
into the House on March 5th. Will you please note that absolutely and positively not one single
copy, on any pretext whatsoever, is to be removed from the House without reference to me.

299
Mr. Mitchell: Would you please notify the printer that this book is to be treated on a maximum
security basis and ensure that not one single copy slips through their net.'

Shortly thereafter the appellants circulated proof copies of the book. Why they did so after the
circulation of this memorandum is not known for no evidence was given for them. In the
absence of any explanation the jury were, in my view, entitled to draw the inference that they
had decided to publish the book, despite Captain Broome's threats of action, knowing that
passages in the book were libellous of Captain Broome and not caring whether those passages
were true or false and on the footing that it was worth their while to run the risk of an action
being brought by him and of his obtaining damages in order to make a profit on the book.

On 5 March 1968 Captain Broome issued a writ for libel. On 29 April 1968 his statement of
claim was delivered. The appellants then knew, if they were in any doubt before, of what
passages he was complaining. On 14 June 1968 they delivered their defence. They pleaded that
the words complained of were true in substance and in fact in their natural and ordinary
meaning. They did not seek to justify the meaning which the statement of claim alleged the
words complained of bore, inter alia, that Captain Broome had been disobedient, careless,
incompetent, indifferent to the fate of the merchant ships and had been largely responsible for
or contributed extensively to the loss of two-thirds of the ships of the convoy. Despite the issue
of this writ, the appellants went on and published a hardback edition of the book. That led to
another writ being issued by Captain Broome. Again in their defence to this statement of claim
the appellants pleaded that the words complained of were in their natural and ordinary
meaning true in substance and in fact but did not seek to justify the meanings which in the
statement of claim it was alleged they bore. The jury by their verdict rejected the plea of
justification and must have accepted that the passages complained of bore the meanings
alleged by Captain Broome.

I do not propose to set out what those passages were. Suffice it to say that they
[1972] 1 All ER 801 at 851

clearly alleged that Captain Broome had been disobedient, careless, incompetent, indifferent to
the fate of the merchant ships, that he had wrongly withdrawn his destroyer force from the
convoy, that he had taken it closer to the German airfields than he had been ordered to do and
that he had been responsible for the loss of two-thirds of the ships in the convoy. He was in fact
accused of cowardice. That the appellants did not appreciate that the passages complained of
could be understood to have these meanings, is hard to accept. Yet after publication of the
proof copies, after receipt of the writ and the statement of claim in respect of that publication,
and when they knew the meanings which it was alleged the passages bore, they went on and
published the hardback edition, and at the trial persisted in their plea of justification. In these
circumstances if Lawton J had ruled at the end of the plaintiff's case, as he was asked to do, that
there was no evidence from which the jury could infer that the case came within the second
category, he would in my opinion have erred. I therefore reject this contention of the
appellants.

300
After specifying the three categories of cases in which in his view exemplary damages might be
awarded, Lord Devlin in Rookes v Barnard ([1964] 1 All ER at 411, [1964] AC at 1228) said that
there were three considerations which must always be borne in mind and then went on to say:

'In a case in which exemplary damages are appropriate, a jury should be directed that if, but
only if, the sum which they have in mind to award as compensation (which may of course be a
sum aggravated by the way in which the defendant has behaved to the plaintiff) is inadequate
to punish him for his outrageous conduct, to mark their disapproval of such conduct and to
deter him from repeating it, then they can award some larger sum.'

Complaint is made that Lawton J gave no such direction to the jury. With the agreement of
counsel, he asked them to answer seven questions. The first was whether, in respect of the
hardback edition the words complained of were defamatory of the plaintiff; the second, were
they true in substance and in fact. Their answer to the first question was, Yes and to the
second, No. The third question was, 'What compensatory damages do you award the Plaintiff?'
Their answer was £14,000. Then in answer to the fourth and fifth questions they said that he
was entitled to exemplary damages against both defendants. The sixth question was 'What
additional sum should be awarded him by way of exemplary damages?' Their answer was
£25.000.

After the questions had been handed to the jury in the course of the summing-up, Lawton J told
them that, after considering what were the compensatory damages if they found for the
plaintiff, they should go on to consider whether he was entitled to exemplary damages. As to
that, he told them to consider the case against each defendant separately, saying:

'In respect of each of them you will ask yourselves this question: “Has the plaintiff proved his
entitlement against that defendant?“. If the answer is Yes, then you will have to go on and
assess how much punitive damages should be awarded.'

In the next paragraph of his summing-up, he repeated this, saying:

'You will have to ask yourselves: “Has he proved that he is entitled to punitive damages against
[the appellants]?” If the answer is No, that is that. If the answer is Yes, you will have to assess
the damages.'

Then he asked the jury to underline the word 'additional' in the sixth question as he and
learned counsel wanted to know:

'… if you do decide to award punitive damages, how much more do you award over and above
the compensatory damage.'
[1972] 1 All ER 801 at 852

The jury were thus clearly told that if they found that the plaintiff was entitled to punitive
damages, they must then assess what punitive damages should be awarded. They were never
told that in considering whether any sum should be so awarded, they must have regard to the

301
sum they awarded for compensatory damages, and if, and only if, the sum was inadequate to
punish the defendants, should they add to it by awarding a sum for exemplary damages.

The failure to give such a direction, I regret that I cannot but regard as a most serious omission.
It is one of the most important features of Lord Devlin's speech that a direction on the lines he
stated should be given. It was not, and instead the jury were told twice that, if they held that
Captain Broome was entitled to exemplary damages, they must assess them. The jury's verdict
shows that they thought that £15,000 compensatory damages was insufficient, but if they had
been told that they must, in assessing exemplary damages, take into account the sum awarded
in compensation, it is possible that they would have awarded not £25,000, but only £10,000 as
exemplary damages, that is to say, that they would have deducted from the £25,000 the
£15,000 compensatory damages.

I regret having to come to this conclusion but I see no escape from it. After a trial lasting 17
days and lengthy hearings in the Court of Appeal and in this House, one feels some reluctance
to say that the jury's verdict should not stand. If all the counsel engaged in the case had told the
jury that a sum should only be awarded for exemplary damages if the amount of the
compensatory damages was insufficient punishment, then it might be possible to say that
despite the omission in the summing-up, the jury can have been in no doubt as to what they
were required to do. Unfortunately all counsel did not tell them that. One counsel told the jury
in his final address that they must consider exemplary damages quite separately from
compensatory damages. He told them, 'they are completely unconnected with each other and
in no sense does the one head fall to be balanced against the other' and, 'the two sums are so
different that there is no propriety in any sense in balancing them up'. He thus indicated that
account should not be taken of the amount of compensatory damages when deciding what, if
any, sum should be awarded for exemplary damages. Counsel for the present appellants did
not refer to the matter but counsel for Mr Irving in his final address read to the jury the 'if, but
only if' passage of Lord Devlin's speech.

As the case was presented to the jury, I can see no ground for the conclusion that they must,
despite the omission in the summing-up, have been aware that they had to take into account
the compensatory damages when deciding, if they held that there was entitlement to
exemplary damages, what sum, if any, should be awarded on that account. On the contrary, the
passages I have cited from the summing-up show that they were told that, if they found
entitlement, they must then assess an amount for exemplary damages. I have regretfully come
to the conclusion that in consequence of this omission, the verdict should not be upheld.
Another criticism made of the summing-up was that the jury were not told on what basis they
should assess the exemplary damages if they found that the plaintiff was entitled to them from
both defendants and if, in their opinion, the degree of guilt of the defendants differed. In the
Court of Appeal there was considerable divergence of view as to the proper direction to be
given on this. While there is ample authority for the proposition that against joint tortfeasors
there can only be one verdict and one judgment for a joint tort, there is not a great deal of
authority on this question. Such as there is points to the conclusion that the plaintiff can only
recover the amount which all the defendants should pay and that the amount to be awarded

302
should not be increased to a sum thought adequate to punish the most guilty defendant
(see Dawson v M'Clelland, per Andrews J ([1899] 2 IR 486 at 490), per Boyd J ([1899] 2 IR at
493) and
[1972] 1 All ER 801 at 853
per FitzGibbon LJ ([1899] 2 IR at 499); Smith v Streatfeild ([1913] 3 KB 764 at 769, [1911–13] All
ER Rep 362 at 364) per Bankes J, and Gatley on Libel and Slanderq). If that were not the case an
innocent party or a less guilty party might have to pay a sum far in excess of that which he
ought to pay. The result of this conclusion appears to be that if three defendants are sued for
writing, printing and publishing a libel, if the publisher and author are held liable to pay
exemplary damages and the printer is not, the plaintiff will not be awarded exemplary damages
and the publisher and author will avoid liability for such damages.
q
6th Edn, p 1389

The summing-up contained this passage:

'… say, for example, you took the view that Mr. Irving was more to blame than [the appellants],
or to be fair, you took the view that [the appellants], being an experienced firm of publishers
were more to blame than this young man, Mr. Irving, should you make [the appellants] pay a
larger sum by way of punitive damages than Mr. Irving? The answer to that is No. Whatever
damages, if any, you decide should be awarded by way of punitive damages must be the same
sum in respect of both Mr. Irving and [the appellants], if you find them both liable to pay
punitive damages.'

Later in response to an intervention by counsel, he made it clear that this did not mean
awarding one sum against each defendant but one sum against both.

While it can be said that the direction on this might have been more clearly expressed, I think it
suffices for this passage did indicate to the jury that they should award a sum which was
appropriate to the less guilty of the two. It may, of course, be the case that the jury did not find
that one was more guilty than the other.
I now turn to the question whether the damages awarded were so excessive that the verdict
cannot be allowed to stand. In Rookes v Barnard([1964] 1 All ER at 411, [1964] AC at 1228) Lord
Devlin recognised that where there was entitlement to exemplary damages, that did not
necessarily mean that there must be two awards though he expressed the view that where
there was doubt about entitlement to such damages, to avoid the risk of a new trial, it might be
convenient to have separate awards. One consequence of there being two awards, one for
compensatory damages and one for exemplary, is that the jury's verdict is more open to attack.
If £15,000 was sufficient to compensate the plaintiff for the injury inflicted on him, what
justification can there be for an award of a further £25,000 as exemplary damages?

Lawton J very clearly told the jury that they were being asked to fine the appellants and Mr
Irving for what they had done. He told them that they were 'really in the position of a judge or

303
magistrate trying a criminal case' and that punitive damages 'must be reasonable in all the
circumstances'.
An appellate court should only interfere with a jury's verdict as to damages if it is such as to
show that the jury has failed to perform its duty(Mechanical and General Inventions Co Ltd v
Austin and the Austin Motor Co Ltd ([1935] AC 346 at 375, [1935] All ER Rep 22 at 35) per Lord
Wright,Bocock v Enfield Rolling Mills Ltd, Scott v Musial and Lewis v Daily Telegraph Ltd). To be
set aside, the verdict must be out of all proportion to the facts. The award of £25,000 for
exemplary damages, as a fine and despite the direction given by Lawton J to which I have
referred, in addition to the award of £15,000 compensatory damages is, in my opinion, out of
all proportion to the facts and suffices to show that they failed to perform their duty. Their
award was, in my view, far in excess of the most that 12 reasonable men could be expected to
give. If they had appreciated that they
[1972] 1 All ER 801 at 854

had to take into account the compensatory damages, then as I have said perhaps they might
have awarded an additional £10,000 as exemplary damages. I would myself have assessed a
considerably lower figure. Perhaps, one does not know, they may have thought that the judge
had power to set off one against the other. However that may be, I think that the highest figure
that could have been awarded by a jury performing its duty for exemplary damages would have
been £10,000 in which case judgment would have been given not for £40,000 but for £25,000.
On this ground, too, in my opinion the verdict cannot stand.
In turn now to the first question. Does Rookes v Barnard correctly state the law with regard to
exemplary damages? The Court of Appeal held that it did not. It was said that it was a decision
given per incuriam. The Court of Appeal refused to allow it and judges were told to direct juries
in accordance with the law as understood before that case.
Decisions of this House are binding on all inferior courts and must be followed by them. There
are, I think, two grounds on which the Court of Appeal can justifiably refuse to follow what has
been said in this House. The first is that what was said was obiter. While it might be argued that
the observations made with regard to exemplary damages insofar as they related to libel
actions were obiter as no question with regard to them arose inRookes v Barnard where the
question was, could such damages be given for intimidation? the Court of Appeal did not base
their action on this ground. The second is where there are two clearly inconsistent decisions of
this House, and the Court of Appeal has then to choose which to follow. In the Court of Appeal
it was asserted that what was said in Rookes v Barnard was in conflict with two previous
decisions of this House Hulton v Jones and Ley v Hamilton but, as I read the judgments, the
Court of Appeal did not proceed on this ground.

To say that a decision of this House was given per incuriam is, to say the least, unusual and
could be taken, although I cannot believe it was so intended, as of a somewhat offensive
character. While I regret the use of this expression, I doubt if it was intended to mean more
than that the questions involved deserved more consideration in relation, among other things,
to libel actions. If that is what was meant, it is, I must confess, a view with which I have
considerable sympathy.

304
As I understand the judicial functions of this House, although they involve applying well
established principles to new situations, they do not involve adjusting the common law to what
are thought to be the social norms of the time. They do not include bowing to the wind of
change. We have to declare what the law is, not what we think it should be. If it is clearly
established that in certain circumstances there is a right to exemplary damages, this House
should not, when sitting judicially, and indeed, in my view, cannot properly abolish or restrict
that right. This, indeed, was recognised by Lord Devlin when he said ([1964] 1 All ER at 410,
[1964] AC at 1226) that it was was not open to this House to 'arrive at a determination that
refused altogether to recognise the exemplary principle'. If the power to award such damages is
to be abolished or restricted, that is the task of the legislature.
One criticism that can be made of Lord Devlin's speech is that while recognising that a refusal
altogether to recognise the exemplary principle was not possible, he nevertheless restricted the
power to award such damages so that they ceased to be obtainable in cases where prior
to Rookes v Barnard they might have been given.
I agree with Lord Denning MR that the pre-Rookes v Barnard law was well
[1972] 1 All ER 801 at 855

stated in Mayne and McGregor on Damagesr—where it is said that such damages can only be
given—
r
12th Edn (1961), para 207

'where the conduct of the defendant merits punishment, which is only considered to be so
where his conduct is wanton, as where it discloses fraud, malice, violence, cruelty, insolence or
the like, or, as it is sometimes put, where he acts in contumelious disregard of the plaintiff's
rights.'

A similar statement is to be found in Mayne on Damages s. I do not think that this statement of
the law is to be questioned because in a later passage (12th Edn, para 212) in the current
edition it is stated:
s
11th Edn (1946), p 41

'… it cannot be said that English law has committed itself finally and fully to exemplary damages
[a view which conflicts with the opinion of Lord Devlin to which I have referred], and many of
the … cases point to the rationale not of punishment of the defendant but of extra
compensation for the plaintiff for the injury to his feelings and dignity. This is, of course, not
exemplary damages at all. It is another head of non-pecuniary loss to the plaintiff.'
This passage did not not appear in the earlier editions. I am not concerned with the rationale
but with what was recognised to be the law beforeRookes v Barnard. And I am reinforced in my
view by the fact that what was said in the earlier passage t appears to accord with Australian
law. In this field there does not appear to have been any difference between Australian and
English law prior to Rookes v Barnard. In Uren v John Fairfax & Sons Pty Ltd the High Court of
Australia refused to follow Rookes v Barnard and held that exemplary damages might be

305
awarded if it appears that the defendant's conduct in committing the wrong exhibited a
contumelious disregard of the plaintiff's rights, McTiernan J saying that the law of exemplary
damages was 'compendiously stated' in the passage I have cited from Mayne and McGregor.
t
12th Edn, para 207
Lord Devlin's first category 'oppressive, arbitrary or unconstitutional action by servants of the
government', a category which he said he would not extend to oppressive action by private
corporations or individuals, was subjected to serious criticism by Taylor J in Uren v Fairfax. He
pointed out that in none of the three old cases on which this category was apparently based,
did the decisions turn on the fact that the defendants had acted for the government. Surely it is
conduct, not status, that should determine liability. Power to award exemplary damages may
be an anomaly, but I doubt whether it is beneficial to the law to seek to reduce the area of that
anomaly at the price of creating other anomalies and illogicalities. Surely it is anomalous if a
person guilty of oppressive conduct should only be liable to exemplary damages if a servant of
the government. In these days there are others than the government who can be guilty of
oppressive conduct. Why should they be treated differently? I can find nothing in the three
cases to indicate that if the conduct complained of had been by persons other than servants of
the government, liability to exemplary damages would have been excluded.
Just as the definition of this category might be said to have been obiter to the decision
in Rookes v Barnard, so might consideration of it be regarded in this case. Nevertheless
as Rookes v Barnard has to be considered in this appeal in consequence of the action taken by
the Court of Appeal, I feel I should express my opinion
[1972] 1 All ER 801 at 856

which is that this narrow definition does not appear to me to be justified by the authorities on
which it was based.

It may also be contended that Lord Devlin's second category is also too narrowly drawn for why
should conduct lead to exemplary damages if inspired by the profit motive or some material
interest, and similar conduct due to other motives not do so. But the substantial criticism that
can be made is that by his categorisation, the previously existing and recognised power to
award exemplary damages is restricted. Lord Devlin indeed appreciated the novelty of what he
was doing when he said ([1964] 1 All ER at 410, [1964] AC at 1226) that acceptance of his views
'would impose limits not hitherto expressed on such awards'. I do not think that this should
have or could properly be done. It should have been left to the legislature.
This conclusion does not, however, mean that the jury's verdict as to liability must be interfered
with. It was urged that the appellants' decision to call no evidence was based on the
assumption that Rookes v Barnard applied—and that the issue was, did the case come within
the second category. While it may be that Captain Broome would have presented his case
differently but for what was said in Rookes v Barnard the defendants had to meet the case
presented whether or not Rookes v Barnard applied, and it was in relation to that case that they
decided to call no evidence. As the case presented would prior to Rookes v Barnard, if
established, have justified the award of exemplary damages, I cannot accept that the

306
defendants might have reached a different decision about calling evidence on the case as
presented if Rookes v Barnard had not been followed.
I now turn to the passage in Lord Devlin's speech dealing with the assessment of damages, a
passage which, save in the respect to which I have referred, was closely followed by Lawton J in
his summing-up. I think that Salmon LJ correctly summarised the pre-Rookes v Barnard practice
when he said ([1971] 2 All ER at 205, [1971] 2 WLR at 876, 877):

'Judges used to direct juries in libel actions that, if they found in favour of the plaintiff, they
should award him a sum which would make it plain to the world that there was no truth in the
libel and which, as far as money could do so, would compensate him for the distress,
humiliation and annoyance which the libel had caused him. They were also told in appropriate
cases that they could take the whole of the defendant's conduct into account down to the
moment they returned their verdict, and that if they came to the conclusion that he had
behaved outrageously they might, as a deterrent, reflect their disapproval of the defendant's
conduct in the amount of the damages which they awarded. At the same time they were always
warned to be fair and reasonable and not to allow themselves to be inflamed against the
defendant but to decide dispassionately what in all the circumstances would be a reasonable
sum to award.'
The summing-up in Loudon v Ryder which was approved by the Court of Appeal, also recognised
that outrageous conduct was a ground for exemplary damages. That appears to be the first
case in which a jury was asked to award separate sums for exemplary and for compensatory
damages and in which it was suggested that the amount awarded for exemplary damages was
to be regarded as the imposition of a fine.
In Ley v Hamilton the Court of Appeal by a majority (Greer and Maugham LJJ, Scrutton LJ
dissenting) allowed an appeal from a jury's verdict awarding £5,000 damages for libel, one
ground for the decision being that the damages awarded were excessive, Maugham LJ saying
that the sum could not be described 'as a fair
[1972] 1 All ER 801 at 857

and reasonable compensation for the damages which the plaintiff' had suffered, that the
verdict could only be justified on the view that the jury were exercising the right to give
vindictive or punitive damages, and that—

'when the damages in question are really not compensation for an injury sustained by the
plaintiff but in the nature of a fine inflicted on the defendant'

the Court of Appeal would be compelled to interfere. In this House Maugham LJ's approach was
rejected by Lord Atkin in a speech with which Lords Tomlin, Thankerton, Macmillan and Wright
agreed. Part of the relevant passages of Lord Atkin's speech were cited by Lord Devlin ([1964] 1
All ER at 413, [1964] AC at 1230) but two sentences which I italicise and which I regard as
important were omitted. The full passage is as follows ((1935) 153 LT at 386):
'The fact is that the criticism [Maugham LJ's] with great respect seems based upon an incorrect
view of the assessment of damages for defamation. They are not arrived at as the Lord Justice

307
seems to assume by determining the “real” damage and adding to that a sum by way of
vindictive or punitive damages. It is precisely because the “real” damage cannot be ascertained
and established that the damages are at large. It is impossible to track the scandal, to know
what quarters the poison may reach: it is impossible to weigh at all closely the compensation
which will recompense a man or a woman for the insult offered or the pain of a false
accusation. No doubt in newspaper libels juries take into account the vast circulations which are
justly claimed in present times. The “punitive” element is not something which is or can be
added to some known factor which is non-punitive. In particular it appears to present no
analogy to punishment by fine for the criminal offence of publishing a defamatory libel.'

Maugham LJ did not in his judgment refer to 'real' damage. I think it is clear that by 'real'
damage Lord Atkin meant the damage which the plaintiff had suffered.
Yet is not the very process condemned in Ley v Hamilton that which it was said in Rookes v
Barnard should be followed and that which, pursuant toRookes v Barnard, was followed in this
case? Lord Atkin said that for the reasons he gave 'real' damage, ie compensatory damage,
could not be ascertained and established. Under Rookes v Barnard a jury is to be directed that
that which Lord Atkin said could not be done, is to be done and 'compensatory' damages
assessed first. The punitive element is not something that can be added. Yet in Rookes v
Barnard it is said that it should be added if, but only if, the compensatory damages are
insufficient. Lord Atkin said that there was no analogy to punishment by a fine for a criminal
libel, yet following Rookes v Barnard, juries are to be told that punitive damages amount to a
fine. I must confess my inability to reconcile the views of this House as expressed in Ley v
Hamilton with those expressed in Rookes v Barnard.
Before Rookes v Barnard the words 'aggravated', 'punitive', 'exemplary' and 'retributory' were
used indiscriminately to indicate that the damages awarded might be enhanced and might
contain a punitive element. By Rookes v Barnard precise meanings were attached to the words
'aggravated' and 'exemplary'. Lord Devlin recognised ([1964] 1 All ER at 407, [1964] AC at 1221)
that the jury could take into account the motives and conduct of the defendant where they
aggravate the injury to the plaintiff.

'There may be [he said] malevolence or spite or the manner of committing the wrong may be
such as to injure the plaintiff's proper feelings of dignity and pride. These are matters which the
jury can take into account in assessing the appropriate compensation.'

So where the injury is aggravated, an addition can be made to the compensatory damages.
[1972] 1 All ER 801 at 858
While in some cases it may be evident that malice or misconduct has added to the injury, there
may be other cases where, although it is clear that there has been malice and misconduct, it
cannot be said that the injury inflicted is any greater than it would have been if there had been
no malice or misconduct. In such cases it would seem from Rookes v Barnard that the
compensatory damages should not be increased. Nor, in such cases would it seem that
exemplary damages as there defined could always be awarded for they are only to be awarded
if the sum given in compensation is 'inadequate to punish for outrageous conduct, to mark the

308
jury's disapproval of such conduct, and to deter a repetition'. The existence of malice may not
make the defendant's conduct outrageous, and yet it is, I think, established beyond all doubt
that before Rookes v Barnard a jury was always entitled to award larger damages than they
otherwise would have given if satisfied that the libel was actuated by malice.
All the members of the Court of Appeal thought that the Rookes v Barnard approach was wrong
and in conflict with the views expressed in this House in Ley v Hamilton. I can find no escape
from that conclusion and if the choice now lies between following one or the other of those
decisions, I would myself choose to follow the simpler and more flexible approach in Ley v
Hamilton. The Court of Appeal also thought that there was a conflict with the decision of this
House in Hulton v Jones. While there are some passages in the report of that case which afford
some ground for that contention, I do not think that they suffice to establish that that is so with
any degree of certainty.
While, if the views I have expressed prevailed, it would not be necessary to disturb the jury's
verdict as to liability, I cannot regard a direction to assess damages in accordance with Rookes v
Barnard as a proper direction in accordance with the pre-Rookes v Barnard practice and as
complying with Ley v Hamilton. So if my view were to prevail, the verdict given in this case
could not be sustained and there would, if there had not been agreement by counsel that this
House should in that event assess the damages, have to be a new trial limited to the
assessment of damages. As my view does not prevail, it is not necessary to express an opinion
on what that sum should be if this House had to assess it.

For the reasons I have stated, I would allow the appeal.

LORD WILBERFORCE.

My Lords, this case must be accounted, as in many respects an unhappy one. After a trial of 17
days before a judge and jury, in which the defendants called no evidence, the plaintiff, Captain
Broome, was awarded against author and publishers jointly £40,000 damages in respect of
libels contained in the book 'The Destruction of Convoy PQ17'. This total sum was awarded by
the jury as to £15,000 as 'compensatory' damages and as to £25,000 as 'punitive' damages.
Captain Broome was awarded his costs of the trial.

An appeal was taken to the Court of Appeal by both defendants. The substantial points for
argument were two: (1) whether the summing-up was defective as regards the circumstances
in which punitive damages may be given in addition to compensatory damages, (2) whether the
damages awarded were excessive. There was also a question whether a separate award should
have been made against each defendant. Since the passages in the book principally complained
of reflected on the conduct of officers of the Royal Navy, in combat conditions, there was an
obvious danger that the jury may have become inflamed. This made it particularly necessary
that there should be a dispassionate and cool review of the sums awarded and of the summing-
up in the Court of Appeal.
[1972] 1 All ER 801 at 859

309
If matters had taken their proper and normal course these matters should have been disposed
of within a few days—by dismissal of the appeal or by an order for a new trial, and no question
of appeal to this House would have arisen. This did not happen. The trial had been conducted
properly, and inevitably on the basis that the law to be applied as regards any claim for punitive
damages was that stated by this House in Rookes v Barnard. The learned judge considered that
he was bound by what was said in this House, as he clearly was. But in the Court of Appeal
argument was admitted to the effect that Rookes v Barnard, on punitive damages, was wrong
and should not be followed: the Court of Appeal so decided, and three judgments, separate
exercises in forceful advocacy, were delivered giving their reasons.
The course permitted and taken was doubly surprising. First, there was nothing new
about Rookes v Barnard. It was decided in 1964; it had been followed and applied in England by
the Court of Appeal itself three times since then in, amongst others, libel cases without
difficulty or protest by any of the Lords Justices involved. Secondly, it was, on the view of the
facts which the Court of Appeal took, unnecessary for the decision of the appeal to decide
whether Rookes v Barnard on punitive damages was right or wrong. The Court of Appeal,
having held that it was wrong, still dismissed the appeal, and in an alternative passage held that
the same result followed if it was right.
The consequences for the present litigants have been heavy. An appeal has been brought here
and argued for 13 days Counsel for the appellants were forced into the necessity of arguing at
length that Rookes v Barnard is right, and this argument was answered on Captain Broome's
side. A mountain of costs has piled up and it is as well that the size of this should be
understood; it is open on the record. As shown by the order of the Court of Appeal, the
plaintiff's costs at the trial have been taxed at £22,000. His costs as assessed in the Court of
Appeal are £7,000. His costs in this House must exceed this figure. The taxed costs of the
defendants are unlikely to be less; there will be further solicitor and own client costs on either
side. It may not be unfair to put the aggregate bill, which an unsuccessful party may have to
bear, at more than £60,000. It would be entirely unfair to suggest that the whole, or even half
this sum, is due to the course taken in the Court of Appeal—the greater part flows from the
inherent nature of our system. But it is necessary to say that in a legal system so extravagant
and punitive as to costs as ours is in civil cases, and particularly libel actions, the addition of
further burdens, and here they were certainly considerable, carries the result further into an
unacceptable area of injustice. England has not the equivalent of the New South Wales Suitors
Fund Act 1951, nor of the Victoria Appeal Costs Fund Act 1964, so when the machinery creaks it
is the private litigants who pay. I have felt deep concern about this throughout the hearing.

My Lords, observations have already been made on other constitutional aspects of the Court of
Appeal's judgments. I concur entirely with what has been said, and the fact that for reasons of
space I abstain from using my own words does not mean that my concurrence is any the less
wholehearted.
I proceed to the principal task we have, which is to decide the present appeal. Before examining
the summing-up, on which the jury's verdict was based, it is necessary to establish the law. This
involves some re-examination of those parts of the decision in Rookes v Barnard which relate to
punitive damages. I shall consider Rookes v Barnard under three heads. First, as to the analysis

310
it contains of damages in tort cases; secondly, as to defamation actions in relation to Lord
Devlin's second category—both of these being directly relevant to the present case; thirdly, and
briefly, as to the first and second categories, their inclusions and exclusions.

I deal first with that portion of the judgment which analyses damages in tort
[1972] 1 All ER 801 at 860

cases into 'compensatory' damages, a subhead of which is said to be 'aggravated' damages and
punitive damages, because I think that this has been largely misunderstood—a
misunderstanding which has fatally entered into the present case. The judgment points out that
in the reported English authorities, over some 200 years, there is no clear terminology used;
aggravated, exemplary, punitive, vindictive, retributory being adjectives which have been used,
singly or in combination, without distinction or difference. Then it is suggested that in future
there should be a clear and conscious distinction between compensatory/aggravated and
punitive (or exemplary) damages, the former reflecting what the plaintiff has suffered
materially or in wounded feelings, the latter the jury's (or judge's) views of the defendant's
conduct. The statement of categories, in which alone punitive damages may be given, follows
from this.
This analysis is powerful and illuminating and undoubtedly represents a valuable contribution
to English judicial thought on the subjectu but it has its dangers in practical application, as the
present case only too well shows. English law does not work in an analytical fashion; it has
simply entrusted the fixing of damages to juries on the basis of sensible, untheoretical
directions by the judge with the residual check of appeals in the case of exorbitant verdicts.
That is why the terminology used is empirical and not scientific. And there is more than merely
practical justification for this attitude. For particularly over the range of torts for which punitive
damages may be given (trespass to person or property, false imprisonment and defamation,
being the commonest) there is much to be said before one can safely assert that the true or
basic principle of the law of damages in tort is compensation, or, if it is, what the compensation
is for (if one says that a plaintiff is given compensation because he has been injured one is really
denying the word its true meaning) or, if there is compensation, whether there is not in all
cases, or at least in some, of which defamation may be an example, also a delictual element
which contemplates some penalty for the defendant. It cannot lightly be taken for granted,
even as a matter of theory, that the purpose of the law of tort is compensation, still less that it
ought to be, an issue of large social import, or that there is something inappropriate or illogical
or anomalous (a question-begging word) in including a punitive element in civil damages, or,
conversely that the criminal law, rather than the civil law is in these cases the better instrument
for conveying social disapproval, or for redressing a wrong to the social fabric, or that damages
in any case can be broken down into the two separate elements. As a matter of practice English
law has not committed itself to any of these theories; it may have been wiser than it knew.
u
Cf in the United States Fay v Parker (1873) 53 NH 342–347 per Foster J; and as to textbook
discussion Mayne and McGregor on Damages, 12th Edn (1961), Street, Principles of the Law of
Damages (1962)

311
This is not the place to argue out the general case for or against punitive damages in English
law. The existence of the principle has its convinced opponents, particularly, I understand, in
Scotland. The arguments against it—that it is an 'anomaly', that it brings a criminal element into
the civil law without adequate safeguards, that it leads to excessive awards, an unmerited
windfall for the plaintiff; these and others are by now well known; they, and the counter-
arguments are well summed up in Professor Street's Principles of the Law of Damages v. Perhaps
the opponents have, marginally, the best of it in logic but logic in excess has never been the
vice of English law and I am impressed, as I think was Lord Devlin, with the fact that the
principle has shown and continues to show, its vitality not only in England but in Australia,
Canada and New Zealand, as well (though there are special considerations there) as in the
United States of America. This is shown not only by reported cases, of which Canadian
provinces, Australian states and New Zealand provide a number of modern examples w, but in
the daily unreported practice of the courts. Its place in the
v
See pp 34–36
w
See as to Canada (1970) 48 Can BR 373
[1972] 1 All ER 801 at 861

law has been endorsed by many eminent judges in terms which clearly recognise the punitive
element. The principle of punitive damages has been recognised by the High Court of Australia
on five occasions, by the Supreme Court of Canada and by the Supreme Court of the United
States of America.

To my mind the strongest argument against it is that English law already contains a heavy,
indeed exorbitant, punitive element in its costs system; contrast the United States where it is
the absence of this (advocate's costs not being normally recoverable) which is invoked as a
justification for punitive damages. One or other must clearly be reformed, and it is Parliament
alone that can do it.

I take the discussion one step further, because the point is very relevant here. In Lord Devlin's
opinion the distinction is made between aggravated damages and punitive damages; it is said
that many of the authorities are really cases of aggravated damages although other words are
used, that apart from the exceptional cases included in the three categories, aggravated
damages are the appropriate and sufficient remedy. Although I doubt very much whether all
the cases can be explained in this way—to do so seems to attribute a high degree of confusion
of thought or inaccuracy of expression to judges of eminence—there is attraction in the
distinction. It has the advantage, to some minds, of reducing the area of 'punitive' damages,
and of bringing the remedy nearer to 'compensation'.
But closer examination causes one to doubt whether the separation, otherwise than in analysis,
of compensatory from punitive damages does not involve some real danger in practice. As
Windeyer J said in Uren's case ((1967) 117 CLR at 152):
'What the House of Lords has now done is … to produce a more distinct terminology. Limiting
the scope of terms that often were not distinguished in application makes possible

312
an apparently firm distinction between aggravated compensatory damages and exemplary or
punitive damages. How far the different labels denote concepts really different in effect may be
debatable. I suspect that in seeking to preserve the distinction we shall sometimes find
ourselves dealing more in words than ideas.'

(Cf Salmond on Tortsx which maintains the old 'confusion'). The distinction does not in my belief
greatly correspond to what happens in reality. Take a common case: a man is assaulted, or his
land is trespassed upon, with accompanying circumstances of insolence or contumely. He
decides to bring an action for damages, he need not further specify the claim. Is he suing for
compensation, for injury to his feelings, to teach his opponent a lesson, to vindicate his rights,
or 'the strength of the law', or for a mixture of these things? Most men would not ask
themselves such questions, many men could not answer them. If they could answer them, they
might give different answers. The reaction to a libel may be anything from 'how outrageous' to
'he has delivered himself into my hands'. The fact is that the plaintiff sues for damages, inviting
the court to take all the facts into consideration, and, if he wins, he may ascribe his victory to all
or any of the ingredients.
x
(1969) 15th Edn

As, again, Windeyer J has said ((1967) 117 CLR at 150), the amount of the verdict is the product
of a mixture of inextricable considerations. Sedgwick y said:
y
Measure of Damages, 3rd Edn (1858)
'Where either of these elements [sc malice, oppression etc] mingle in the controversy, the law,
instead of adhering to the system, or even the language of compensation adopts a wholly
different rule. It permits the jury to give what it terms punitive, vindictive or exemplary
damages, in other words, it blends together the interests of society and of the aggrieved
individual and gives
[1972] 1 All ER 801 at 862

damages not only to recompense the sufferer but to punish the offender. This rule … seems
settled in England and in general jurisprudence of [U.S.A.].'
Lord Atkin said just this is Ley v Hamilton in a passage (cited in other opinions, vide that of
Viscount Dilhorne) which, if any in modern times, is clear and authoritative. Dixon J endorsed
the principle—see citation belowz—as did the key passage in Halsbury's Laws of Englandaa cited
by Lord Hailsham LC. To segregate the punitive element is to split the indivisible and to invite
the stock criticism (vide Streetbb ) that civil courts have no business to impose fines.
z
Smith's Newspapers Ltd v Becker (1932) 47 CLR 279 at 300
aa
11 Halsbury's Laws (3rd Edn) 223, para 391
bb
Principles of the Law of Damages (1962), pp 34, 35

This is of critical importance in practice. If the separation of damages into

compensatory/aggravated and punitive is carried through into the instruction to the jury, there
is the greatest possible risk of excessive awards, through counting twice what is but a different

313
facet of the same bad conduct. Lord Devlin himself clearly understood this; the careful passage
([1964] 1 All ER at 414, [1964] AC at 1232) containing the 'if but only if' prescription, provided
his antidote—an effective one if judges can administer it in a timely and effective way.
My Lords, I think there was much merit in what I understand was the older system,
before Rookes v Barnard. I agree with the Court of Appeal that in substance, although not
perhaps philosophically or linguistically, this was clear and as explained above I doubt if there
was any confusion as to what the jury should do. It was to direct the jury in general terms to
give a single sum taking the various elements, or such of them as might exist in the case, into
account including the wounded feelings of the plaintiff and the conduct of the defendant, but
warning them not to double count and to be moderate. A formula on these lines commended
itself to Dixon J in 1932. What amount of damages, he asked bb—
'is enough to serve at once as a solatium, vindication and compensation to him and a requital to
the wrongdoer … '.
An earlier example is the direction of Abbott J in Sears v Lyons: as evidence that modern
practice corresponds I could not desire more than the passage, based on considerable
experience, in the judgment of Salmon LJ in this case ([1971] 2 All ER at 205, [1971] 2 WLR at
876, 877) cited in full by Viscount Dilhorne and which I need not repeat. If judges were to act in
this way, and direct substantially as Salmon LJ describes, I would see no basis for ascribing to
them any error in law. If, on the other hand, use were to be made of the aggravated-punitive
distinction, I would think that it is even more necessary that the jury should be directed to give
a single sum (Lord Devlin's exception to avoid a new trial is entirely laudable, but, I respectfully
think, risky). The direction to give a single sum should mean (the necessity to say this illustrates
again the dangers of the terminology) not merely producing a single figure by way of verdict,
but arriving in their discussion at a single sum. It would be wrong, and a novelty in the law, that
they should, in the jury room, find separately the various elements—pure compensation,
aggravated compensation and penalty and add them up to a total. In no previous cited case,
except in Loudon v Ryder (overruled by Lord Devlin himself), was this done; it was directly
discountenanced by Lord Atkin in Ley v Hamilton ((1935) 153 LT 384 at 386).
[1972] 1 All ER 801 at 863

I regret that this rather lengthy analysis has been necessary before I deal with the present
appeal, but in my view it is fundamental to a consideration of the summing-up.
The full account of the trial which has been given in previous opinions enables me to
summarise. The critical stages were these: (1) the jury were told that there were two aspects of
damages, compensatory and punitive. They were asked first to consider compensatory
damages. They had read to them a passage from the judgment of Pearson LJ in McCarey v
Associated Newspapers Ltd ([1964] 3 All ER 947 at 957, 958, [1965] 2 QB 86 at 104, 105) in
which it was said in clear terms that if there had been any high-handed, oppressive or
contumelious behaviour which increased the mental pain and suffering caused by the
defamation, this might be taken into account. (2) The judge then pointed out that Captain
Broome had suffered no actual pecuniary loss; that he had not been shunned by his comrades;
that the trial had been conducted without exacerbation; but that what was said in the book
might be very wounding to his feelings. (3) The learned judge then dealt with punitive damages

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by reference to the second category in Rookes v Barnard, cited the words of Widgery J
in Manson v Associated Newspapers Ltd ([1965] 2 All ER 954 at 958, [1965] 1 WLR 1038 at
1043), and said:
'… you are being asked here not only to give Captain Broome compensatory damages, that is, a
reasonable sum for the injury to his reputation and the exacerbation of his feelings; but in
addition to fine [the appellants] and Mr. Irving for having done what they have done … you are
really in the position of a Judge or a Magistrate trying a criminal case; you have got, so to speak,
to fine the Defendant.' [Emphasis supplied.]

and he gives examples of reasonable and unreasonable fines. Later he gives lengthy directions
relevant to the second category (was there a calculation of profit etc) and on the next day
returns finally to damages. (4) The final direction as to damages consisted of the statement of
questions for the jury and explanation of them. The first question (no 3) is 'What compensatory
damages to you award the plaintiff?' The summing-up continues:

'Then having decided what are the proper additional [sic] compensatory damages you will go
on and consider the fourth question, namely, “Has the plaintiff proved that he is entitled to
exemplary damages?” [and directs the jury to consider this in relation separately to each
defendant. Lastly there is this passage:] Then you see the last question under this heading,
“What additional sum should be awarded him by way of exemplary damages?“. Would you be
good enough to underline the word “additional”, because I want to know, and learned counsel
want to know, if you do decide to award punitive damages, how much more do you award over
and above the compensatory damage.'

The result of this was an award of £15,000 compensatory damages and £25,000 as an
additional sum for exemplary damages.

My Lords, I regret to have reached the conclusion that this verdict ought not to stand. Apart
from the reasons given by my noble and learned friend, Lord Diplock, with which I respectfully
agree, I think for myself that the separation of the element of compensatory damages from
that of punitive damages, brought about through the interpretation placed on the second
category and the application of it, involving, as it did, the need to fix compensation (plus
aggravation) first, see if the case came within the category, and then fix a separate punitive
sum, is fundamentally wrong. It has brought about precisely the result which was to be feared
from breaking down the indivisible whole, namely, of fixing a compensation figure swollen by
aggravation and then adding a fine on top—a fine in this case exceeding greatly the
[1972] 1 All ER 801 at 864

aggravated compensation. If the matter rested on the figures alone, I should find the greatest
difficulty in supporting, even with all the inhibitions properly felt against substituting a judicial
opinion for that of the jury, so large a punitive element, particularly in a case such as this where
the libel was considered to be (I say nothing as to my own opinion) of a most wounding
character, so that the 'compensatory' damages must necessarily include a large 'punitive'

315
element. But when it is seen how the jury were directed to calculate, and the direction was
certainly clear and certainly and visibly acted on, their figures become impossible to accept.
In argument the issue was put in the form whether the judge's direction complied with Lord
Devlin's 'if, but only if' advice ([1964] 1 All ER at 411, [1964] AC at 1228). I think that it certainly
did not. The dangers of separating the compartments (compensatory damages and punitive
damages) in so watertight a way are so great, as I have tried to explain, indeed, in my opinion,
so wrong in principle that I doubt very much whether any instructions, in a difficult case, could
avoid them. That is why I think that any interpretation placed on Rookes v Barnard which
requires this separation, or authorises it, and the introduction of the profit gateway which
almost compels it, ought to be discarded. But however that may be, the directions given fall far
short of what was necessary—I say this without any criticism of the learned judge who was
merely following Rookes v Barnard as previously applied by the Court of Appeal. When all is
said the warning to the jury against the danger was contained in the word 'additional' in
question 4. I think this was not enough, for they had been told that they could inflict a fine.

For these reasons, without committing myself to any particular figure if we were called on to
substitute one, I agree with the conclusion of my noble and learned friend, Lord Diplock, as to
the necessity for a new trial on the question of punitive damages.

I must add one other point. This is the question of a joint award of damages against two
wrongdoers, publisher and author. There is no doubt that the existing law is ill adapted to deal
fairly with a case where 'guilt' of joint defendants is unequal. But it is clear enough what the law
is; it is stated by Lord Hailsham LC in terms which I need not repeat. In the Court of Appeal Lord
Denning MR said that the jury were free to decide whether to fix punitive damages at the
highest figure, the lowest figure, or at a figure between the two and I fear that the jury may
well have proceeded on this somewhat libertarian view of the law. One may escape from the
conclusion that this vitiates the verdict by assuming that the two defendants were equally
'guilty', but I am not prepared to make this assumption or to ascribe a view to that effect to the
jury. I think that the jury must have been, at best, confused, at worst misled by the direction,
and I cannot accept that acquiescence by counsel validates the defect.
I must now deal as briefly as I can with other aspects of the judgment in Rookes v Barnard. I
deal first with its effect on the law of damages for defamation.
I am far from convinced that Lord Devlin ever intended to alter the law as to damages for
defamation or intended to limit punitive damages in defamation actions to cases where a 'profit
motive' is shown. (I use this compendiously for the formula in his second category.) I summarise
the reasons: (a) Defamation is normally thought of as par excellence the tort when punitive
damages may be claimed. It was so presented in argument by counsel for the respondent
(arguing against punitive damages) and he was an acknowledged expert in the subject. Every
practitioner and every judge would take this view. (b) Lord Devlin's passage where he sets up
his second category does not refer to any defamation case, but to three other miscellaneous
cases which he illuminatingly bases on the profit motive. He makes merely an incidental
reference to libel where he says the profit motive is always a factor, not, it should be observed,
a condition. (c) It is difficult to believe that Lord Devlin was

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 [1972] 1 All ER 801 at 865

intending to limit the scope of punitive damages in defamation actions so as to exclude highly
malicious or irresponsible libels. At least if he intended to do so at a time when the media of
communication are more powerful than they have ever been and certainly not motivated only
by a desire to make money, and since elsewhere the judgment shows him conscious of the
need to sanction the irresponsible, malicious or oppressive use of power, I would have
expected some reasons to be given.

If we cannot interpret his judgment as leaving libel outside category 2 as a separate case, well
known to everyone, in which punitive damages may be given in familiar circumstances and as
stating category 2 as a qualification for other cases, hitherto not explained or rationalised, then
since the disposal of defamation actions was there dealt with briefly, I would say incidentally,
and obiter, I consider that in this case where we are directly concerned with such an action we
should disagree with it.

This would leave the law as I understand it to be in Australia and Canada, countries where, in
this respect, there is not known to me to be any such difference in 'social conditions' as to call
for the recognition, by this House, judicially, of a divergent law. If changes are to be made, they
should be made, after proper investigation, by Parliament.

I would add, with reference to this point, that the present case well illustrates the irrationality
of the supposed new principle. For if the profit motive is essential for the recovery of punitive
damages, one would expect the damages given to bear some relation to the supposed profit
and/or to the means of the offender; the idea (if there is any logic in the requirement) must be
to take the profit out of wrongdoing. Yet there was not, and in many such cases cannot be, any
real consideration of the likely profit or of the offender's means. There was no evidence what
these might be and the jury were given no guidance. How, then, could the punitive £25,000 be
other than an arbitrary guess? If one replies that it represents the jury's view of the defendants'
conduct (as it probably did) what purpose is served by introducing the profit motive gateway?
Finally, as to other torts as to which, before Rookes v Barnard, punitive damages could be given
but on which some restriction is evidently intended to be placed by the judgment. That this
House, as a matter of law, or of legal policy, was entitled to restrict the scope of punitive
damages I have, with all respect to the Court of Appeal, no doubt and, whatever my own
reservations as to the wisdom of the policy, I should feel myself obliged to accept a new
statement of principle if it were clear, consistent and workable and intelligibly related to the
main stream of authority. That it was not entirely clear, appears well enough from the opinions
in the present case; and I cannot entirely blame the Court of Appeal for attempting to escape
from it, just as one may sympathise with a customer when he finds his new suit almost at once
requiring alteration, or patching, for putting it aside and reaching for his old tweeds. There is
not perhaps much difficulty about category 1; it is well based on the cases and on a principle
stated in 1703—'if public officers will infringe men's rights, they ought to pay greater damages
than other men to deter and hinder others from the like offences' (Ashby v White ((11703) 2 Ld
Raym 938 at 956) per Holt CJ). Excessive and insolent use of power is certainly something
against which citizens require as much protection today; a wide interpretation of 'government'
317
which I understand your Lordships to endorse would correspond with Holt CJ's 'public officers'
and would partly correspond with modern needs. There would remain, even on the most liberal
interpretation, a number of difficulties and inconsistencies as pointed out by Taylor J
in Uren's case.

I have more difficulty with the commonplace types of trespass or assault accompanied by insult
or contumely, which, even more than 'first category' cases touch
[1972] 1 All ER 801 at 866
the life of ordinary men and occupy the county courts. Although Lord Devlin studiously refrains
from overruling earlier cases (other than Loudon v Ryder) which undoubtedly proceeded on, or
contained, a punitive element, his opinion has been understood as laying down that in future
such cases cannot, unless the 'profit motive' is present, be treated as cases for punitive
damages but only as cases for aggravated damages. The phrase used has been 'aggravated
damages can do the work of punitive damages'.

I understand that a majority of your Lordships, for possibly differing reasons, are satisfied with
this so it will remain the law in this country. But, if only in fairness to the Court of Appeal with
whose approach to this matter I agree, I must state very briefly why I feel some difficulty.
I am far from clear how juries, or judges, are intended to act in the future. Are they to take it
that the law has been changed, so that (absent a profit motive) only 'compensatory' damages
can be given, plus an element for 'aggravation' if that is proved? I fear that there will be
difficulty in seeing how far earlier cases, or Commonwealth cases, are now authority and that
there will be much argument whether a particular case was one of 'aggravated' or 'punitive'
damages or of both. Alternatively, if 'aggravated damages' are 'to do the work of punitive
damages' and if it is to be supposed that juries, or judges, will continue giving damages much as
before, then nothing has been gained by changing the label and we are indulging in make belief
and encouraging fictional pleading. The whole point is well brought out by Pearson LJ
in McCarey v Associated Newspapers Ltd ([1965] 2 QB at 105, cf [1964] 3 All ER at 957): 'if the
compensatory principles is accepted, punitive damages must not be allowed to creep back into
the assessment in some other guise'. I must confess to sympathy with the Court of Appeal's
preference for the older system and with the objections to the new stated by Taylor J
in Uren's case, the weight of which clearly impressed the Privy Council. Their validity has been
endorsed by cases post-Rookes v Barnard in Australia, Canada and New Zealand. I share their
doubt whether we have yet arrived at a viable substitute. But I note with satisfaction and
agreement the opinion expressed by the noble and learned Lord on the Woolsack that the
relevant passage in Lord Devlin's judgment, which he cites, should be read sensibly as a whole
together with the authorities on which it is based. This may provide a sound basis for
redevelopment of the law.

My Lords, on all other points not expressly dealt with in this opinion I wish to express my
concurrence with that of Lord Hailsham LC. I regret to differ from him in thinking that the
appeal should be allowed on the grounds which I have stated.

318
LORD DIPLOCK.
My Lords, the trial of this action proceeded, correctly, on the basis that as respects the measure
of the damages which the jury might award, the judge was bound to direct them in accordance
with the law as laid down by this House in Lord Devlin's speech in Rookes v Barnard.

I agree with all your Lordships that there was material on which the jury were entitled to find
that the conduct of each of the defendants brought the case within Lord Devlin's second
category of cases in which exemplary or, as I would have preferred to call them, punitive
damages may be awarded. The jury did so find by special verdicts. That part of the judge's
summing-up in which he directed them as to the matters for their consideration in arriving at
their findings on this issue as respects each of the defendants cannot be faulted.

It was, however, also incumbent on the judge to instruct the jury as to the measure of the
damages which they might award if they reached the conclusion that the case as against each
of the defendants was one in which they were not precluded from
[1972] 1 All ER 801 at 867

awarding punitive damages. On this aspect of the case there were two principles of law which
should have been stated clearly to the jury. Neither was self-evident. The first was that, even if
the jury found that the case came within Lord Devlin's second category and that the
defendants' conduct merited punishment, it did not necessarily follow that they must award as
damages to Captain Broome a greater sum than was sufficient to compensate him for all the
harm and humiliation that he had suffered as a consequence of the defendants' tortious acts.
They should take into account as part of the punishment inflicted on the defendants any sum
(in the result £15,000) which they were minded to award to Captain Broome as compensatory
damages; and only if they thought that sum to be inadequate in itself to constitute sufficient
punishment were they to award such additional sum as would, when added to the
compensatory damages, amount to an appropriate penalty for the defendants' improper
conduct. The second was that if the jury thought that the conduct of one of the joint
defendants deserved to be penalised by a lesser sum than the conduct of the other, the most
that the jury were entitled to award against the defendants was that lesser sum, if it were to
exceed the amount which they were minded to award as compensatory damages.

I have the misfortune to differ from the majority of your Lordships in that I find it impossible to
discover in the language of the summing-up any clear statement of either of these principles. At
best I think that when the jury retired they must have been confused as to how the punitive
damages, if any, were to be assessed. At worst I think that they may well have thought that
they were to arrive at a sum which they thought was an appropriate penalty for the
defendants' conduct and to add it to any sum awarded as compensatory damages.

My Lords, I do not think that on this vital question of the assessment of exemplary damages the
jury were adequately directed. I am fortified in this view by my conviction that, if properly
directed, no reasonable jury could possibly have reached the conclusion that the appropriate
penalty to inflict on the less culpable of the defendants was £40,000 for publishing a libel of

319
which the victim was in their view adequately recompensed at £15,000 for all the harm and
humiliation that it had caused to him.

A penalty of £40,000 is, I believe, very much larger than any of your Lordships would have
thought it appropriate to inflict on the defendants. I doubt if any of your Lordships would have
hesitated to interfere with it if it had been awarded by a judge sitting alone. He would have
been vulnerable because he would have given his reasons. Shibboleths apart, there survive
today two valid reasons why an appellate court should be more reluctant to disturb an
assessment of damages by a jury than an assessment by a judge. The first is applicable to all
kinds of actions. It is that a judge articulates his findings on the evidence and his reasoning,
whereas a jury state the result of their findings and their reasoning but otherwise are dumb. In
considering whether an award of damages by a jury is excessive an appellate court cannot do
other than assume that the jury made every finding of fact and drew every inference that was
open to it on the evidence as favourably as possible to the plaintiff and as adversely as possible
to the defendant. In the instant case, however, this handicap to an appellate's court ability to
do justice is palliated by the facts; that there was no conflict of evidence for them to resolve—
for the defendants called none, and that the jury were given a partial gift of speech. By their
special verdict this House has been told that they considered that the plaintiff would be fully
compensated by £15,000. The second reason for reluctance to interfere with a jury's award of
damages applies particularly to actions for defamation. It is that, unless the parties otherwise
agree, the consequence of setting aside the jury's verdict must be a new trial before another
jury. This involves the parties, through no fault of their own, in greatly increased costs which,
particularly in libel actions, are, to the discredit of our legal system, out of all proportion even
to the large compensatory damages awarded in the instant case. For my part, I should not be
deflected from setting aside a jury's verdict as unreasonable by the fear, sometimes expressed
by appellate judges, that another
[1972] 1 All ER 801 at 868

unreasonable jury might make a similar unreasonable award of damages on the new trial. So far
as I know this has never happened yet. But the consideration of the costs involved is one which
it would be unrealistic and unjust to ignore. In the instant case, however, the parties agreed
that this House should assess the damages in the event of the jury's verdict being set aside. No
more costs would be incurred if the appeal were allowed than if it were dismissed—although
the incidence of them on the parties might be different.

It may be said, and not implausibly, that there is nothing in the training or experience of a judge
which makes him fitter than a jury to determine the pecuniary compensation which a plaintiff
should receive for a reputation that is damaged or feelings that are hurt. And there may be
safety in numbers. But it runs counter to the basis of our criminal law, in which the jury
determine guilt and the judge determines the appropriate punishment, to treat the jury as
better qualified than a judge to assess the pecuniary penalty which a defendant ought to pay
for conduct which merits punishment. On an appeal from the jury's award of £40,000 which I
know to be compensatory to the extent of £15,000 only, I should approach it in the same way
as I should approach a fine of £40,000 imposed by a judge in a criminal prosecution. Even if I

320
thought the jury had been given an adequate direction by the judge, I would have set the award
aside and substituted an award of £20,000.
I have thought it right to express my own minority opinion as to what the result of this appeal
should be. It is that with which the parties are primarily concerned—and it is they who are
paying for it. It is, however, inherent in our legal system that owing to the manner in which the
Court of Appeal dealt with the instant case, the unsuccessful party is also paying for the ruling
of this House on two questions of law of much more general importance. The first is as to the
effect of the decision in Rookes v Barnard on the assessment of damages for defamation and
whether that decision ought to be followed. The second is as to the propriety of the manner in
which the Court of Appeal, as an intermediate appellate court, dealt with the decision of this
House in Rookes v Barnard. To these two topics I now turn.
In Rookes v Barnard the plaintiff's claim was for damages for the tort of intimidation. At the trial
the judge had summed up to the jury in terms which left it open to them to award exemplary
damages. There was a cross-appeal against the amount of damages, on which this House heard
separate and lengthy argument. It was necessary as a matter of decision of the cross-appeal for
this House to determine whether the facts in Rookes v Barnard brought it within a category of
cases in which exemplary damages were recoverable at common law. This House determined
that they did not and ordered a new trial. There were two different processes of reasoning by
which it would have been possible to reach this conclusion of law. One, which was not adopted
by this House, was to hold that the particular tort of intimidation was one in which the common
law did not permit of exemplary damages. The other, which was adopted by this House, was to
state the categories of cases in which alone exemplary damages might be awarded at common
law and to determine whether the facts in Rookes v Barnard brought it within one of these
categories.
Lord Devlin's speech on the cross-appeal in Rookes v Barnard, in which all the five members
who heard the appeal explicitly concurred, was a deliberate attempt by this House to do two
things: (a) as a matter of legal exposition, to formulate the rationale of the assessment of
damages for torts in which damages are 'at large'; (b) as a matter of legal policy, to restrict the
categories of cases in which damages can be awarded against a defendant in order to punish
him, to those in which this method of inflicting punishment still serves some rational social
purpose today. Lord Devlin's speech, however, does not follow the simple arrangement of
exposition followed by choice of policy. He starts by formulating three heads of damages. The
purpose of two of them is to compensate the plaintiff; that of the third is to
[1972] 1 All ER 801 at 869

punish the defendant. This formulation is followed by an analysis of the previous authorities.
These authorities lead to the policy decision to accept two categories of cases in which
exemplary damages may be recovered and, proleptically, to reject other categories of cases in
which it had previously been thought that damages might be awarded in order to punish the
defendant. He then reverts to exposition of some considerations which follow from the purpose
served by exemplary damages and which should be home in mind when awards of exemplary
damages are made. Finally he reverts to an analysis of the previous authorities for the purpose
of completing the policy decision by overruling those which were authority for the award of

321
exemplary damages where the injury to the plaintiff had been aggravated by malice or by the
manner of doing the injury, that is, the insolence or arrogance by which it was accompanied. It
is, however, convenient for the purposes of the instant appeal to deal with exposition and with
policy separately.

The three heads under which damages are recoverable for those torts for which damages are
'at large' are classified under the following heads. (1) Compensation for the harm caused to the
plaintiff by the wrongful physical act of the defendant in respect of which the action is brought.
In addition to any pecuniary loss specifically proved the assessment of this compensation may
itself involve putting a money value on physical hurt, as in assault; on curtailment of liberty, as
in false imprisonment or malicious prosecution; on injury to reputation, as in defamation, false
imprisonment and malicious prosecution; on inconvenience or disturbance of the even tenor of
life, as in many torts, including intimidation. (2) Additional compensation for the injured
feelings of the plaintiff where his sense of injury resulting from the wrongful physical act is
justifiably heightened by the manner in which or motive for which the defendant did it. This
Lord Devlin calls 'aggravated damages'. (3) Punishment of the defendant for his anti-social
behaviour to the plaintiff. This Lord Devlin calls 'exemplary damages'. I should have preferred
the alternative expression 'punitive damages' to emphasise the fact that their object is not to
compensate the plaintiff but to punish the defendant and to deter him, and perhaps others,
from committing similar torts. To avoid confusion I have, however, accepted the lead of Lord
Hailsham LC in adhering to Lord Devlin's adjective 'exemplary'.

It may seem remarkable that there had not previously been any judicial analysis, even as
elementary as this, of the constituent elements of the compound 'damages at large'. But it has
to be remembered that at common law the assessment of damages was the exclusive function
of a jury, and, despite growing exceptions from the mid-nineteenth century onwards, nearly all
actions for torts in which damages were at large were tried by jury until after 1933. The
assessment of damages was an arcanum of the jury box into which judges hesitated to peer;
and it does not appear to have been their practice to give any direction to the jury as to how
they should arrive at the amount of damages they should award, beyond some general
exhortation to do their best in a matter which was peculiarly within their sphere.

What is disclosed by an examination of previous judgments since the 18th century, given on
applications for a new trial on the grounds that the award of a jury was too large or too small, is
a confusion of language and consequently of thought as to what were the constituent elements
in an award of damages at large. In particular there is a complete failure to distinguish between
aggravated and exemplary damages in cases where the malice of the defendant or the manner
in which he did the wrongful act had both increased the injury to the plaintiff's feeling and
aroused the indignation of the jury themselves.
In addition to the cases specifically referred to by Lord Devlin in Rookes v Barnard your
Lordships have been referred to many others in the course of the argument in the instant
appeal. They serve but to confirm the confused state of the law on this subject before 1964.

The tort of defamation, to which Lord Devlin made only a passing reference in

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 [1972] 1 All ER 801 at 870
Rookes v Barnard, has special characteristics which may make it difficult to allocate
compensatory damages between head (1) and head (2). The harm caused to the plaintiff by the
publication of a libel on him often lies more in his own feelings, what he thinks other people are
thinking of him, than in any actual change made manifest in their attitude towards him. A
solatium for injured feelings, however innocent the publication by the defendant may have
been, forms a large element in the damages under head (1) itself even in cases in which there
are no grounds for 'aggravated damages' under head (2). Again the harm done by the
publication, for which damages are recoverable under head (1) does not come to an end when
the publication is made. As Lord Atkin said in Ley v Hamilton ((1935) 153 LT 384 at 386), 'It is
impossible to track the scandal, to know what quarters the poison may reach'. So long as its
withdrawal is not communicated to all those whom it has reached it may continue to spread. I
venture to think that this is the rationale of the undoubted rule that persistence by the
defendant in a plea of justification or a repetition of the original libel by him at the trial can
increase the damages. By doing so he prolongs the period in which the damage from the
original publication continues to spread and by giving to it further publicity at the trial, as in Ley
v Hamilton, extends the quarters that the poison reaches. The defendant's conduct between
the date of publication and the conclusion of the trial may thus increase the damages under
head (1). In this sense it may be said to 'aggravate' the damages recoverable as, conversely, the
publication of an apology may 'mitigate' them. But this is not 'aggravated damages' in the sense
that that expression was used by Lord Devlin in head (2). On the other hand, the defendant's
conduct after the publication may also afford cogent evidence of his malice in the original
publication of the libel and thus evidence on which 'aggravated damages' may be awarded
under head (2) in addition to damages under head (1). But although considerations such as
these may blur the edges of the boundary between compensatory damages under head (1) and
compensatory damages under head (2) in the case of defamation, they do not affect the clear
distinction between the concept of compensatory damages and the concept of exemplary
damages under head (3).
My Lords, the major clarification of legal reasoning to be found in the expository part of Lord
Devlin's speech in Rookes v Barnard was the recognition, first, that the award of a single sum of
money as damages for tort, while it must always perform the function of giving to the plaintiff
what he deserves to receive to compensate him fully for the harm done to him by the
defendant, may in appropriate cases also perform the quite different function of fining the
defendant what he deserves to pay by way of punishment; and, secondly, that even in those
appropriate cases, it is only if what the defendant deserves to pay as punishment exceeds what
the plaintiff deserves to receive as compensation, that the plaintiff can be also awarded the
amount of the excess. This is a windfall which he receives because the case happens to be one
in which exemplary damages may be awarded.

It is not necessary to dwell on the three considerations which Lord Devlin referred to as arising
from the nature and function of punitive damages. The first consideration qualifies the
categories of cases in which exemplary damages may be awarded. The plaintiff must himself
have been the victim of the conduct of the defendant which merits punishment; he can only

323
profit from the windfall if the wind was blowing his way. The second consideration is relevant
to the attitude of an appellate court to a jury's assessment of exemplary damages. I have
already taken it into account in forming my conclusion that the jury's award of £40,000 ought
to be set aside. The third conclusion relates to the relevance of the defendant's means to any
assessment of punitive damages in excess of the amount required to compensate
[1972] 1 All ER 801 at 871

the plaintiff. These three considerations are followed by the crucial exposition of the way in
which a jury should be directed in a case in which it is open to them to award punitive damages.
I have already dealt with this in the first criticism which I have made of the summing-up at the
trial in the instant case.

It should perhaps be pointed out that Lord Devlin did not suggest that in a case which clearly
came within a category which justified an award of exemplary damages the jury should be
invited to make separate awards in respect of the compensatory and the punitive element,
although no doubt a judge sitting alone should do so. It was only in cases where it might be
doubtful whether exemplary damages were permissible that he suggested that special verdicts
splitting the total award might serve a useful purpose in avoiding the necessity of a new trial in
the event of appeal.

It has not been contended that those parts of Lord Devlin's speech which expounded the
rationale of the award and the assessment of exemplary damages in those cases in which they
could be recovered did not serve a useful purpose which lay well within the functions of this
House in its judicial capacity. It brought some order out of chaos, some light and reason into
what was previously a dark and emotive branch of the common law. What has been criticised is
the decision of legal policy to restrict the categories of cases in which exemplary damages may
be awarded.
If the common law stood still while mankind moved on, your Lordships might still be awarding
both and were to litigants whose kinsmen thought the feud to be outmoded—though you could
not have done so to the plaintiff in the instant appeal, because defamation would never have
become a cause of action. The common law would not have survived in any of those countries
which have adopted it, if it did not reflect the changing norms of the particular society of which
it is the basic legal system. It has survived because the common law subsumes a power in
judges to adapt its rules to the changing needs of contemporary society—to discard those
which have outlived their usefulness, to develop new rules to meet new situations. As the
supreme appellate tribunal of England, your Lordships have the duty, when occasion offers, to
supervise the exercise of this power by English courts. Other supreme appellate tribunals
exercise a similar function in other countries which have inherited the English common law at
various times in the past. Despite the unifying effect of that inheritance on the concept of man's
legal duty to his neighbour, it does not follow that the development of the social norms in each
of the inheritor countries has been identical or will become so. I do not think that your
Lordships should be deflected from your function of developing the common law of England
and discarding judge made rules which have outlived their purpose and are contrary to
contemporary concepts of penal justice in England, by the consideration that other courts in

324
other countries do not yet regard an identical development as appropriate to the particular
society in which they perform a corresponding function. The fact that the courts of Australia, of
New Zealand and of several of the common law provinces of Canada have failed to adopt the
same policy decision on exemplary damages as this House did for England in Rookes v
Barnard affords a cogent reason for re-examining it; but not for rejecting it if, as I think to be
the case, re-examination confirms that the decision was a step in the right direction—although
it may not have gone as far as could be justified.

The award of damages as the remedy for all civil wrongs was in England the creature of the
common law. It is a field of law in which there has been but little intervention by Parliament. It
is judge-made law par excellence. Its original purpose in cases of trespass was to discourage
private revenge in a primitive society inadequately policed, at least as much as it was to
compensate the victim for the material harm occasioned to him. Even as late as 1814 Heath J
felt able to saycc :
cc
Merest v Harvey (1814) 5 Taunt 442 at 444, [1814–23] All ER Rep 454 at 455

'It goes to prevent the practice of duelling if juries are permitted to punish insult by exemplary
damages.'
[1972] 1 All ER 801 at 872

No one would today suggest this as a justification for rewarding the victim of a tort for
refraining from unlawful vengeance on the wrongdoer. Conversely, the punishment of
wrongdoers today is regarded as the function of the state to be exercised subject to safeguards
for the accused assured to him by the procedure of the criminal law and with the appropriate
punishment assessed by a dispassionate judge and not by a jury roused to indignation by
partisan advocacy. One of the most significant and humane developments in English law over
the past century and a half has been the increasing protection accorded to the accused under
our system of criminal justice. As my noble and learned friend Lord Reid has pointed out no
similar protection is available to a defendant as a party to a civil action.

So the survival into the latter half of the 20th century of the power of a jury in a civil trial to
impose a penalty on a defendant simply to punish him had become an anomaly which it lay
within the power of this House in its judicial capacity to restrict or to remove; though it would
have been anticipating by two years the recent change in the practice of this House if to have
done so would have involved overruling one of its own previous decisions.

Lord Devlin's analysis of previous decisions disclosed three kinds of cases in which the courts
had recognised the right of a jury to award damages by way of punishment of the defendant in
excess of what was sufficient to compensate the plaintiff for all the harm occasioned to him.
The categorisation was new. Its purpose has, I think, been misunderstood. No one suggests that
judges, when approving awards of exemplary damages in particular cases in the past
consciously differentiated between one kind of case in which exemplary damages could be
awarded and another. They dealt with them all as falling within a single nebulous class of cases
in which the defendant's conduct was such as to merit punishment. The purpose of Lord
Devlin's division of them into three categories was in order to distinguish between factual

325
situations in which there was some special reason still relevant in modern social conditions for
retaining the power to award exemplary damages, and factual situations in which no such
special reason still survived.

With this end in view Lord Devlin extracted from the single nebulous class which appeared to
be all that had been consciously recognised as justifying an award of exemplary damages at
common law, two categories of cases in which this House decided that there were special
reasons why the power to award exemplary damages should be retained. These two (apart
from cases where exemplary damages are authorised by statute) are generally referred to as
'the categories'. But there is also to be found in the previous cases a third category, consisting
of the remainder of the single nebulous class in which this House decided that the anomalous
practice of awarding exemplary damages in civil proceedings ought to be discontinued.
The first category comprised cases of abuse of an official position of authority. This would seem
to be analogous to the civil law concept of détournement de pouvoir, with the limitation that it
must involve the commission of an act which would be tortious if done by a private individual.
The cases cited are 200 years old. It would not appear that the actual conduct of the defendant
himself need justify an award of aggravated damages. In Huckle v Money the defendant
appears to have treated the plaintiff with courtesy and consideration. The servant was the
whipping-boy for the political head of the government. Nor need he have known that his act
was wrongful. Mr Money, a mere subordinate official, can hardly have been expected to know
that general warrants issued by the Secretary of State were illegal. In Wilkes v Wood, however,
it was said that a belief that the act impugned was lawful could be pleaded in mitigation of
damages.

The second category was of cases where an act known to be tortious was committed in the
belief that the material advantages to be gained by doing so would outweigh any compensatory
damages which the defendant would be likely to have to pay to the plaintiff. This would seem
to be analogous to the civil law concept of enrichesse
[1972] 1 All ER 801 at 873
ment indue subject to a similar limitation that the act resulting in enrichment must be tortious.
The cases cited by Lord Devlin do not include underground trespass to minerals, which provide
the classic examples in the 19th century of this category of tort. There is high authority both in
this House (Livingstone v Rawyards Coal Co) and in the Privy Council (Bulli Coal Mining Co v
Osborne) that in the case of wilful clandestine trespass to minerals the damages may be
assessed at the market value of the minerals without deduction for the cost of working—an
award which would exceed both the loss to the plaintiff and the profit to the defendant from
his wrongful act. The excess is punishment.

The third—and rejected—category is numerically by far the largest. It consists of cases in which
the manner in which the tort has been committed has attracted a whole gamut of dyslogistic
judicial epithets such as wilful, wanton, high-handed, oppressive, malicious, outrageous;
particularly those where the defendant's manner of doing the tortious act has been
characterised by arrogance or insolence or, in the preferred Australian phrase, a contumelious
disregard of the plaintiff's rights. These are nearly all cases in which 'aggravated damages' by
326
way of compensation apart from punishment can be awarded and much of the previous
confusion about exemplary damages stems from this.
Apart from this confusion or perhaps because of it, I do not doubt that it was the general
understanding of English judges and of those who practised in the English courts that
exemplary damages by way of punishment of the defendant as well as aggravated damages by
way of compensation of the plaintiff could be awarded in cases which fall within the third
category. Lord Devlin's speech in Rookes v Barnard explicitly acknowledges this, It was an
understanding, which he himself had shared. He had given effect to it in his own summing-up
in Loudon v Ryder.
The decision of legal policy which this House made in Rookes v Barnard was to retain the first
two categories and to discard the third as obsolete.

In describing the two categories retained I have deliberately departed from the ipsissima verba
of Lord Devlin's description of them. His statement of the categories was not intended as a
definition to be construed as if it were enacted law. They were retained because this House
considered that there were circumstances in which a power to award exemplary damages still
still served a useful social purpose and the descriptive words must be understood in the light of
the social purpose which they were designed to serve.
My Lords, had I been party to the decision in Rookes v Barnard I doubt if I should have
considered it still necessary to retain the first category. The common law weapons to curb
abuse of power by the executive had not been forged by the mid-eighteenth century. In view of
the developments, particularly in the last 20 years, in adapting the old remedies by prerogative
writ and declaratory action to check unlawful abuse of power by the executive, the award of
exemplary damages in civil actions for tort against individual government servants seems a
blunt instrument to use for this purpose today. But if it to be retained—a question which
cannot arise in the instant appeal—the reasoning which supports its retention would not
confine it to torts committed by servants of central government alone. It would embrace all
persons purporting to exercise powers of government, central or local, conferred on them by
statute or at common law by virtue of the official status or employment which they held.

I have no similar doubts about the retention of the second category. It too may be a blunt
instrument to prevent unjust enrichment by unlawful acts. But to restrict the damages
recoverable to the actual gain made by the defendant if it exceeded the loss caused to the
plaintiff, would leave a defendant contemplating an unlawful act with the certainty that he had
nothing to lose to balance against the chance that the plaintiff might never sue him or, if he did,
might fail in the hazards of litigation. It
[1972] 1 All ER 801 at 874

is only if there is a prospect that the damages may exceed the defendant's gain that the social
purpose of this category is achieved—to teach a wrongdoer that tort does not pay.

To bring a case within this category it must be proved that the defendant, at the time that he
committed the tortious act, knew that it was unlawful or suspecting it to be unlawful

327
deliberately refrained from taking obvious steps which, if taken, would have turned suspicion
into certainty. While, of course, it is not necessary to prove that the defendant made an
arithmetical calculation of the pecuniary profit he would make from the tortious act and of the
compensatory damages and costs to which he would render himself liable, with appropriate
discount for the chances that he might get away with it without being sued or might settle the
action for some lower figure, it must be a reasonable inference from the evidence that he did
direct his mind to the material advantages to be gained by committing the tort and came to the
conclusion that they were worth the risk of having to compensate the plaintiff if he should bring
an action.
I see no reason for restoring to English law the anomaly of awarding exemplary damages in the
third category of cases. If malice with which a wrongful act is done or insolence or arrogance
with which it is accompanied renders it more distressing to the plaintiff, his injured feelings can
still be soothed by aggravated damages which are compensatory. I share the scepticism
expressed by Windeyer J in Uren v John Fairfax & Sons Pty Ltd((1967) 117 CLR 118 at 151, 152)
whether what was in the defendant's mind at the time he committed the tort really increases
the injury to the plaintiff's feelings. I think too that an evanescent sense of grievance at the
defendant's conduct is often grossly overvalued in comparison with a lifelong deprivation due
to physical injuries caused by negligence. But my own equable temperament may be
idiosyncratic and the law of 'aggravated damages' does not call for closer examination in the
instant appeal.
Finally on this aspect of the case I would express my agreement with the view that Rookes v
Barnard was not intended to extend the power to award exemplary or aggravated damages to
particular torts for which they had not previously been awarded, such as negligence and deceit.
Its express purpose was to restrict, not to expand, the anomaly of exemplary damages.

My Lords, there is little that I should wish to add to what Lord Hailsham LC and Lord Reid have
already said about the way the instant case was treated in the Court of Appeal. It is inevitable in
a hierarchical system of courts that there are decisions of the supreme appellate tribunal which
do not attract the unanimous approval of all members of the judiciary. When I sat in the Court
of Appeal I sometimes thought the House of Lords was wrong in overruling me. Even since that
time there have been occasions, of which the instant appeal itself is one, when, alone or in
company, I have dissented from a decision of the majority of this House. But the judicial system
only works if someone is allowed to have the last word and if that last word, once spoken, is
loyally accepted.
The Court of Appeal found themselves able to disregard the decision of this House in Rookes v
Barnard by applying to it the label per incuriam. That label is relevant only to the right of an
appellate court to decline to follow one of its own previous decisions, not to its right to
disregard a decision of a higher appellate court or to the right of a judge of the High Court to
disregard a decision of the Court of Appeal. Even if the jurisdiction of the Court of Appeal had
been co-ordinate with the jurisdiction of this House and not inferior to it the label per incuriam
would have been misused. The reasons for applying it were said to be: first, that Lord Devlin
had overlooked two previous decisions of this House in Hulton v Jones and Ley v Hamilton;
secondly, that the 'two categories' selected as those in which the power to award exemplary

328
damages should be retained had not been previously suggested by counsel in the course of
their arguments.
[1972] 1 All ER 801 at 875
I find the suggestion that Hulton v Jones, the leading case on innocent defamation, is to be
regarded as an authority for an award of exemplary damages, quite unacceptable. Ley v
Hamilton was discussed at some length in Lord Devlin's speech. I myself agree with his
interpretation of Lord Atkin's speech. The Court of Appeal did not and in this they now have the
powerful support of my noble and learned friend, Viscount Dilhorne. But however wrong they
may have thought Lord Devlin was, they cannot have thought that he had overlooked Ley v
Hamilton.

The second reason I find equally unconvincing. On matters of law no court is restricted in its
decision to following the submissions made to it by counsel for one or other of the parties.
After listening to a lengthy argument which embraced a full examination of a large and
representative selection of the relevant previous authorities this House was fully entitled to
come to a conclusion of law and legal policy different from that which any individual counsel
had propounded.

With regard to the amount of exemplary (and also aggravated) damages which may be
awarded where the plaintiff elects to sue defendants jointly for a single tort, I agree with Lord
Hailsham LC that the Court of Appeal got it wrong. Where I differ from him is in thinking that
the trial judge got it right. I am fortified in this view by the fact that Lord Denning MR
understood the summing-up as leaving to the jury a choice whether to award a sum
appropriate as a punishment of the more blameworthy of the defendants or the less
blameworthy or something in between the two sums. Salmon LJ appears to have taken the
same view. Both thought that this was a correct statement of the law. In this I think that they
were mistaken as to the law, but right as to what the jury would have understood the summing-
up to mean.

On the wider aspects of the course adopted by the Court of Appeal it is best that I should
content myself with expressing my concurrence with all that Lord Hailsham LC has said.

LORD KILBRANDON.

My Lords, there are several reasons which induce me to be as brief as I can. First, the case in its
important general aspects is concerned with doctrines, and to some extent with procedures,
with which I am not familiar. Secondly, those general aspects have been examined in great
detail and in an authoritative manner by your Lordships who have preceded me. Thirdly, since it
is unlikely that any contribution of mine would be regarded as of value in clarifying the law of
England, I may at least wind up the consideration of a disastrous case with economy, the lack of
which, especially in this class of litigation, is, as others of your Lordships have observed, a
notoriously discreditable feature of our jurisprudence. In short, having had the advantage of
reading the speeches prepared by my noble and learned friends, Lord Hailsham LC, Lord Reid
and Lord Morris of Borthy-y-Gest, I agree with them.

329
It is conceded by the appellants that they libelled Captain Broome and they do not attack as
excessive the sum awarded by the jury as compensation for the damage they did to his feelings
and his reputation. It is also conceded that, if there was evidence on which a properly directed
jury could find that the appellants had calculated that they might make a profit from
publication which might exceed the compensation payable to the plaintiff, then, since 'one man
should not be allowed to sell another man's reputation for profit', and since it may 'be
necessary to teach a wrongdoer that tort does not pay', the jury were entitled to award
punitive damages, on the authority of Rookes v Barnard. The first question, and one which from
first to last occupied a very great deal of time in your Lordships' House, was whether there was
such evidence.

I have no doubt on this point at all, and I do not rehearse the evidence. The jury had before
them the state of the appellants' knowledge before publication—that
[1972] 1 All ER 801 at 876

Captain Broome had warned them that he regarded certain passages as libellous, that
professional naval opinion was to the same effect, and, above all, that another reputable
publisher had refused to handle the book because of its defamatory character. The appellants'
attitude is demonstrated by their written references to libel actions as affording 'first class
publicity', and to 'tightening up the indemnity clause'. No doubt there was an element of the
jocular in these remarks, but they do show that the appellants were going ahead with their eyes
open as to consequences, and they must have thought it would be worth their while.

Counsel for the appellants pointed out, and I for one agree, that since all commercial
publication is undertaken for profit, one must be watchful against holding the profit motive to
be sufficient to justify punitive damages: to do so would be seriously to hamper what must be
regarded, at least since the European Convention was ratified, as a constitutional right to free
speech. I can see that it could be in the public interest that publication should not be stopped
merely because the publisher knows that his material is defamatory; it may well be in the public
interest that matter injurious to others be disseminated. But if it were suggested that this
freedom should also be enjoyed when the publisher either knows that, or does not care
whether, his material is libellous—which means not only defamatory but also untrue—it would
seem that the scale is being weighted too heavily against the protection of individuals from
attacks by media of communication.
The conduct of the appellants, accordingly, is in my view brought within the principle of the rule
laid down in Rookes v Barnard to which I have just referred. If a publisher knows, or has reason
to believe, that the act of publication will subject him to compensatory damages, it must be
that, since he is actuated by the profit-motive, he is confident that by that publication he will
not be the loser. Some deterrent, over and above compensatory damages, may in these
circumstances be called for.
This leads me to the little I have to say on the doctrine of punitive damages. I do not propose to
discuss its merits or demerits, because I agree with Lord Devlin, not only that it forms part of
the law of England, but also that its abolition would not be within the judicial functions of this
House. I will, however, add that I am not convinced that any statutory example of the
330
recognition of the doctrine is to be found. By the Law Reform (Miscellaneous Provisions) Act
1934, s 1(2)(a), it is provided that where a cause of action survives for the benefit of the estate
of a deceased person, the damages recoverable for the benefit of that estate shall not include
any exemplary damages. In the previous subsection provision has also been made, per contra,
for causes of action subsisting against the estates of deceased persons. Since punitive damages
are punitive or deterrent against the author of them, it would have been understandable if the
statute had refused to allow them against a dead man. But, instead, they have been disallowed
when they are claimed in respect of an injury to a dead man. This leads me to suppose that by
the phrase 'exemplary damages' Parliament was here refering to what are usually called
'aggravated' damages; the estate of a dead man must pay them in order to indemnify the living,
but the estate of a dead man, whose feelings post mortem have become irrelevant, does not
receive them.
In the same sense I would interpret s 13(2) of the Reserve and Auxiliary Forces (Protection of
Civil Interests) Act 1951, which provides for the award, in certain circumstances, of 'exemplary
damages'. Section 13(2) applies, by virtue of s 13(6), to Scotland, and since I can hardly believe
that this Act introduced for the first time, as it were by a side-wind, the doctrine of punitive
damages into the law of Scotland, I conclude again that 'exemplary' really means 'aggravated'.
Aggravated damages, in the English sense, are available to pursuers in defamation cases in
Scotland, subject to this qualification, that the conduct of counsel (cf Greenlands Ltd v
Wilmshurst) is not accepted as an aggravation unless that conduct has been on the express
[1972] 1 All ER 801 at 877
instructions, or with the privity, of counsel's client—see James v Baird. Finally, Lord Devlin
([1964] 1 All ER at 410, [1964] AC at 1225) doubted whether s 17(3) of the Copyright Act 1956,
authorised an award of exemplary damages; in my opinion it did not.
I do not suppose that anyone now sitting down to draft a civil code would include an article
providing for punitive damages. But the doctrine exists, and in my respectful opinion the
rationale of it is explained, by illustrations as apt as one could find, in the speech of Lord Devlin.
The doctrine proceeds on the footing, whether sound or not, that in some torts, and in some
circumstances, there is an element of public interest to be protected. The only way in which
that can be done may be by awarding to a plaintiff a sum of damages which he does not
deserve, being in excess of any loss or injury he has suffered; that sum includes an element
calculated to deter the defendant, and other like-minded persons, from committing similar
offences. One example, which is Lord Devlin's second category, I have already noticed—the
publisher who does not mind paying compensatory, even aggravated damages for libel,
because he will still have a profit after paying them. It is not in the public interest, especially as
the publishing agencies become more and more monolithic, that such conduct should go
unchecked, and no remedial measures other than punitive damages seem to be open. A second
example—Lord Devlin's first category—is in the sphere of public authority. While, as some of
your Lordships have pointed out, the illustration may have been too narrowly drawn, the
rationale is clear, and is the same. An example might be, an outrageous excess of official
authority without any aggravating circumstances (cf Huckle v Money) resulting in the wrongful
imprisonment of a person of bad character. False imprisonment is primarily actionable as an

331
injury to reputation. If the plaintiff has none to lose, the amount of his compensatory damages
may be inadequate to deter, in the public interest, flagrant injustices of this character.
The exclusion of the 'common bully' category, and the consequent overruling of Loudon v
Ryder are entirely consistent with this principle. Very large compensatory damages, which
should be an adequate deterant, are proper in such cases, and in most of them the criminal law
can also take care of the public interest.
I accordingly accept that Rookes v Barnard, as it has now been expounded by my noble and
learned friend, Lord Reid, correctly states the law of England. It cannot be said, and it does not
purport, to state the law of Scotland; it may be that in other parts of the Commonwealth also it
is not, for what may be very different reasons, acceptable. Nevertheless it appears to me to
give content to the doctrine of punitive damages, and to set proper limits on it.
The trial having been correctly and inevitably conducted on the basis of Rookes v Barnard as
then understood, the question now arises whether the learned judge gave the jury adequate
and accurate directions in law on that basis. First, did he fail to make it clear to the jury that, if
they had made an award of compensatory damages, any additional award by way of punitive
damages could be made 'if, but only if' the amount of the compensatory damages did not itself
constitute a sufficient deterrent? The second objection was that the learned judge gave an
inadequate direction as to the course to be followed by the jury should they find punitive
damages due, but a different degree of culpability in the two defendants. I think it is sufficient
for me to say that I agree with those of your Lordships who are of opinion that the directions, in
both matters, were adequate.

The aspect of the case which has given me the greatest difficulty is the question whether the
total amount of the damages awarded is so excessive that the verdict cannot stand. That it is
excessive I do not doubt, but that is not a sufficient reason for the award to be set aside. The
assessment of damages in such cases as this is not, in our law, a judicial function. Insofar as
compensatory damages are concerned, it
[1972] 1 All ER 801 at 878
may well be right that that should be so. If he were called on to estimate the sum appropriate
to repair the injured feelings and damaged reputation of a citizen who had been defamed, a
judge would be making not a legal, but something more like a social, assessment; there is no
reason to suppose that his estimate would more probably be correct than would that made
collectively by any 12 sensible men and women. So when one looks at a jury's award in such a
case one has to ask, whether it could have been made by sensible people acting reasonably, or
whether it must have been arrived at capriciously, unconscionably, or irrationally. On that test, I
think the present award must stand. Moreover, it is not unprecedented. For example, in a case
in which the libel was in some ways less wounding than the present—Youssoupoff v Metro-
Goldwyn-Meyer—an award, adjusted for the change in money values, of well over twice as
large as this was upheld by experienced judges.

The same test, as the law now stands, must be applied to a jury's award of punitive damages.
Whether this should be so is another matter; it is arguable that the assessment of punishment
is not properly a jury's function, and ought more readily to be challengeable on appeal to a
332
judicial authority. It is obvious that, as counsel for the appellants forcibly pointed out, a
defendant against whom punitive damages is sought stands to a great extent stripped of the
constitutional safeguards which would be his right were he arraigned before a criminal court.
One of those safeguards is a calm judicial determination of the penalty appropriate to his
offence. Perhaps, if the doctrine of punitive damages is to be retained, it ought to be made a
condition precedent of their being asked for that the plaintiff forego his right to have the case
tried by a jury; it is not likely that a defendant would wish to stand on his own right in that
respect.

So, although I would myself have assessed the damages at a much smaller sum, I cannot say
that the award, on the principles under which we now operate, ought not to stand, or that,
were a new trial to be ordered, the result would, in my confident opinion, be substantially
different.

Finally, I do not consider it necessary for me to say anything on the issue of the relations
between this House and the Court of Appeal, except that I entirely agree with what has fallen
from Lord Hailsham LC on this topic.

I would, accordingly, dismiss this appeal.

Appeal dismissed.
Solicitors: Herbert Smith & Co (for the appellants; Theodore Goddard & Co (for Captain Broome).
S A Hatteea Esq Barrister.

333
Fisher v Ministry of Public safety (1998) AC 673

[PRIVY COUNCIL]
[APPEAL FROM THE COURT OF APPEAL OFTHE COMMONWEALTH OF THE BAHAMAS]
FISHER APPELLANT AND MINISTER OF PUBLIC SAFETY AND IMMIGRATION AND OTHERS
RESPONDENTS

1997 Nov. 5, 6;

Dec. 16

Lord Goff of Chieveley, Lord Steyn,Lord Hoffmann, Lord Hutton and Gault J.
Bahamas, The - Constitution - Fundamental rights and freedoms - Sentence of death for murder
- Appellant tried and convicted on other charges while in custody awaiting trial for murder -
Whether pre-trial delay caused by prosecuting authorities relevant in considering delay in
carrying out execution - Whether inhuman or degrading punishment or other treatment" -
Whether normative period of 3½ years between sentence of death and execution to be extended
- Bahamas Independence Order 1973 (S.I. 1973 No. 1080), Sch., art. 17(1)

In October 1990 the appellant was arrested on suspicion of murder and an unrelated incident
of attempted murder. He was charged with both offences and committed to stand trial
separately on each count. In November 1992 he was convicted of the attempted murder and
also of armed robbery and possession of a firearm and was sentenced to a total of 15 years'
imprisonment. In March 1994 he stood trial for the murder, was convicted and sentenced to
death. His appeal against that conviction was unsuccessful and the warrant for his execution
was read on 5 September 1996. The appellant filed an originating motion seeking constitutional
relief on the ground, inter alia, that when considering whether delay in carrying out the
sentence of death would render the execution inhuman punishment contrary to article 17(1) of
the Constitution1 the period of three years and five months during which the appellant had
been detained in prison prior to his trial on the charge of murder should be taken into account
in addition to the delay of two years and six months which had occurred between the date of
sentence of death and the date set for his execution. The judge dismissed the motion and the
Court of Appeal upheld that decision. The Court of Appeal declined to grant the appellant leave
to appeal to the Judicial Committee of the Privy Council on the ground that under paragraph 2
of article 104(2) of the Constitution an appeal lay as of right and the court had no jurisdiction to
grant leave.

On the appeal:-
Held, (1) dismissing the appeal (Lord Steyn dissenting), that the period of delay which fell to be
taken into account when

334
1 Constitution of the Commonwealth of The Bahamas, art. 17(1): see post, p. 676G.
Art. 19(1)(3): see post, pp. 676G-677B.
Art. 20(1): see post, p. 677B.
Art. 28: see post, p. 677C-E.
Art. 104: see post, p. 685F-H.
[1998] A.C. 673 Page 674
considering whether the constitutional right under article 17(1) had been infringed was the
period beginning with sentence of death during which the convicted man was facing execution;
that to extend the relevant period to take into account time awaiting trial would not merely be
an extension of the principle involved but would involve the application of that principle to
circumstances in which it was not applicable as it would involve consideration of two separate
periods in which the state of mind of the man in question was different and for which it would
be hard to establish a norm; that pre-trial delay raised an attack on the trial process itself with
the possibility of having the conviction overturned while an attack on post-conviction delay
presupposed the existence of a valid conviction and was directed towards the punishment
imposed; that although when considering whether a right as fundamental as the one laid down
in article 17(1) was infringed it was impossible to exclude the possibility that pre-trial delay, if
sufficiently serious in character, might be capable of being taken into account, it was only in
exceptional circumstances that such a case was likely to occur; that the fact that the appellant
was tried for other offences while awaiting trial for capital murder, although a cause for
concern, did not amount to inhuman treatment and did not provide any basis for a complaint
under article 17(1); and that, accordingly, the circumstances of the case were not so
exceptional as to make pre-trial delay a relevant consideration under article 17(1) (post,
pp. 679B, 680C-E, 681D-G, 682E-H).
Pratt v. Attorney-General for Jamaica [1994] 2 A.C. 1, P.C. and Guerra v. Baptiste [1996] A.C.
397, P.C. distinguished.
(2) That the function of an application to the Court of Appeal for leave to appeal was to ask the
court to indicate whether the case was one in which an appeal lay to the Judicial Committee of
the Privy Council as of right; that if the case fell within that class the court so indicated by
granting leave; and that, accordingly, in such a case there was no exercise of discretion by the
court, which was obliged to grant leave in a case falling within paragraph 2 of article 104(2)
(post, p. 686B-C).
PerLord Goff of Chieveley, Lord Hoffmann, Lord Hutton and Gault J. It is appropriate to extend
the period of time which, in The Bahamas, may elapse between sentence of death and
execution without infringement of article 17(1) from 3½ years to five years to allow time for the
implementation of the procedure, which the government of The Bahamas has undertaken to
respect, whereby complaints of violations of human rights imputable to states which are not
parties to the American Convention on Human Rights may be heard by the Inter-American
Commission on Human Rights (post, pp. 684F-H, 685D-F).
Henfield v. Attorney-General of the Commonwealth of The Bahamas [1997] A.C. 413, P.C.
overruled in part.

335
Decision of the Court of Appeal of the Commonwealth of The Bahamas affirmed in part.

The following cases are referred to in the judgments of their Lordships:

Abbott v. Attorney-General of Trinidad and Tobago [1979] 1 W.L.R. 1342, P.C.
Barker v. Wingo (1972) 407 U.S. 514
[1998] A.C. 673 Page 675
Bell v. Director of Public Prosecutions [1985] A.C. 937; [1985] 3 W.L.R. 73; [1985] 2 All E.R. 585,
P.C.
de Freitas v. Benny [1976] A.C. 239; [1975] 3 W.L.R. 388, P.C.
Director of Public Prosecutions v. Tokai [1996] A.C. 856; [1996] 3 W.L.R. 149, P.C.
Guerra v. Baptiste [1996] A.C. 397; [1995] 3 W.L.R. 891; [1995] 4 All E.R. 583, P.C.
Henfield v. Attorney-General of the Commonwealth of The Bahamas [1997] A.C. 413; [1996] 3
W.L.R. 1079, P.C.
Ireland v. United Kingdom (1978) 2 E.H.R.R. 25
Jones v. Attorney-General of the Commonwealth of The Bahamas [1995] 1 W.L.R. 891; [1995] 4
All E.R. 1, P.C.
Minister of Home Affairs v. Fisher [1980] A.C. 319; [1979] 2 W.L.R. 889; [1979] 3 All E.R. 21, P.C.
Pratt v. Attorney-General for Jamaica [1994] 2 A.C. 1; [1993] 3 W.L.R. 995; [1993] 4 All E.R. 769,
P.C.
Reckley v. Minister of Public Safety and Immigration [1995] 2 A.C. 491; [1995] 3 W.L.R. 390;
[1995] 4 All E.R. 8, P.C.
Riley v. Attorney-General of Jamaica [1983] 1 A.C. 719; [1982] 3 W.L.R. 557; [1982] 3 All E.R.
469, P.C.
Soering v. United Kingdom (1989) 11 E.H.R.R. 439
Tomasi v. France (1992) 15 E.H.R.R. 1

No additional cases were cited in argument:

APPEAL (No. 53 of 1997) with special leave by the appellant, Trevor Nathaniel Pennerman
Fisher, from the decision of the Court of Appeal of the Commonwealth of The Bahamas
(Gonsalves-Sabola P., George and Liverpool JJ.A.) dated 24 January 1997 dismissing his appeal
from the judgment of Osadebay J. delivered on 30 September 1996 whereby he dismissed the
appellant's motion for constitutional relief against the Minister of Public Safety and
Immigration, the Superintendent of Prisons and the Attorney-General, by way of a declaration
that it would be unlawful to execute the sentence of death to which the appellant was subject
following his conviction for murder.

The facts are stated in the judgment of their Lordships.

336
Owen Davies and Nerida Harford Bell for the appellant.
Sir Godfray Le Quesne Q.C., Howard Stevens, Bernard Turner, Assistant Director of Legal
Affairs, The Bahamas, and Cheryl Bethell, Senior Crown Counsel, The Bahamas, for the
respondents.

The submissions of counsel are sufficiently summarised in the judgment of Lord Goff of
Chieveley.
Cur. adv. vult.

16 December. The judgment of the majority of their Lordships was delivered by LORD GOFF OF
CHIEVELEY.

There is before their Lordships an appeal by the appellant, Trevor Nathaniel Pennerman Fisher,
from a decision by the Court of Appeal of the Commonwealth of The Bahamas dated 24 January
1997 in which the Court of Appeal dismissed the appellant's appeal from the decision of
[1998] A.C. 673 Page 676
Osadebay J. on 30 September 1996 dismissing his motion for constitutional relief on the
principle established in Pratt v. Attorney-General for Jamaica[1994] 2 A.C. 1. The central
question in the appeal before their Lordships is whether and, if so, to what extent time spent by
the appellant in detention before his trial falls to be taken into account for the purposes of the
application of that principle.

Their Lordships propose first to set out a chronology of the relevant events leading up to the
conviction and sentence of the appellant for murder. Durventon Daniels was murdered on 16
September 1990. On 4 October 1990 the appellant was arrested for that murder, and also for
an attempted murder in a separate incident on 1 October 1990. On 8 October 1990 he was
charged with both offences, two other men (Tyrone Thurstonand Daze Louis) also being
charged with the murder; and on the same day the appellant pleaded guilty to possession of a
firearm and ammunition, concurrent sentences of two years' and one year's imprisonment
being then imposed. On 30 July 1991 he was committed to stand trial separately for the murder
and the attempted murder. He was arraigned on 1 July 1992 for the murder, and on 7 October
1992 for the attempted murder. On 3 November 1992 he was convicted of the attempted
murder, and also of armed robbery and possession of a firearm. For these offences he was
sentenced to concurrent terms of imprisonment of 15 years', 15 years' and three years'
respectively. On 13 January 1994 his appeal from these convictions was dismissed. On 1 March
1994 he stood trial with Daze Louis for the murder of Durventon Daniels, the charge against
Tyrone Thurston having been withdrawn before the trial. Following a submission at the close of
the prosecution case, Louis was acquitted on the direction of the judge. The trial of the
appellant continued, and on 25 March 1994 he was convicted of murder and sentenced to
death.

337
The appellant's appeal against his conviction for murder was dismissed by the Court of Appeal
on 10 October 1994. On 17 May 1995 he gave notice of his intention to petition the Privy
Council for leave to appeal as a poor person. The petition was lodged on 10 February 1996 and
heard on 23 May 1996 when the Judicial Committee directed that it be dismissed, the Order in
Council following on 23 June 1996. On 5 September 1996 a warrant was read for the execution
of the appellant on 12 September 1996.

On 10 September 1996 the appellant filed an originating motion seeking constitutional relief,
and a stay of execution was granted. The notice of motion came before Osadebay J., who
dismissed it on 30 September 1996, and as already recorded the Court of Appeal dismissed an
appeal from that decision on 24 January 1997. It is from that decision that the appellant now
appeals to their Lordships.

The relevant provisions of the Constitution

"17(1) No person shall be subjected to torture or inhuman or degrading treatment or

punishment …"
"19(1) No person shall be deprived of his personal liberty save as may be authorised by law in
any of the following cases … (c) for the purpose of bringing him before a court in execution of
the order of a court; (d) upon reasonable suspicion of his having committed, or of being about
to commit, a criminal offence … (3) Any person who is
[1998] A.C. 673 Page 677
arrested or detained in such a case as is mentioned in sub-paragraph (1)(c) or (d) of this article
and who is not released shall be brought without undue delay before a court; and if any person
arrested or detained in such a case as is mentioned in the said sub-paragraph (1)(d) is not tried
within a reasonable time he shall (without prejudice to any further proceedings that may be
brought against him) be released either unconditionally or upon reasonable conditions,
including in particular such conditions as are reasonably necessary to ensure that he appears at
a later date for trial or for proceedings preliminary to trial."

"20(1) If any person is charged with a criminal offence, then, unless the charge is withdrawn,
the case shall be afforded a fair hearing within a reasonable time by an independent and
impartial court established by law."
"28(1) If any person alleges that any of the provisions of articles 16 to 27 (inclusive) of this
Constitution has been, is being or is likely to be contravened in relation to him then, without
prejudice to any other action with respect to the same matter which is lawfully available, that
person may apply to the Supreme Court for redress. (2) The Supreme Court shall have original
jurisdiction - (a) to hear and determine any application made by any person in pursuance of
paragraph (1) of this article; and (b) to determine any question arising in the case of any person
which is referred to in pursuance of paragraph (3) of this article, and may make such orders,
issue such writs and give such directions as it may consider appropriate for the purpose of
enforcing or securing the enforcement of any of the provisions of the said articles 16 to 27
(inclusive) to the protection of which the person concerned is entitled: Provided that the
Supreme Court shall not exercise its powers under this paragraph if it is satisfied that adequate
means of redress are or have been available to the person concerned under any other law."
338
The constitutional proceedings
Before Osadebay J., a number of points were taken on behalf of the appellant. These included
submissions that (1) it would be unlawful now to execute the appellant, because he had been
subjected to inhuman treatment having regard to the conditions in which he had been detained
pending execution; (2) the mandatory death sentence in The Bahamas was unconstitutional; (3)
the decision to issue the death warrant in respect of the appellant was unlawful, since it was in
breach of his legitimate expectation that no such decision would be taken without regard to a
petition by him to the Inter-American Commission on Human Rights; and (4) the failure of the
Court of Appeal to give reasons for dismissing the appellant's appeal against conviction was
unfair and in breach of articles 19 and/or 20 of the Constitution. As to (1) Osadebay J., having
heard the evidence and visited the prison, rejected the complaint on the facts; as to (2), he held
that the point had been conclusively decided by the Privy Council adversely to the appellant
in Jones v. Attorney-General of the Commonwealth of The Bahamas [1991] 1 W.L.R. 891
and Reckley v.
[1998] A.C. 673 Page 678
Minister of Public Safety and Immigration [1995] 2 A.C. 491, and on this point his decision was
upheld by the Court of Appeal; as to (3) he held that consideration of any representations from
the Commission was a matter for the responsible minister and the advisory committee, and not
for the courts; and as to (4), the Court of Appeal's decision had in any event been overtaken by
the decision of the Privy Council to dismiss the appellant's petition for leave to appeal.
The main issue raised by the appellant before Osadebay J. related however to the period of
three years and five months during which the appellant was detained in prison before trial. As
to that, it was submitted that, in breach of article 20(1) of the Constitution, the appellant had
not been accorded a fair trial within a reasonable period, and that in considering whether the
delay rendered his execution inhuman punishment contrary to article 17(1) of the Constitution,
this period of pre-trial delay should be taken into account in addition to the delay of two years
and six months which occurred between the date of his conviction and sentence and the date
when he was due to be executed. As to this submission, Osadebay J. held that any complaint by
the appellant in respect of pre-trial delay should have been taken by a motion to stay the
indictment, and his failure to do so rendered the issue res judicata, so that it was not open to
him to pursue the point by way of an application for relief under the Constitution. He further
held that, for the purposes of the principle in Pratt's case [1994] 2 A.C. 1, the relevant delay was
that which passed between sentence and the date on which execution was to take place, and
that period (two years and six months) fell well short of the necessary period established by the
authorities (which was then five years). The Court of Appeal upheld the decision of Osadebay J.
on this point. They concluded that the decision inPratt's case was intended to prevent the
death row phenomenon, and so did not apply to a prisoner who had not yet been sentenced to
death. No part of the period of pre-sentence delay could therefore be relied on in order to
establish that execution would be inhuman punishment under article 17(1) of the Constitution,
on the Pratt principle. It is from that decision that the appellant now appeals to their Lordships'
Board.
The principle in Pratt's case

339
The principle established in Pratt's case [1994] 2 A.C. 1 has been the subject of further
consideration by the Privy Council in later cases, notablyGuerra v. Baptiste [1996] A.C.
397 and Henfield v. Attorney-General of The Bahamas [1997] A.C. 413. It is founded on the
constitutional principle, which in The Bahamas is enshrined in article 17(1) of the Constitution,
that no person shall be subjected to torture or to inhuman or degrading treatment or
punishment. As was pointed out in Henfield's case at p. 420A-B, the essential question in Pratt's
case was whether the execution of a man following long delay after his sentence to death can
amount to inhuman punishment contrary to article 17(1). The Privy Council held that such delay
is capable of having that effect. This is because:

"There is an instinctive revulsion against the prospect of hanging a man after he has been held
under sentence of death for many years. What gives rise to this instinctive revulsion? The
answer can only be
[1998] A.C. 673 Page 679
our humanity; we regard it as an inhuman act to keep a man facing the agony of execution over
a long extended period of time." See [1994] 2 A.C. 1, 29.
There are other passages in the judgment in Pratt's case which likewise make it clear that it is
the inhumanity of keeping a man facing the agony of execution over a long period of time
which renders his subsequent execution unlawful.
It follows that, as is clear from the authorities, the period of delay which falls to be taken into
account when considering whether the constitutional right under article 17(1) has been
infringed in this way is the period beginning with sentence of death. In Henfield's case it was
said by the Board at p. 421:
"In considering the effect of such delay, attention has been concentrated on the five-year
period specified in Pratt v. Attorney-General for Jamaica. This period has been treated as the
overall period which, in ordinary circumstances, must have passed since sentence of death
before it can be said that execution will constitute cruel or inhuman punishment. It has not
however been regarded as a fixed limit applicable in all cases, but rather as a norm which may
be departed from if the circumstances of the case so require."

In that case it was however decided that in The Bahamas, having regard to the fact that the
government has not become a signatory of the International Covenant on Human Rights and
the Optional Protocol, the relevant period is not five years but 3½ years. It was on this basis
that the matter was considered by the Court of Appeal in the present case, and on which it has
been accepted that this appeal to the Board falls to be decided. This is however a matter to
which their Lordships will have to revert at the end of this judgment.
It was the primary submission of Sir Godfray Le Quesne, on behalf of the respondents, that it is
not appropriate to bring into account pre-trial delay for the purposes of considering whether
execution has been rendered inhuman on the principle in Pratt's case. As a general principle,
their Lordships accept this submission. It is, their Lordships consider, clear from the authorities,
not only that the question of the impact of pre-trial delay was not considered in the previous
cases, but that the principle was so stated as to relate exclusively to the period following
sentence of death during which time the convicted man is facing the agony of execution. It

340
follows that simply to extend the relevant period to take into account time awaiting trial, in
addition to the period awaiting execution, would not merely be an extension of
the Pratt principle, but would involve the application of that principle to circumstances in which
it is, as formulated, not applicable.
This conclusion is reinforced by other considerations. First of all, since the state of mind of the
person in question during this earlier period is not the agony of mind of a man facing execution,
but what was described by Powell J. in Barker v. Wingo (1972) 407 U.S. 514, 532, "as the anxiety
and concern of the accused," it by no means follows that the two periods of delay should be
treated in the same way. Next the period of five years, or for present purposes in The Bahamas
3½ years, which has been chosen
[1998] A.C. 673 Page 680

as a norm, has been so chosen with reference to the appellate processes which may be invoked
after conviction. It does not reflect in any way the state of affairs before trial. Third, as was well
illustrated by a submission by Mr. Davies on behalf of the appellant before their Lordships, the
degree of anxiety and concern felt by an accused man before his trial is likely to be affected by
his prospects, as seen by him, of an acquittal by the jury. It was Mr. Davies's submission that the
evidence against the appellant at histrial for murder was so strong that his anxiety could be
equated, or at least compared, with the agony of mind of a man facing execution. The difficulty
with this submission is, however, that cases where a convicted man is facing the actual
prospect of execution have been placed in a special category, and are differentiated from cases
where men are facing no such prospect but only the possibility of conviction with a very wide
variation in the degree of hope of an acquittal.
For all these reasons, their Lordships can see no basis for simply extending the Pratt principle to
take into account delay which has occurred before trial. This would involve consideration of
two different types of period part of the period awaiting trial and the whole period from
sentence to the date fixed for execution; and, quite apart from the fundamental objection that
the state of mind of the man in question is different during the two periods, it is difficult see on
what basis a norm could be established which would accommodate both these periods. In
truth, as the Court of Appeal recognised, the principle in Pratt's case was established in
response to the fact that, in some Caribbean countries, men sentenced to death were being
held on death row for wholly unacceptable periods of time, and was specifically fashioned to
meet that problem. It does not admit to being extended, in the manner contended for on
behalf of the appellant, to address the wholly different problem of pre-trial delay.
The respondent's alternative submission
Sir Godfray Le Quesne advanced an alternative submission in answer to the appellant's claim
that pre-trial delay should be taken into account for the purposes of the principle in Pratt's
case. This was founded on the fact that separate provision for delay before trial is made in
articles 19(3) and 20(1) of the Constitution, the terms of which are set out earlier in this
judgment, and that the common law itself provides a remedy for such delay. On this basis, Sir
Godfray advanced the following twofold submission: (1) It cannot have been the intention of
the Constitution that such a person could ignore these procedures and then, after conviction,
claim that his punishment would be unconstitutional under article 17(1) by reason ofhis

341
imprisonment awaiting trial. (2) If the appellant is being held in custody awaiting trial for an
unreasonable time, the Supreme Court has power at common law to fix a date for the trial and,
if the court does not then proceed, to dismiss the charge for want of prosecution: see Bell v.
Director of Public Prosecutions [1985] A.C. 937, 950-951. This constitutes "adequate means of
redress" for the purposes of the proviso to article 28(2), thereby excluding constitutional relief
under article 28.

This twofold submission reflects the fact that provision is made, in the law of The Bahamas, for
the protection of those awaiting trial whose trial is delayed for a long period of time. First, there
is the protection of the
[1998] A.C. 673 Page 681
common law, under which the accused can apply to the judge to dismiss the charge for want of
prosecution on the ground that for the trial to proceed after so long a delay would amount to
an abuse of process of the court: see Director of Public Prosecutions v. Tokai [1996] A.C. 856.
Second, there is the constitutional protection provided in article 19(3) of the Constitution,
under which a person who is detained upon reasonable suspicion of his having committed a
criminal offence is entitled, if he is not tried within a reasonable time, tobe released either
unconditionally or upon reasonable conditions. Third, there is the constitutional protection
provided in article 20(1) of the Constitution, under which a person charged with a criminal
offence must be tried within a reasonable time. Thefirst and third of these provisions provide
protection which specifically addresses the problem of pre-trial delay; and the third is broader
than the first in that, to invoke it, it is unnecessary for the accused man to point to any specific
prejudice resulting from the delay: see Bell v. Director of Public Prosecutions [1985] A.C. 937,
951. The second limb of Sir Godfray's submission, in which he invoked the proviso to article
28(2), presupposes that it was open to the appellant to exercise his common law right to apply
to the judge to have the charge dismissed for want of prosecution. That may well be right; but
since it is not clear, on the facts of the case before their Lordships, that the appellant could
point to specific prejudice resulting from the delay, their Lordships prefer to concentrate on the
first limb of Sir Godfray's submission.
It is apparent that, under the Constitution, pre-trial and post-conviction delay enable the
accused or convicted man to invoke rights of a different nature. Pre-trial delay may, under the
Constitution, enable the accused man to attack the trial process itself; and his attack, if
successful, can have the effect that he will not be convicted of the charge. Post-conviction delay
is not, however, concerned with the validity of the trial process. It presupposes the existence of
a valid conviction, and the attack of the convicted man is directed to the punishment to which
he has been sentenced following that conviction. It is on this basis that a man who has been
sentenced to death may contend, on the principle in Pratt's case [1994] 2 A.C. 1, that delay
which has elapsed since his conviction and sentence may render the execution of that sentence
inhuman punishment contrary to section 17(1) of the Constitution. It follows that a man who
relies upon pre-trial delay should direct his complaint to the trial process, his purpose being to
prevent his conviction; whereas, in a death sentence case, a man who relies on post-conviction
delay should direct his complaint to the inhumanity of carrying out his punishment after the
delay which has occurred since his conviction. In the opinion of their Lordships, this analysis

342
supports the conclusion that the principle in Pratt's case is concerned with post-conviction
delay, and that it is not permissible for the purposes of invoking that principle simply to add
pre-trial delay to the post-conviction delay. It follows that their Lordships accept the first of Sir
Godfray's alternative submissions.
The principle in Guerra's case
There is however another possible approach to the problem, viz. taking into account pre-trial
delay on the principle established in Guerra's case
[1998] A.C. 673 Page 682
[1996] A.C. 397. It will be remembered that, in that case, it was recognised that the five-year
period applicable in Trinidad and Tobago was not to be regarded as "a fixed limit applicable in
all cases, but rather as a norm which may be departed from if the circumstances of the case so
require" (see Henfield's case [1997] A.C. 413, 421). In Guerra's case the delay which followed his
conviction was four years and ten months, just two months less than the five-year period, the
principal cause of the delay being the fact that the notes of the evidence at his trial were not
available for an appeal until over four years after the conclusion of the trial. The Privy Council,
taking into account the serious delay which had occurred and the cause of that delay, and the
fact that, as a result, the overall lapse of time since sentence was close to the five-year period,
held that execution in such circumstances would constitute inhuman punishment,
notwithstanding that the five-year period had not yet elapsed. The question arises whether in a
case where there had, as in Guerra's case, been very substantial post-conviction delay, pre-trial
delay of a serious character could properly be brought into consideration to enable the court to
hold that, looking at the case in the round, it would be inhuman punishment thereafter to
execute the man in question, notwithstanding that the relevant period of post-conviction delay
(there five years) had not expired.
Sir Godfray Le Quesne submitted to their Lordships that the principle in Guerra's case was only
concerned with events which occurred after conviction and sentence. Their Lordships see the
logical force of this submission, but they do not feel able to accept it. In Henfield's case, at p.
421, it was stated that the five-year period applicable in that case was to be regarded as a norm
which may be departed from "if the circumstances of the case so require." Their Lordships are
unwilling, in a case concerned with constitutional rights, to impose any hard and fast limit on
the matters to be taken into account when considering whether a right of this kind, especially
one so fundamental as that in article 17(1) of the Bahamian Constitution, has been infringed.
They are unwilling therefore to exclude the possibility that pre-trial delay, if sufficiently serious
in character, may be capable of being taken into account for this purpose.
Their Lordships however anticipate that only in exceptional circumstances is such a case likely
to occur; and they are satisfied that the facts of the present case do not enable the appellant to
invoke the principle in Guerra's case. They draw attention in particular to the fact that the delay
which occurred between sentence of death and the reading of the death warrant, which was
immediately followed by the appellant's constitutional motion, was two years and six months.
Even taking into account the fact that the applicable period is here accepted to be three years
and six months, rather than the five-year period applicable in Guerra's case, the present delay is
of a different order from the delay of four years and ten months which occurred in the latter

343
case. Their Lordships are satisfied that post-conviction delay of this length cannot have the
effect that the subsequent execution of the appellant would be inhuman punishment contrary
to article 17(1), on the principle in Pratt's case, even if regard were to be had to the period of
pre-trial delay which occurred in the present case.
[1998] A.C. 673 Page 683
Prosecution for other offences

Even so their Lordships propose to consider one aspect of the pre-trial delay in the present case
on which particular reliance was placed by the appellant, viz. his prosecution for other offences
after he was arrested on the murder charge. Only four days after his arrest, he pleaded guilty to
charges of possession of a firearm and ammunition, found in his possession at the time of his
arrest, and was sentenced to terms of imprisonment of two years and one year concurrent.
These terms of imprisonment however expired on 2 February 1992, while the appellant was on
remand, and do not appear to have prolonged the period of time which elapsed before the
appellant's trial for murder; their only effect was that, if the appellant was subsequently to be
acquitted of all other charges, these terms of imprisonment would have been disposed of while
he was on remand. More importantly however the appellant was, while awaiting trial for
murder, tried in November 1992 for other serious offences, viz. attempted murder and armed
robbery. He was convicted of both offences, and on 17 November 1992 he was sentenced to
concurrent terms of 15 years' imprisonment. He was not, however, tried on the murder charge
until March 1994, about 16 months later.

Their Lordships do not hide their concern that the defendant should have been tried for these
offences at a time when he was awaiting trial on a capital charge for another offence. This was
plainly undesirable. Their Lordships have been assisted by the affidavit evidence of Mr. Bernard
Turner, who has investigated the history of the matter. It appears that the decision to set down
the case of attempted murder before the murder case was the result of a lack of
communication within the Attorney-General's office. It also appears that the fact that the
attempted murder case was tried first was responsible for some of the subsequent delay in
bringing the murder case on for trial, though the length of such delay is uncertain. First of all,
counsel for one of the appellant's co-defendants in the murder trial, Tyrone Thurston, asked at
the start of the April Sessions of 1993 for a review of the evidence against his client before the
trial commenced to determine whether the Attorney-General would agree to withdraw the
charges against him. This review was carried out, and in August 1993 it was decided to
discontinue the proceedings against Thurston. This matter must of itself have led to a
postponement of the trial for about five months. Furthermore at the following October 1993
Sessions it was decided not to list the appellant's case for trial, partly because in the very heavy
list priority was given to other murder cases listed for trial in respect of murders committed
before that committed by the appellant, for which the defendants had been charged before the
appellant, but partly also because the appellant was already serving his sentences for
attempted murder and armed robbery. In the result, the appellant's case was listed for trial on
28 February 1994, and came on for trial in March. It follows that the delay attributable to the
intervening trial for attempted murder was at most 11 months, and may well have been less.

344
It was the submission of Mr. Davies for the appellant that the action of the responsible
authorities in The Bahamas in proceeding to prosecute the appellant for the offence of
attempted murder before he was tried on the outstanding charge of murder constituted of
itself inhuman treatment
[1998] A.C. 673 Page 684

contrary to article 17(1). Their Lordships are unable to accept this submission. In their opinion,
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)
of the Constitution that he should be tried within a reasonable time; but their Lordships cannot
see that they provide any basis for a complaint under article 17(1) which, being concerned to
protect citizens from torture or inhuman or degrading treatment or punishment, is directed
towards outlawing treatment of a different character.
Conclusion

For the foregoing reasons their Lordships will humbly advise Her Majesty that the appeal should
be dismissed.
Two subsidiary matters

There are however two other matters to which their Lordships wish to refer before concluding
this judgment.
(1) The Inter-American Commission on Human Rights
The first matter relates to the 3½-year period which, in Henfield's case [1997] A.C. 413, was held
by the Privy Council to be applicable in The Bahamas for the purposes of the principle in Pratt's
case [1994] 2 A.C. 1. This was so held on the basis that The Bahamas is not a signatory to the
International Covenant on Civil and Political Rights and the Optional Protocol, with the result
that citizens of The Bahamas do not have access to the United Nations Human Rights
Committee. Since a period of 18 months had been allowed for such petitions when formulating
the five-year period inPratt's case it was thought right to reduce that period to 3½years for The
Bahamas.
No reference was made during the argument in Henfield's case to the Inter-American
Commission on Human Rights. During the hearing in the present case their Lordships were
informed that the reason for this was that, although The Bahamas have ratified the Charter of
the Organisation of American States, they have never ratified the American Convention on
Human Rights. However it was not appreciated at the time of Henfield's case that, under
regulations made pursuant to the Statute of the Inter-American Commission on Human Rights,
provision is made for the procedure applicable in the case of complaints of violations of human
rights imputable to states which are not parties to the American Convention on Human Rights.
Their Lordships were shown the relevant regulations which, in general terms, make the same
procedure applicable in the case of such states asis applicable in the case of states which are
parties to the Convention, except that in the case of states which are not parties the ultimate
sanction is limited to publication by the Commission of its decisions. This came to the notice of

345
the government of The Bahamas when the appellant in the present case made a complaint to
the Commission, as a result of which the applicable procedure was duly implemented.
[1998] A.C. 673 Page 685
On behalf of the government, Sir Godfray Le Quesne drew these matters to the attention of
their Lordships, and informed them that it was the intention of the government that the
applicable regulations should be duly respected. Sir Godfray also submitted to their Lordships
that, since there was (apart from the ultimate sanction) no relevant distinction between the
procedure applicable to states which are and those which are not parties to the Convention,
there was no reason why, for the purposes of the principle in Pratt's case the five-year period
previously understood to be applicable in The Bahamas should be departed from. He therefore
invited their Lordships so to rule.
On the material before them there is no reason why their Lordships should not accept the
assurances so given by Sir Godfray on behalf of the government. Indeed it appears that when
the appellant lodged his complaint with the Commission, and the Commission implemented the
applicable procedure, the government then complied with its obligations, furnishing the
information requested and duly responding to the Commission's initial comments and
recommendations. Their Lordships felt some concern at being asked to make the requested
ruling in the present case, in which the point does not arise for decision, especially as the
matter affects the status of the previous decision of the Privy Council in Henfield's case. They
have however come to the conclusion that it is plain, not only that at the time of the argument
in Henfield's case the government must have misunderstood its obligations with regard to the
Inter-American Commission, but also that, having regard to the assurance communicated to
their Lordships through Sir Godfray Le Quesne, an assurance which has been borne out by the
manner in which the government responded to communications from the Commission in the
present case, the government fully intends to honour its obligations in this respect. In these
circumstances, their Lordships think it right now to record that, in their opinion, the decision of
the Board in Henfield's case was indeed made per incuriam in so far as it decided that a period
of 3½ years was applicable in The Bahamas for the purposes of the principle in Pratt's case in
place of the five-year period previously understood to be applicable. This conclusion has of
course no impact on the decision as it affected the parties to those proceedings.
(2) Leave to appeal

Article 104(2) of the Bahamian Constitution provides:

"(1) An appeal to the Court of Appeal shall lie as of right from the final decisions of the Supreme
Court given in exercise of the jurisdiction conferred on the Supreme Court by article 28 of the
Constitution (which relates to the enforcement of fundamental rights and freedoms). (2) An
appeal shall lie as of right to the Judicial Committee of Her Majesty's Privy Council or to such
other court as may be prescribed by Parliament under article 105(3) of this Constitution from
any decision given by the Court of Appeal in any such case."

In the present case the appellant, following dismissal of his appeal from the decision of
Osadebay J., applied to the Court of Appeal for leave to

346
 [1998] A.C. 673 Page 686

appeal to the Privy Council. The Court of Appeal however declined to grant leave on the ground
that since, under paragraph (2) of article 104(2), an appeal lies to the Privy Council as of right,
the Court of Appeal had no jurisdiction to grant leave.

In so acting the Court of Appeal acted under a very understandable misapprehension which
arose from the unusual sense in which the word leave" is used in this context. Under rule 2 of
the Judicial Committee (General Appellate Jurisdiction) Rules it is provided that no appeal shall
be admitted unless either (a) leave to appeal has been granted by the court appealed from, or
(b) in the absence of such leave, special leave to appeal has been granted by Her Majesty in
Council.In a case such as the present, the function of an application to the Court of Appeal for
leave to appeal is to ask the Court of Appeal to indicate that the case is one in which an appeal
lies to the Privy Council as of right. If the case falls within thatclass, the Court of Appeal so
indicates by granting leave to appeal. It follows that, in such a case, there is no exercise of
discretion by the Court of Appeal which, in a case falling within the second paragraph of article
104(2), is obliged to grant leave; and if the Court of Appeal so grants leave, the case falls within
paragraph (a) of rule 2 of the above Rules.
LORD STEYN delivered the following dissenting opinion. A dissenting judgment anchored in the
circumstances of today sometimes appeals to the judges of tomorrow. In that way a dissenting
judgment sometimes contributes to the continuing development of the law. But the innate
capacity of different areas of law to develop varies. Thus the law of conveyancing is singularly
impervious to change. Butconstitutional law governing the unnecessary and avoidable
prolongation of the agony of a man sentenced to die by hanging is at the other extreme. The
law governing such cases is in transition. This is amply demonstrated by the jurisprudence of
the Privy Council over the last 20 years. In 1976, and again in 1979, in unanimous judgments the
Privy Council held that a condemned man could not complain about delay of his execution
caused by his resort to appellate proceedings: de Freitas v. Benny [1976] A.C. 239; Abbott
v. Attorney-General of Trinidad and Tobago [1979] 1 W.L.R. 1342. In 1983 cases involving delays
of between six and seven years in the execution of condemned men in Jamaica came before the
Privy Council: Riley v. Attorney-General of Jamaica [1983] 1 A.C. 719. The majority observed
that it could hardly lie in the applicant's mouth to complain" about delay caused by appellate
proceeding (p. 724F). The ruling of the majority was in absolute terms: whatever the reasons
for or length of delay in executing a sentence of death lawfully imposed, the delay can afford no
ground for holding the execution to be a contravention of section 17(1)" (p. 726H). Lord
Scarman and Lord Brightman dissented from the austere legalism" of the majority. That dissent
helped to keep alive the idea that under a constitutional guarantee against inhuman or
degrading treatment or punishment prolonged and unnecessary delay may render it unlawful
to execute the condemned man. Ten years later the issue again came before the Privy Council
in Pratt v. Attorney-General for Jamaica [1994] 2 A.C. 1. The Board observed that in Jamaica
alone 23 prisoners had been awaiting execution for more than 10 years and 82 had been under
sentence of death
[1998] A.C. 673 Page 687

347
for more than five years (p. 17G). In Pratt's case the Privy Council, exceptionally consisting of
seven members, departed from the earlier decisions of the Privy Council and held that
prolonged and unacceptable delay, pragmatically set at periods in excess of five years, might be
unconstitutional. And in important subsequent decisions the Privy Council ruled that the five-
year period is not a rigid yardstick but a norm from which the courts may depart if it is
appropriate to do so in the circumstances of a case: see Guerra v. Baptiste [1996] A.C.
397 and Henfield v. Attorney-General of The Bahamas [1997] A.C. 413. After a long struggle
effect was given to the constitutional guarantee of human rights enshrined in article 17(1). But
there are important unresolved questions. Now for the first time the important issue must be
squarely faced whether prolonged and unacceptable pre-sentence delay may be taken into
account to tilt the balance where the delay since sentence of death is 2½ years thus falling
short of the 3½ years norm applicable on the authority of Henfield's case in The Bahamas. In
these circumstances I must explain the reasons for my dissent from the majority judgment in
some detail.

On a narrow view the issue before the Privy Council may appear to be confined to the question
whether mere pre-sentence delay may as a matter of law be taken into account in deciding
whether, by reason of the lapse of time between the imposition of the death sentence and the
proposed date of execution, it would be a breach of article 17(1) of the Constitution of the
Commonwealth of The Bahamas to allow an execution to proceed. But it is impossible to
divorce the narrow question from related and contributory pre-sentence causes of the mental
anguish of the condemned man, such as his detention in appalling conditions contrary to any
civilised norm. In the present case there is a finding by the judge that while the conditions
under which Fisher and other condemned prisoners were housed could be improved, the
condition could not be described as falling below the evolving standards of decency that are a
hallmark of a maturing society "having regard to security and financial constraints." So be it. But
in other countries in the Caribbean death row conditions may not meet the criterion of
minimum civilised standards. It is therefore necessary to consider the narrow question in the
context of a broader perspective.
There is no binding authority compelling the Privy Council as a matter of precedent to decide
the narrow question one way or the other. Indeed, as recently as October 1996 the Privy
Council expressly left this question open for subsequent decision: Henfield v. Attorney-General
of The Bahamas[1997] A.C. 413, 426-427. Their Lordships are not called upon to decide this
question on the basis of their individual views of what is desirable in the interests of the
administration of justice in The Bahamas. The question must be resolved on the basis of an
evaluation of the strength of the competing arguments on the proper construction of article
17(1) of the Constitution. Their Lordships are mandated by the Constitution to afford to Fisher
the full measure of protection of the rights enshrined in it.

Sir Godfray Le Quesne, who appeared on behalf of the respondents, made one of the most
eloquent and powerful speeches that I have ever been privileged to hear. But perhaps I can be
forgiven for saying that the longer he spoke the more convinced I became that he was urging
on the Board a formalistic method of construction appropriate to the interpretation
[1998] A.C. 673 Page 688

348
of a conveyancing statute. It is necessary to bear in mind the genesis of article 17(1). It was
taken from article 3 of the European Convention for the Protection of Human Rights and
Fundamental Freedoms (1953) (Cmd. 8969), which served as a model for the Constitutions of
most of the Caribbean countries. In Minister of Home Affairs v. Fisher [1980] A.C. 319 Lord
Wilberforce explained how such constitutional guarantees should be construed. Delivering the
opinion of the Judicial Committee Lord Wilberforce observed in a classic judgment that such
constitutional guarantees must not be subjected to the approach applicable to the
interpretation of other legislation. What is needed is "a generous interpretation avoiding what
has been called 'the austerity of tabulated legalism,' suitable to give to individuals the full
measure of the fundamental rights and freedoms referred to" (p. 328H). It follows that article
17(1) ought to be interpreted so as to ensure that it affords meaningful and effective rights
protecting individuals from, inter alia, inhuman treatment and punishment.
Turning from the general to the particular I draw attention to the wording of article 17(1) which
comes within the category of constitutional guarantees described by Lord Wilberforce as
"drafted in a broad and ample style which lays down principles of width and generality:"
see Fisher's case [1980] A.C. 319, 328. Furthermore in the jurisprudence of the European Court
of Human Rights three principles have emerged with important implications for the proper
construction of article 17(1). First, article 3 of the European Convention is an unqualified and
absolute guarantee of the human rights it protects: see Ireland v. United Kingdom (1978) 2
E.H.R.R. 25, 79, para. 163. In order to filter out insubstantial complaints the only qualification is
that in order for conduct to be covered by the prohibition it must "attain a minimum level of
severity." But there is no express or implied derogation in favour of the state: the prohibition is
equally applicable during a war or public emergency. There is no derogation in favour of the
state in order to enable it to fight terrorism or violent crime: Tomasi v. France (1992) 15
E.H.R.R. 1, 33, para. 115; see also Jacobs and White, The European Convention on Human
Rights, 2nd ed. (1996), p. 49; Harris, O'Boyle and Warbrick, Law of the European Convention on
Human Rights(1995), pp. 55-56; Lester & Oliver, Constitutional Law and Human Rights (1997),
pp. 127-128, para. 124 and note 5. Similarly, in article 17(1) of the Bahamian Constitution there
is no express or implied derogation in favour of the state. It is an absolute and unqualified
constitutional guarantee of the relevant human rights which it serves to protect. What is the
consequence of this general principle? There can under article 17(1) be no complaint about the
inevitable consequences of the need to carry out a death sentence after the lapse of sufficient
time to allow for appeal procedures, requests for clemency, and so forth. Such lapses of time
are required in the interests of the condemned man. But in principle any substantial and
serious suffering of an avoidable nature added to the anguish inevitably resulting from the
death sentence may constitute inhuman or degrading treatment or punishment. The state may
not superimpose upon the inevitable consequences of a death sentence further unnecessary
agony and suffering. The second principle emerging from the jurisprudence of the European
[1998] A.C. 673 Page 689
Court of Human Rights is the principle of effectiveness, viz. that in interpreting the Convention
the court seeks, given the provisions of the Convention, to give the "fullest weight and effect
consistent with the language used and with the rest of the text:" see Merrills, The Development
of International Law by the European Court of Human Rights (1988), p. 98. The third principle

349
developed in the jurisprudence of the European Court of Human Rights is equally important in
the present context. In judging cases under article 3 the court must consider the actual facts of
the case in order to assess whether the treatment or punishment in its impact on the individual
was inhuman or degrading. This is illustrated by observations of the court in Soering v. United
Kingdom (1989) 11 E.H.R.R. 439 where the court held that it would be contrary to article 3 for a
state to extradite a person where there were substantial grounds for believing that the person
concerned, if extradited, would face a real risk of being subjected to inhuman or degrading
punishment in the requesting country. The applicant faced a possible death sentence in the
United States. The court's decision turned on a combination of the "conditions of detention,"
viz. the death row phenomenon, and the "personal circumstances" of the applicant who was 18
years old and somewhat immature. Accepting that the death sentence was a lawful punishment
the court observed, at p. 474, para. 104:

"The manner in which [the death penalty] is imposed or executed, the personal circumstances
of the condemned person and a disproportionality to the gravity of the crime committed, as
well as the conditions of detention awaiting execution, are examples of factors capable of
bringing the treatment or punishment received by the condemned person within the
proscription under article 3."
Taking into account the death row phenomenon, and "the personal circumstances of the
applicant, especially his age" (see p. 478, para. 111) the court held that the extradition, if
implemented, would give rise to a breach of article 3. Similarly, it follows that article 17(1) does
not require the court to shut its eyes to realities of particular torment that a condemned man
had undergone. It requires the court to take into account the actual impact of the infliction of
illegitimate or unnecessary suffering on the individual: see Jacobs and White, The European
Convention on Human Rights, pp. 55-56. Nothing of a substantial nature that is logically
relevant to that question ought to be excluded from consideration.

I pause now to mention two arguments advanced by the respondents for the contention that
pre-sentence delay is always irrelevant. They said that article 20 of the Constitution guarantees
a fair hearing within a reasonable time, and that it enables a man awaiting trial to seek an order
for the expediting of his trial or for a stay. That is so. But the existence of the due process
remedy does not mean that the court in judging an issue of delay after the imposition of the
death sentence must always ignore what had happened before he was condemned to death,
e.g. that awaiting trial for murder for 10 years the individual was held in appalling conditions on
death row itself. In constitutional interpretations one does not set off against inhuman
treatment a failure of due process. That would be absurd. The respondents also argued that
article 28(1) shuts out any possibility of taking into account pre-sentence delay. It provides that
where there is
[1998] A.C. 673 Page 690

adequate means of redress "under any other law" the court may not allow constitutional
redress. The reality is, however, that the appellant does not rely on unnecessary and
unacceptable pre-sentence delay as an independent cause of action but merely as evidence
tending to aggravate the inhuman or degrading treatment or punishment to which he would be

350
subjected if he were now to be executed. The respondents' legalistic arguments are
misconceived in the construction of a constitutional guarantee like article 17(1).
That brings me to the substantial question whether as a matter of constitutional construction
article 17(1) compels the court to ignore any pre-sentence delay. The starting point is that
under Pratt v. Attorney-General for Jamaica [1994] 2 A.C. 1 a lapse of five years between
sentence of death and proposed execution presumptively makes it unlawful to proceed with
the execution; under Henfield's case [1997] A.C. 413 that period is contracted to 3½ years in the
case of The Bahamas. But this does not mean that the actual circumstances affecting the
condemned man may not be examined. On the contrary in Henfield's case Lord Goff of
Chieveley stated, at p. 421:
"In considering the effect of such delay, attention has been concentrated on the five-year
period specified in Pratt v. Attorney-General for Jamaica. This period has been treated as the
overall period which, in ordinary circumstances, must have passed since sentence of death
before it can be said that execution will constitute cruel or inhuman punishment. It has not
however been regarded as a fixed limit applicable in all cases, but rather as a norm which may
be departed from if the circumstances of the case so require."
In other words, a shorter period may suffice depending on the circumstances of an individual
case. This observation is in line with the earlier observation of Lord Goff in Guerra
v. Baptiste [1996] A.C. 397 about a norm applying without "detailed examination of the
particular case" (p. 415H). This approach is consistent with the approach adopted by the
European Court of Human Rights in regard to article 3. Given this recognition that it is
sometimes necessary to examine the actual circumstances of a particular case, I venture to
suggest that it is self evident that evidence may be placed before a court that the mental
suffering involved in the period between the imposition of the death sentence and the
proposed execution may affect particularly severely a very immature young man, a mentally
retarded man, and so forth. Moreover, one can imagine a case where it is proved that in order
to terrify a condemned man prison officers regularly taunted him with the horrors of his
meeting with the hangman, or subjected him to a mock reading of the death warrant or even a
mock execution. Such cases occur: see Schabas, The Death Penalty as Cruel Treatment and
Torture(1990), pp. 101-102. Plainly such circumstances would be relevant to the question
whether a shorter period than five years or 3½ years may justify the inference that it would be
unlawful under article 17(1) to execute the condemned man. It is true of course that these
examples are all special cases affecting a particular condemned man. But there then springs to
mind the distinct possibility that in one or more Caribbean countries - not The Bahamas - the
[1998] A.C. 673 Page 691
conditions under which condemned men are kept on death row are truly appalling. Echoing
language of Lord Griffiths in Pratt v. Attorney-General for Jamaica I would say that a state that
wishes to retain capital punishment must accept the responsibility of ensuring that condemned
men are confined in conditions that satisfy a minimum standard of decency. In considering
whether a lesser period than the five-year or 3½-year norms may be sufficient to render a
proposed execution unlawful it must be permissible to take into account that the anguish of the

351
condemned man has been greatly increased by his incarceration in appalling conditions. Our
humanity permits no other answer to this question.
The theme of my reasoning so far is that article 17(1) requires the court to take into account
the whole picture in so far it has an impact on illegitimate and unnecessary suffering inflicted
on the individual. But Sir Godfray Le Quesne submitted that even if this proposition is correct all
pre-sentence delay is irrelevant. The substantial argument he advanced is that delays before
and after the sentence of death are qualitatively different in their impact on the individual. He
said that the agony associated with a sentence of death only starts upon pronouncement of
that sentence. That is not a realistic way of looking at the matter. A condemned man usually
hopes that his appeals, and application for clemency, will succeed. The uncertainty attaching to
those proceedings adds to his anguish. He also suffers the agony of not knowing when the
death warrant will be read to him. Uncertainty looms large in the causes of his despair. It is true
that in contrast the man still awaiting trial on a charge of murder is assailed by other
uncertainties: he hopes to be acquitted. For him the spectre of the macabre meeting with the
hangman is somewhat more distant. He hasgreater hopes of escaping death by hanging than a
condemned man. But from the time of his arrest and charge, or at least from the time of his
judicial committal for trial on a charge of murder, he is in real jeopardy of eventually being
sentenced to deathand hanged. And in cases like the present he will be held in prison
conditions where he will be exposed to the terror of executions from time to time. Like a
distinguished author in this field, who argues that pre-sentence delay is relevant, I too would
say that "it is here that the horror of contemplating the sentence would normally
begin:"Schabas, The Death Penalty as Cruel Treatment and Torture, pp. 133-134. There is
undoubtedly a difference between the position of a man awaiting a trial at which he may be
sentenced to death and a man already condemned to death. On the other hand, it is unrealistic
to say either that there is no pre-sentence mental suffering or that it can be ignored in
considering the broad question under article 17(1). If due to the failure of the state there is
inflicted on the individual the agony of a prolonged delay of his trial on a charge of murder that
must logically be relevant as a contributory and aggravating factor which, depending on the
circumstances, may tilt the balance in a given case.

Article 17(1) does not mandate a rigid line being drawn between pre-sentence delay and delay
after pronouncement of the death sentence. Instead it requires the court to assess the totality
of the circumstances regarding the treatment and punishment which may make it inhuman or
degrading to execute the condemned man. It is important also to bear in
[1998] A.C. 673 Page 692
mind a major premise of Pratt v. Attorney-General for Jamaica [1994] 2 A.C. 1. Lord Griffiths
explained, at p. 29:

"There is an instinctive revulsion against the prospect of hanging a man after he has been held
under sentence of death for many years. What gives rise to this instinctive revulsion? The
answer can only be our humanity; we regard it as an inhuman act to keep a man facing the
agony of execution over a long extended period of time."

352
Equally our humanity does not require us to exclude from consideration circumstances, even if
they arose before sentence, if they significantly tend to aggravate the individual's suffering. Our
sense of humanity and decency ought not to permit us to ignore the circumstance, if proved,
that he has for several years before sentence been held in appalling conditions with a noose
constantly dangling before his mind's eye; it ought not to permit us to ignore a deliberate
decision by the state to delay bringing on his trial for several years; and it ought not to permit
us to ignore an inexcusable failure to bring him to trial for many years. Moreover, on simple
common sense grounds one must recognise the relevance of pre-sentence circumstances, e.g.
it must be anaggravating circumstance if the state arranges to delay a murder charge in order
to have an accused tried and flogged on a lesser charge before proceeding with the murder
charge. Similarly, our common sense tells us that the interaction of pre-sentence delay and
prison conditions, with the brooding horror of an awareness of executions going on, may add
greatly to sapping the will and increasing the torment of the condemned man. Only by shutting
one's eyes to reality can such circumstances be ruled out of consideration on a priori grounds.
Now I turn to a point of supreme importance. Neither in his written case nor his oral argument
did Sir Godfray Le Quesne contend that it is open to their Lordships to exclude pre-sentence
delay from consideration on the ground that to do so would cause practical difficulties for The
Bahamas. The reason why he did not do so is plain. To admit as relevant such an argument
necessarily imports an implied derogation in favour of the state under article 17(1). That would
emasculate the absolute prohibition in article 17(1) and would be wrong. But, Sir Godfray Le
Quesne was specifically asked to deal with the consequences for The Bahamas of a ruling in his
case that pre-sentence delay may be relevant. In a written submission he then referred to the
following observation in Bell v. Director of Public Prosecutions [1985] A.C. 937, 950 where Lord
Templeman observed:

"But by section 20(1) [of the Jamaican Constitution] the applicant is entitled to a fair hearing
'within a reasonable time,' albeit that, in considering whether a reasonable time has elapsed,
consideration must be given to the past and current problems which affect the administration
of justice in Jamaica."
The statement in Bell's case is irrelevant to the construction of article 17(1) and does not begin
to suggest there is an implied derogation in favour of the state in article 17(1). With
characteristic candour Sir Godfray Le Quesne conceded that the problems of the administration
of justice in The Bahamas may be irrelevant. Substituting "are" for "may be" I agree.
[1998] A.C. 673 Page 693

The position is clear: if The Bahamas wishes to maintain the death sentence for murder it must
ensure that murder trials are not unduly delayed.

That brings me to the proposition in the judgment of the majority that, although the possibility
of taking into account serious pre-trial delay is not excluded, it is anticipated that it will only
occur in exceptional circumstances. In my respectful view this ruling cannot be reconciled with
article 17(1). Itis at odds with constitutional language of width and generality. It fails to give
effect to the full measure of the fundamental rights protected by article 17(1). It means that,
unless a court judges that the threshold of exceptionality is passed, even substantial additional

353
suffering caused by prolonged and unjustifiable pretrial delay caused by the state may not be
taken into account in the ultimate decision. Such an exclusionary restriction on what may be
considered is contrary to the language, purpose and spirit of article 17(1).

By way of conclusion I would summarise the position as follows. Nobody suggests that a time
table must be provided for the conduct of murder trials in The Bahamas. On the other hand
their Lordships were informed that in The Bahamas such trials are almost invariably concluded
in a period of 18 months. In my view unjustifiable delay beyond 18 months of murder trials in
The Bahamas may well be an aggravating circumstance which may entitle the court to depart
from the norm.

This brings me to a consideration of the facts of the present case. Given a 2½-year delay
between the imposition of the death sentence and the reading of the death warrant, the case
falls 12 months short of the 3½-year norm applicable in The Bahamas. But a distinctive feature
of this case is a wholly exceptional period of pre-sentence delay. The period between Fisher's
arrest and the imposition of the death sentence was three years and seven months; the period
between Fisher's committal and the death sentence wastwo years and eight months. It is
necessary to consider how this came about. After his arrest Fisher pleaded guilty to possession
of a firearm and was sentenced to two years' imprisonment. Two years and two months after
his arrest, the prosecuting authorities put Fisher on trial on separate charges of attempted
murder, armed robbery and possession of a firearm. After a trial he was convicted and
sentenced to a total of 15 years' imprisonment. He appealed to the Court of Appeal but his
appeal was dismissed.I am satisfied that this decision to proceed with lesser charges caused a
delay in bringing Fisher to trial on the murder charge of about two years. And that period ties in
with the undisputed proposition that criminal trials for murder are usually completed within 18
months in The Bahamas. The respondents rightly conceded that the course adopted by the
prosecuting authorities in putting Fisher on trial for lesser offences was unprecedented and
irregular. Why it happened remains obscure because the respondents say that the prosecutor
concerned has left The Bahamas. In any event, in this case the reading of the death warrant was
in the result put back by two years. And that was wholly due to the culpable conduct of the
prosecuting authorities. Before I leave this aspect I would make clear that, if this exceptional
delay had been caused by congestion in the courts of The Bahamas, I would still have regarded
that explanation as one that does not assist the respondents. Given the
[1998] A.C. 673 Page 694

constitutional guarantee in article 17(1), The Bahamas can only maintain the death sentence if
persons charged with murder are not exposed to exceptional and abnormal pre-trial delays.

Now I turn to the impact on Fisher of the exceptionally long delay in bringing him to trial on the
murder charge. He would have known that the only sentence for murder is death by hanging.
He faced a strong prosecution case. In any event nine months after his arrest he was judicially
committed for trial on the murder charge. He knew that he was in jeopardy of being sentenced
to death and executed. And it is important not to lose sight of the circumstances in which he
lived during that 3½ -year period. While I do not criticise the conditions of Fisher's pre-trial
detention, it is necessary to face the stark picture that on undisputed evidence during the 3½
354
years leading up to his sentence of death Fisher shared accommodation with condemned men
and others awaiting serious charges. While the affidavits filed on Fisher's behalf are
unsatisfactory, it is obvious that he was exposed for 3½ years to the travails of condemned men
and the horror of executions. Some delay in bringing on his trial was inevitable. But I am
satisfied that the prosecuting authorities have added a period of about two years to Fisher's
suffering on top of the 2½ years that he has been condemned to death. It would be inhuman to
execute him now. If ever there has been a case departing from a norm, this is it.
Mr. Owen Davies, who appeared on behalf of Fisher, persuaded me in a careful and balanced
argument that it would be contrary to article 17(1) to allow Fisher to be executed. I would
therefore advise Her Majesty that the sentence of death in Fisher's case be quashed and that a
sentence of life imprisonment be substituted.
Solicitors: Cameron McKenna; Charles Russell.
B. L. S.

355
Council for Civil Service v Min of CV [1984] 3 All ER 935

Council of Civil Service Unions and others v Minister for the Civil Service

HOUSE OF LORDS
LORD FRASER OF TULLYBELTON, LORD SCARMAN, LORD DIPLOCK, LORD ROSKILL AND LORD
BRIGHTMAN

8, 9, 10, 11, 15, 16 OCTOBER, 22 NOVEMBER 1984

Crown – Prerogative – Review of exercise of prerogative power by court – Power exercised
directly under the prerogative – Delegated power emanating from exercise of prerogative power
– Minister exercising power under Order in Council to deprive civil servants of benefits of trade
union membership – Minister not consulting civil servants before acting – Whether minister's
action open to judicial review – Civil Service Order in Council 1982, art 4.
Judicial review – Availability of remedy – Legitimate expectation – Denial of legitimate
expectation – Minister exercising prerogative power to deprive civil servants of benefits of trade
union membership – Minister not consulting civil servants before acting – Whether civil servants
having legitimate expectation that they would be consulted – Whether denial of legitimate
expectation grounds for judicial review.
Judicial review – Availability of remedy – National security – Exercise of prerogative on grounds
of national security – Whether national security preventing judicial review of exercise of
prerogative.

Government Communications Headquarters (GCHQ) was a branch of the civil service whose
main functions were to ensure the security of the United Kingdom military and official
communications and to provide signals intelligence for the government. All the staff at GCHQ
had a long standing right, originating when GCHQ was formed in 1947, to belong to national
trade unions, and most of them did so. The unions represented at GCHQ were all members of
an association of civil service unions and there was an established practice at GCHQ of
consultation between the management and the unions about important alterations in the
terms and conditions of employment of the staff. On seven occasions between 1979 and 1981
industrial action was taken at GCHQ causing disruption. One such disruption in 1981 had
resulted in part of the operations of GCHQ being virtually closed down. Most of the industrial
action was associated with disputes
[1984] 3 All ER 935 at 936

between the government and national trade unions about conditions of service applicable to
civil servants generally and not about local problems at GCHQ. In particular, the industrial
action taken in 1981 was part of a campaign by national trade unions designed to do as much
damage as possible to government agencies, including GCHQ. Attempts by the government to
dissuade union officials from action which would adversely affect operations at GCHQ failed. On

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22 December 1983 the Minister for the Civil Service issued an oral instruction to the effect that
the terms and conditions of civil servants at GCHQ would be revised so as to exclude
membership of any trade union other than a departmental staff association approved by the
director of GCHQ. That instruction, which was issued without prior consultation with the staff at
GCHQ, was issued pursuant to the minister's power under art 4a of the Civil Service Order in
Council 1982 to 'give instructions … for controlling the conduct of the Service, and providing for
… the conditions of service', the order itself being made under the royal prerogative. The
appellants, the association of civil service unions, a union official and five civil servants
employed at GCHQ, applied for judicial review of the minister's instruction seeking, inter alia, a
declaration that it was invalid because the minister had acted unfairly in removing their
fundamental right to belong to a trade union without consultation. The judge granted the
application on the ground that the minister ought to have consulted the staff before issuing the
instruction. The minister appealed to the Court of Appeal contending (i) that prerogative
powers, and instructions given under a delegated power emanating from the prerogative, were
discretionary and not open to review by the courts, and (ii) that the requirements of national
security overrode any duty which the minister otherwise had to consult the staff. Affidavit
evidence was filed on behalf of the minister to the effect that in her view there had been a real
risk that prior consultation would occasion the sort of disruption at GCHQ which threatened
national security and which was the very thing the instruction was intended to avoid. The Court
of Appeal allowed the minister's appeal on the grounds of national security. The appellants
appealed to the House of Lords.
a
Article 4, so far as material, is set out at p 941 e, post
Held – (1) Irrespective of whether a power exercised directly under the prerogative was
immune from judicial review, delegated powers emanating from a prerogative power were not
necessarily similarly immune, since (per Lord Fraser and Lord Brightman) the scope of such
delegated powers would, either expressly or impliedly, be defined, e g by reference to their
object or the procedure by which they were to be exercised, with the result that such powers
were subject to judicial control to ensure that the scope and limits of the power were not
exceeded, or (per Lord Scarman, Lord Diplock and Lord Roskill) because the controlling factor in
determining whether the exercise of the power was subject to judicial review was the
justiciability of its subject matter rather than whether its source was the prerogative (see p
942 b to j, p 943 e, p 948 j, p 951 h j, p 955 j to p 956 cand p 960 g h, post); R v Criminal Injuries
Compensation Board, ex p Lain [1967] 2 All ER 770 and R v Secretary of State for the Home Dept,
ex p Hosenball [1977] 3 All ER 452 applied; Prohibitions Del Roy (1607) 12 Co Rep 63 and Case of
Proclamations (1611) 12 Co Rep 74 considered; R v Secretary of State for War [1891] 2 QB
326 doubted.

(2) An aggrieved person was entitled to invoke judicial review if he showed that a decision of a
public authority affected him by depriving him of some benefit or advantage which in the past
he had been permitted to enjoy and which he could legitimately expect to be permitted to
continue to enjoy either until he was given reasons for its withdrawal and the opportunity to
comment on those reasons or because he had received an assurance that it would not be
withdrawn before he had been given the opportunity of making representations against the

357
withdrawal. The appellants' legitimate expectation arising from the existence of a regular
practice of consultation which the appellants could reasonably expect to continue gave rise to
an implied limitation on the minister's exercise of the power contained in art 4 of the 1982
order, namely an obligation to act fairly by consulting the GCHQ staff before withdrawing the
benefit of trade union membership. The minister's failure to consult prima facie entitled the
appellants to judicial review of
[1984] 3 All ER 935 at 937
the minister's instruction (see p 943 j to p 944 e, p 948 j to p 949 a and f to h, p 952 c to e and h,
p 954 d to h, p 956 c f, p 957 c g to j and p 960f, post); A-G of Hong Kong v Ng Yuen Shiu [1983]
2 All ER 346 considered.
(3) Although where the government sought to rely on reasons of national security to justify a
decision or action the courts would not accept a mere assertion to that effect but would require
evidence that the decision or action was taken for reasons of national security, the question
whether the decision or action was in fact necessitated by the requirements of national security
was non-justiciable since the executive was the sole judge of what national security required
and alone had access to the information that enabled the judgment to be made as to what was
required. Once the minister produced evidence that her decision not to consult the staff before
withdrawing the right to trade union membership was taken for reasons of national security,
that overrode any right to judicial review which the appellants had arising out of the denial of
their legitimate expectation of consultation. The appeal would therefore be dismissed (see p
944 f and j, p 945 g h, p 946 d to f, p 947 e and j to p 948 d and j, p 952 e to j, p 958 a to f and p
960 a to c and e to h, post); The Zamora [1916] 2 AC 77 and R v Secretary of State for the Home
Dept, ex p Hosenball [1977] 3 All ER 452 applied; Chandler v DPP [1962] 3 All ER 142 considered.
Per Lord Scarman, Lord Diplock and Lord Roskill. (1) Powers exercised directly under the
prerogative are not by virtue of their prerogative source automatically immune from judicial
review. If the subject matter of a prerogative power is justiciable then the exercise of the power
is open to judicial review in the same way as a statutory power. However (per Lord Roskill),
prerogative powers such as those relating to the making of treaties, the defence of the realm,
the prerogative of mercy, the grant of honours, the dissolution of Parliament and the
appointment of ministers are not justiciable or reviewable (see p 948 j, p 950 g h and p
956 d to f, post).
(2) Administrative action is subject to control by judicial review under three heads: (1) illegality,
where the decision-making authority has been guilty of an error of law, e g by purporting to
exercise a power it does not possess; (2) irrationality, where the decision-making authority has
acted so unreasonably that no reasonable authority would have made the decision; (3)
procedural impropriety, where the decision-making authority has failed in its duty to act fairly
(see p 948 j, p 950 h to p 951 e and p 953 j to p 954 d, post); Associated Provincial Picture
Houses Ltd v Wednesbury Corp[1947] 2 All ER 680 considered.
Notes
For the nature and exercise of the royal prerogative, see 8 Halsbury's Laws (4th edn) paras 889–
993, and for cases on the subject, see 11 Digest(Reissue) 662–665, 36–56.

358
For judicial control of administrative action, see 1 Halsbury's Laws (4th edn) paras 46–77.
Cases referred to in opinions
A-G v De Keyser's Royal Hotel Ltd [1920] AC 508, [1920] All ER Rep 80, HL.
A-G of Hong Kong v Ng Yuen Shiu [1983] 2 All ER 346, [1983] 2 AC 629, [1983] 2 WLR 735, PC.
Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] 2 All ER 680, [1948] 1 KB
223, CA.
Burmah Oil Co (Burma Trading) Ltd v Lord Advocate [1964] 2 All ER 348, [1965] AC 75, [1964] 2
WLR 1231, HL.
Chandler v DPP [1962] 3 All ER 142, [1964] AC 763, [1962] 3 WLR 694, HL.
Chief Constable of the North Wales Police v Evans [1982] 3 All ER 141, [1982] 1 WLR 1155, HL.
Crown Lands Comrs v Page [1960] 2 All ER 726, [1960] 2 QB 274, [1960] 3 WLR 446, CA.
Edwards (Inspector of Taxes) v Bairstow [1955] 3 All ER 48, [1956] AC 14, [1955] 3 WLR 410, HL.
Findlay v Secretary of State for the Home Dept [1984] 3 All ER 801, [1984] 3 WLR 1159, HL.
Griffin v Lord Advocate 1950 SC 448.
[1984] 3 All ER 935 at 938
Laker Airways Ltd v Dept of Trade [1977] 2 All ER 182, [1977] QB 643, [1977] 2 WLR 234, CA.
Liverpool Taxi Owners' Association, Re [1972] 2 All ER 589, [1972] 2 QB 299, [1972] 2 WLR 1262,
CA.
O'Reilly v Mackman [1982] 3 All ER 1124, [1983] 2 AC 237, [1982] 3 WLR 1096, HL.
Proclamations, Case of (1611) 12 Co Rep 74, 77 ER 1352.
Prohibitions Del Roy (1607) 12 Co Rep 63, 77 ER 1342.
R v Criminal Injuries Compensation Board, ex p Lain [1967] 2 All ER 770, [1967] 2 QB 864, [1967]
3 WLR 348, DC.
R v Hull Prison Board of Visitors, ex p St Germain [1979] 1 All ER 701, [1979] QB 425, [1979] 2
WLR 42, CA.
R v Secretary of State for the Home Dept, ex p Hosenball [1977] 3 All ER 452, [1977] 1 WLR 766,
CA.
R v Secretary of State for War [1891] 2 QB 326, CA.
Schmidt v Secretary of State for Home Affairs [1969] 1 All ER 904, [1969] 2 Ch 149, [1969] 2 WLR
337, CA.
Secretary of State for Defence v Guardian Newspapers Ltd [1984] 3 All ER 601, [1984] 3 WLR
986, HL.
United Australia Ltd v Barclays Bank Ltd [1940] 4 All ER 20, [1941] AC 1, HL.
Zamora, The [1916] 2 AC 77, PC.

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Appeal

The applicants, the Council of Civil Service Unions, Jack Hart (the chairman of the trade union
side of the Departmental Whitley Council at Government Communications Headquarters
(GCHQ)), Anne Sarah Downey, Christopher Hugh Braunholtz, Jeremy Windust, David Francis
McCaffrey and Dennis Mitchell (civil servants employed at GCHQ), appealed with leave of the
Court of Appeal against the decision of that court (Lord Lane CJ, Watkins and May LJJ) on 6
August 1984 allowing an appeal by the respondent, the Minister for the Civil Service, from the
decision of Glidewell J hearing the Crown Office list on 16 July 1984 whereby he granted the
appellants judicial review by way of a declaration that the instruction purportedly issued by the
respondent on 22 December 1983 under art 4 of the Civil Service Order in Council 1982, that
the terms and conditions of service of civil servants at GCHQ should be revised so as to exclude
membership of any trade union other than a departmental staff association approved by the
Director of GCHQ, was invalid and of no effect. The facts are set out in the opinion of Lord
Fraser.

Louis Blom-Cooper QC, Patrick Elias and Richard Drabble for the appellants.
Robert Alexander QC and John Mummery for the respondent.
Their Lordships took time for consideration.
22 November 1984. The following opinions were delivered.

LORD FRASER OF TULLYBELTON.

My Lords, Government Communications Headquarters (GCHQ) is a branch of the public service

under the Foreign and Commonwealth Office, the main functions of which are to ensure the
security of the United Kingdom military and official communications, and to provide signals
intelligence for the government. These functions are of great importance and they involve
handling secret information which is vital to national security. The main establishment of GCHQ
is at Cheltenham, where over 4,000 people are employed. There are also a number of smaller
out-stations, one of which is at Bude in Cornwall.

Since 1947, when GCHQ was established in its present form, all the staff employed there have
been permitted, and indeed encouraged, to belong to national trade unions, and most of them
did so. Six unions were represented at GCHQ. They were all members, though not the only
members, of the Council of Civil Service Unions (CCSU), the first
[1984] 3 All ER 935 at 939

appellant. The second appellant is the secretary of the CCSU. The other appellants are
individuals who are employed at GCHQ and who were members of one or other of the unions
represented there. A departmental Whitley Council was set up in 1947 and, until the events
with which this appeal is concerned, there was a well-established practice of consultation
between the official side and the trade union side about all important alterations in the terms
and conditions of employment of the staff.
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On 25 January 1984 all that was abruptly changed. The Secretary of State for Foreign and
Commonwealth Affairs announced in the House of Commons that the government had decided
to introduce with immediate effect new conditions of service for staff at GCHQ, the effect of
which was that they would no longer be permitted to belong to national trade unions but
would be permitted to belong only to a departmental staff association approved by the
director. The announcement came as a complete surprise to the trade unions and to the
employees at GCHQ, as there had been no prior consultation with them. The principal question
raised in this appeal is whether the instruction by which the decision received effect, and which
was issued orally on 22 December 1983 by the respondent (who is also the Prime Minister), is
valid and effective in accordance with art 4 of the Civil Service Order in Council 1982. The
respondent maintains that it is. The appellants maintain that it is invalid because there was a
procedural obligation on the respondent to act fairly by consulting the persons concerned
before exercising her power under art 4 of the Order in Council, and she had failed to do so.
Underlying that question, and logically preceding it, is the question whether the courts, and
your Lordships' House in its judicial capacity, have power to review the instruction on the
ground of a procedural irregularity, having regard particularly to the facts (a) that it was made
in the exercise of a power conferred under the royal prerogative and not by statute and (b) that
it concerned national security.

It is necessary to refer briefly to the events which led up to the decision on 22 December 1983.
Between February 1979 and April 1981 industrial action was taken at GCHQ on seven occasions.
The action took various forms: one-day strikes, work to rule and overtime bans. The most
serious disruption occurred on 9 March 1981, when about 25% of the staff went on one-day
strike and, according to Sir Robert Armstrong, the Secretary to the Cabinet, who made an
affidavit in these proceedings, parts of the operations at GCHQ were virtually shut down. The
appellants do not accept the respondent's view of the seriousness of the effects of industrial
action on the work at GCHQ. But clearly it must have had some adverse effect, especially by
causing some interruption of the constant day and night monitoring of foreign signals
communications. The industrial action was taken mainly in support of national trade unions,
when they were in dispute with the government about conditions of service of civil servants
generally, and not about local problems at GCHQ. In 1981 especially it was part of a campaign
by the national trade unions, designed to do as much damage as possible to government
agencies including GCHQ. Sir Robert Armstrong in his affidavit refers to several circular letters
and 'campaign reports' issued by CCSU and some of its constituent unions, which show the
objects of the campaign. One of these is a circular letter dated 10 March 1981 from the Society
of Civil and Public Servants. In a paragraph headed 'Selective Strikes' the letter states as follows:
'Union members at certain key Government sites are now on permanent strike. This is the first
phase of the selective action: it includes naval supplies and dockyards, locations where
Government finance machine can be disrupted a Government surveillance centre and DHSS
Contributions Records computer.'(My emphasis.)

Among the selective strike areas referred to in the list appended to the letter is 'GCHQ Bude,
Cornwall'. The seriousness of the intended challenge to the security system of this country can

361
be gauged from the literature issued at the time by the CCSU, of which the following are
examples:

'Our ultimate success depends upon the extent to which revenue collection is upset, defence
readiness hampered, and trading relations disrupted by this and future action.'
[1984] 3 All ER 935 at 940

'Walkouts in key installations have affected Britain's defence capability in general, and crippled
the UK contributuion to the NATO exercise “Wintex“.'

'… another vital part of the Government's Composite Signals Organisation … is to be hit by a
strike from Friday, 3 April.'

'48 hour walkouts have severely hit secret monitoring stations belonging to the Composite
Signals Organsation. The Government is clearly worried and will be subject to huge pressure
from NATO allies.'

'Defence plans have been upset by the continuing action at naval supplies depots, dockyards,
and other crucial establishments.'

Approaches were made on behalf of the government to local union officials, and later to
national CCSU officials, to dissuade them from action which would directly adversely affect
operations at GCHQ. Some co-operation was given by the local officials, but none at all by
national officers. Sir Brian Tovey (former director of GCHQ) gave evidence to the Employment
Committee of the House of Commons on 8 February 1984 and told them that, after one of his
subordinates had sought to explain to the general secretary of one of the trade unions the
serious consequences that might follow from disruption of certain parts of GCHQ work, the
answer was: 'Thank you. You are telling me where I am hurting Mrs. Thatcher the most.'

In 1982 the government considered whether measures should be taken to prevent the
recurrence of such disruptive action. But at the time the intelligence functions of GCHQ had not
been publicly acknowledged by the government, although they had already been referred to in
the newspapers, and it was decided that no action which would involve public acknowledgment
of the activities should be taken. In May 1983 following the report of the Security Commission
in the case of Geoffrey Prime, who had been convicted of espionage at GCHQ, the intelligence
role of GCHQ was for the first time publicly acknowledged, and the reason for avoiding public
action to deal with disruption was thus removed. The report of the Security Commission on the
Prime case is also relevant to to this appeal in another way, because it recommended that a
pilot scheme should be undertaken to test the feasibility of polygraph security screening at
intelligence agencies including GCHQ. The CCSU were opposed to this recommendation and
several meetings were held between their representatives and the Cabinet Office officials to
discuss the matter. CCSU were concerned that the polygraph might be introduced without
adequate consultation and on 9 January 1984 Sir Robert Armstrong wrote to the chairman of
their general policy committee explaining that before a decision was taken for the definitive
introduction of polygraph, as distinct from the experimental pilot scheme, there would certainly
need to be consultations. That was the last word on the polygraph question before the

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announcement on 25 January 1984 that national trade unions were to be excluded from GCHQ.
Their exclusion would necessarily prevent their playing any part in further consultations on the
polygraph and that was one of their reasons for resenting the decision of 22 December 1983.
Corse of the proceedings
The trade unions, and some at least of the employees at GCHQ, objected strongly to the
decision made on 22 December 1983 and announced on 25 January 1984. Representatives of
the trade unions met the Minister for the CIvil Service on two occasions in February 1984 to
express their objections. They also met Sir Robert Armstrong several times. They presented a
draft agreement to prevent disruption at certain parts of GCHQ but the draft was rejected by
the government and no agreement was reached about changing the government's decision.
Eventually the first and second appellants obtained leave from Glidewell J on 8 March 1984 to
bring proceedings for judicial review against the Minister for the Civil Service in respect of the
instruction of 22 December 1983 and against the Foreign Secretary in respect of certificates
which he had issued under the Employment Protection Act 1975, s 121(4) and the Employment
Protection (Cosolidation) Act 1978, s 138(4) to give effect to the instruction by discontinuing, on
national security grounds, the right of staff to appeal to industrial tribunals. The attack on these
certificates has been abandoned, and the attack on the
[1984] 3 All ER 935 at 941

instruction is now limited to seeking a declaration that it is invalid; the remedy of certiorari is
no longer sought.

Glidewell J granted a declaration that—

'the instruction purportedly issued by the Minister for the Civil Service on 22 December 1983
that the terms and conditions of service of civil servants serving at GCHQ should be revised so
as to exclude membership of any trade union other than a departmental staff association
approved by the Director of GCHQ was invalid and of no effect.'

His reason for granting the declaration was that there had been a procedural irregularity in
failing to consult before issuing the instruction. I take this opportunity of expressing my
respectful admiration for the carefully reasoned opinion of the judge, which has substantially
assisted me and, I believe, my noble and learned friends.

Against that declaration the respondent appealed. The Court of Appeal (Lord Lane CJ, Watkins
and May LJJ) reversed the judge's decision and dismissed the appellants' application for judicial
review. They also dismissed a cross-appeal by the appellants.

The appeal raises a number of questions. I shall consider first the question which I regard was
the most important and also the most difficult. It concerns the royal prerogative.
The royal prerogative

The mechanism on which the Minister for the Civil Service relied to alter the terms and
conditions of service at GCHQ was an 'instruction' issued by her under art 4 of the 1982 Order
in Council. That article, so far as relevant, provides as follows:

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'As regards Her Majesty's Home Civil Service—(a) the Minister for the Civil Service may from
time to time make regulations or give instructions … (ii) for controlling the conduct of the
Service, and providing for the classification of all persons employed therein and … the
conditions of service of all such persons … '

The Order in Council was not issued under powers conferred by any Act of Parliament. Like the
previous Orders in Council on the same subject it was issued by the sovereign by virtue of her
prerogative, but of course on the advice of the government of the day. In these circumstances
counsel for the respondent submitted that the instruction was not open to review by the courts
because it was an emanation of the prerogative. This submission involves two propositions: (1)
that prerogative powers are discretionary, that is to say they may be exercised at the discretion
of the sovereign (acting on advice in accordance with modern constitutional practice) and the
way in which they are exercised is not open to review by the courts; (2) that an instruction
given in the exercise of a delegated power conferred by the sovereign under the prerogative
enjoys the same immunity from review as if it were itself a direct exercise of prerogative power.
Counsel for the appellants contested both of these propositions, but the main weight of his
argument was directed against the second.
The first of these propositions is vouched by an impressive array of authority, which I do not
propose to cite at all fully. Starting with Blackstone's Commentaries (1 Bl Com (15th edn) 251)
and Chitty A Treatise on the Law of the Prerogatives of the Crown (1820) pp 6–7, they are at one
in stating that, within the sphere of its prerogative powers, the Crown has an absolute
discretion. In more recent times the best known definition of the prerogative is that given in
Dicey Introduction to the Study of the Law of the Constitution (8th edn, 1915) p 421, which is as
follows:

'The prerogative is the name for the remaining portion of the Crown's original authority, and is
therefore, as already pointed out, the name for the residue of discretionary power left at any
moment in the hands of the Crown, whether such power be in fact exercised by the King
himself or by his Ministers.'
Dicey's definition was quoted with approval in this House in A-G v De Keyser's Royal Hotel
Ltd [1920] AC 508 at 526, [1920] All ER Rep 80 at 86 by Lord Dunedin and was impliedly
[1984] 3 All ER 935 at 942
accepted by the other Law Lords in that case. In Burmah Oil Co (Burma Trading) Ltd v Lord
Advocate [1964] 2 All ER 348 at 353, [1965] AC 75 at 99 Lord Reid referred to Dicey's definition
as being 'always quoted with approval' although he said it did not take him very far in that case.
It was also referred to with apparent approval by Roskill LJ in Laker Airways Ltd v Dept of
Trade [1977] 2 All ER 182 at 204, [1977] QB 643 at 719. As De Keyser's case shows, the courts
will inquire into whether a particular prerogative power exists or not and, if it does exist, into its
extent. But once the existence and the extent of a power are established to the satisfaction of
the court, the court cannot inquire into the propriety of its exercise. That is undoubtedly the
position as laid down in the authorities to which I have briefly referred and it is plainly
reasonable in relation to many of the most important prerogative powers which are concerned
with control of the armed forces and with foreign policy and with other matters which are

364
unsuitable for discussion or review in the law courts. In the present case the prerogative power
involved is power to regulate the Home Civil Service, and I recognise there is no obvious reason
why the mode of exercise of that power should be immune from review by the courts.
Nevertheless, to permit such review would run counter to the great weight of authority to
which I have briefly referred. Having regard to the opinion I have reached on the second
proposition of counsel for the respondent, it is unncessary to decide whether his first
proposition is sound or not and I prefer to leave that question open until it arises in a case
where a decision on it is necessary. I therefore assume, without deciding, that his first
proposition is correct and that all powers exercised directly under the prerogative are immune
from challenge in the courts. I pass to consider his second proposition.
The second proposition depends for its soundness on whether the power conferred by art 4 of
the 1982 Order in Council on the Minister for the Civil Service of 'providing for … the conditions
of service' of the Civil Service is subject to an implied obligation to act fairly. (Such an obligation
is sometimes referred to as an obligation to obey the rules of natural justice, but that is a less
appropriate description, at least when applied, as in the present case, to a power which is
executive and not judicial.) There is no doubt that, if the 1982 Order in Council had been made
under the authority of a statute, the power delegated to the minister by art 4 would have been
construed as being subject to an obligation to act fairly. I am unable to see why the words
conferring the same powers should be construed differently merely because their source was
an Order in Council made under the prerogative. It is all the more difficult in the face of art 6(4)
of the 1982 Order in Council, which provides that the Interpretation Act 1978 shall apply to the
order; it would of course apply to a statutory order. There seems no sensible reason why the
words should not bear the same meaning whatever the source of authority for the legislation in
which they are contained. The 1982 Order in Council was described by Sir Robert Armstrong in
his first affidavit as primary legislation; that is, in my opinion, a correct description, subject to
the qualification that the Order in Council, being made under the prerogative, derives its
authority from the sovereign alone and not, as is more commonly the case with legislation,
from the sovereign in Parliament. Legislation frequently delegates power from the legislating
authority, the sovereign in one case, Parliament in the other, to some other person or body
and, when that is done, the delegated powers are defined more or less closely by the
legislation, in this case by art 4. But, whatever their source, powers which are defined, either by
reference to their object or by reference to procedure for their exercise, or in some other way,
and whether the definition is expressed or implied, are in my opinion normally subject to
judicial control to ensure that they are not exceeded. By 'normally' I mean provided that
considerations of national security do not require otherwise.
The courts have already shown themselves ready to control by way of judicial review the
actions of a tribunal set up under the prerogative. R v Criminal Injuries Compensation Board, ex
p Lain [1967] 2 All ER 770, [1967] 2 QB 864 was such a case. In that case Lord Parker CJ said
([1967] 2 All ER 770 at 777, [1967] 2 QB 864 at 881):

'I can see no reason either in principle or in authority why a board, set up as this board were set
up, should not be a body of persons amenable to the jurisdiction of
[1984] 3 All ER 935 at 943

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this court. True the board are not set up by statute but the fact that they are set up by
executive government, i.e., under the prerogative, does not render their acts any the less
lawful. Indeed, the writ of certiorari has been issued not only to courts set up by statute but
also to courts whose authority was derived, inter alia, from the prerogative. Once the
jurisdiction is extended, as it clearly has been, to tribunals as opposed to courts, there is no
reason why the remedy by way of certiorari cannot be invoked to a body of persons set up
under the prerogative.'
That case was concerned with the actions of a board or tribunal exercising functions of a judicial
character, but it is now established that certiorari is not limited to bodies performing judicial
functions. In R v Secretary of State for the Home Dept, ex p Hosenball [1977] 3 All ER 452, [1977]
1 WLR 766, which was concerned with the actions of the Secretary of State himself in refusing
to give information about the reasons for making a deportation order against an alien, the
Divisional Court and the Court of Appeal refused to make an order of certiorari because the
refusal had been based on grounds of national security but, if it had been made in what Lord
Denning MR called an 'ordinary case' (see [1977] 3 All ER 452 at 457, [1977] 1 WLR 766 at 778),
that is one in which national security was not involved, the position would have been different.
Lord Denning MR said ([1977] 3 All ER 452 at 459, [1977] 1 WLR 766 at 781):

'… if the body concerned, whether it be a Minister or advisers, has acted unfairly, then the
courts can review their proceedings so as to ensure, as far as may be, that justice is done.'

Accordingly, I agree with the conclusion of Glidewell J that there is no reason for treating the
exercise of a power under art 4 any differently from the exercise of a statutory power merely
because art 4 itself is found in an order issued under the prerogative.
It follows, in my opinion, that some of the reasoning in R v Secretary of State for War [1891] 2
QB 326 and Griffin v Lord Advocate 1950 SC 448 is unsound, although the decisions themselves
might perhaps be supported on the ground that they related to actions by the Crown
connected with the armed forces. The former case was of course decided long before the
modern development of judicial review and the latter, which was a decision of Lord Sorn in the
Outer House, mainly followed it.
The duty to consult

Counsel for the appellants submitted that the minister had a duty to consult the CCSU, on
behalf of employees at GCHQ, before giving the instruction on 22 December 1983 for making an
important change in their conditions of service. His main reason for so submitting was that the
employees had a legitimate, or reasonable, expectation that there would be such prior
consultation before any important change was made in their conditions.
It is clear that the employees did not have a legal right to prior consultation. The Order in
Council confers no such right, and art 4 makes no reference at all to consultation. The Civil
Service handbook (Handbook for the new civil servant (1973 edn, as amended 1983)), which
explains the normal method of consultation through the departmental Whitley Council, does
not suggest that there is any legal right to consultation; indeed, it is careful to recognise that, in
the operational field, considerations of urgency may make prior consultation impracticable. The
Civil Service Pay and Conditions of Service Code expressly states:
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'The following terms and conditions also apply to your appointment in the Civil Service. It
should be understood, however, that in consequence of the constitutional position of the
Crown, the Crown has the right to change its employees' conditions of service at any time, and
that they hold their appointments at the pleasure of the Crown.'

But even where a person claiming some benefit or privilege has no legal right to it, as a matter
of private law, he may have a legitimate expectation of receiving the benefit or
[1984] 3 All ER 935 at 944
privilege, and, if so, the courts will protect his expectation by judicial review as a matter of
public law. This subject has been fully explained by Lord Diplock in O'Reilly v Mackman [1982] 3
All ER 1124, [1983] 2 AC 237 and I need not repeat what he has so recently said. Legitimate, or
reasonable, expectation may arise either from an express promise given on behalf of a public
authority or from the existence of a regular practice which the claimant can reasonably expect
to continue. Examples of the former type of expectation are Re Liverpool Taxi Owners'
Association [1972] 2 All ER 589, [1972] 2 QB 299 and A-G of Hong Kong v Ng Yuen Shiu [1983] 2
All ER 346, [1983] 2 AC 629. (I agree with Lord Diplock's view, expressed in the speech in this
appeal, that 'legitimate' is to be preferred to 'reasonable' in this context. I was responsible for
using the word 'reasonable' for the reason explained in Ng Yuen Shiu, but it was intended only
to be exegetical of 'legitimate'.) An example of the latter is R v Hull Prison Board of Visitors, ex p
St Germain [1979] 1 All ER 701, [1979] QB 425, approved by this House in O'Reilly v
Mackman [1982] 3 All ER 1124 at 1126, [1983] 2 AC 237 at 274. The submission on behalf of the
appellants is that the present case is of the latter type. The test of that is whether the practice
of prior consultation of the staff on significant changes in their conditions of service was so well
established by 1983 that it would be unfair or inconsistent with good administration for the
government to depart from the practice in this case. Legitimate expectations such as are now
under consideration will always relate to a benefit or privilege to which the claimant has no
right in private law, and it may even be to one which conflicts with his private law rights. In the
present case the evidence shows that, ever since GCHQ began in 1947, prior consultation has
been the invariable rule when conditions of service were to be significantly altered.
Accordingly, in my opinion, if there had been no question of national security involved, the
appellants would have had a legitimate expectation that the minister would consult them
before issuing the instruction of 22 December 1983. The next question, therefore, is whether it
has been shown that consideration of national security supersedes the expectation.
National security
The issue here is not whether the minister's instruction was proper or fair or justifiable on its
merits. These matters are not for the courts to determine. The sole issue is whether the
decision on which the instruction was based was reached by a process that was fair to the staff
at GCHQ. As Lord Brightman said in Chief Constable of the North Wales Police v Evans [1982] 3
All ER 141 at 154, [1982] 1 WLR 1155 at 1173: 'Judicial review is concerned, not with the
decision, but with the decision-making process.'

I have already explained my reasons for holding that, if no question of national security arose,
the decision-making process in this case would have been unfair. The respondent's case is that

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she deliberately made the decision without prior consultation because prior consultation
'would involve a real risk that it would occasion the very kind of disruption [at GCHQ] which was
a threat to national security and which it was intended to avoid' (I have quoted from para 27(i)
of the respondent's printed case). Counsel for the appellants conceded that a reasonable
minister could reasonably have taken that view, but he argued strongly that the respondent
had failed to show that that was in fact the reason for her decision. He supported his argument
by saying, as I think was conceded by counsel for the respondent, that the reason given in para
27(i) had not been mentioned to Glidewell J and that it had only emerged before the Court of
Appeal. He described it as an 'afterthought' and invited the House to hold that it had not been
shown to have been the true reason.
The question is one of evidence. The decision on whether the requirements of national security
outweigh the duty of fairness in any particular case is for the government and not for the
courts; the government alone has access to the necessary information, and in any event the
judicial process is unsuitable for reaching decisions on national security. But if the decision is
successfully challenged, on the ground that it has been reached by a process which is unfair,
then the government is under an obligation to produce evidence that the decision was in fact
based on grounds of national security. Authority for both these points is found in The
Zamora [1916] 2 AC 77. The former point is dealt with in the
[1984] 3 All ER 935 at 945

well-known passage from the advice of the Judicial Committee delivered by Lord Parker (at
107):

'Those who are responsible for the national security must be the sole judges of what the
national security requires. It would be obviously undesirable that such matters should be made
the subject of evidence in a Court of law or otherwise discussed in public.'

The second point, less often referred to, appears elsewhere in the advice (at 106 and esp at
108):
'In their Lordships' opinion the order appealed from was wrong, not because, as contended by
the appellants, there is by international law no right at all to requisition ships or goods in the
custody of the Court, but because the judge had before him no satisfactory evidence that such a
right was exercisable.' (My emphasis.)
What was required was evidence that a cargo of copper in the custody of the Prize Court was
urgently required for national purposes, but no evidence had been directed to that point. The
claim on behalf of the Crown that it was entitled to requisition the copper therefore failed;
considering that the decision was made in 1916 at a critical stage of the 1914–18 war, it was a
strong one. In Chandler v DPP [1962] 3 All ER 142 at 146, [1964] AC 763 at 790, which was an
appeal by persons who had been convicted of a breach of the peace under s 1 of the Official
Secrets Act 1911 by arranging a demonstration by the Campaign for Nuclear Disarmament on
an operational airfield at Wethersfield, Lord Reid said:

'The question more frequently arises as to what is or is not in the public interest. I do not
subscribe to the view that the government or a minister must always or even as a general rule

368
have the last word about that. But here we are dealing with a very special matter—interfering
with a prohibited place which Wethersfield was.'
But the court had had before it evidence from an Air Commodore that the airfield was of
importance for national security. Both Lord Reid and Viscount Radcliffe referred to the evidence
as being relevant to their refusal of the appeal (see [1962] 3 All ER 142 at 149–150, [1964] AC
763 at 796).

The evidence in support of this part of the respondent's case came from Sir Robert Armstrong
in his first affidavit, especially at para 16. Counsel for the appellants rightly pointed out that the
affidavit does not in terms directly support para 27(i) quoted above. But it does set out the
respondent's view that to have entered into prior consultation would have served to bring out
the vulnerability of areas of operation to those who had shown themselves ready to organise
disruption. That must be read along with the earlier parts of the affidavit in which Sir Robert
had dealt in some detail with the attitude of the trade unions which I have referred to earlier in
this speech. The affidavit, read as a whole, does in my opinion undoubtedly constitute evidence
that the minister did indeed consider that prior consultation would have involved a risk of
precipitating disruption at GCHQ. I am accordingly of opinion that the respondent has shown
that her decision was one which not only could reasonably have been based, but was in fact
based, on considerations of national security, which outweighed what would otherwise have
been the reasonable expectation on the part of the appellants for prior consultation. In
deciding that matter I must with respect differ from the decision of Glidewell J but, as I have
mentioned, I do so on a point that was not argued to him.

Minor matters

The judge held that had the prior consultations taken place they would not have been so
limited that he could confidently say that they would have been futile. It is not necessary for me
to reach a concluded view on this matter, but as at present advised I am inclined to differ from
the judge, especially because of the attitude of two of the trade union members of CCSU who
declared that they were firmly against any no-strike agreement.
[1984] 3 All ER 935 at 946

The Court of Appeal considered the proper construction of certain international labour
conventions which they cite. I respectfully agree with Lord Lane CJ, who said that 'the correct
meaning of the material articles of the conventions is by no means clear', but I do not propose
to consider the matter as the conventions are not part of the law in this country.

Counsel for the appellants submitted that the oral direction did not qualify as an 'instruction'
within the meaning of art 4, and that for two reasons. First, he said that there was no sufficient
evidence of any instruction. In my opinion there is no substance in this ground. There is ample
evidence in a letter dated 7 February 1984 from Sir Robert Armstrong to the Director of GCHQ
and also in the General Notice 100/84 and a covering letter issued by the director to all
employees at GCHQ. Second, counsel said that the instruction did not sufficiently specify
conditions that were being altered, but I agree with Glidewell J, and with the Court of Appeal,
that the minister's direction on 22 December 1983 did give 'instructions … providing for … the

369
conditions of service' of employees at GCHQ in the sense of art 4 of the 1982 Order in Council.
There was no obligation to put the instructions in writing, although that might perhaps have
been expected in a matter so important as this. Nor was there any obligation to couch the
instructions in any particular form. Accordingly, I reject this submission.

For these reasons I would dismiss the appeal.

LORD SCARMAN.

My Lords, I would dismiss this appeal for one reason only. I am satisfied that the respondent
has made out a case on the ground of national security. Notwithstanding the criticisms which
can be made of the evidence and despite the fact that the point was not raised, or, if it was,
was not clearly made before the case reached the Court of Appeal, I have no doubt that the
respondent refused to consult the unions before issuing her instruction of 22 December 1983
because she feared that, if she did, union-organised disruption of the monitoring services of
GCHQ could well result. I am further satisfied that the fear was one which a reasonable minister
in the circumstances in which she found herself could reasonably entertain. I am also satisfied
that a reasonable minister could reasonably consider such disruption to constitute a threat to
national security. I would, therefore, deny relief to the appellants on their application for
judicial review of the instruction, the effect of which was that staff at GCHQ would no longer be
permitted to belong to a national trade union.
The point of principle in the appeal is as to the duty of the court when in proceedings properly
brought before it a question arises as to what is required in the interest of national security.
The question may arise in ordinary litigation between private persons as to their private rights
and obligations; and it can arise, as in this case, in proceedings for judicial review of a decision
by a public authority. The question can take one of several forms. It may be a question of fact
which Parliament has left to the court to determine: see for an example s 10 of the Contempt of
Court Act 1981. It may arise for consideration as a factor in the exercise of an executive
discretionary power. But, however it arises, it is a matter to be considered by the court in the
circumstances and context of the case. Though there are limits dictated by law and common
sense which the court must observe in dealing with the question, the court does not abdicate
its judicial function. If the question arises as a matter of fact, the court requires evidence to be
given. If it arises as a factor to be considered in reviewing the exercise of a discretionary power,
evidence is also needed so that the court may determine whether it should intervene to correct
excess or abuse of the power.
Let me give three illustrations taken from the case law of the twentieth century. First, The
Zamora [1916] 2 AC 77, surely one of the more courageous of judicial decisions even in our long
history. In April 1916 a question of national security came before the Judicial Committee of the
Privy Council sitting in Prize. The Crown's role in the Prize Court was that of a belligerent power
having by international law the right to requisition vessels or goods in the custody of its Prize
Court. A neutral vessel carrying a cargo of copper (contraband) had been stopped at sea by the
Royal Navy and taken to a British port. No decree of condemnation of the cargo had yet been
made to the Prize Court when the

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 [1984] 3 All ER 935 at 947

Crown intervened by summons to requisition the cargo then in the custody of the court. Lord
Parker, who delivered the judgment of the Judicial Committee, concluded (at 106):

'A belligerent Power has by international law the right to requisition vessels or goods in the
custody of its Prize Court pending a decision of the question whether they should be
condemned or released, but such right is subject to certain limitations. First, the vessel or goods
in question must be urgently required for use in connection with the defence of the realm, the
prosecution of the war, or other matters involving national security. Secondly, there must be a
real question to be tried, so that it would be improper to order an immediate release. And,
thirdly, the right must be enforced by application to the Prize Court, which must determine
judicially whether, under the particular circumstances of the case, the right is exercisable.'
Discussing the first limitation, Lord Parker observed that the judge ought, 'as a rule', to treat the
statement of the proper officer of the Crown that the vessel or goods were urgently required
for national security reasons as conclusive of the fact. And it was in this context that he
delivered his famous dictum (at 107): 'Those who are responsible for the national security must
be the sole judges of what the national security requires.' These words were no abdication of
the judicial function, but were an indication of the evidence required by the court. In fact the
evidence adduced by the Crown was not sufficient, and the court ruled that the Crown had no
right to requisition. The Crown's claim was rejected 'because the judge had before him no
satisfactory evidence that such a right was exercisable' (at 108). The Prize Court, therefore,
treated the question as one of fact for its determination and indicated the evidence needed to
establish the fact. The true significance of Lord Parker's dictum is simply that the court is in no
position to substitute its opinion for the opinion of those responsible for national security. But
the case is a fine illustration of the court's duty to ensure that the essential facts to which the
opinion or judgment of those responsible relates are proved to the satisfaction of the court.
My second illustration is Chandler v DPP [1962] 3 All ER 142, [1964] AC 763. In this case the
interest of national security came into court as a matter of fact to be established by evidence to
the satisfaction of a jury in a criminal case. The appellants were convicted of conspiring to
commit a breach of s 1 of the Official Secrets Act 1911, 'namely, for a purpose prejudicial to the
safety or interests of the state to enter a Royal Air Force station … at Wethersfield … ' There
was evidence from an officer of air rank that the airfield was of importance for national
security: and, as my noble and learned friend Lord Fraser has pointed out, Lord Reid and
Viscount Radcliffe treated his evidence as relevant to the dismissal of their appeal. Lord Devlin
developed the point taken in the case on national security in a passage which, with all respect
to those who take a different view, I believe to be sound law (see [1962] 3 All ER 142 at 157–
158, [1964] AC 763 at 809–810). Having referred to the undoubted principle that all matters
relating to the disposition and armament of the armed forces are left to the unfettered control
of the Crown, he made three comments. First, he put The Zamora dictum into its true context.
Second, he observed that, when a court is faced with the exercise of a discretionary power,
inquiry is not altogether excluded: the court will intervene to correct excess or abuse. His third
and, as he said, his 'most significant' comment was as to the nature and effect of the principle:

371
'Where it operates, it limits the issue which the court has to determine; it does not exclude any
evidence or argument relevant to the issue.'
As I read the speeches in Chandler's case, the House accepted that the statute required the
prosecution to establish by evidence that the conspiracy was to enter a prohibited place for a
purpose prejudicial to the safety or interests of the state. As Parliament had left the existence
of a prejudicial purpose to the decision of a jury, it was not the Crown's opinion as to the
existence of prejudice to the safety or interests of the state but the jury's which mattered;
hence, as Lord Devlin remarked, the Crown's opinion on that was inadmissible but the Crown's
evidence as to its interests was an 'entirely different matter' (see [1962] 3 All ER 142 at
159, [1964] AC 763 at 811). Here, like Lord Parker in The Zamora, Lord Devlin was accepting
that the Crown, or its responsible servants, are the
[1984] 3 All ER 935 at 948

best judges of what national security requires without excluding the judicial function of
determining whether the interest of national security has been shown to be involved in the
case.
Finally, I would refer to Secretary of State for Defence v Guardian Newspapers Ltd [1984] 3 All
ER 601, [1984] 3 WLR 986, a case arising under s 10of the Contempt of Court Act 1981. As
in Chandler's case, the interest of national security had to be considered in proceedings where
it arose as a question of fact to be established to the satisfaction of the court. Though the
House was divided as to the effect of the evidence, all their Lordships held that evidence was
necessary so that the court could be judicially satisfied that the interest of national security
required disclosure of the newspaper's source of information.

My Lords, I conclude, therefore, that where a question as to the interest of national security
arises in judicial proceedings the court has to act on evidence. In some cases a judge or jury is
required by law to be satisfied that the interest is proved to exist; in others, the interest is a
factor to be considered in the review of the execise of an executive discretionary power. Once
the factual basis is established by evidence so that the court is satisfied that the interest of
national security is a relevant factor to be considered in the determination of the case, the
court will accept the opinion of the Crown or its responsible officer as to what is required to
meet it, unless it is possible to show that the opinion was one which no reasonable minister
advising the Crown could in the circumstances reasonably have held. There is no abdication of
the judicial function, but there is a commonsense limitation recognised by the judges as to what
is justiciable; and the limitation is entirely consistent with the general development of the
modern case law of judicial review.
My Lords, I would wish to add a few, very few, words on the reviewability of the exercise of the
royal prerogative. Like my noble and learned friend Lord Diplock, I believe that the law relating
to judicial review has now reached the stage where it can be said with confidence that, if the
subject matter in respect of which prerogative power is exercised is justiciable, that is to say if it
is a matter on which the court can adjudicate, the exercise of the power is subject to review in
accordance with the principles developed in respect of the review of the exercise of statutory
power. Without usurping the role of legal historian, for which I claim no special qualification, I

372
would observe that the royal prerogative has always been regarded as part of the common law,
and that Coke CJ had no doubt that it was subject to the common law: see Prohibitions Del
Roy (1607) 12 Co Rep 63, 77 ER 1342 and Case of Proclamations (1611) 12 Co Rep 74, 77 ER
1352. In the latter case he declared that 'the King hath no prerogative, but that which the law of
the land allows him' (see 12 Co Rep 74 at 76, 77 ER 1352 at 1354). It is, of course, beyond doubt
that in Coke's time and thereafter judicial review of the exercise of prerogative power was
limited to inquiring into whether a particular power existed and, if it did, into its extent: seeA-G
v De Keyser's Royal Hotel Ltd [1920] AC 508, [1920] All ER Rep 80. But this limitation has now
gone, overwhelmed by the developing modern law of judicial review: see R v Criminal Injuries
Compensation Board, ex p Lain [1967] 2 All ER 770, [1967] 2 QB 864 (a landmark case
comparable in its generation with the Case of Proclamations) and R v Secretary of State for the
Home Dept, ex p Hosenball [1977] 3 All ER 452, [1977] 1 WLR 766. Just as ancient restrictions in
the law relating to the prerogative writs and orders have not prevented the courts from
extending the requirement of natural justice, namely the duty to act fairly, so that it is required
of a purely administrative act, so also has the modern law, a vivid sketch of which my noble and
learned friend Lord Diplock has included in his speech, extended the range of judicial review in
respect of the exercise of prerogative power. Today, therefore, the controlling factor in
determining whether the exercise of prerogative power is subject to judicial review is not its
source but its subject matter.

Subject to these few comments, I agree with the speeches delivered by my noble and learned
friends Lord Diplock and Lord Roskill. I am in favour of dismissing the appeal only because the
respondent has established by evidence that the interest of national security required in her
judgment that she should refuse to consult the unions before issuing her instruction. But for
this I would have allowed the appeal on the procedural
[1984] 3 All ER 935 at 949

ground that the respondent had acted unfairly in failing to consult unions or staff before
making her decision.

LORD DIPLOCK.
My Lords, the English law relating to judicial control of administrative action has been
developed on a case to case basis which has virtually transformed it over the last three
decades. The principles of public law that are applicable to the instant case are in my view well
established by authorities that are sufficiently cited in the speech that will be delivered by my
noble and learned friend Lord Roskill. This obviates the necessity of my duplicating his citations;
though I should put on record that after reading and rereading Lord Devlin's speech in Chandler
v DPP [1962] 3 All ER 142, [1964] AC 763 I have gained no help from it, for I find some of his
observations that are peripheral to what I understand to be ratio decidendi difficult to reconcile
with the actual decision that he felt able to reach and also with one another.

The only difficulty which the instant case has presented on the facts as they have been
summarised by my noble and learned friend Lord Fraser and expanded in the judgment of
Glidewell J has been to identify what is, in my view, the one crucial point of law on which this
373
appeal turns. It never was identified or even adumbrated in the respondent's argument at the
hearing before Glidewell J and so, excusably, finds no place in what otherwise I regard as an
impeccable judgment. The consequence of this omission was that he found in favour of the
applicants. Before the Court of Appeal the crucial point was advanced in argument by the
Crown in terms that were unnecessarily and, in my view, unjustifiably wide. This stance was
maintained in the appeal to this House, although, under your Lordships' encouragement, the
narrower point of law that was really crucial was developed and relied on by the respondent in
the alternative. Once that point has been accurately identified the evidence in the case in my
view makes it inevitable that this appeal must be dismissed. I will attempt to state in summary
form those principles of public law which lead me to this conclusion.

Judicial review, now regulated by RSC Ord 53, provides the means by which judicial control of
administrative action is exercised. The subject matter of every judicial review is a decision made
by some person (or body of persons) whom I will call the 'decision-maker' or else a refusal by
him to make a decision.
To qualify as a subject for judicial review the decision must have consequences which affect
some person (or body of persons) other than the decision-maker, although it may affect him
too. It must affect such other person either (a) by altering rights or obligations of that person
which are enforceable by or against him in private law or (b) by depriving him of some benefit
or advantage which either (i) he has in the past been permitted by the decision-maker to enjoy
and which he can legitimately expect to be permitted to continue to do until there has been
communicated to him some rational ground for withdrawing it on which he has been given an
opportunity to comment or (ii) he has received assurance from the decision-maker will not be
withdrawn without giving him first an opportunity of advancing reasons for contending that
they should not be withdrawn. (I prefer to continue to call the kind of expectation that qualifies
a decision for inclusion in class (b) a 'legitimate expectation' rather than a 'reasonable
expectation', in order thereby to indicate that it has consequences to which effect will be given
in public law, whereas an expectation or hope that some benefit or advantage would continue
to be enjoyed, although it might well be entertained by a 'reasonable' man, would not
necessarily have such consequences. The recent decision of this House in Findlay v Secretary of
State for the Home Dept [1984] 3 All ER 801, [1984] 3 WLR 1159 presents an example of the
latter kind of expectation. 'Reasonable' furthermore bears different meanings according to
whether the context in which it is being used is that of private law or of public law. To eliminate
confusion it is best avoided in the latter.)

For a decision to be susceptible to judicial review the decision-maker must be empowered by

public law (and not merely, as in arbitration, by agreement between private parties) to make
decisions that, if validly made, will lead to administrative action or abstention from action by an
authority endowed by law with executive powers, which have one or other of the
consequences mentioned in the preceding paragraph. The
[1984] 3 All ER 935 at 950

ultimate source of the decision-making power is nearly always nowadays a statute or

subordinate legislation made under the statute; but in the absence of any statute regulating the

374
subject matter of the decision the source of the decision-making power may still be the
common law itself, ie that part of the common law that is given by lawyers the label of 'the
prerogative'. Where this is the source of decision-making power, the power is confined to
executive officers of central as distinct from local government and in constitutional practice is
generally exercised by those holding ministerial rank.

It was the prerogative that was relied on as the source of the power of the Minister for the Civil
Service in reaching her decision of 22 December 1983 that membership of national trade
unions should in future be barred to all members of the Home Civil Service employed at
Government Communications Headquarters (GCHQ).

My Lords, I intend no discourtesy to counsel when I say that, intellectual interest apart, in
answering the question of law raised in this appeal, I have derived little practical assistance
from learned and esoteric analyses of the precise legal nature, boundaries and historical origin
of 'the prerogative', or of what powers exercisable by executive officers acting on behalf of
central government that are not shared by private citizens qualify for inclusion under this
particular label. It does not, for instance, seem to me to matter whether today the right of the
executive government that happens to be in power to dismiss without notice any member of
the Home Civil Service on which perforce it must rely for the administration of its policies, and
the correlative disability of the executive government that is in power to agree with a civil
servant that his service should be on terms that did not make him subject to instant dismissal,
should be ascribed to 'the prerogative' or merely to a consequence of the survival, for entirely
different reasons, of a rule of constitutional law whose origin is to be found in the theory that
those by whom the administration of the realm is carried on do so as personal servants of the
monarch, who can dismiss them at will, because the King can do no wrong.

Nevertheless, whatever label may be attached to them there have unquestionably survived into
the present day a residue of miscellaneous fields of law in which the executive government
retains decision-making powers that are not dependent on any statutory authority but
nevertheless have consequences on the private rights or legitimate expectations of other
persons which would render the decision subject to judicial review if the power of the decision-
maker to make them were statutory in origin. From matters so relatively minor as the grant of
pardons to condemned criminals, of honours to the good and great, of corporate personality to
deserving bodies of persons, and of bounty from moneys made available to the executive
government by Parliament, they extend to matters so vital to the survival and welfare of the
nation as the conduct of relations with foreign states and (what lies at the heart of the present
case) the defence of the realm against potential enemies. Adopting the phraseology used in the
Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4
November 1950; TS 71(1953); Cmd 8969), to which the United Kingdom is a party, it has now
become usual in statutes to refer to the latter as 'national security'.
My Lords, I see no reason why simply because a decision-making power is derived from a
common law and not a statutory source it should for that reason only be immune from judicial
review. Judicial review has I think developed to a stage today when, without reiterating any
analysis of the steps by which the development has come about, one can conveniently classify

375
under three heads the grounds on which administrative action is subject to control by judicial
review. The first ground I would call 'illegality', the second 'irrationality' and the third
'procedural impropriety'. That is not to say that further development on a case by case basis
may not in course of time add further grounds. I have in mind particularly the possible adoption
in the future of the principle of 'proportionality' which is recognised in the administrative law of
several of our fellow members of the European Economic Community; but to dispose of the
instant case the three already well-established heads that I have mentioned will suffice.

By 'illegality' as a ground for judicial review I mean that the decision-maker must understand
correctly the law that regulates his decision-making power and must give effect to it. Whether
he has or not is par excellence a justiciable question to be decided,
[1984] 3 All ER 935 at 951

in the event of dispute, by those persons, the judges, by whom the judicial power of the state is
exercisable.
By 'irrationality' I mean what can by now be succinctly referred to as
'Wednesbury unreasonableness' (see Associated Provincial Picture Houses Ltd v Wednesbury
Corp [1947] 2 All ER 680, [1948] 1 KB 223). It applies to a decision which is so outrageous in its
defiance of logic or of accepted moral standards that no sensible person who had applied his
mind to the question to be decided could have arrived at it. Whether a decision falls within this
category is a question that judges by their training and experience should be well equipped to
answer, or else there would be something badly wrong with our judicial system. To justify the
court's exercise of this role, resort I think is today no longer needed to Viscount Radcliffe's
ingenious explanation in Edwards (Inspector of Taxes) v Bairstow [1955] 3 All ER 48, [1956] AC
14 of irrationality as a ground for a court's reversal of a decision by ascribing it to an inferred
though unidentifiable mistake of law by the decision-maker. 'Irrationality' by now can stand on
its own feet as an accepted ground on which a decision may be attacked by judicial review.

I have described the third head as 'procedural impropriety' rather than failure to observe basic
rules of natural justice or failure to act with procedural fairness towards the person who will be
affected by the decison. This is because susceptibility to judicial review under this head covers
also failure by an administrative tribunal to observe procedural rules that are expressly laid
down in the legislative instrument by which its jurisdiction is conferred, even where such failure
does not involve any denial of natural justice. But the instant case is not concerned with the
proceedings of an administrative tribunal at all.
My Lords, that a decision of which the ultimate source of power to make it is not a statute but
the common law (whether or not the common law is for this purpose given the label of 'the
prerogative') may be the subject of judicial review on the ground of illegality is, I think,
established by the cases cited by my noble and learned friend Lord Roskill, and this extends to
cases where the field of law to which the decision relates is national security, as the decision of
this House itself in Burmah Oil Co (Burma Trading) Ltd v Lord Advocate [1964] 2 All ER
348, [1965] AC 75 shows. While I see no a priori reason to rule out 'irrationality' as a ground for
judicial review of a ministerial decision taken in the exercise of 'prerogative' powers, I find it
difficult to envisage in any of the various fields in which the prerogative remains the only source
376
of the relevant decision-making power a decision of a kind that would be open to attack
through the judicial process on this ground. Such decisions will generally involve the application
of government policy. The reasons for the decision-maker taking one course rather than
another do not normally involve questions to which, if disputed, the judicial process is adapted
to provide the right answer, by which I mean that the kind of evidence that is admissible under
judicial procedures and the way in which it has to be adduced tend to exclude from the
attention of the court competing policy considerations which, if the executive discretion is to be
wisely exercised, need to be weighed against one another, a balancing exercise which judges by
their upbringing and experience are ill-qualified to perform. So I leave this as an open question
to be dealt with on a case to case basis if, indeed, the case should ever arise.
As respects 'procedural propriety', I see no reason why it should not be a ground for judicial
review of a decision made under powers of which the ultimate source is the prerogative. Such,
indeed, was one of the grounds that formed the subject matter of judicial review in R v Criminal
Injuries Compensation Board, ex p Lain [1967] 2 All ER 770, [1967] 2 QB 864. Indeed, where the
decision is one which does not alter rights or obligations enforceable in private law but only
deprives a person of legitimate expectations, 'procedural impropriety' will normally provide the
only ground on which the decision is open to judicial review. But in any event what procedure
will satisfy the public law requirement of procedural propriety depends on the subject matter of
the decision, the executive functions of the decision-maker (if the decision is not that of an
administrative tribunal) and the particular circumstances in which the decision came to be
made.
[1984] 3 All ER 935 at 952
My Lords, in the instant case the immediate subject matter of the decision was a change in one
of the terms of employment of civil servants employed at GCHQ. That the executive functions
of the Minister for the Civil Service, in her capacity as such, included making a decision to
change any of those terms, except in so far as they related to remuneration, expenses and
allowances, is not disputed. It does not seem to me to be of any practical significance whether
or not as a matter of strict legal analysis this power is based on the rule of constitutional law to
which I have already alluded that the employment of any civil servant may be terminated at any
time without notice and that on such termination the same civil servant may be re-engaged on
different terms. The rule of terminability of employment in the civil service without notice, of
which the existence is beyond doubt, must in any event have the consequence that the
continued enjoyment by a civil servant in the future of a right under a particular term of his
employment cannot be the subject of any right enforceable by him in private law; at most it can
only be a legitimate expectation.

Prima facie, therefore, civil servants employed at GCHQ who were members of national trade
unions had, at best, in December 1983, a legitimate expectation that they would continue to
enjoy the benefits of such membership and of representation by those trade unions in any
consultations and negotiations with representatives of the management of that government
department as to changes in any term of their employment. So, but again prima facie only, they
were entitled, as a matter of public law under the head of 'procedural propriety', before
administrative action was taken on a decision to withdraw that benefit, to have communicated

377
to the national trade unions by which they had theretofore been represented the reason for
such withdrawal, and for such unions to be given an opportunity to comment on it.

The reason why the Minister for the Civil Service decided on 22 December 1983 to withdraw
this benefit was in the interests of national security. National security is the responsibility of the
executive government; what action is needed to protect its interests is, as the cases cited by my
noble and learned friend Lord Roskill establish and common sense itself dictates, a matter on
which those on whom the responsibility rests, and not the courts of justice, must have the last
word. It is par excellence a non-justiciable question. The judicial process is totally inept to deal
with the sort of problems which it involves.

The executive government likewise decided, and this would appear to be a collective decision
of cabinet ministers involved, that the interests of national security required that no notice
should be given of the decision before administrative action had been taken to give effect to it.
The reason for this was the risk that advance notice to the national unions of the executive
government's intention would attract the very disruptive action prejudicial to the national
security the recurrence of which the decision barring membership of national trade unions to
civil servants employed at CGHQ was designed to prevent.

There was ample evidence to which reference is made by others of your Lordships that this
was, indeed, a real risk; so the crucial point of law in this case is whether procedural propriety
must give way to national security when there is conflict between (1) on the one hand, the
prima facie rule of 'procedural propriety' in public law, applicable to a case of legitimate
expectations that a benefit ought not to be withdrawn until the reason for its proposed
withdrawal has been communicated to the person who has theretofore enjoyed that benefit
and that person has been given an opportunity to comment on the reason, and (2) on the other
hand, action that is needed to be taken in the interests of national security, for which the
executive government bears the responsibility and alone has access to sources of information
that qualify it to judge what the necessary action is.

To that there can, in my opinion, be only one sensible answer. That answer is Yes.

I agree with your Lordships that this appeal must be dismissed.

LORD ROSKILL.

My Lords, this appeal arises out of the exercise by the respondent, the Minister for the Civil
Service, of a specific power vested in her by art 4 of the Civil Service Order in Council 1982. That
specific power purported to be exercised orally on 22 December 1983. The terms in which it is
claimed to have been exercised are contained
[1984] 3 All ER 935 at 953

in a letter dated 7 February 1984 from Sir Robert Armstrong writing as head of the Civil Service
to the Director of the Government Communications Headquarters at Cheltenham (GCHQ). The
exercise of the power took the form of—

378
'instructions that the conditions of service under which civil servants are employed as members
of the staff of the Government Communications Headquarters shall be varied so as to provide
that such civil servants shall not be members of any trade union other than a departmental
staff association approved by yourself.'
The making of this change in the conditions of service of civil servants employed at GCHQ was
announced in the House of Commons by the Secretary of State for Foreign and Commonwealth
Affairs on 25 January 1984 and on the same day he issued certificates under s 121(4) of the
Employment Protection Act 1975 and under s 138(4) of the Employment Protection
(Consolidation) Act 1978 certifying that employment at GCHQ was to be excepted from those
sections 'for the purpose of safeguarding national security'. On the same day the Director of
GCHQ informed his staff in writing of the decision, of the issue of the certificates and of the
various options which were thereafter to remain open to them.

My Lords, the background to these actions in December 1983 and January 1984 is fully set out
in the speech of my noble and learned friend Lord Fraser, which I gratefully adopt. It requires
no repetition. Nor does the history of the antecedent rights of those concerned to join trade
unions. That the instructions thus given and the certificates thus issued drastically altered the
trade union rights of those civil servants concerned cannot be doubted. Nor can it be doubted
that the issue of the instructions and of the certificates without prior warning or consultation of
any kind with the various trade unions concerned either at a national or at a local level involved
a complete departure from the normal manner in which relations between management and
staff had hitherto been conducted and was bitterly resented by some of those immediately
involved on the staff side.
My Lords, with matters of that kind your Lordships are in no way concerned. This appeal is
concerned with and only with judicial review. Judicial review, as Lord Brightman stated in Chief
Constable of the North Wales Police v Evans [1982] 3 All ER 141 at 155, [1982] 1 WLR 1155 at
1174, 'is not an appeal from a decision, but a review of the manner in which the decision was
made'. It is the appellants' case, stated in a sentence, that the oral instruction of 22 December
1983 should be judicially reviewed and declared invalid because of the manner in which the
decision which led to those instructions being given was taken, that is to say without prior
consultation of any kind with the appellants or, indeed, others. Initially the appellants also
sought judicial review of the two certificates to which I have referred but that claim has been
abandoned.

Before considering the rival submissions in more detail, it will be convenient to make some
general observations about the process now known as judicial review. Today it is perhaps
commonplace to observe that as a result of a series of judicial decisions since about 1950 both
in this House and in the Court of Appeal there has been a dramatic and, indeed, a radical
change in the scope of judicial review. That change has been described, by no means critically,
as an upsurge of judicial activism. Historically the use of the old prerogative writs of certiorari,
prohibition and mandamus was designed to establish control by the Court of King's Bench over
inferior courts or tribunals. But the use of those writs, and of their successors, the
corresponding prerogative orders, has become far more extensive. They have come to be used
for the purpose of controlling what would otherwise be unfettered executive action whether of

379
central or local government. Your Lordships are not concerned in this case with that branch of
judicial review which is concerned with the control of inferior courts or tribunals. But your
Lordships are vitally concerned with that branch of judicial review which is concerned with the
control of executive action. This branch of public or administrative law has evolved, as with
much of our law, on a case by case basis and no doubt hereafter that process will continue.
Thus far this evolution has established that executive action will be the subject of judicial
review on three separate grounds. The first is where the authority concerned has been guilty of
an error of law in its action, as for example purporting to exercise a power
[1984] 3 All ER 935 at 954
which in law it does not possess. The second is where it exercises a power in so unreasonable a
manner that the exercise becomes open to review on what are called, in lawyers'
shorthand, Wednesbury principles (see Associated Provincial Picture Houses Ltd v Wednesbury
Corp [1947] 2 All ER 680, [1948] 1 KB 223). The third is where it has acted contrary to what are
often called 'principles of natural justice'. As to this last, the use of this phrase is no doubt
hallowed by time and much judicial repetition, but it is a phrase often widely misunderstood
and therefore as often misused. That phrase perhaps might now be allowed to find a
permanent resting-place and be better replaced by speaking of a duty to act fairly. But that
latter phrase must not in its turn be misunderstood or misused. It is not for the courts to
determine whether a particular policy or particular decisions taken in fulfilment of that policy
are fair. They are only concerned with the manner in which those decisions have been taken
and the extent of the duty to act fairly will vary greatly from case to case as, indeed, the
decided cases since 1950 consistently show. Many features will come into play including the
nature of the decision and the relationship of those involved on either side before the decision
was taken.

My noble and learned friend Lord Diplock in his speech has devised a new nomenclature for
each of these three grounds, calling them respectively 'illegality', 'irrationality' and 'procedural
impropriety', words which, if I may respectfully say so, have the great advantage of making
clear the differences between each ground.
In the present appeal your Lordships are not concerned with the first two matters already
mentioned, with the exercise of a power which does not exist or with Wednesbury principles.
But this appeal is vitally concerned with the third, the duty to act fairly.

The particular manifestation of the duty to act fairly which is presently involved is that part of
the recent evolution of our administrative law which may enable an aggrieved party to evoke
judicial review if he can show that he had 'a reasonable expectation' of some occurrence or
action preceding the decision complained of and that that 'reasonable expectation' was not in
the event fulfilled.
The introduction of the phrase 'reasonable expectation' into this branch of our administrative
law appears to owe its origin to Lord Denning MR inSchmidt v Secretary of State for Home
Affairs [1969] 1 All ER 904 at 909, [1969] 2 Ch 149 at 170 (when he used the phrase 'legitimate
expectation'). Its judicial evolution is traced in the opinion of the Judicial Committee delivered
by Lord Fraser in A-G of Hong Kong v Ng Yuen Shiu[1983] 2 All ER 346 at 350–351, [1983] 2 AC

380
629 at 636–638. Though the two phrases can, I think, now safely be treated as synonymous for
the reasons there given by my noble and learned friend, I prefer the use of the adjective
'legitimate' in this context and use it in this speech even though in argument it was the
adjective 'reasonable' which was generally used. The principle may now said to be firmly
entrenched in this branch of the law. As the cases show, the principle is closely connected with
'a right to be heard'. Such an expectation may take many forms. One may be an expectation of
prior consultation. Another may be an expectation of being allowed time to make
representations, especially where the aggrieved party is seeking to persuade an authority to
depart from a lawfully established policy adopted in connection with the exercise of a particular
power because of some suggested exceptional reasons justifying such a departure.

The appellants say that the relationship between management and staff over many years gave
rise to a reasonable expectation of consultation before action involving so drastic a curtailment
of trade union rights as that taken on 22 December 1983 was decreed. It is of the deprivation of
that reasonable expectation that they now principally complain and say entitles them to judicial
review.

In a judgment which, if I may respectfully say so, I have read and reread with increasing
admiration for its thoroughness and clarity, Glidewell J, while in my view correctly rejecting all
the other arguments of the appellants, accepted this submission. The Court of Appeal (Lord
Lane CJ, Watkins and May LJJ) in a single judgment delivered by the Lord Chief Justice was of a
different opinion. But it is right to say that the submission on which counsel for the respondent
finally and principally rested was never advanced at all before Glidewell J and though advanced
for the first time in the Court of Appeal does not seem to have been advanced even there in
entirely the same way as in argument before this House, for it was advanced there on a
considerably wider basis than
[1984] 3 All ER 935 at 955

that on which counsel for the respondent ultimately came to rest. Counsel for the appellants
understandably made skilful forensic play with this failure to advance this crucial submission
before the judge. Thus the House has not got the benefit of the views of Glidewell J on what I
regard as the crucial issue for the determination of this appeal.

My Lords, before considering this issue it is necessary to consider a further important question
which arises by reason of the fact that the instructions given under art 4 of the 1982 Order in
Council were by means of the exercise of a prerogative power. The appellants in their printed
case invited the House to consider and if necessary to reconsider the reviewability of executive
acts done under the prerogative. Counsel for the respondent understandably did not press the
argument that no action taken under the prerogative could ever be the subject of judicial
review. But, helpfully, he thought it right to make available to your Lordships a selection from
the classic pronouncements of many famous writers in this field from Locke through Blackstone
and Chitty to Dicey and from the writings of distinguished modern authorities including de
Smith, Wade, Hood Phillips and Heuston designed to show, first, the historic view that acts
done under the prerogative were never reviewable and, second, the extent to which that classic
doctrine may at least in this century be said to have been diluted.
381
Dicey's classic statement in Law of the Constitution (10th edn, 1959) p 424 that the prerogative
is 'the residue of discretionary or arbitrary authority, which at any given time is legally left in
the hands of the Crown' has the weight behind it not only of the author's own authority but
also of the majority of this House in Burmah Oil Co (Burma Trading Ltd v Lord Advocate [1964] 2
All ER 348 at 353, [1965] AC 75 at 99 per Lord Reid. But as Lord Reid himself pointed out, this
definition 'does not take us very far'. On the other hand the attempt by Lord Denning MR
in Laker Airways Ltd v Dept of Trade [1977] 2 All ER 182 at 192, [1977] QB 643 at 705 (obiter
since the other members of the Court of Appeal did not take so broad a view) to assert that the
prerogative 'if … exercised improperly or mistakenly' was reviewable is, with great respect, far
too wide. Lord Denning MR sought to support his view by a quotation from Blackstone's
Commentaries (1 Bl Com (15th edn) 252). But unfortunately and no doubt inadvertently he
omitted the opening words of the paragraph:

'In the exercise therefore of those prerogatives, which the law has given him, the King is
irresistible and absolute, according to the forms of the constitution. And yet, if the consequence
of that exertion be manifestly to the grievance or dishonour of the kingdom, the parliament will
call his advisers to a just and severe account.'

In short the orthodox view was at that time that the remedy for abuse of the prerogative lay in
the political and not in the judicial field.
But, fascinating as it is to explore this mainstream of our legal history, to do so in connection
with the present appeal has an air of unreality. To speak today of the acts of the sovereign as
'irresistible and absolute' when modern constitutional convention requires that all such acts are
done by the sovereign on the advice of and will be carried out by the sovereign's ministers
currently in power is surely to hamper the continual development of our administrative law by
harking back to what Lord Atkin once called, albeit in a different context, the clanking of
medieval chains of the ghosts of the past: see United Australia Ltd v Barclays Bank Ltd [1940] 4
All ER 20 at 37, [1941] AC 1 at 29. It is, I hope, not out of place in this connection to quote a
letter written in 1896 by the great legal historian F W Maitland to Dicey himself: 'the only direct
utility of legal history (I say nothing of its thrilling interest) lies in the lesson that each
generation has an enormous power of shaping its own law': see Cosgrove The Rule of Law:
Albert Venn Dicey: Victorian Jurist (1980) p 177. Maitland was in so stating a greater prophet
than even he could have foreseen, for it is our legal history which has enabled the present
generation to shape the development of our administrative law by building on but unhampered
by our legal history.

My Lords, the right of the executive to do a lawful act affecting the rights of the citizen, whether
adversely or beneficially, is founded on the giving to the executive of a power enabling it to do
that act. The giving of such a power usually carries with it legal sanctions to enable that power if
necessary to be enforced by the courts. In most cases
[1984] 3 All ER 935 at 956

that power is derived from statute though in some cases, as indeed in the present case, it may
still be derived from the prerogative. In yet other cases, as the decisions show, the two powers

382
may coexist or the statutory power may by necessary implication have replaced the former
prerogative power. If the executive in pursuance of the statutory power does an act affecting
the rights of the citizen, it is beyond question that in principle the manner of the exercise of
that power may today be challenged on one or more of the three grounds which I have
mentioned earlier in this speech. If the executive instead of acting under a statutory power acts
under a prerogative power and in particular a prerogative power delegated to the respondent
under art 4 of the 1982 Order in Council so as to affect the rights of the citizen, I am unable to
see, subject to what I shall say later, that there is any logical reason why the fact that the
source of the power is the prerogative and not statute should today deprive the citizen of that
right of challenge to the manner of its exercise which he would possess were the source of the
power statutory. In either case the act in question is the act of the executive. To talk of that act
as the act of the sovereign savours of the archaism of past centuries. In reaching this conclusion
I find myself in agreement with my noble and learned friends Lord Scarman and Lord Diplock,
whose speeches I have had the advantage of reading in draft since completing the preparation
of this speech.

But I do not think that that right of challenge can be unqualified. It must, I think, depend on the
subject matter of the prerogative power which is exercised. Many examples were given during
the argument of prerogative powers which as at present advised I do not think could properly
be made the subject of judicial review. Prerogative powers such as those relating to the making
of treaties, the defence of the realm, the prerogative of mercy, the grant of honours, the
dissolution of Parliament and the appointment of ministers as well as others are not, I think,
susceptible to judicial review because their nature and subject matter is such as not to be
amenable to the judicial process. The courts are not the place wherein to determine whether a
treaty should be concluded or the armed forces disposed in a particular manner or Parliament
dissolved on one date rather than another.

In my view the exercise of the prerogative which enabled the oral instructions of 22 December
1983 to be given does not by reason of its subject matter fall within what for want of a better
phrase I would call the 'excluded categories', some of which I have just mentioned. It follows
that in principle I can see no reason why those instructions should not be the subject of judicial
review.
My Lords, I am not conscious of any previous decision of this House which is inconsistent with
the principles I have just endeavoured to state. It may well be that there are decisions or dicta
of other courts which are inconsistent. R v Secretary of State for War [1891] 2 QB 326 arose in
connection with the armed forces, with which this appeal is not concerned, but, even so, some
of the reasoning cannot I think now be supported. There are also passages in the judgments of
the Court of Appeal in Crown Lands Comrs v Page [1960] 2 All ER 726, [1960] 2 QB 274 and in
the opinion of Lord Sorn in Griffin v Lord Advocate 1950 SC 448 (to mention but two decisions)
which require reconsideration in the light of the decision of this House in this appeal; in the
latter case, Lord Sorn mainly followed the first of these three cases.
I find considerable support for the conclusion I have reached in the decision of the Divisional
Court (Lord Parker CJ, Diplock LJ and Ashworth J) in R v Criminal Injuries Compensation Board,
ex p Lain [1967] 2 All ER 770, [1967] 2 QB 864, the judgments in which may without

383
exaggeration be described as a landmark in the development of this branch of the law. The
board had been set up not by statute but by executive action under, as I think and as Lord
Parker CJ stated, the prerogative. It was stenuously argued that the board was not subject to
the jurisdiction of the courts since it did not have what was described as legal authority in the
sense of statutory authority. This argument by Mr Nigel Bridge was emphatically and
unanimously rejected. I will quote one passage from the judgment of Lord Parker CJ ([1967] 2
All ER 770 at 777, [1967] 2 QB 864 at 881):

'I can see no reason either in principle or in authority why a board, set up as this board were set
up, should not be a body of persons amenable to the jurisdiction of
[1984] 3 All ER 935 at 957

this court. True the board are not set up by statute but the fact that they are set up by
executive government, i.e., under the prerogative, does not render their acts any the less
lawful. Indeed, the writ of certiorari has been issued not only to courts set up by statute but to
courts whose authority was derived, inter alia, from the prerogative. Once the jurisdiction is
extended, as it clearly has been, to tribunals as opposed to courts, there is no reason why the
remedy by way of certiorari cannot be invoked to a body of persons set up under the
prerogative. Moreover the board, though set up under the prerogative and not by statute, had
in fact the recognition of Parliament in debate and Parliament provided the money to satisfy
the board's awards.'

I would also refer, albeit without citation, to the entirety of the judgment delivered by Diplock
LJ.

It follows from what I have said thus far that in principle I am of the clear opinion that the
respondent's oral instructions of 22 December 1983 are amenable to judicial review and are not
immune from such review because the instructions were given pursuant to prerogative powers.

The next question is whether they are susceptible of successful challenge on the third of the
grounds mentioned earlier, namely that the appellants had 'a legitimate expectation' of
consultation prior to any such instructions being given which radically affected the long-
established rights of the staff at GCHQ to be members of trade unions.

It was common ground before your Lordships, though it was not common ground below, that
there was no contractual relationship between the Crown and the staff at GCHQ. Counsel for
the respondent accepted that the absence of a contractual relationship and thus of a remedy in
private law did not preclude the possibility of a remedy in public law if a legitimate expectation
of consultation were established. But he suggested that the absence of such a relationship in
private law made it difficult to establish a legitimate expectation justiciable in the field of public
law without eroding the basic principle that, at least in theory, civil servants are dismissible by
the Crown at will and thus have no remedy in private law. He further argued that, even if in
principle there were a legitimate expectation of the nature for which the appellants contended,
that legitimate expectation could not exist when the government of the day considered that
their duty in the field of national security required them not to give effect to any such

384
legitimate expectation as might otherwise exist. Once, he contended, the respondent on the
material before her could conclude that consultations of the kind contended for by the
appellants could and, indeed, would damage national security, any obligation to consult the
appellants prior to taking the decision disappeared. Indeed, counsel for the respondent went so
far as to contend that in such circumstances the respondent was under a duty not to consult
the appellants lest otherwise the very mischief which she feared might arise would arise.

My Lords, if no question of national security were involved I cannot doubt that the evidence
and the whole history of the relationship between management and staff since 1919 shows
that there was a legitimate expectation of consultation before important alterations in the
conditions of service of civil servants were made. No doubt in strict theory civil servants are
dismissible at will and the various documents shown to your Lordships seek to preserve the
strict constitutional position. But in reality the managment-staff relationship is governed by an
elaborate code, to which it is unnecessary to refer in detail. I have little doubt that, were
management to seek to alter without prior consultation the terms and conditions of civil
servants in a field which had no connection whatever with national security or perhaps, though
the matter does not arise in this appeal, with urgent fiscal emergency, such action would in
principle be amenable to judicial review.

But that is not the present issue. It is asserted on behalf of the respondent that the reason for
the instructions being given without prior consultation was that it was feared that so to consult
would have given rise to grave risk of industrial action through the reaction of the appellants
and others and thus have brought about the very situation which the oral instructions were
themselves designed to avoid, namely the risk of industrial action by the staff at GCHQ caused
or at least facilitated by a membership of
[1984] 3 All ER 935 at 958

trade unions, and damaging to national security. GCHQ was, it was said, and is, highly
vulnerable to industrial action and prior consultation would have revealed to those who had
previously organised disruption that high degree of vulnerability.
My Lords, the conflict between private rights and the rights of the state is not novel either in
our political history or in our courts. Historically, at least since 1688, the courts have sought to
present a barrier to inordinate claims by the executive. But they have also been obliged to
recognise that in some fields that barrier must be lowered and that on occasions, albeit with
reluctance, the courts must accept that the claims of executive power must take precedence
over those of the individual. One such field is that of national security. The courts have long
shown themselves sensitive to the assertion by the executive that considerations of national
security must preclude judicial investigation of a particular individual grievance. But even in
that field the courts will not act on a mere assertion that questions of national security were
involved. Evidence is required that the decision under challenge was in fact founded on those
grounds. That that principle exists is I think beyond doubt. In a famous passage inThe
Zamora [1916] 2 AC 77 at 107 Lord Parker, delivering the opinion of the Judicial Committee,
said:

385
'Those who are responsible for the national security must be the sole judges of what the
national security requires. It would be obviously undesirable that such matters should be made
the subject of evidence in Court of law or otherwise discussed in public.'

The Judicial Committee were there asserting what I have already sought to say, namely that
some matters, of which national security is one, are not amenable to the judicial process. The
force of the passage I have quoted is in no way diminished by the fact, much relied on by
counsel for the appellants, that in that case the Crown failed because it had failed to adduce
before the Prize Court the requisite evidence of urgent necessity, proof of which was essential if
the right of angary were to be successfully invoked in relation to a cargo in the custody of the
Prize Court. This last-mentioned fact merely reinforces what I have just said, that evidence and
not mere assertion must be forthcoming.
A similar problem arose in Chandler v DPP [1962] 3 All ER 142, [1964] AC 763, a case under s
1 of the Official Secrets Act 1911. Lord Reid expressly stated that he did not 'subscribe to the
view that the government or a minister must always or even as a general rule have the last
word' about the safety or interests of the state (see [1962] 3 All ER 142 at 146, [1964] AC 763 at
790). But he agreed, in common with all the other members of the House, that cross-
examination was not permissible to challenge the evidence of a senior air force officer that a
proposed obstruction of an airfield was contrary to the 'safety or interests of the state' which
were the relevant words of the statute. Viscount Radcliffe said ([1962] 3 All ER 142 at
150, [1964] AC 763 at 796):

'The defence of the state from external enemies is a matter of real concern, in time of peace as
in days of war. The disposition, armament and direction of the defence forces of the state are
matters decided by the Crown and are within its jurisdiction as the executive power of the
state. So are treaties and alliances with other states for mutual defence.'
The other Law Lords then sitting shared Lord Reid's view, though I venture most respectfully to
question one observation of Lord Devlin's where, after referring to The Zamora he said ([1962]
3 All ER 142 at 158, [1964] AC 763 at 810):

'It is said that in such cases the minister's statement is conclusive. Certainly: but conclusive of
what? Conclusive, in the absence of any allegation of bad faith or abuse, that he does think
what he says he thinks. The court refrains from any inquiry into the question whether the goods
are, in fact, necessary, not because it is bound to accept the statement of the Crown that they
are and to find accordingly, but because that is not the question which it has to decide.'

I respectfully suggest that that passage is out of line with the views expressed by the other Law
Lords then sitting.
[1984] 3 All ER 935 at 959
The same problem arose in R v Secretary of State for the Home Dept, ex p Hosenball [1977] 3 All
ER 452, [1977] 1 WLR 766 where the Court of Appeal and in particular Lord Denning MR
accepted that, if the case had been one 'in which the ordinary rules of natural justice were to
be observed, some criticism could be directed on it' (see [1977] 3 All ER 452 at 456, [1977] 1
WLR 766 at 778) but held that the interests of national security must override the appellants'

386
private rights and that, where compliance with the requirements of natural justice would itself
have revealed that which it was in the interests of national security not to reveal, private rights
must yield to the public interest (see [1977] 3 All ER 452 esp at 460–461, [1977] 1 WLR 766 esp
at 782–783).

My Lords, I venture to think that today this principle cannot be disputed. The question is
whether, on the evidence before your Lordships, the respondent is entitled to assert that it was
for fear of revealing the vulnerability of GCHQ to industrial action that it was decided that
advance consultation could not take place. Counsel for the appellants did not contest that there
was evidence on which a reasonable minister might have taken that view or, indeed, that the
respondent as a reasonable minister might have taken that view. His main contention was that
the submission on behalf of the respondent to be found encapsulated in para 27(i) of the
respondent's case thus:

'It was considered that consultation would involve a real risk that it would occasion the very
kind of disruption which was a threat to national security and which it was intended to avoid.
Having regard to these factors a reasonable Minister could properly take the decision without
consultation'

was an afterthought and unjustified by the evidence adduced on the respondent's behalf.

In its judgment, the Court of Appeal set out three of the assertions by or on behalf of the trade
unions concerned regarding the possibility of and the effect of disruption at GCHQ by industrial
action. There are many other similar statements in the evidence. I refer only to two of these
other statements. The first is:

'Walkouts in key installations have affected Britain's defence capability in general, and crippled
the UK contribution to the NATO exercise “Wintex“.'

The other, under the heading 'Government Communications', is:

'48 hour walkouts have severely hit secret monitoring stations belonging to the Composite
Signals Organisation. The Government is clearly worried and will be subject to huge pressure
from NATO allies.'

Nevertheless, counsel for the appellants claimed that careful reading of Sir Robert Armstrong's
first affidavit, and in particular para 16 of that affidavit, did not support the view that this was a
consideration which the respondent had ever had in mind. My Lords, with all respect, para 16
must not be divorced from its contents or read in isolation from the paragraphs which both
precede it and follow it. Paragraphs 13 to 18 inclusive must all be read together. In those
paragraphs I read Sir Robert as explaining why the possibility of negotiating a non-disruption
agreement was considered and rejected. I draw particular attention to the penultimate
sentence in para 16, which reads:

'To have entered such consultations would have served to bring out the vulnerability of areas of
operations to those who had shown themselves ready to organise disruption and consultation

387
with individual members of staff at GCHQ would have been impossible without involving the
national unions.'

Ministers also were of the view that the importance of the decision was such as to warrant its
first being announced in Parliament. This passage read in the context of the documentary
evidence exhibited to Sir Robert's affidavit to which I have already referred seems to me to
make abundantly clear why the respondent and other ministers declined to engage in
consultations in advance of issuing the instructions. It was argued that such consultation might
have led to a non-disruption agreement such as was later suggested on behalf of the
appellants. But the draft of that agreement clearly does not achieve that which the respondent
sought to achieve by the instructions and the evidence clearly
[1984] 3 All ER 935 at 960

shows that the national unions, without whose co-operation a non-disruption agreement would
have been valueless, were not prepared to countenance such an agreement. It was also
suggested that if consultation had taken place regarding the polygraph there was no reason
why consultation should not take place regarding the intended instructions. My Lords, the short
answer to that is that the two are not comparable.

My Lords, I have therefore reached the clear conclusions, first, that the respondent has
established that the work at GCHQ was a matter of grave national security, second, that that
security would have been seriously compromised had industrial action akin to that previously
encountered between 1979 and 1981 taken place, third, that consultation with the appellants
prior to the oral instructions would have served only further to reveal the vulnerability of GCHQ
to such industrial action, fourth, that it was in the interests of national security that that should
not be allowed to take place and, fifth, that accordingly the respondent was justified in the
interests of national security in issuing the instructions without prior consultation with the
appellants.

That conclusion accords with the conclusion reached by the Court of Appeal and must lead to
the result that the appeal should be dismissed. I would only add, again in agreement with the
Court of Appeal, that had the matter been argued before the judge, as it was in the Court of
Appeal and before this House, he might well have reached a different conclusion from that
which he reached.

For the sake of completeness I would add that I reject the separate argument of counsel for the
appellants that the oral instructions were in any event bad as insufficiently specific or precise. I
am in complete agreement with the views of both courts below on that submission.

I do not find it necessary to say anything about what became known as the 'futility argument',
that is to say that even if consultation were required it would have been futile because it would
have been of no effect. On the view I take, that matter does not arise for decision.

LORD BRIGHTMAN.

388
My Lords, I also would dismiss this appeal for one reason only, namely on the ground of
national security. The evidence is compelling that the Minister for the Civil Service acted
without prior consultation with the unions concerned because she believed, and reasonably
believed, that such process of prior consultation might result in disruption that would pose a
threat to the security of the nation. This factor overrode the right in public law which the
unions would otherwise have had, on the facts of this particular case, to be consulted before
the instruction of 22 December 1983 was given.

There is nothing which I can usefully add to the comprehensive survey which your Lordships
have already made of the authorities on the reviewability of decisions taken under the royal
prerogative. There is no difference between the conclusions reached by your Lordships except
on one isolated point: whether the reviewability of an exercise of a prerogative power is limited
to the case where the power has been delegated to the decision-maker by Order in Council, so
that the decision-making process which is sought to be reviewed arises under and must be
exercised in accordance with the terms of that order, or whether reviewability may also extend,
in an appropriate case, to a direct exercise of a prerogative power. Like my noble and learned
friend Lord Fraser, I would prefer to leave the resolution of that question to a case where it
must necessarily be determined.

For the reason indicated, I would dismiss this appeal.

Appeal dismissed.
Solicitors: Lawford & Co (for the appellants); Treasury Solicitor.
Mary Rose Plummer Barrister.

389
Heydon's Case
1 January 1584
(1584) 3 Coke 7a

76 E.R. 637

1584
*637 [7 a]
Pasch. 26 Eliz. But the plea began Pasch. 20 Eliz. Rot. 140. in the Exchequer. 1584.
[Cf. Hawkins v. Gathercole , 1855, 6 De G. M. & G. 1; 43 E. R. 1129. See R. v. Sillem , 1864, 11 L.
T. 225;Easton v. Richmond Highway Board , 1871, L. R. 7 Q. B. 76; R. v. Castro , 1874, L. R. 9 Q.
B. 360; River Wear Commissioners v. Adamson , 1877, 2 App. Cas. 764; R. v. Holbrook , 1878, 4
Q. B. D. 46; Harding v. Preece , 1882, 9 Q. B. D. 298; Bradlaugh v. Clarke , 1883, 8 App. Cas.
362; In re Leavesley [1891], 2 Ch. 8; Pelton Brothers v. Harrison [1891], 2 Q. B. 424; Lord Henry
Bruce v. Marquess of Ailesbury [1892], A. C. 361; In re Mayfair Property Company [1898], 2 Ch.
35.]
S. C. Moor 128. Co. Ent. 372. nu. 10. 1 Leon. 4. 333. 4 Leon. 117. Sav. 66. S. C. cited acc. post 9
Co. 105. a. 2 Inst. 505. [2 Cowp. 707. 709. 1 Wils. 26, 27. ii. 193. 6 T. R. 385. 6 East 480. 1 Bro. C.
C. 24. 2 Bl. Com. 113. 3 Wood, 506. Watk. Gilb. Ten. 163, 4, 5, 6, 170, 1. 184. 1 Fonbl. Tr. Eq. 300
n. 1 Cru. Dig. 304. iv. 325. 1 Prest. Est. 2nd edit. 487. 1 Prest. Conv. 153, 4 Bart. Prec. 209. n.
Vin. Abr. Copyhold A. pl. 4. O. d. pl. 2, 3, 4. 46. Estate. R. a. 9. pl. 7. Formedon T. 3. pl. 1.
Statutes E. 6. pl. 137. Com. Dig. Copyhold C. 8. N. O. Bac. Abr. Copyhold C. 1, 2, i. 709, 710, 711,
712. Execution C. 2. ii. 713. Leases &c. E. iv. 73. Statute J. 4. 6. 8, 9. vi. 383, 387. 389, 390, 391.
See the notes and references infra. ]
The statute 31 H. 8. c. 13. avoids cases of lands whereof any estate for life, &c. was then in
being, made by religious persons within a year before; a copyhold was granted by copy for life,
and then the religious house made a lease of it to another for 80 years; held that the lease was
void, the copyhold estate being an estate for life within the statute.
Copyholds are not within the general words of a statute which alters the service, tenure,
custom or interest of the land, to the prejudice of the lord or tenant, but are included within
the general words of a statute where no prejudice thereby ensues to the lord or tenant.
The Statute de Donis does not extend to copyholds, unless there is a special custom. The
statute W. 2. c. 18. which gives the elegit does not extend to copyholds; but they are within the
statute W. 2 c. 3. which gives the wife a cui in vita , and receipt; and c. 4. giving the particular
tenant a quod ei deforceat.
Where a person has power to lease, reserving the most accustomable rent for twenty years
before, a verdict finding a lease rendering the customary rent, is sufficient.
In an information upon an intrusion in the Exchequer 1 , against Heydon, for intruding into
certain lands, &c. in the county of Devon: upon the general issue, the jurors gave a special
verdict to this effect.
First, they found that parcel of the lands in the information was ancient copyholds of the manor
of Ottery, whereof the warden and canons regular of the late college of Ottery were seised in

390
the right of the said college; and that the warden and canons of the said college, 22 H. 7. at a
court of the said manor, granted the same parcel by copy, to Ware the father and Ware the
son, for their lives, at the will of the lord, according to the custom of the said manor; and that
the rest of the land in the information was occupied by S. and G. at the will of the warden and
canons of the said college for the time being, in the time of H. 8. And further that the said S.
and G. so possessed, and the said Ware and Ware so seised as aforesaid, the said warden and
canons by their deed indented, dated 12 January anno 30 H. 8. did lease the same to Heydon
the defendant for eighty years, rendering certain rents severally for several parcels; and found
that the said several rents *638 in Heydon's lease reserved, were the ancient and accustomed
rents of the several parcels of the lands, and found, that after the said lease they did surrender
their college, and all the possessions thereof to King Hen. 8. And further found the statute
of 2 31 Hen. 8. and the branch of it, scil. by which it is enacted, “That if any abbot, &c. or other
religious and ecclesiastical house or [7 b] place, within one year next before the first day of this
present Parliament, hath made, or hereafter shall make any lease or grant for life, or for term of
years, of any manors, messuages, lands, &c. and in the which any estate or interest for life, year
or years, at the time of the making of such grant or lease, then had his being or continuance, or
hereafter shall have his being or continuance, and not determined at the making of such lease,
&c. Or if the usual and old rents and farms accustomed to be yielden and reserved by the space
of twenty years next before the first day of this present Parliament, is not, or be not, or
hereafter shall not be thereupon reserved or yielded, &c. that all and every such lease, &c. shall
be utterly void.” And further found, that the particular estates aforesaid were determined, and
before the intrusion Heydon's lease began; and that Heydon entered, &c. And the great doubt
which was often debated at the Bar and Bench, on this verdict, was, whether the copyhold
estate of Ware and Ware for their lives, at the will of the Lords, according to the custom of the
said manor, should, in judgment of law be called an estate and interest for lives, within the said
general words and meaning of the said Act. And after all the Barons openly argued in Court in
the same term, scil. Pasch. 26 Eliz. and it was unanimously resolved by Sir Roger Manwood,
Chief Baron, and the other Barons of the Exchequer, that the said lease made to Heydon of the
said parcels, whereof Ware and Ware were seised for life by copy of court-roll, was void; for it
was agreed by them, that the said copyhold estate was an estate for life, within the words and
meaning of the said Act. And it was resolved by them, that for the sure and true 3 interpretation
of all statutes in general (be they penal4 or beneficial, restrictive or enlarging of the common
law,) four things are to be discerned and considered:—
5
1st. What was the common law before the making of the Act.
6
2nd. What was the mischief and defect for which the common law did not provide.
3rd What remedy the Parliament hath resolved and appointed to cure the disease of the
commonwealth.
And, 4th. The true reason of the remedy; and then the office of all the Judges is always to make
such 7construction as shall suppress the mischief, and advance the remedy, and to suppress
subtle inventions and evasions for continuance of the mischief, and pro privato commodo , and
to add force and life to the cure and remedy, according to the true intent of the makers of the
Act, pro bono publico. And it was said, that in *639this case the common law was, that religious
and ecclesiastical [8 a] persons might have made leases for as many years as they pleased, the
mischief was that when they perceived their houses would be dissolved, they made long and

391
unreasonable leases: now the stat of 31 H. 8. doth provide the remedy, 8 and principally for
such religious and ecclesiastical houses which should be dissolved after the Act (as the said
college in our case was) that all leases of any land, whereof any estate or interest for life or
years was then in being, should be void; and their reason was, that it was not necessary for
them to make a new lease so long as a former had continuance; and therefore the intent of the
Act was to avoid doubling of estates, and to have but one single estate in being at a time: for
doubling of estates implies in itself deceit, and private respect, to prevent the intention of the
Parliament. And if the copyhold estate for two lives, and the lease for eighty years shall stand
together, here will be doubling of estates simul & semel , which will be against the true
meaning of Parliament.
And in this case it was debated at large, in what cases the general words of Acts of Parliament
shall extend to copyhold or customary estates, and in what not; and therefore this rule was
taken and agreed by the whole Court, that when an Act of Parliament doth 9 alter the service,
tenure, interest of the land, or other thing, in prejudice of the lord, or of the custom of the
manor, or in prejudice of the tenant, there the general words of such Act of Parliament shall
not extend to copyholds: but when an Act of Parliament is generally made for the 10 good of the
weal public, and no prejudice can accrue by reason of alteration of any interest, service, tenure,
or custom of the manor, there many times copyhold and customary estates are within the
general purview of such Acts 11 . And upon these grounds the Chief Baron put many cases,
where he held, that the Statute of 12West. 2. de Donis Conditionalibus did not extend to
copyholds; for if the statute alters the estate of the land, it will be also an alteration of the
tenure, which would be prejudicial to the lord: for of necessity the donee in tail of land ought
to 13 hold of his donor, and do him such services (without special reservation) as his donor doth
to his lord 14 .
2nd. Littleton saith, lib. 1. cap. 9. That although some tenants by copy of court-roll have an
estate of inheritance, yet they have it but at the 15 will of the lord, *640 according to the course
of the common law. For it is said, that if the lord put them out, they have no other remedy but
to sue to their lord by petition 16 ; and so the intent of the Statute De Donis Conditionalibus was
not to extend (in prejudice of lords) to such base estates, which as the law was then taken, was
but at [8 b] the will of the lord. And the statute saith, Quod voluntas donatoris in carta doni sui
manifeste express. de cætero observetur: so that which shall be entailed, ought to be such an
hereditament, which is given, or at least might be given by deed or charter in tail.
3rd. Forasmuch as great part of the land within the realm, is in grant by copy, it will be a thing
inconvenient, and occasion great suit and contention, that copyholds should be 17 entailed, and
yet neither fine 18 nor common 19 recovery bar them; so as he who hath such estate cannot
(without the assent of the lord by committing a forfeiture, and taking a new estate) of himself
dispose of it, either for payment of his debts, or advancement of his wife, or his younger
children; wherefore he conceived that the Statute De Donis Conditionalibus did not extend to
copyholds, quod fuit concessum per totam Curiam. But it was said that the statute, without
special custom, doth not extend to copyholds 20 ; but if the 21 custom of the manor doth warrant
such estates, and a remainder hath been limited over and enjoyed, or plaints in the nature of
aformedon in the descender brought in the court of the manor, and land so entailed by copy
recovered thereby, then the custom co-operating with the statute *641 makes it an estate-tail;

392
so that neither the statute without the custom, nor the custom without the statute, can create
an estate-tail.
And to this purpose is 22 Littleton, lib. 1. c. 8. for he saith, that if a man seised of a manor, within
which manor there hath been a custom which hath been used time out of memory, that certain
tenants within the same manor have used to have lands and tenements, to hold to them and
their heirs in fee-simple or fee-tail, or for term of life, &c. at the will of the lord, according to
the custom of the same manor; and a little after, thatformedon in descender lies of such
tenements, which writ, as it was said, was not at the common law 23 .
To which it was answered by the Chief Baron, that if the statute (without custom) shall not
extend to copyholds, without question the custom of the manor cannot make it extend to
them 24 : for before the statute, all estates of 25 inheritance, as Littleton saith, lib. i. cap. 2., were
fee-simple 26 , and after the statute no custom can begin, because the statute being made in 13
E. 1. is made within time of memory 27 ;ergo the estate tail cannot be created by custom; and
therefore, Littleton is to be intended (inasmuch as he grounds his opinion upon the custom,
that copyholds may be granted in fee-simple, or fee-tail) of a fee-simple conditional at the
common law: for Littleton well knew, that no custom [9 a] could commence after the statute of
West. 2., as appears in his own book, lib. 2. c. 10. and 34 H. 6. 36. And where he saith,
that formedon in 28descender lies, he also saith, that it lies at the common law. And it appears in
our books, that, in special cases29 , a formedon in the descender lay at the common law, before
the statute of Westm. 2., which see 4 E. 2. Formedon 50. 30 . 10 E. 2. Formedon 55. 21 E. 3. 47.
Plowd. Com. 246. b. &c.
And where it was further objected, that the statute of West. 2. cannot without custom make an
estate tail of copyholds, because without custom, such estate cannot be granted by copy; for it
was said, if estates had been always granted to one and his heirs by copy, that a grant to one
and the heirs of his body, is another estate not warranted by the custom: so that in such
manors, where such estates of inheritance have been allowed by custom, the statute doth
extend to them, and makes them, which before were fee conditional, now by the statute
estates in tail, and that the statute cannot, as hath been agreed before, alter the custom, or
create a new estate not warranted by the custom.
To that it was answered by the Chief Baron, that where the custom of the manor is to grant
lands by copy in feodo simplici (as the usual pleading is) without question, by the same custom
lands may be 31 granted to one and the heirs of his body 32 , or *642 upon any other limitation
or condition; for these are estates in fee-simple, et eo potius , that they are not so large and
ample as the general and absolute fee-simple is, and therefore the generality of the custom
doth include them, but not e converso; ad quod non fuit responsum. But it was agreed by the
whole Court, that another Act made at the same Parliament, cap. 18. which gave
theelegit 33 doth not extend to copyholds, for that would be prejudicial to the lord, and against
the custom of the manor, that a stranger should have interest in the land held of him by copy,
where by the custom it cannot be transferred to any without a surrender made to him, and by
the lord allowed and admitted 34 . But it was agreed by them, that other statutes made at the
same Parliament, which are beneficial for the copyholder, and not prejudicial to the lord, may
be, by a favourable interpretation, extended to copyholds, as cap. 3. which gives the wife
a cui 35 in vita , and receipt, and cap. 4. which gives the particular tenant a quod ei
deforceat;and therewith agrees 10 E. 4. 2. b. 36 .

393
And in this case it was also resolved, that although it was not found 37 that the said rents were
the usual rents, accustomed to be reserved within 20 years before the Parliament; yet
inasmuch as they have found, that the accustomable rent was reserved, and a custom goes at
all times before, for this cause it shall be intended, that it was the accustomable rent within the
twenty years, and so it should be intended, *643 if the contrary be not shewed of the other
side 38 . And judgment was entered for the Queen.
Coke

1. As to an information of intrusion, see ante i. p. 16 a. ( A ). ( ED. )

2. 31 H. 8. c. 13.
3. Moor. 128. Sav. 66. 6 Co. 37 b. Cro. Car. 45. 83. [Vin. Abr. Statutes E. 6. pl. 137. Bac. Abr.
Statutes, I. 4. vi. 333.]
4. Penal statutes are in general to be construed strictly, and are not to be enlarged by parity of
reason, nor extended by equitable construction, but even in penal laws, the intention of the
Legislature is the best method to construe the law, The King v. Gage , 8 Mod. 65; and equity will
aid remedial laws though penal, not by making them more penal, but so as to let them have
their course. Per Wright, Lord Keeper, Attorney General v. Sadell , Prec. Ch. 215. As to the
construing statutes by equity in general, see 1 Inst. 24 b. 54 b. i. 29. Plowd. 9, 10. 17, 18. 36. 46.
53. 57. 59. 82. 88. 109. 124. 177. 204. 244. 363. 364. 366. 371. 464. 466. Hatt. Treat. on Stat.
Ash. Exposit. of Stat. by Eq. Vin. Abr. Statutes E. 6. Com. Dig. Parliament R. 10. Bac. Abr.
Statutes I. 6. With respect to the different kinds of statutes, see 1 Inst. 98 b. i. 25-27. and a.
(16.) (N.) ib. 2 Eun. 80. 1. Bl. Com. 85. ( ED. )
5. Poph. 74.
6. 2 Rol. Rep. 99.
7. Hard. 27. 2 Rol Rep. 314. Cro. Car. 83. 533. Co. Lit. 381 b. 1 Co. 123 a. 11 Co. 73 b. 2 Siderf.
41. 2 Bulst. 187. Hob. 97. 1 Rol. Rep. 162. 166. Cro. Argument 40. [2 Wils. 193. 6 T. R. 385. Bac.
Abr. Statute I. 6. 8, 9. vi. 387. 389, 390.]
8. Co. Lit. 44 a. 31 H. 8. c. 13. 3 Bulstr. 152. Moor 60. 1 Leon. 333. [Com. Dig. Copyhold N. Vin.
Abr. Estate, R. a. 9. pl. 7. Bac. Abr. Leases, &c. E. 2. iv. 73.]
9. Cro. Car. 41. 43, 44. Moor 128. Godb. 369. O. Benl. 163. 3 Bulst. 152. Hard. 433. Cawly 106. [2
Cowp. 707. 6 East, 480. 1 Bro. C. C. 24. Watk. Gilb. Ten. 164. Com. Dig. Copyhold N. O. Bac. Abr.
Copyhold B. i. 709, 710.]
10. Moor 128. Cro. Car. 42, 43. O. Benl. 163. 1 Rol. Rep. 48. [2 Cowp. 707. 1 Bro. C. C. 24. Watk.
Gilb. Ten. 164.]
11. As to what statutes extend to copyholds, see post p. 23. n. ( P ). ( ED. )
12. See 1 Wils. 27. 2 Wils. 400. Moor 188, 189. Sav. 67. Cro. Eliz. 391. 307. 149. 1 Leon. 175.
Poph. 34. 128. 2 Saund. 422. Hard. 433. 1 Rol. 838. Lit. sect. 76. 9 Co. 105 a. Co. Lit. 60 a. b. 4
Co. 22 a. [2 Bl. Com. 113. 3 Wood. 506. 1 Prest. Conv. 153. Com. Dig. Copyhold C. 8. N. Bac. Abr.
Copyhold C. 1.]
13. Cr. Car. 43, 44. [Co. Lit. 23 a. 143 a.]
14. Before the Statutes Quia Emptores Terrarum, if tenant in fee simple made a feoffment in
fee without any reservation of services, the feoffee held by the same services by which the

394
feoffor held over, because the services being an incumbrance upon the land, which the tenant
could not discharge without his lord's consent, must follow the land into whose hands soever it
comes; but that statute only extended to cases where the fee simple was transferred; and
when, after the Statute de Donis, the feudal right of reverter was turned into a reversion, the
law obliged the donee to do the same services to the donor which he was bound to do to his
superior lord, because this was an estate of inheritance which possibly might have continued
for ever, 1 Inst. 43. a. 143. a. i. 445. 527. This construction was not extended to leases for lives
or years; for if the lessor made no reservation, the law implied none except fealty, which is due
from every tenant having any determinate interest. Ib. ( ED. )
15. Lit. sect. 77. 2 Co. 17 a. 6 Co. 37 b. Co. Lit. 60 b. Cro. Car. 45. 4 Co. 21 a. Hetl. 6. 9 Co. 105 a.
[Vin. Abr. Copyhold (A) pl. 4.]
16. But as Lord Coke elsewhere observes, this was not Littleton's own opinion, but his opinion
was rather to the contrary, 1 Inst. 60. b. i. 65-67.; and it has been long settled, that, though a
copyholder has an estate at the will of the lord, yet it is according to the custom of the manor;
and if he be ousted contrary to the custom, he shall not only sue by petition to the lord, but
may have trespass against him. Ibid. ( ED.)
17. Moor 189. Sav. 67. Cro. El. 149. 307. 391. 1 Leon. 175. Poph. 34. 128. 2 Saund. 422. Hard.
433 a. 9 Co. 105 a. 1 Rol. 838. Co. Lit. 60 a. b. 1 Rol. Rep. 48. 4 Co. 22 a. Moor. 188. [Watk. Gilb.
Ten. 166, 7.]
18. Acc. Rowden v. Malster , Cro. Car. 45. 5 Cru. Dig. 214.; as to the mode of barring entails of
copyholds, infra n. ( N ). ( ED. )
19. Cro. Car. 43. 45. Godb. 368. O. Benl. 165. Poph. 35. Cro. Eliz. 391. Cart. 238. Cro. Car. 45. [1
Wils. 26. Watk. Gilb. Ten. 166, 7.]
20. This point has been the subject of much controversy, see Gilb. Ten. 165. 418 1 Watk. Coph.
155. Vin. Abr. Coph. (F. e); 1 Cru. Dig. 2 edit. 364. Bac. Abr. Copyhold C.; but it has been long
settled agreeably to the decision in this case and in Rowden v. Malster , Cro. Cha. 42. that the
Statute De Donis does not extend to copyholds without a special custom, but that where there
has been a custom of entailing copyholds, the statute co-operating with the custom, will give to
such an estate all the qualities of an estate tail, Roe d. Crow v. Baldwere , 5 T. R. 111. As to what
will amount to a proof that a copyhold has been entailed, see infra , 1 Inst. 60. b. i. 671. Where
copyholds are intailable, and the custom has not prescribed any particular mode of barring, the
intail may be barred, 1st. By forfeiture and regrant, as where the custom is either for the tenant
in tail to commit a forfeiture of the copyhold, and the lord to seize, and after making three
proclamations, to regrant it to the old tenant, or to another person; or the tenant in tail, to
make a surrender to a purchaser in fee, and then for the purchaser to commit a forfeiture, and
the lord to seize, &c. see Pilkington v. Stanhope , Sid. 314. Sty. 452. Grantham v. Coply , 2
Saund. 422. and n. (1) ib.; 2nd, By a recovery in the manor court, which, it seems, from several
authorities, may be suffered without a particular custom to warrant it, seeBrowne's case, post ,
10 Co. 23. a. Dell v. Higden , Moor. 358. Oldcat v. Level, id. 753. Gilb. Ten. 176. Cart. Rep.
23. Carr v. Singer , 2 Ves. 604.; or 3rd, By a surrender, though only to the use of a will, 2 Vez.
596. 2 Stra. 1197. 2 Burr. 979. 3 P. Wms. 10. Watk. Copyhold. 162. A custom to bar the entail by
surrender may be concurrent with a custom to bar by recovery, Everall v. Smalley , 1 Wils. 26. 2
Stra. 1197. Roe d. Bennett v. Jeffery , 2 Maul. and S. 92. As to equitable entails of copyholds, see
n. ( N ) infra. ( ED. )

395
21. 1 Rol. 838. Co. Lit. 60 b. [1 Wils. 27. 3 Wood, 506. 2 Bl. Com. 143. Watk. Gilb. Ten. 166. 170.
1 Fonbl. Tr. Eq. 300 n. 1 Cru. Dig. 304. 1 Prest. Conv. 111. Com. Dig. Copyhold C. 8. Bac. Abr.
Copyhold C. i. 170.]
22. Lit. sect. 77. Co. Lit. 60 b. Rep. Q. A. 98. 160. Skin. 269, 297.
23. See infra n. ( M ) ib.
24. But see the remarks of Gilb. Ten. 166. upon this opinion of my Lord Ch. Baron. See also the
books cited in the last note but one. ( ED. )
25. Co. Lit. 19 a. Cro. Car. 45. Poph. 34. 1 Co. 103 b. 6 Co. 40 a.
26. But this position that all estates of inheritance were, before the Statute De Donis, either in
fee absolute or conditional, has been questioned by several distinguished writers, see Wright
Ten. 189. Watk. Gilb. Ten. 424. 1 Inst. 19 a. i. 508. (A 1). ( ED. )
27. See 1 Inst. 113 a. 115 b. i. 35, 36. and n. (S). ib. 2 Bl. Com. 31. ( ED. )
28. Co. Lit. 60 b. 280 b. 19 a. Lit. sect. 481. F. N. B. 217. D. Poph. 34. [Vin. Abr. Formedon B. pl.
1.]
29. That where the heir could not have an assise of mort d'ancestor , he might, according to his
special case, have a formedon in descender at common law, but then he was to recover a fee-
simple. Per Bendlow, Plowd. 239 b. 1 Inst. 60 b. i. 671. For the nature and different kinds
offormedon , see 1 Inst. 326. b. iii. 214. and n. (N) ib. 2 Inst. 336. Plowd. 240. Booth, 139, 140. 3
Bl. Com. 192. Bac. Abr. Formedon, (A). Vin. Abr. Formedon. Com. Dig. Pleader, 3 E. 1, &c. ( ED. )
30. O. Benl. 165. 1 Rol. Rep. 4. Co. Lit. 60 b.
31. Godb. 20. Poph. 35. 1 Leon. 56. Cro. Eliz. 323. 373. 4 Leon. 64. 1 Rol. 511. 4 Co. 23 a. Co. Lit.
52 b. [1 Prest. Est. 2nd edit. 487.]
32. Where the custom of a manor does not admit of an entail of a copyhold, a surrender to the
use of a person and the heirs of his body, gives him a conditional fee; and in that case a
surrender after issue had, will bar the estate, Hanton v. Barnes , Co. Suppl. s.
12. Pullen v. Middleton , 9 Mod. 483. But all copyholds may be entailed in effect, either by
custom at law, or in equity without it; thus, if a surrender be made to a person and his heirs,
and a trust be declared of such estate to another and the heirs of his body, a Court of Equity
will see it observed; for the custom only binds the tenancy, and has nothing to do with the
trust, 2 Ves. 304. 633. 1 Stra. 454. 2 Bl. Com. 357. And such equitable entail may be barred in
the same mode as if it were a legal entail, see 9 Mod. 484. 5 Cru. Dig. 611. And if the tenant in
tail of the trust of a copyhold accepts a surrender of the legal estate from the trustees, it will
bar the entail and remainder over, Grayme v. Grayme , 1 Watk. Copyh. 2nd edit. 277. But an
equitable entail of a copyhold is not barred by a devise without a surrender, Rose v. Lowe , 1 H.
Bl. 461. ( ED. )
33. 1 Rol. 888. Cro. Car. 44. Hard. 433. O. Benl. 163. Sav. 67. [2 Cowp. 709. 4 Bart. Prec. 209. n.
Vin. Abr. Copyhold O. 2. pl. 4. Com. Dig. Copyhold N. Bac. Abr. Copyhold C. 2. i. 712. Execution
C. 2. ii. 713.]
34. S. P. Co. Copyh. 149. Gilb. Ten. 185. 3 Read. Stat. Law. 123. 2 Inst. 396. Vin. Abr. Copyholds
(O. d.) pl. 4. Bac. Abr. Copyhold (C. 2). Com. Dig. Copyhold N.; and see the books cited acc. in n.
( d ). sup. ( ED. )
35. Cro. Car. 43. 2 Inst. 343. Sav. 67. 4 Co. 23 a. [Vin. Abr. Copyhold O. 2. pl. 2, 3. 46. Com. Dig.
Copyhold N. O.]

396
36. In conformity to the principles laid down in this case, it is held, that the statute 4 H. 7. of
Fines, as to their being a bar after five years' non-claim, the Statutes of Limitations, the Statutes
of Bankruptcy, the Statutes of Mortmain, the statutes 7 Ann. relative to conveyances by infant
trustees, the 4th section of the Statute of Frauds, 29 Cha. 2. c. 3. concerning the sale of lands,
and the 7th section which requires declarations of trusts to be in writing, and many other
statutes, extend to copyholds; but they are not within the statute 11 H. 7. respecting
alienations by a wife of the lands of her husband, the Statute of Uses and Jointures, the Statute
of Wills, the statute 32 H. 8. as to discontinuances by the husband of the wife's lands, the
statute respecting partitions (1 Inst. 187 a. (2). i. 753. (83). Burrell v. Dodd , 3 Bos. & P. 378.),
the statute 13 Eliz. for making accountants' lands liable to the debts of the Crown, the statutes
29 Cha. 2. c. 3. s. 12. and 14 Geo. 2. c. 20. s. 9. relating to occupancy (see 1 Inst. i. 626.
(16). Zouch d. Forse v. Forse , 7 East. 186), nor those sections of the Statute of Frauds which
relate to devises of lands; and they are excepted out of the Register Acts, 2 & 3 Ann. c. 4. 6 Ann.
c. 35. 7 Ann. c. 20. 8 Geo. 2. c. 6. See further as to what statutes extend to copyholds, Vin. Abr.
Copyhold, O. d. Bac. Abr. Copyhold C. Com. Dig. Copyhold N. O. ( ED. )
37. 4 Co. 65 b. Hob. 55. 262. 1 Leon. 333. 2 Rol. 700. 9 Co. 74 a. Cro. Jac. 413. Post 42 b. [Watk.
Gilb. Ten. 184, 5.]
38. S. P. Com. Dig. Pleader, S. 31. As to what shall be a sufficient finding by verdict, and when it
may be aided by intendment or special conclusion, see Com. Dig. Pleader, S. 26. to S. 43. and
the books cited ante , i. p. 4 a. n. ( R ). ( ED. )

397
 The London Tramways Company, Limited Appellants; v The London
County Council Respondents.
House of Lords
25 April 1898
[1898] A.C. 375

Earl of Halsbury L.C., Lord Macnaghten , Lord Morris, and Lord James of Hereford
1898 April 25.
House of Lords' Decision—Res Judicata—Tramways, Compulsory Purchase of—Tramways Act
1870 c. 78 s. 43.
A decision of the House of Lords upon a question of law conclusive and binds the House in
subsequent cases. An erroneous decision can be set right only by an Act of Parliament.
THE London County Council having required the London Street Company, Limited, to sell to them
certain portions of their tramways under the Tramways Act 1870, the company claimed to be
paid for their tramway undertaking not the mere cost of construction less depreciation but the
value as a going and profit-earning concern, and tendered before Sir F. Bramwell, the referee
appointed by the Board of Trade, evidence shewing that at the time of the notice to sell there
were present or existing profits of the company. Sir F. Bramwell rejected the evidence and made
his award for 22,872l. on the basis that the Act did not allow him to adopt a method of valuation
based upon profits.
The company having applied to the Queen's Bench Division to set aside the award or remit it to
the referee for further consideration, the application was refused and this decision was affirmed
by the Court of Appeal, following Edinburgh Street Tramways Co. v. Lord Provost, &c., of
Edinburgh and London Street Tramways Co. v. London County Council 1, heard together in 1894.
The company brought the present appeal. The only question argued was as to the power of the
House to reconsider previous decisions of its own and, if it thought the decisions wrong, to
overrule or depart from them in subsequent cases. The facts of the present case were not
discussed or *376 even stated in argument and no distinction between this and the former cases
was relied on.
Sir R. T. Reid Q.C. and Seward Brice Q.C. ( J. R. Paget with them) for the appellants. This is in
substance a petition to reconsider and overrule the decisions of this House in the Edinburgh
Street Tramways and the London Street Tramways cases 2 upon the construction of s. 43 of the
Tramways Act, 1870. There are certain differences, between the present facts and the facts in
those cases, which are set out in the appellants' case, but they are comparatively unimportant.
The question is the same and arises upon the construction of the same statute. It is therefore
desired to argue as a preliminary point the general question whether the House is bound by its
own decision on a point of law in a previous case, and if that is determined in the appellants'
favour, then to argue that the above decisions in 1894 were erroneous, for reasons which were
not presented to the House in those cases. Upon the general question there is a conflict of
authority. In Perry v. Whitehead 3 Lord Eldon said: “A rule of law laid down by the House of Lords
cannot be reversed by the Chancellor …. The rule of law must remain, till altered by the House of
Lords,” plainly implying that the House had the power; and see Stewart v. Agnew 4, where the
House amended its judgment as to a point on which no decision had been given by the Court of
Session, and on which no argument had, through misapprehension, been stated in the House by
the party against whom the judgment had been pronounced.
But in Fletcher v. Lord Sondes 5 Lord Eldon used expressions to the contrary effect. In Bright v.
Hutton 6 Lord St. Leonards stated his opinion that “although you are bound by your own
decisions as much as any Court would be bound, so that you could not reverse your own decision
in a particular case, yet you are not bound by a rule of law which you may lay down, if upon a
subsequent occasion you should find reason *377 to differ from that rule; that is, this House,
like every court of justice, possesses an inherent power to correct an error into which it may
have fallen.” Lord Campbell said: “According to the impression upon my mind, a decision of this
High Court, in point of law, is conclusive upon the House itself, as well as upon all inferior
tribunals. I consider it the constitutional mode in which the law is declared, and that after such a

398
judgment has been pronounced, it can only be altered by an Act of the Legislature,” with more to
the same effect. In Tommey v. White 7 it was held that the House could not rehear a case and
correct an error without an Act of Parliament, but that does not touch the present point, which is
whether it can in a subsequent case overrule or depart from its prior decision. In Wilson v.
Wilson 8 Lord St. Leonards drew this distinction and adhered to his former opinion as to applying
the law in subsequent cases. And Lord Brougham said it “is a quæstio vexata, how far we may or
may not disregard any one of our own judgments, when applied to another cause.” In Scott v.
Maxwell 9 Lord St. Leonards quoted Lord Loughborough as agreeing that if the House went wrong
in point of law, though it could not reverse its decision, yet it was not bound to persevere in
error.
[EARL OF HALSBURY L.C.: Lord Campbell in his life of Lord Brougham, Lives of the Lord
Chancellors, vol. viii. pp. 400–402, refers to a mistake made by Lord Wynford on pronouncing a
judgment of the House, and a bill brought in by Lord Brougham to reverse the judgment and
afterwards withdrawn.]
In Attorney-General v. Dean and Canons of Windsor 10 Lord Campbell adhered to his former
opinion as to the general rule, and Lord Kingsdown doubted, or at all events reserved his
judgment. In Beamish v. Beamish 11 Lord Campbell, though disapproving of the decision in Reg.
v. Millis 12 (where the Lords were equally divided and the judgment was only
pronounced *378 upon the technical rule of the House that where the numbers are equal
semper præsumitur pro negante), held that the House was bound by the decision. Lords
Cranworth, Wensleydale and Chelmsford concurred. In Mersey Docks Trustees v. Gibbs 13 Lord
Wensleydale took the same view, and in Houldsworth v. City of Glasgow Bank 14 Lord Blackburn
expressed the same opinion. In Ridsdale v. Clifton 15 Lord Cairns in delivering the decision of the
Privy Council discussed the question of the decisions of final courts of appeal—not only the Privy
Council but all courts of appeal—being conclusive in subsequent cases against third parties. And
he came to the conclusion that if their Lordships should dissent from a previous decision of the
Privy Council they were at liberty to decide upon their own view of the law. This view was
concurred in by Lord Watson in delivering the decision of the Privy Council in Tooth v.
Power. 16 No doubt the decision of the Privy Council is the advice of a Board to the Sovereign,
while the decision of this House is a judgment, but the principle which must guide both tribunals
is the same, and the House, like every other tribunal, sits as the delegate of the Sovereign. The
authorities above cited—though there is no actual decision—shew that this House can on a point
of law disregard and depart from its own decision if erroneous. The interpretation of a statute is
an a fortiori instance, for the statute may be conceived as repealing by anticipation an erroneous
construction. It is manifest that the House might reverse its own decision if given in ignorance or
forgetfulness of a statute having been enacted or repealed.
[They also referred to Caledonian Ry. Co. v. Walker's Trustees 17, per Lord Selborne; Hadfield's
Case 18, per Bovill C.J., Brett and Grove JJ.; Lord Advocate v. Young 19; Lindley on Companies,
5th ed. p. 764.]
Freeman Q.C. and Hon. Alfred Lyttelton for the respondents were not heard.
*379
EARL OF HALSBURY L.C.
My Lords, I think your Lordships are very much indebted to Sir Robert Reid and his learned
junior for the candour with which this question has been raised. It would undoubtedly have been
extremely inconvenient if, after hearing the case argued for a considerable time, the fact had
been pointed out to us that there was a decision of this House which was conclusive upon the
point. By the candour of the learned counsel who very properly raised the question in the first
instance, it has now been admitted that there is upon this very question a decision of this House.
My Lords, for my own part I am prepared to say that I adhere in terms to what has been said by
Lord Campbell and assented to by Lord Wensleydale, Lord Cranworth, Lord Chelmsford and
others, that a decision of this House once given upon a point of law is conclusive upon this House
afterwards, and that it is impossible to raise that question again as if it was res integra and could
be reargued, and so the House be asked to reverse its own decision. That is a principle which has
been, I believe, without any real decision to the contrary, established now for some centuries,
and I am therefore of opinion that in this case it is not competent for us to rehear and for
counsel to reargue a question which has been recently decided.

399
 My Lords, the only trace of authority for the proposition submitted to us by the learned counsel is
that of Lord St. Leonards, and I give full effect to the argument of the learned counsel when I
say that no doubt Lord St. Leonards did in the most unqualified manner lay down the proposition
for which he contends. Whether that noble and learned Lord was altogether satisfied with his
own reasoning I am not prepared to say. When I find the proposition coupled with such
qualifications and such a preamble as Lord St. Leonards has introduced in his judgment, I
entertain some doubt whether the noble and learned Lord was perfectly satisfied in his own mind
as to the logic of his reasoning. Whether he was or was not, the main point is that this House
has on more than one occasion acted upon the principle to which I have referred.
My Lords, no more conspicuous case could arise, I think, *380 than what occurred in the case of
Beamish v. Beamish. 20 In that case some of the learned Lords were of opinion that Reg. v.
Millis 21 was wrongly decided, but nevertheless they acquiesced in that decision—that is to say,
they held themselves bound by that decision in the subsequent case of Beamish v. Beamish 22,
and treated that decision of your Lordships' House as conclusive upon the question then under
appeal.
My Lords, it is totally impossible, as it appears to me, to disregard the whole current of authority
upon this subject, and to suppose that what some people call an “extraordinary case,” an
“unusual case,” a case somewhat different from the common, in the opinion of each litigant in
turn, is sufficient to justify the rehearing and rearguing before the final Court of Appeal of a
question which has been already decided. Of course I do not deny that cases of individual
hardship may arise, and there may be a current of opinion in the profession that such and such a
judgment was erroneous; but what is that occasional interference with what is perhaps abstract
justice as compared with the inconvenience—the disastrous inconvenience—of having each
question subject to being reargued and the dealings of mankind rendered doubtful by reason of
different decisions, so that in truth and in fact there would be no real final Court of Appeal? My
Lords, “interest rei publicæ” that there should be “finis litium” at some time, and there could be
no “finis litium” if it were possible to suggest in each case that it might be reargued, because it is
“not an ordinary case,” whatever that may mean. Under these circumstances I am of opinion
that we ought not to allow this question to be reargued.
My Lords, I only wish to say one word in answer to a very ingenious argument which the learned
counsel set before your Lordships. It is said that this House might have omitted to notice an Act
of Parliament, or might have acted upon an Act of Parliament which was afterwards found to
have been repealed. It seems to me that the answer to that ingenious suggestion is a very
manifest one—namely, that that would be a case of a mistake of fact. If the House were under
the *381 impression that there was an Act when there was not such an Act as was suggested, of
course they would not be bound, when the fact was ascertained that there was not such an Act
or that the Act had been repealed, to proceed upon the hypothesis that the Act existed. They
would then have ascertained whether it existed or not as a matter of fact, and in a subsequent
case they would act upon the law as they then found it to be, although before they had been
under the impression, on the hypothesis I have put, either on the one hand that an Act of
Parliament did not exist, or on the other hand that an Act had not been repealed (either case
might be taken as an example) and acted accordingly. But what relation has that proposition to
the question whether the same question of law can be reargued on the ground that it was not
argued or not sufficiently argued, or that the decision of law upon the argument was wrong? It
has no application at all.
Under these circumstances it appears to me that your Lordships would do well to act upon that
which has been universally assumed in the profession, so far as I know, to be the principle,
namely, that a decision of this House upon a question of law is conclusive, and that nothing but
an Act of Parliament can set right that which is alleged to be wrong in a judgment of this House.
For these reasons, my Lords, I move your Lordships that this appeal be dismissed with costs.
LORDS MACNAGHTEN MORRIS, and JAMES OF HEREFORD concurred.
Representation

 Solicitors for appellants: Murray, Hutchins, Stirling & Murray.

 Solicitor for respondents: W. A. Blaxland.

400
 Order appealed from affirmed and appeal dismissed with costs. Lords' Journals, April 25, 1898.

1. [1894] A. C. 456, 489.

2. [1894] A. C. 456, 489.
3. (1801) 6 Ves. 544, 547, 548.
4. (1823) 1 Shaw App. 413.
5. (1827) 1 Bli. (N.S.) 144, 249.
6. (1852) 3 H. L. C. 341, 388, 391.
7. (1850) 3 H. L. C. 69.
8. (1854) 5 H. L. C. 57, 63.
9. (1854) 1 Macq. 791.
10. (1860) 8 H. L. C. 369, 381, 391, 459.
11. (1861) 9 H. L. C. 274, 338, 344, 349, 353.
12. (1844) 10 Cl. & F. 534.
13. (1866) L. R. 1 H. L. 93, 123, 125.
14. (1880) 5 App. Cas. 317, 335.
15. (1877) 2 P. D. 276, 306, 307.
16. [1891] A. C. 284, 292.
17. (1882) 7 App. Cas. 259.
18. (1873) L. R. 8 C. P. 306, 311, 313, 318.
19. (1898) 62 J. P. 199.
20. 9 H. L. C. 274, 338, 344, 349, 353.
21. 10 Cl. & F. 534.
22. 9 H. L. C. 274, 338, 344, 349, 353.

Peter Persaud, And Others v Pln Versailles & Schoon Ord, Ltd (1970) 17 WIR 107

COURT OF APPEAL OF GUYANA

BOLLERS C AG, CUMMINGS AND CRANE JJA

4, 9, 29 JUNE 1970
Club -- Membership -- Employees' club -- Indebtedness of members -- Deductions from
wages of members by employers towards indebtedness -- Authorised deductions -- Whether
deductions are illegal by virtue of Labour Ord -- Whether deductions should cease after
activities of club have ceased -- Labour Ord, Cap 104 [G], Part V -- Truck Acts 1831-1887
[UK].
Unjust enrichment -- Guarantee of employers to meet indebtedness of club -- Liability of
members to club -- Deductions by employers -- Declaration that deductions are illegal --
Whether employees are entitled to declaration that deductions are illegal.
Unjust enrichment -- Whether doctrine is applicable to laws of Guyana -- Civil Law of British
Guiana Ord, Cap 2 [G], s 3.

The appellants were employees of the respondent company, and members of a recreation
club, the formation of which was encouraged by the respondents for the benefit of their
employees. The respondents undertook to guarantee payment to suppliers for certain items
of goods including alcoholic beverages to
(1970) 17 WIR 107 at 108

401
the club, while members of the club were permitted to sign chits for purchases which they
might have made from the club. At the end of every month the amounts on these chits were
totalled, the totals supplied to the respondents who would deduct the amounts from the
wages of the employees concerned.

Following a dispute, it was decided that employees who were members of the club must
give written authorisations to have deductions made from their wages. The appellants duly
complied by giving such authorisations.

In November 1966, the club's premises were closed, and the respondents took control of
the books, and it was discovered that the three appellants were indebted to the club in
varying amounts. Deductions continued to be made thereafter, and the amounts so realised
were utilised to repay the suppliers towards the club's indebtedness.

The appellants claimed that in November 1966, and thereafter, the respondents could not
properly have made deductions, they not having been authorised to do so, and they claimed
a declaration that such deductions were wrongfully and illegally deducted, and contrary to
Parts IV and V of the Labour Ord, Cap 103 [G], and that even if such deductions were
authorised, they were unlawful as being contrary to the Labour Ordinance.
Held: (By BOLLERS C (Ag)) (i) that the deductions were not deductions contemplated by the
Labour Ord, Cap 103 [G], but were deductions made under a contract between employer
and employee, and were authorised by the appellants to be made;

(ii) that the deductions were not in the nature of advances to the employees in anticipation
of the regular period of payment of wages;

(iii) that a remedy should be provided for what has been called unjust enrichment, and that
such moneys which were deducted from the wages of the appellants were paid by the
respondents to the use of the appellants as members of the club to the extent of their
indebtedness;
(iv) obiter that the trial judge was right in refusing to make an order for declaration.
(By CUMMINGS JA) (i) that the deductions were unauthorised in that the authorisations were
revoked if not expressly then by implication in October 1966, and that therefore the
deductions were illegal;

(ii) that there was grave doubt as to whether the law of unjust enrichment is part of the law
of Guyana;

(iii) that an order for declaration should be made.

(By CRANE JA) (i) that the deductions were unauthorised, as it was not a case in which
money in the nature of a loan which the workman request of his employer is paid before
and in anticipation of the time his wages actually fall due;

(ii) that there is no impediment to the application of the doctrine of unjust enrichment, for
the jurisdiction of the High Court of Guyana is not fettered from itself developing and
expanding the common law with the aid of the principles of equity in fitting cases.

Appeal dismissed (Cummings JA, dissenting). Decision of the trial judge affirmed.
Cases referred to
Shipping Association of Georgetown v Ivan Bentinck (1969), 14 WIR 243

402
Kenyon v Darwen Cotton Manufacturing Company, Ltd (1936), 2 KB 193, (1936), 1 All ER
310, 105 LJKB 342, 154 LT 553, 52 TLR 294, 80 Sol Jo 147, CA, 24 Digest (Repl) 1103, 495
Williams v North's Navigation Collieries (1889), Ltd (1906), AC 136, 75 LJKB 334, 94 LT
447, 70 JP 217, 54 WR 485, 22 TLR 372,
(1970) 17 WIR 107 at 109

50 Sol Jo 343, HL, revsg (1904), 2 KB 44, CA, 24 Digest (Repl) 1101, 477
Pratt v Cook, Son & Coy (St Paul's), Ltd (1904), AC 437, (1940), 1 All ER 410, 109 LJKB
293, 162 LT 243, 104 JP 135, 56 TLR 363, 84 Sol Jo 167, 38 LGR 125, HL, 24 Digest (Repl)
1098, 452
Hewlett v Allen (1894), AC 383, 63 LJQB 608, 71 LT 94, 58 JP 700, 42 WR 670, 10 TLR 464,
38 Sol Jo 455, 6 R 175, HL, 24 Digest (Repl) 1100, 475
Re Morris, Ex parte Cooper (1884), 26 ChD 693, CA, 24 Digest (Repl) 1102, 484
Lane v Pratt (1843), 1 LTOS 623, 24 Digest (Repl) 1100, 467
Moses v MacFerlan (1760), 2 Burr 1005, 1 Wm Bl 219, 97 ER 676, 35 Digest (Repl) 167,
536
Reading v Attorney-General (1951), 1 All ER 617, (1951), AC 507, (1951), 1 TLR 480, 95
Sol Jo 155, HL, 34 Digest (Repl) 149, 1028
Fibrosa Spolka Akcyjna v Fairbain Lawson Combe Barbour, Ltd (1942), 2 All ER 122, (1943),
AC 32, 111 LJKB 433, 167 LT 101, 58 TLR 308, 86 Sol Jo 232, 233, HL, 39 Digest (Repl)
672, 1701
United Australia, Ltd v Barclays Bank, Ltd (1940), 4 All ER 20, (1941), AC 1, 109 LJKB 919,
164 LT 139, 57 TLR 13, 46 Com Cas 1, HL, 45 Digest (Repl) 317, 275
Lewis v Braser (Civil Appeal No 33 of 1965)
Chapman v Michaelson (1909), 1 Ch 238, 78 LJ Ch 272, 100 LT 109, 25 TLR 101, CA, 35
Digest (Repl) 240, 398
Gray v Spyre (1921), 2 Ch 549, 91 LJ Ch 98, 126 LT 238, revsd on other grounds (1922), 2
Ch 22, CA, 30 Digest (Repl) 173, 233
City of London v Horner (1914), 111 LT 512
Hanson v Radcliffe Urban District Council (1922), 2 Ch 490, 91 LJ Ch 829, 127 LT 509, 86 JP
144, 38 TLR 667, 66 Sol Jo 556, 20 LGR 541, CA, 30 Digest (Repl) 169, 203
Robins v National Trust Co, Ltd (1927), AC 515, (1927), All ERRep 78, 96 LJPC 84, 137 LT
1, 43 TLR 243, 71 Sol Jo 158, PC, 30 Digest (Repl) 222, 655
Harris v Toolsie Persaud (Civil Appeal No 67 of 1964)
Baylis v Bishop of London (1913), 1 Ch 127, (1911-1913), All ERRep 273, 82 LJ Ch 61, 107
LT 730, 29 TLR 59, 57 Sol Jo 96, CA, 35 Digest (Repl) 169, 550
Olds Discount Coy (TCC), Ltd v Dilasia (1964), LRBG 345
Brook's Wharf & Bull Wharf v Goodman Bros (1936), 3 All ER 696, (1937), 1 KB 534, 106
LJKB 437, 156 LT 4, 53 TLR 126, 80 Sol Jo 991, 42 Com Cas 99, CA, 39 Digest (Repl) 257,
94
Nokes v Doncaster Amalgamated Collieries, Ltd (1940), AC 1014, (1940), 3 All ER 549, 109
LJKB 865, 163 LT 343, 56 TLR 988, 85 Sol Jo 45, HL, 10 Digest (Repl) 1137, 7911

403
RB Policies at Lloyds v Butler (1949), 2 All ER 226, (1950), 1 KB 76, 65 TLR 436, 93 Sol Jo
553, 32 Digest (Repl) 405, 290
Appeal

Appeal from a judgment of a judge of the High Court of Guyana.

A Chase for appellants

J King for respondents
BOLLERS C Ag. Some time in 1958 the respondent company, in keeping with the modern
policy of enlightened management, encouraged the formation of a recreational club for its
employees of a certain category and made available to the club a building in which
recreation facilities were extended to its members.
(1970) 17 WIR 107 at 110
These facilities included a bar at which the members of the club obtained both alcoholic and
non-alcoholic drinks, cigarettes and food, etc. The club was known as the Versailles and
Schoon Ord Junior Staff Club (hereinafter called "the club"), and was duly registered under
the Clubs Registration Ord, Cap 321 [G], under that name, and the appellants who were
employees of the respondent company were all members of the club. In order to assist the
club further and to promote its successful operation, the respondent company signed as
guarantors to various firms which supplied goods and alcoholic beverages to the club
whereby they guaranteed a monthly credit account not exceeding a certain ceiling for the
club and in the case of one firm, ie, D'Aguiar Bros, Ltd, the club's account with that firm was
guaranteed by the respondent company, provided that the bills for goods supplied were to
be signed jointly by the president and secretary of the club.

The members of the club, as is usual in organisations of this nature, when they obtained
food and drink from the bar, signed a chit and at the end of the month the chits were
totalled and the amount attached to the member's name on a list. The system was that the
secretary of the club would convey to the accountant of the respondent company the
information as to the amount that each member who was an employee of the company
owed to the club, and the appropriate deduction would then be made from the employee's
wages before payment thereof. It, of course, sometimes happened that an employee would
run up a bill which might be considered exorbitant in relation to his wages or salary, in
which case, he would speak to the secretary of the club and request that the whole amount
be not removed from his wages or salary and that a lesser sum be deducted. The amounts
deducted would then be paid over to the treasurer of the club and the treasurer, in
conjunction with the president and secretary of the club, would make payments to the
supplier firms and bank the remaining funds. It happened on occasions that the secretary of
the club would submit a list of amounts to be deducted from the employee's wages or
salary, but in certain months no deductions would be made. The appellants, who were
employees of the company and members of the club, well knew of the system that was
practised for paying their bar accounts and gave full approval to it.

Some time in 1963, a decision was taken by the executive of the club at a general meeting
of members following some dispute over the deductions, that written authorisations
authorising the aforesaid deductions were to be taken from members of the club and signed
by them, and it was made known that no credit could be given to any member of the club
unless he had signed a written authorisation. The members of the club, and these included
the appellants, then signed written authorisations authorising their employers, the
management of the respondent company, to deduct on behalf of the club any amount owing

404
by them to the club. This practice continued right up to July 1966, when the management
continued to hand over the amounts deducted to the officials of the club.

In July 1966, these deductions from the wages or salaries of the members of the club
ceased for some reason or the other, and it appears that the club became indebted to the
firms to the extent of large amounts as the members abused the system of obtaining credit
when the whole amount of their bar bills taken in any one month was not deducted from
their wages or salaries. There is no clear evidence on the record that there was a dissolution
of this unincorporated members club, but it does appear that the club's premises were
closed down by the respondent company and management stepped in and took control of
the books of the club.

In November 1966, the indebtedness of the three appellants to the club was as follows:
(1970) 17 WIR 107 at 111
First-named appellant $491.75
Second-named appellant $32.25
Third-named appellant $262.44

and it is admitted that the first and second-named appellants were informed of their
indebtedness to the club and told by the personnel officer of the respondent company that
management proposed to make deductions from their salaries to the amount of $50 in the
case of the first-named appellant and $16 in the case of the second-named appellant, and
$20 in the case of the third-named appellant. These deductions continued every month after
November 1966, with the result that the indebtedness of the second and third-named
appellants were wiped off, and in April 1967, the indebtedness of the first-named appellant
was reduced to $170. Management then continued to use these amounts deducted every
month from the month of November 1966, to liquidate the debts of the club which the club
owed to certain suppliers. At the time of the trial of this action the firm of D'Aguiar Bros,
Ltd, was owed the sum of $1,275 and Russian Bear, Ltd, the sum of $640.80, and the
respondent company had the sum of $844.47 on hand from deductions for the payment of
the debts of the club.

In the action out of which this appeal arises, the three appellants, as plaintiffs, claimed that
in the month of November 1966, and at the end of every month after that date, they had
not given the respondent company any authority to make the aforesaid deductions from
their earnings and that those deductions were unlawful and caused them great hardship and
distress, and as a result they claimed in their prayer for relief declarations that the sum
deducted by the respondents in November 1966, and the months following were wrongfully
and illegally deducted and not in conformity with Parts IV and v of the Labour Ord, Cap 103
(hereinafter referred to as "the Ordinance"), and were not permissible under the Ordinance,
and that the respondents had no valid authority for making the said deductions. They also
claimed an order that the sums deducted be forthwith refunded and an injunction
restraining the respondents from making deductions of like character from their earnings.

The respondents, as defendants, in their defence and counterclaim stated that the
deductions were made in respect of goods other than alcoholic drinks and alleged that the
plaintiffs had authorised them to make deductions from their earnings in respect of debts
due to the club and to advance these amounts to the club in anticipation of the regular
payment of the plaintiffs' wages. It was their further averment that they had guaranteed the
payment of the club's debts to its suppliers and they had paid such debts, and they claimed
such payments as moneys paid by them to the use of the plaintiffs as members of the said
club to the extent of their indebtedness as already stated. The respondents then claimed a

405
set-off of so much of the above amounts as was sufficient to satisfy the plaintiffs' claims and
counterclaimed against the plaintiffs for the respective balances.

The learned trial judge, after a review of the whole of the evidence in the case, found as a
fact that the appellants had by written authorisations signed by them, authorised the
management of the respondent company to make the deductions out of their wages at the
end of each month and to pay those sums over to the club and this had been done up to the
month of November 1966, when the club had become defunct, and after that date the
respondent company had used the amounts deducted to liquidate the debts of the club.
On this finding, the learned judge proceeded to hold that the Truck Acts, 1831-1887 [UK],
were anachronistic, and that the spirit of the local legislation, ie, the Labour Ord, Cap 103
[G], was quite different from that of the English Acts, and that the plaintiffs did not fall
within the category of employees as contemplated by ss 19 to 27 in Part V of the Ordinance,
and that in any event if they did fall within the category of employees as contemplated by
(1970) 17 WIR 107 at 112

the Ordinance, the deduction was a permitted deduction under s 24 of the Ordinance or,
alternatively, an advance of money in anticipation of wages under s 22 of the said
Ordinance. He therefore dismissed the claim brought by the appellants, and stated that he
would go even further and say that even if the deductions were not permissible on the
ground of being officious although authorised, he would be prepared to grant the
counterclaim and would do so on the basis that the plaintiffs could not reap the benefit of an
unjust enrichment.

The evidence was overwhelming that the appellants, as members of the club, had given
written authorisations to the management of the respondent company to make deductions
from their monthly wages or salaries in respect of their debts owed to the club for food and
drink taken by them from the bar, and I can see no reason to disturb the judge's finding in
this regard.
It is clear that the judge went wrong when he gave as his opinion that the local legislation
was not in keeping with the spirit of the English Truck Acts for, had he compared the
sections forming Part V of the Labour Ord, Cap 103 [G], with the English Truck Acts,
1831-1887, he would have seen that ss 1, 2, 3, and 4 of the English Truck Acts of
1831-1887 (which are to be construed as one Act) are in pari materia with s 19 (1), ss 20
and 19 (2), respectively, of Part V of Cap 103. Sections 22 and 24 of the local Ordinance are
the equivalent of ss 24 and 23 of the English Truck Act, 1831, and as was stated
by PERSAUD JA, in this court, in the case of the Shipping Association of Georgetown v Ivan
Bentinck ((1969), 14 WIR 243) "the relevant sections of the Labour Ordinance are not
dissimilar to the provisions which appear in the Truck Acts of the United Kingdom and
therefore the English decisions are instructive on the points raised in this appeal."
The main difference between ss 1 and 3 of the English Truck Act 1831, and s 19 (1) and (2)
of the Labour Ord, Cap 103 [G], is that in England the entire amount of wages earned by or
payable to a workman shall be actually paid to him in the current coin of the realm, whereas
the local legislation states that his wages shall be payable in money only and not otherwise.
Section 20 of the local Ordinance, which is s 4 of the Act of 1831 [UK], makes it clear that
every employee is entitled to recover from his employer the whole or so much of the wages
earned by him, exclusive of sums lawfully deducted as shall not have been actually paid to
him by his employer in money. Section 4 of the English Act of 1831 gives the same
entitlement to the workman in England, save and except the words "as shall not have been
actually paid to the workman by his employer in the current coin of the realm" are used.
The spirit of the local legislation then does follow the English Truck Acts where the intention
was to prohibit the payment of wages other than in cash and make it illegal to provide for

406
the deduction from wages of sums alleged to be due to the employer. These Acts were
introduced into England at a time when the education of the working classes was not what it
is today and employers were prone to pay their employees wages in goods and required
wages to be expended in goods bought from them at prices above their true value, and it
was to remove this mischief that these Acts were passed by Parliament. In the words
of SCOTT LJ, in Kenyon v Darwen Cotton Manufacturing Company, Ltd((1936), 2 KB 193,
(1936), 1 All ER 310, 105 LJKB 342, 154 LT 553, 52 TLR 294, 80 Sol Jo 147, CA, 24 Digest
(Repl) 1103, 495) ((1936), 1 All ER at p 319):

`…the statute was intended to be a charter of liberty to workmen which they could easily understand; … It
was for this reason important for Parliament to make it very plain--even to the point of repetition--the
workman's right to receive his whole remuneration in current coin of the realm…. The money must be paid
over so completely and finally that it then and there becomes the workman's very own, being received into
his possession subject to no sort or kind of undertaking however tacit that he is either to
(1970) 17 WIR 107 at 113

return any part of it or use it in a particular manner or lay it out for a particular purpose.'

In my view, the learned judge was also wrong in his conclusion that the appellants did not
fall within the category of employees within the contemplation of Part V of the Ordinance.
The learned judge, in arriving at this conclusion, considered ss 16 and 27 of the Ordinance,
apparently not knowing that these two sections had been repealed by the Labour
(Amendment) Ord, 1960 [G]. It is clear that ss 19 to 26, as contained in Part V of the
Ordinance, apply to any employee in respect of any contract for the hiring of any employee
or the performance of any employee of any labour, the wages of such employee being
payable in money only. The appellants, therefore, must fall within the category of
employees as contemplated by Part V of the Ordinance. In England, however, and I offer
my opinion for what it is worth, the appellants in this case would not fall within the category
of workmen contemplated by the Truck Acts, 1831-1887.
I turn now to consider what must be the main submission by counsel for the appellants, and
that is, that these deductions by management at the end of every month from the wages of
their employees were not lawful and permissible deductions under s 24 of the Ordinance,
even though they may have been authorised by the respective employees. In support of his
submission, counsel cited the cases of Williams and Others v North's Navigation
Collieries ((1906), AC 136, 75 LJKB 334, 94 LT 447, 70 JP 217, 54 WR 485, 22 TLR 372, 50
Sol Jo 343, HL, revsg (1904), 2 KB 44, CA, 24 Digest (Repl) 1101, 477); Kenyon v Darwen
Cotton Manufacturing Company, Ltd ((1936), 2 KB 193, (1936), 1 All ER 310, 105 LJKB
342, 154 LT 553, 52 TLR 294, 80 Sol Jo 147, CA, 24 Digest (Repl) 1103, 495); Pratt v Cook,
Son & Coy (St Paul's), Ltd ((1904), AC 437, (1940), 1 All ER 410, 109 LJKB 293, 162 LT
243, 104 JP 135, 56 TLR 363, 84 Sol Jo 167, 38 LGR 125, HL, 24 Digest (Repl) 1098, 452),
and pointed out that in those cases where the deductions were authorised by the
employees, they were not held to be lawful and permissible deductions within s 23 of the
Truck Act of 1831 [UK]. By s 23 of the Act of 1831, certain exceptions which apply to all
contracts of workmen were created, and it was there provided that the supply of medicine
or medical attendance and fuel to any workman or of tools to miners or of hay or provender
to any beast used by any workman, the supply of food on the employer's premises, or the
letting to him of any dwelling, shall not be an infringement of the statute, although such
supply is on account of wages or the cost thereof is deducted from wages, provided the
agreement or contract for such stoppage shall be in writing and signed by such artificer (or
workman), and also the deductions must not exceed the real value of the goods or services
supplied.
Section 24 of the Ordinance is the equivalent of s 23 of the Act of 1831 (save and except
that the contract to make the deduction or stoppage need not be in writing) and counsel's

407
strong argument is that if a deduction does not fall within the permissible deductions or
stoppages as set out in s 24, then the deduction or stoppage is not lawful and therefore null
and void. In reply, the submission of counsel for the respondent company is, that this was a
permissible deduction under s 24 (g) in that it was an advance in anticipation of wages and
also falls within s 22 of the Ordinance, and even if this were not so the alleged deduction
was something completely outside of the intendment of the Labour Ordinance. He relied
heavily onHewlett v Allen ((1894), AC 383, 63 LJQB 608, 71 LT 94, 58 JP 700, 42 WR 670,
10 TLR 464, 38 Sol Jo 455, 6 R 175, HL, 24 Digest (Repl) 1100, 475).
In Williams v North's Navigation Collieries, Ltd ((1906), AC 136, 75 LJKB 334, 94 LT 447, 70
JP 217, 54 WR 485, 22 TLR 372, 50 Sol Jo 343, HL, revsg (1904), 2 KB 44, CA, 24 Digest
(Repl) 1101, 477), it was held by the House of Lords that the employer cannot retain from
wages a sum in payment of a debt due to him by a workman, in that case a judgment of the
magistrate's of a sum as damages for breach of the workman's contract by wrongfully
leaving his employ. It was there laid down that the employer could not make any
deductions out of wages except those expressly permitted by ss 23 and 24 of the Act of
1831. LORD LOREBURN LC, in arriving at his final decision considered the true construction of s
3 of the Truck Act, 1831 (which is s 19 (2) of the local Ordinance), and found that in that
section there was an explicit enactment that the entire amount of the wages earned by or
payable to
(1970) 17 WIR 107 at 114
a workman shall be actually paid to him in the current coin of the realm and not otherwise.
He then stated that s 23 of the Act provided with elaborate care and under strict safeguards
the cases in which debts from the workman may be deducted from the wages due to the
workman when the employer is paying wages, and he considered that these provisions
would be wholly unnecessary if an employer were already authorised by s 3 to deduct
anything that the workman owed him and to pay in coin merely the balance. The learned
judge's final conclusion was that an obligation rested on the employer under s 3 of the Act
to pay in coin all the money payable as wages, and that in ascertaining how much is
payable as wages the employer can subtract nothing except the deduction is expressly
sanctioned by s 23. The deduction of ten shillings for fines was therefore illegal.LORD
ATKINSON, in considering s 3 of the Act, construed the words "or payable to any artificer" to
mean wages payable to a workman after deduction or stoppage authorised by s 23 and s 24
of the Act has in fact been made, in which case, the workman is only entitled to receive the
balance of his wages remaining due after such deduction. This judge's view was that the
whole principle on which this legislation is based is that the workman requires protection
and that if not protected he may be overreached. Of course, in Williams' case (Williams v
North's Navigation Collieries (1889), Ltd(1906), AC 136, 75 LJKB 334, 94 LT 447, 70 JP
217, 54 WR 485, 22 TLR 372, 50 Sol Jo 343, HL, revsg (1904), 2 KB 44, CA, 24 Digest
(Repl) 1101, 477) there was no suggestion of authorisation by the workman because it was
the last thing that the workman intended that his wages should meet the employer's claim
for damages.
In Kenyon v Darwen Cotton Manufacturing Co, Ltd ((1936), 2 KB 193, (1936), 1 All ER 310,
105 LJKB 342, 154 LT 553, 52 TLR 294, 80 Sol Jo 147, CA, 24 Digest (Repl) 1103, 495), the
company and its employees jointly devised a scheme to obtain fresh capital. The operatives
were to subscribe to shares to be paid from weekly instalments from their wages. The
plaintiffs signed a request for 100 shares and another document authorising the weekly
deduction. At first the practice was to hand each operative an envelope containing the
subscription due, and loose cash representing the balance of the wages. The envelope was
at once handed back to a clerk. Later the envelope was dropped and only the handed
balance was handed back to the operative with the receipt for the amount deducted. It was
held on appeal to the Court of Appeal that the plaintiff was entitled under the Act of 1831 to

408
recover the wages not paid in cash, notwithstanding her consent to the deduction. The
company's counterclaim for the price of the shares failed, for the two documents were
claimed to constitute one contract which was illegal, null and void. Both the earlier and later
arrangements were held to fall within the Act, and SCOTT LJ, in the course of his judgment
stated, "By whatever device or understanding and however indirectly this was brought
about, the inhibition of the statute attaches." This judge had this to say ((1936), 1 All ER at
p 321):

`I do not think that the device of putting part of the wages into one envelope, and another part equal to the
amount of the weekly subscription which the employee had undertaken to make in part payment of his
share, into a second envelope, makes any difference in law. It was, I think, a mere `understanding, device,
contrivance, collusion or arrangement' within the meaning of s 25 and was therefore forbidden by the
express prohibitions of ss 1 to 4 of the Act of 1831.'
SLESSER LJ, on the other hand, considered that though possibly the transaction
was not devised to avoid the Truck Acts, it was colourable in that the workman was under
an obligation immediately to part with the coins so that they never came in her hands as
payment for wages at all.
In Pratt v Cook (Pratt v Cook, Son & Coy (St Paul's), Ltd (1904), AC 437, (1940), 1 All ER
410, 109 LJKB 293, 162 LT 243, 104 JP 135, 56 TLR 363, 84 Sol Jo 167, 38 LGR 125, HL,
24 Digest (Repl) 1098, 452), a packer in a firm of wholesale drapers had been emplayed for
15 years on the oral terms that he was to be paid a wage of 53 shillings weekly and to be
provided with dinners and teas served on the employer's premises. These meals were
valued at 10 shillings weekly. In 1935, as a
(1970) 17 WIR 107 at 115
result of agitation the employers handed over part of their premises to enable the workmen
to set up their own canteen, which they did, and from that time Pratt received an additional
10 shillings weekly. He then brought an action claiming that the original payments in meals
was illegal, null and void under the Act of 1831 and that he was entitled to recover so much
of his wages as had not been paid him in current coin of the realm. The House of Lords held
that as there was no agreement in writing made by Pratt he was entitled to recover the
amount deducted. It was argued for the employers that the true construction of the section
was that an employer might pay and contract to pay wages in the goods and services
mentioned without any agreement in writing and without any check on value, whereas he
might only deduct the value of such goods and services if there were an agreement in
writing and, in some cases, adequate value. This argument, however, failed, the House of
Lords holding that s 23 was governed by s 1 and therefore, in the words of LORD ATKIN at p
415 of the report, "presupposes a wage payable wholly in cash, and authorises the supply,
or a contract for the supply, of other matters, and (if the workman has signed a written
contract authorising it) a deduction or stoppage from the wages in respect of what has been
supplied."
These three cases illustrate the principle as stated by BOWEN LJ, in the case of Hewlett v
Allen ((1894), AC 383, 63 LJQB 608, 71 LT 94, 58 JP 700, 42 WR 670, 10 TLR 464, 38 Sol
Jo 455, 6 R 175, HL, 24 Digest (Repl) 1100, 475) when that case was heard by the Court of
Appeal ((1892), 2 QB at p 662): "The statute insists (in all but excepted cases) on actual
payment in coin. Payment on account will not do. Payment in goods will not do. Nothing is
to discharge wages debt except actual payment in current coin." Therefore, it seems to me
that nothing can be deducted from the workman's wages, even if authorised by him, except
the deduction or stoppage is permissible under the Act where the proceeds of the deduction
find its way into the till of the employer, even though it may be for the benefit of the
workman.
In Hewlett v Allen ((1894), AC 383, 63 LJQB 608, 71 LT 94, 58 JP 700, 42 WR 670, 10 TLR
464, 38 Sol Jo 455, 6 R 175, HL, 24 Digest (Repl) 1100, 475), upon which strong reliance is

409
placed by counsel for the respondent company, a workman by the terms of her contract
agreed in writing to become a member of the firm's Sick and Accident Club under the rules
of which a weekly sum was payable which was in fact deducted by her employers from her
weekly wages. On the face of it, it would appear that this deduction was directly contrary to
the very clear wording of s 3 of the Act of 1831, namely: "The entire amount of the wages
earned by or payable to any artificer in respect of any labour by him done shall be actually
paid to such artificer in current coin of this realm and not otherwise."
The House of Lords, however, held that assuming, but not deciding, that the agreement fell
within s 2 of the Truck Act 1831, the payments made by the respondents on behalf of the
appellant were equivalent to payments made by the respondent to the appellant herself in
current coin within the meaning of the Act. LORD HERSCHELL, in the course of his judgment,
after considering ss 3 and 4 of the Act, pointed out that the contrast in those sections was
between payment in current coin of the realm and payment in some other fashion, and then
stated in clear terms ((5) (1891-94), All ERRep at p 1026):

`I can myself entertain no doubt that a payment made by an employer at the instance of a person
employed to discharge some obligation of the person employed, or to place the money in the hands of some
person in whose hands the person employed desires it to be placed, is in the sense and meaning of those
sections a payment to the person employed as much as if the current coin of the realm had been placed in
his or her hands. It is said that money paid in that way would not be a payment of the debt--that it could
not have been pleaded as payment; that the defence must have been one of set-off. Whether that be so or
not, in accordance with the system of pleading which previously prevailed, I do not think it at all necessary
to inquire. The distinction
(1970) 17 WIR 107 at 116

between payment and set-off was often a very fine one in the old days. But, however that may be, as a
matter of pleading, I cannot myself doubt that, looking at the purpose and object as well as the words of
this statute, a payment made in that fashion would be a payment in the current coin of the realm, and not
otherwise, within the meaning of the Truck Act. The case obviously would not be in the slightest degree
within the mischief against which that statute was directed.'
It is noteworthy that BOWEN LJ, in the Court of Appeal ((1892), 2 QB at p 266), had said
much the same thing--"that the payment will not be invalid simply because instead of being
made to the artificer himself it is made to anybody lawfully and bona fidely authorised to
receive it as his agent."
In the House of Lords, LORD SHAND in commenting that he was certainly not satisfied that
the contract in this case was one in violation of the provisions of the statute, pointed out
that the provisions of the statute sought to remedy the mischief of goods being given
instead of or in part-payment of wages to persons employed, and that the employers,
besides getting a benefit from the proper work done by their servants, were obtaining a
second benefit by the supply of goods in the sale of which they were interested, and there
was therefore a double benefit to them. The learned law lord then stated ((1891-94), All
ERRep at p 1031):

`You see from the provisions of the statute that the two things which are strongly brought out in many of its
various provisions and in the schedules attached to the Act, and which it was intended to prohibit are
payment in goods and an advantage thereby gained by the employers. In the present case neither of those
elements is present. The contract has nothing to do with goods and it cannot be suggested, indeed it has
not been suggested in the argument, that the employer was to obtain any benefit whatever.'
It should also be pointed out that LORD DAVEY in Williams v North's Navigation Collieries,
Ltd ((1906), AC 136, 75 LJKB 334, 94 LT 447, 70 JP 217, 54 WR 485, 22 TLR 372, 50 Sol Jo
343, HL, revsg (1904), 2 KB 44, CA, 24 Digest (Repl) 1101, 477), in the course of his
judgment treated Hewlett v Allen((1894), AC 383, 63 LJQB 608, 71 LT 94, 58 JP 700, 42
WR 670, 10 TLR 464, 38 Sol Jo 455, 6 R 175, HL, 24 Digest (Repl) 1100, 475) as authority
for the proposition that a workman may authorise payments to be made by his employer on
his behalf and that such payments will be deemed to be made to the employee. And LORD

410
ATKINSON, in the same case, referred to Hewlett v Allen ((1894), AC 383, 63 LJQB 608, 71
LT 94, 58 JP 700, 42 WR 670, 10 TLR 464, 38 Sol Jo 455, 6 R 175, HL, 24 Digest (Repl)
1100, 475) as the second class of cases where the so-called drawback or deductions were
justified on the ground that these sums in truth and in fact represented portions of the
wages earned, paid in current coin of the realm at the request of the workman to his duly
appointed agent. He made the point that payments were in effect made by the master out
of the wages by the authority of the workman for certain purposes not prohibited by the
Truck Act. The decision in Hewlett v Allen ((1894), AC 383, 63 LJQB 608, 71 LT 94, 58 JP
700, 42 WR 670, 10 TLR 464, 38 Sol Jo 455, 6 R 175, HL, 24 Digest (Repl) 1100, 475) was
no more than confirmation of the opinion expressed by the EARL OF
SELBOURNE and COTTON LJ, in Re Morris, Ex parte Cooper ((1884), 26 ChD 693, CA, 24 Digest
(Repl) 1102, 484), where those learned judges stated obiter that a deduction could be
made from wages and applied by the employers by the direction of the workman or in
pursuance of an arrangement made with them in discharge of a debt.
I have reached the conclusion, therefore, that the so-called deductions in the present case
were not deductions as contemplated by s 24 of the Ordinance, but as in Hewlett v
Allen ((1894), AC 383, 63 LJQB 608, 71 LT 94, 58 JP 700, 42 WR 670, 10 TLR 464, 38 Sol
Jo 455, 6 R 175, HL, 24 Digest (Repl) 1100, 475) were deductions made under a contract
between the employer and the employee which were not in violation of the provisions of the
statute but which were completely outside of it, and were in the nature of a standing order
addressed by the employee to his employer to pay a debt to a third party out of his wages
and were just as if his full wages had been paid directly to him. For, as pointed out
bySCOTT LJ, in Kenyon v Darwen Cotton Manufacturing Co, Ltd ((1936), 2 KB 193, (1936), 1
All ER 310, 105 LJKB 342, 154 LT 553, 52 TLR 294, 80 Sol Jo 147, CA, 24 Digest (Repl)
1103, 495), after a reference to the aforesaid cases, that it was repeatedly pointed out in
those cases that an employer is not
(1970) 17 WIR 107 at 117

entitled to retain a part of a workman's wages in payment of a debt to himself.

In the present case, the so-called deductions were not made by the employer in payment of
a debt to himself. The deductions were authorised by the employee to be made by the
employer in payment of a debt to a third party, ie, to the employee's creditor. (See Lane v
Pratt ((1843), 1 LTOS 623, 24 Digest (Repl) 1100, 467).) There is no question here of the
employer receiving any benefit after November 1966, when payments were made direct to
the suppliers as the guarantee had been gratuitously given by them. So, too, I consider that
counsel for the respondents was wrong in advancing the view which the learned trial judge
fell into error in accepting that these deductions were advances to the workman in
anticipation of the regular period of payment of his wages within the meaning of s 24 (g)
and s 22 (1) of the Ordinance. Surely, an advance takes place when, before the time is due
for the payment of wages, an employee requests his employer to grant him a portion of his
wages to meet an emergency before the time is due for the payment of his wages! This was
not the position in the present case where the request for the deductions was not to take
effect until the time for payment of wages had been reached.

I am also of the view that the submission of counsel for the appellants that this deduction
was contrary to the spirit of s 23 of the Ordinance which enacts that nothing contained in
this part of this Ordinance shall render illegal a contract with an employee for giving to him
drink, not being intoxicating, in addition to money wages as remuneration for his services.
Counsel's submission on this aspect of the matter is that as the drink which was supplied
was intoxicating liquor, this was not permitted by this section. The clear answer to this
submission must be that the respondent company were not under any contract with the
appellants to give them or to supply them with intoxicating liquor in addition to their wages.

411
The agreement was that they should deduct certain sums from the wages of the appellants
for the purpose of paying the debts of the appellants to the club for food, cigarettes, and
intoxicating drink which had been supplied to them by the club.

Counsel for the appellants next submitted that even if up to November 1966, these
deductions could lawfully have been made under the authority of the appellants, the
authority ceased when the first-and second-named appellants addressed letters to the
management, dated 3 December 1966, and 21 January 1967, in which they stated that they
had received salaries for the month of November 1966, and January 1967, respectively,
under protest and deductions of $16 and $10, respectively, had been made from their
salaries without their consent. Counsel argued that even if it is assumed that up to
November 1966, management had the requisite authority of the appellants to make the
deductions, after these letters were sent it is to be implied that the authority had been
brought to an end and any deductions made after that date would be illegal, null and void.

This argument does not find favour with me as the issue at the time those letters were
written was, consent or no consent. The employees, on the one hand, were saying that the
deductions were made without consent, whereas the employer was saying that such
deductions were made with consent and under the authority of the employees. There could
then be no question, to my mind, of any withdrawal of consent as that was not in issue and
nowhere in their letters do the appellants say that if they had given their consent they had
withdrawn such consent. It is noteworthy that in their evidence when they admitted they
were told by the officials of management that deductions would continue after November
1966, they did not say that they had informed management that they had never consented
or that they withdrew their consent. It seems to me, therefore, that the conduct of
management in this case was reasonable in considering that the authority to make the
deductions still continued, and the learned judge so found.
(1970) 17 WIR 107 at 118
One further point raised by counsel for the appellants which perhaps gives rise to more
difficulty is that in November 1966, the club became defunct and ceased to exist, and when
therefore the respondent company used the deductions to liquidate the debts of the club by
paying the suppliers directly, the deductions became illegal, null and void as the authority
was to pay the club and not the suppliers. The submission is, however, based on false
premises, for there is no clear evidence that this club ever became defunct or went out of
existence. For there to have been a dissolution of the club, the winding-up would have had
to have been done by order of the court or by a majority of members at a general meeting
under the rules, and there is no such evidence. (See HALSBURY'S LAWS OF ENGLAND (3rd Edn),
Vol V, at para 680.) There was, however, payment directly to the suppliers and not to the
club which was not authorised, and the learned trial judge in his judgment has expressed
the view that the appellants, however, cannot seek the return of deductions used by the
respondents to pay the suppliers as they cannot reap the benefit of an unjust enrichment.
It is clear that controversy exists amongst the judges in England as to whether the principle
of unjust benefit or unjust enrichment exists in the English law or not, and whether this
principle which was derived from the genius of LORD MANSFIELD, as set forth by him in the
case of Moses v Macferlan ((1760), 2 Burr 1005, 1 Wm Bl 219, 97 ER 676, 35 Digest (Repl)
167, 536), should find its place in English jurisprudence. But whether this is so or not, as I
said on another occasion, as this country has now achieved the status of complete
independence, we judges will no longer consider ourselves hidebound by English decisions,
but with mature judgment in appropriate cases will strike out on our own and mould the
common law to suit the needs of our ever-changing society.

412
In Reading v Attorney-General ((1951), 1 All ER 617, (1951), AC 507, (1951), 1 TLR 480,
95 Sol Jo 155, HL, 34 Digest (Repl) 149, 1028), cited by counsel for the appellants, LORD
PORTER thought that the exact status of the law of unjust enrichment was not yet assured
when he stated ((1951), AC at p 513):

`It holds a predominant place in the law of Scotland, and I think, of the United States, but I am content for
the purposes of this case to accept the view that it forms no part of the law of England and that a right to
restitution so described would be too widely stated.'
But LORD WRIGHT in the Fibrosa case (Fibrosa Spolka Akcyjna v Fairbain Lawson Combe
Barbour, Ltd (1942), 2 All ER 122, (1943), AC 32, 111 LJKB 433, 167 LT 101, 58 TLR 308,
86 Sol Jo 232, 233, HL, 39 Digest (Repl) 672, 1701), had, however, confessed his sympathy
with LORD MANSFIELD'Sjudgment when he stated ((1943), AC at p 61):

`It is clear that any civilised system of law is bound to provide remedies for cases of what has been called
unjust enrichment or unjust benefit, that is, to prevent a man from retaining the money of, or some benefit
derived from, another which it is against conscience that he should keep. Such remedies in English law are
generally different from remedies in contract or in tort, and are now recognised to fall within a third
category of the common law which has been called quasi-contract or restitution.'
The history of this vexed question shows that the principle of unjust enrichment was based
on the doctrine of quasi-contract where there was no contract but the law imputed by fiction
a promise to pay, and whereas the law of contract had been developed out of the old form
of action ofAssumpsit which was the normal remedy for a breach of contract, where there
was no question of a contract the lawyers looked for a form of action analogous to contract
and which would give a remedy where there was no agreement, and as the form known
as Indebitatus Assumpsit had an all-pervading odour of contract, the law of quasi-contract
developed out of this form of action. (See CHESHIRE AND FIFOOT (5th Edn), at p
529.)Indebitatus Assumpsit grew out of the debt and was the proper action where a
non-existent promise would be implied by law to
(1970) 17 WIR 107 at 119
remedy an unconscientious act. Thus, LORD ATKIN, in United Australia, Ltd v Barclay's Bank,
Ltd ((1940), 4 All ER 20, (1941), AC 1, 109 LJKB 919, 164 LT 139, 57 TLR 13, 46 Com Cas
1, HL, 45 Digest (Repl) 317, 275), while he found it necessary to admit that the action was
based upon a fictitious contract, characterised the fiction as obvious, fanciful, and
transparent, in the picturesque language in which this great judge and master of the
common law was accustomed to express himself, stated ((1940), 4 All ER at p 37):

`These fantastic resemblances of contracts, invented in order to meet requirements of the law as to forms
of action which have now disappeared, should not, in these days, be allowed to affect actual rights. When
these ghosts of the past stand in the path of justice, clanking their mediaeval chains, the proper course for
the judge is to pass through them undeterred.'
I, for one, having such great admiration for this learned judge, would be prepared to rally
under his banner and say that where immorality rears its ugly head we should not allow
these old forms of action which are dead to continue to rule us from their graves, but they
should be swept aside and, in the words of LORD WRIGHT, a remedy should be provided for
cases of what has been called unjust enrichment or unjust benefit, and where a person has
unjustly enriched himself by virtue of some arrangement with another whereby he has
obtained certain moneys or the use therefrom, the law should say that he ought not to be
allowed to keep the proceeds. Modern thought on the subject by Professor Winfield has
defined "genuine quasi contract" as "liability not exclusively referable to any other head of
the law, imposed on a particular person to pay money to another particular person on the
ground of unjust benefit", and this principle has already been recognised in this court
in Lewis v Fraser (12).

413
I concur in the judgment of the trial judge, therefore, when he granted the counterclaim of
the respondents, that such moneys which were deducted from the wages of the appellants
which were used by them to pay off the debts of the club were paid by the respondents to
the use of the appellants as members of the club to the extent of their indebtedness, and
that the respondents were entitled to claim a set-off in this action of so much of the
amounts as was sufficient to satisfy the appellants' claim.
I pause here to make the point that the Ordinance makes no mention of a right to a set-off
by the employer for goods supplied by the employer to the workman, but in s 5 of the Truck
Act of 1831 [UK], it is provided that in an action brought for wages by a workman, no
set-off shall be allowed for goods supplied by the employer or by any shop in which the
employer is interested. In s 5 of the Act of 1887, in an action brought for the recovery of
wages by the workman, the employer is not entitled to a set-off or counterclaim in respect
of any goods supplied to the workman by any person under any order or direction of the
employer or any agent of the employer. It is hardly necessary for me to say that even in
England these two sections would have no application to the present case as there is no
question here of goods being supplied by the employer or by any shop in which the
employer is interested, or being supplied by any person under order of the employer. It is to
be remembered in Kenyon v Darwen Cotton Manufacturing Co ((1936), 2 KB 193, (1936), 1
All ER 310, 105 LJKB 342, 154 LT 553, 52 TLR 294, 80 Sol Jo 147, CA, 24 Digest (Repl)
1103, 495), where there was a counterclaim for a set-off of the price of the shares
purchased by the workman, SCOTT LJ, held that the counterclaim was not admissible as the
cause of action upon which the counterclaim was based was the very agreement to take and
pay for shares, which was avoided by ss 1-4 interpreted in the light of s 25 of the Act of
1831 [UK], but the learned judge went on to distinguish the position from what it would
have been "if", in his own words, "a counterclaim had been based on some entirely separate
contract which fell wholly outside the statutory net thrown over the contract of hiring as
defined by s 25 of the Act of 1831 as
(1970) 17 WIR 107 at 120

for instance, a debt of the workman for a private loan from the employer." This latter
position, I submit, is the position in the present appeal.

There is yet another aspect of the matter that was not argued before us but which I
consider deserves attention, and that was that the appellants in their statement of claim
sought declarations to the effect that these deductions from their wages or salaries were
wrongful, illegal and not valid, and here again the controversy still rages as to whether a
declaration is an equitable remedy or not. If it is true that a declaration is an equitable
remedy the power of which to make declarations of right being originally inherent in the
Court of Chancery which administered the doctrines and principles of equity, then, in
accordance with the old maxim of equity, he who seeks a declaration must come to court
with clean hands.
The case of Chapman v Michaelson ((1909), 1 Ch 238, 78 LJ Ch 272, 100 LT 109, 25 TLR
101, CA, 35 Digest (Repl) 240, 398) seems to suggest, however, that a declaration of right
is no longer an equitable remedy, and in Gray v Spyre ((1921), 2 Ch 549, 91 LJ Ch 98, 126
LT 238, revsd on other grounds (1922), 2 Ch 22, CA, 30 Digest (Repl) 173,
233), YOUNGER LJ, was of the opinion that declarations were neither law nor equity nor a
pure statutory remedy, but should be regarded as sui generis.
The position, however, remains that the remedy of a declaration is discretionary, and it is
the opinion of ZAMIR, the author of "The Declaratory Judgment", at p 191, that the equitable
origin of a declaration of right has left its mark on the remedy in its discretionary nature
which discretion should be exercised primarily to do justice in the particular case before the

414
 court. It is wide enough, therefore, to allow the court to take into account virtually all
objections and defences possible in equitable proceedings. In City of London v
Horner ((1914), 111 LT 512), which was a declaratory action, proceedings were brought to
strike out certain paragraphs of the defence on the ground that they were embarrassing.
The Court of Appeal held that inequitable behaviour on the part of the plaintiff might be
raised in declaratory proceedings. It cannot, therefore, be said that in the present appeal
the learned trial judge was wrong in exercising his discretion in refusing to grant the
declarations when he stated, in effect, that the claim was based on immorality and he was
prepared to grant the counterclaim to the respondents on the basis that the appellants
could not reap the benefit of an unjust enrichment.

I would dismiss this appeal and affirm the order of the trial judge with costs to be taxed in
favour of the respondents in this court.
CUMMINGS JA. The appellants, who were the plaintiffs in the High Court, alleged in their
pleadings that the respondents had illegally and without authority deducted from their
wages certain sums of money for debts due to the Versailles and Schoon Ord Junior Staff
Club for refreshment purchased by them from time to time whilst at recreation in the club,
and accordingly claimed:

(1) A declaration that the sums deducted from their salaries by the defendants in
November 1966, were wrongfully and/or illegally deducted.

(2) A declaration that the said deductions were not made in conformity with Part IV of
the Labour Ord, Cap 103.

(3) A declaration that the said deductions are not permissible under Part IV of the Labour
Ord, Cap 103.

(4) A declaration that the defendants had no valid authority to make the said deductions.

(5) An order that the sums deducted be forthwith refunded to the plaintiffs.

(6) An injunction restraining the defendants from making deductions of like character
from the plaintiffs' salaries.

(7) Such further and other order as to the court seems just.

(8) Costs.
(1970) 17 WIR 107 at 121

These grounds at the outset appear to be numerous, but three important points upon which
they all turned, emerged and were argued in this court:

1. Were the appellants employees within the meaning of the Labour Ord, Cap 103 [G]?

2. Assuming that they were, were the deductions made from their earnings illegal?

3. Assuming that the deductions were illegal, ought the respondents to be ordered to
repay that money to appellants when the former had used it to the benefit of the appellants
to pay for food and drink the appellants had consumed?
[HIS HONOUR examined the pleadings and the evidence, and continued]:

415
The learned trial judge found as a fact that sometime in 1963 the appellants and other
members of the club who enjoyed credit facilities with the club for food and drink, had
authorised the respondents to deduct from their earnings and pay over to the club their club
debts from time to time.

I have carefully examined the evidence on which he based this finding and have reached the
conclusion that he had ample evidence upon which to do so. Consequently, I can see no
valid reason for disturbing it. However, I take the view that these authorisations were
revoked in October 1966, if not expressly, then by implication from the letters just quoted
above. I find, therefore, that the company was not authorised by the appellants to make the
deductions they made as from November.

In the course of his judgment the learned trial judge said:

`In conclusion, therefore, it is my opinion that the plaintiffs do not fall within the category of persons whom
the Ordinance was designed to benefit. Even if they did fall within that category, I am of the opinion that
they had duly authorised the defendant company to make deductions from their earnings for their
indebtedness to the club. These deductions, further, were legitimate and permissible in accordance with the
Ordinance and the judicial decision handed down from time to time in the process of interpreting the English
Acts.

`I find that the simple and basic principle followed in those decisions was that an employer is not entitled to
make any deduction from a workman's wages that would enure to his, the employer's benefit, even with the
consent of the workman.

`An employer, however, is fully entitled to make deductions from a workman's earnings, if duly authorised
so to do by the workman, where such deduction would enure totally to the benefit of the employee and in no
way to that of the employer.

`On my finding there was the necessary authorisation and, further, there was absolutely no benefit that
would have accrued to the defendant company in making the deductions.

`I am prepared to go even further and state that, even if the deductions were not permissible on the ground
of being officious although authorised, I should be prepared to grant the counterclaim. I should do so on the
basis that the plaintiffs cannot reap the benefit of unjust enrichment.

`With respect to the third-named plaintiff's claim, I find it unnecessary to make any pronouncement beyond
that of my findings with respect to that of the other plaintiffs. His claim must fail to the same degree of that
of the others. The claims of the plaintiffs as well as the reliefs sought thereunder are accordingly dismissed.

`The present matter is one of considerable significance to the rights of the individuals concerned, both
employers and employees. It is my view, therefore, that even though the defendant company as employers,
succeed they
(1970) 17 WIR 107 at 122

should receive only one half of their taxed costs, fit for counsel, to be paid in equal shares by all three
plaintiffs.

`I do not feel that the defendant company would begrudge the plaintiffs of their right to have this matter
judicially settled.'

The law applicable is to be found in Parts IV and V of the Labour Ord, Cap 103 [G], as
amended by s 3 of Ordinance No 8 of 1960 [G] and s 10 of Ord No 11 of 1960 [G],
hereinafter referred to as "The Ordinance".

It should at the outset be observed that s 16 which provided as follows:

`16. In this Part of this Ordinance, unless the context otherwise requires: `employee' does not include
domestic servant, shop assistant as defined in s 2 of the Shops Regulation Ordinance, clerk, outworker, any

416
railway worker in receipt of a salary of more than sixty dollars per mensem, a member of the employer's
family dwelling in his house or a person whose employment is of a casual nature but, save as aforesaid,
means any person who:

(a) being a labourer, servant in husbandry, journeyman, artificer, handicraftsman, porter,

warehouseman, dressmaker or milliner; or

(b) being employed in the manufacture of sugar, in rice milling, in any boat or punt, in any mining or
quarrying operations or in road transport operations, has entered into or works under a contract of service
or apprenticeship with an employer'

was wholly repealed by the amending Ordinance, so that the learned trial judge's finding
that the appellants were not employees within the meaning of the Ordinance is clearly
wrong. It is a great pity that a judge is misdirected as to what the law is because the law
books in his court are not annotated with the amendments. The machinery for this is a
matter for administrative consideration. All that I can say is that it is unfair to the judge and
litigants, and every effort ought to be made by those responsible to remedy this state of
affairs.

The Ordinance, as amended, now provides as follows:

"PART V-PAYMENT OF WAGES AND DEDUCTIONS THEREFROM.

19. (1) Except where otherwise permitted by the provisions of this Part of this Ordinance in every contract
for the hiring of any employee, or for the performance by any employee of any labour, the wages of such
employee shall be payable in money only, and not otherwise, and if in any such contract the whole or any
part of such wages is payable in any manner other than in money, such contract shall be and is hereby
declared illegal, null and void.

(2) Except where otherwise permitted by the provisions of this Part of this Ordinance, the entire amount of
the wages earned by or payable to any employee in respect of any work done by him shall be actually paid
to him in money and not otherwise.

(3) Except where there is an agreement to the contrary, wages shall be paid at weekly, fortnightly or
monthly intervals as the case may be.

(4) Where the payment of wages is made in money such payment shall be made on working days only, and
at or near the work place except where there exist more appropriate arrangements.'

`24. Nothing contained in this Part of this Ordinance shall extend, or be construed to extend, to prevent any
employer or agent of such employer, from making, or contracting to make, any stoppage or deduction from
the wages of any employee for or in respect of:

(a) any unpaid rent of any land, house, cottage, tenement, or room demised or let by the employer to
the employee; or

(b) any grazing fee due by the employee to the employer; or

(1970) 17 WIR 107 at 123

(c) any medicine or medical attendance supplied by the employer to the employee at the latter's request;
or

(d) the actual or estimated cost to the employer of any materials, tools and implements supplied by the
employer to the employee at the latter's request to be employed by him in his occupation; or

(e) any victuals supplied by the employer to the employee at the latter's request; or

(f) the actual or estimated cost to the employer of any goods supplied by the employer to the employee
for the personal use of the employee; or

417
(g) any money advanced by the employer to the employee (whether paid to the employee himself or to
some other person at his request) in anticipation of the regular period of payment of his wages;

Provided that the total amount which may be stopped or deducted from the wages of an employee in any
one month under the provisions of this paragraph shall not exceed one-third of the wages of the employee
in that month.'
It was urged by counsel for the respondents that the deductions were permissible in
accordance with s 24 (g), supra. I do not agree with that submission.
The English legislation on the topic is in pari materia with the Ordinance and was
authoritatively considered by the House of Lords in Hewlett v Allen((1894), AC 383, 63 LJQB
608, 71 LT 94, 58 JP 700, 42 WR 670, 10 TLR 464, 38 Sol Jo 455, 6 R 175, HL, 24 Digest
(Repl) 1100, 475). In that case the appellant, an employee of the respondent, as a
condition of her employment signed an agreement with the respondent by which she
undertook to become a member of a sick and accident club and to subscribe a weekly sum
of the funds in proportion to her wages. Those sums were deducted weekly from her wages
and paid to the treasurer of the club. Although she in point of fact did not fall ill during the
time she was employed by the respondents, she received the benefit of having secured to
her, in case she fell ill, a considerable weekly payment out of the sick fund. After her
employment ceased, she brought an action to recover the amounts deducted. The learned
County Court judge dismissed the action. His decision was upheld by the Division Court, the
Court of Appeal, and the House of Lords.
In the course of his judgment (E) LORD HERSCHEL LC, said ((1891-4) All ER Rep at p 1026):

`The Act of 1831 is intituled, 'An Act to prohibit the payment, in certain trades, of wages in goods, or
otherwise than in the current coin of the realm.'

By s 3

`The entire amount of the wages earned by or payable to any artificer … in respect of any labour by him
done … shall be actually paid to such artificer in the current coin of this realm, and not otherwise; and every
payment made to any such artificer by his employer, of or in respect of any such wages, by the delivering to
him of goods or otherwise than in the current coin aforesaid, except as hereinafter mentioned, shall be and
is hereby declared illegal, null and void.'

By s 4

`Every artificer … shall be entitled to recover from his employer … in the manner by law provided for the
recovery of servants' wages, or by any other lawful ways and means, the whole or so much of the wages
earned by such artificer … as shall not have been actually paid to him by such his employer in the current
coin of this realm.'

It is on those two sections that in the first place the plaintiff founds her action. She alleges
that she has not been paid in the current coin of the realm the wages to which she was
entitled. I do not think it can be doubted that the object of this enactment was to strike at
the practice which had grown up of employers making their payment in part by the supply
of goods
(1970) 17 WIR 107 at 124

in the sale of which they were interested--a practice which it was thought would place the
person employed at an unfair disadvantage, and one which it was thought was calculated to
result in the person employed obtaining something less than the agreed remuneration for
services.

The contrast in those sections is between payment in current coin of the realm and payment in some other
fashion, and I can myself entertain no doubt that a payment made by an employer at the instance of a
person employed to discharge some obligation of the person employed, or to place the money in the hands

418
of some person in whose hands the person employed desires it to be placed, is in the sense and meaning of
those sections a payment to the person employed as much as if the current coin of the realm had been
placed in his or her hands.'
And LORD WATSON said (ibid at p 1029):
`After the exhaustive observations which have been made by my noble and learned friend, I need not
recapitulate the sections of the Truck Act 1831, which bear upon the question before us, or criticise their
enactments in detail. For the reasons which the Lord Chancellor has assigned, I think that, while the case is
one of nicety, your Lordships ought to accept the opinions expressed by the EARL OF SELBOURNE LC,
and COTTON LJ, in Re Morris, ex parte Cooper ((1884), 26 ChD 693, CA, 24 Digest (Repl) 1102, 484), and
to hold that the contributions advanced by the respondent firm, on behalf of the appellant, were
substantially equivalent to payments made by them to the appellant herself, in current coin, within the
meaning of the Act.'
LORD MORRIS said (ibid at p 1030):

`In my opinion, the contract in question, even if there was this understanding, certainly does not come
within the spirit of the Act; in my opinion it does not come within the letter of the section, as a payment
made to the benefit society was not a laying out or expending of the wages of the artificer within the
meaning of s 2, but was merely an allocation of part of the wages of the employee at the request of the
employee, and, therefore, in my opinion, it does not come within the section.'
And LORD SHAND said (ibid at p 1031):

`… I entirely agree on the particular ground on which the Lord Chancellor has put the judgment which he
has proposed in this case. I mean that there is clear evidence, or at all events evidence sufficient, to show
that there was such an authority given by this appellant, week by week, for the payment of a contribution
towards this sick and benefit fund as precludes her from now challenging those payments. The payment was
made to the treasurer acting for this association, and I think that a payment made, presumably as when
wages have become due, at the request or on the mandate of one of the persons employed, to meet an
obligation or for a purpose which he or she desires to fulfil, is a payment which is not invalid as being struck
at by the requirements of the statute. Upon these grounds I concur with your Lordships in thinking that this
appeal should be dismissed.'

In view of those authoritative pronouncements I, with great humility and respect, construe
the Ordinance in the same way. I do not consider that the authorised deductions made by
the respondents in this case fell within the scope of the Ordinance. The authorisations were,
in effect, a "Standing Order" issued by the appellants to the respondents to apply a stated
portion of the appellants' earnings to a payment to a third person to whom the appellants
were indebted. No benefit ensured to the respondent.

Accordingly, I agree with the learned trial judge's conclusion with respect to the deductions
made prior to November 1966; but in view of my finding
(1970) 17 WIR 107 at 125

that there was a revocation of the authorisation, I consider that the respondents had no
authority to make deductions and that consequently the plaintiffs did not receive their full
salary in money for November 1966, and that such deductions were illegal at and after that
period.

Even though I considered the November and consequent deductions illegal, it is quite clear
that the appellants had had the benefit of the food and drinks supplied and ought to pay for
them. No order ought to be made which would defeat this.
During the course of his argument in this court, counsel for the appellants conceded that it
was fair and just that this should be so. He urged that his clients were not really interested
in the money claim and that they intended to pay it, but that it was of great importance to
themselves in particular, and to industrial practice in general, whether in the circumstances
the deductions made and applied by the respondents in the manner that they were, were
legal or not. To establish his clients' bona fides, he undertook to lodge in the registry of the

419
court the money claimed by the respondents from Peter Persaud, the No 1 appellant, by
way of set-off and counterclaim. Finally, in answer to a question from me, counsel
abandoned the appellants' money claim as set out in para 5 of the Statement of
Claim, supra, and stated: "All that is needed is a declaration that what was done after
November 1966, was wrong. The claim for the injunction has spent itself."

The appellants, having thus admitted that they ought to pay for the goods they had
consumed, and having completely waived their claim for the return of the money deducted
by the respondents in the event of a declaration that the deductions were illegal, I turn now
to the question whether or not the declaration sought should be made.
A declaration is a discretionary remedy but, as LORD STERNDALE MR stated in Hanson v
Radcliffe Urban District Council ((1922), 2 Ch 490, 91 LJ Ch 829, 127 LT 509, 86 JP 144, 38
TLR 667, 66 Sol Jo 556, 20 LGR 541, CA, 30 Digest (Repl) 169, 203), 2 Ch at p 507):

`In my opinion, under O 25, r 5, the power of the court to make a declaration, where it is a question of
defining the rights of two parties, is almost unlimited; I might say only limited by its own discretion. The
discretion should of course be exercised judicially, but it seems to me that the discretion is very wide.'
I wish to make it abundantly clear that I would have refused to consider such a claim if it
were to result in a return to the appellants of their money which had been used by the
respondents to pay for food and drinks which the appellants had consumed and for which
they were under an obligation to pay. There can be no doubt that that would be an unjust
benefit to the appellants. The latter's admissions, undertakings and final waiver of the
money claim through their counsel, however, are in effect an abandonment of ground 1(h)
of their grounds of appeal, supra, and, consequently, a concession that the learned trial
judge's decision on the counterclaim is right.

My learned brothers have seen fit to rest their decision on what they deem to be the law of
unjust enrichment. With great respect, in view of my conclusion just stated above, I regard
consideration of this doctrine as academic. Indeed, I have grave doubt as to whether the
law of unjust enrichment is a part of the law of Guyana.
In Robins v National Trust Co Ltd ((1927), AC 515, (1927), All ERRep 78, 96 LJPC 84, 137
LT 1, 43 TLR 243, 71 Sol Jo 158, PC, 30 Digest (Repl) 222, 655), VISCOUNT DUNEDIN, in
delivering the judgment of a Board of the Judicial Committee of the Privy Council
comprising LORDS FINLAY, PARMOOR, DARLING, WARRINGTON and himself, said ((1927) All ER
Rep at p 76):

`It is questionable whether that is the result of the decision. But assuming that it is, when an appellate
court in a colony which is regulated by English law differs from an appellate court in England, it is not right
to
(1970) 17 WIR 107 at 126

assume that the colonial court is wrong. It is otherwise if the authority in England is that of the House of
Lords. That is the supreme tribunal to settle English law, and that being settled, the colonial court which is
bound by English law is bound to follow it. Equally, of course, the point of difference may be settled so far as
the colonial court is concerned by a judgment of this Board.'

Section 3 of The Civil Law of British Guiana Ord, Cap 2 [G], provides as follows:

`3. From and after the date aforesaid save as provided by any Act of the Imperial Parliament now or
hereafter applying to the Colony, or by any order of Her Majesty in Council, or by this Ordinance, or by any
other Ordinance of the Legislative Council now or at any time hereafter in force, or by any order of the
Governor in Council made in pursuance of any statute, or of any other lawful authority;

(B) The common law of the Colony shall be the common law of England as at the date aforesaid including
therewith the doctrines of equity as then administered or at any time hereafter administered by courts of

420
justice in England, and the Supreme Court shall administer the doctrines of equity in the same manner as
the High Court of Justice in England administers them at the date aforesaid or at any time hereafter;'

The date aforesaid therein mentioned was 1 January 1917.

Many eminent English judges have from time to time made observations about the doctrine
of unjust enrichment, but while expressing admiration for it and displaying a desirability for
its adoption, they seem to have rested the ratio decidendi of their decisions on concepts as
effective but not identical with that doctrine as understood and applied in foreign legal
systems. Indeed, in Reading v Attorney-General (19), LORD PORTER said ((1957) 1 All ER at
p 619):
`In these circumstances DENNING J, held that the Crown was entitled to the money in question. It was, in
his view, immaterial to consider whether the method of seizure was justified or not. Even if it was not, the
Crown had a valid counterclaim, and, avoiding a circuity of action, could thus defeat the appellant's claim.
He says ((1948) 2 All ER 28):

`The real cause of action is a claim for restitution of moneys which, in justice, ought to be paid over.'
It was suggested in argument that the learned judge founded his decision solely on the
doctrine of unjust enrichment and that that doctrine was not recognised by the Law of
England. My Lords, the exact status of the law of unjust enrichment is not yet assured. It
holds a predominant place in the law of Scotland, and, I think, of the United States, but I
am content for the purposes of this case to accept the view that it forms no part of the law
of England and that a right to restitution so described would be too widely stated. But,
indeed, this doctrine is not of the essence of DENNING J's judgment. His reasoning is to be
found in the passage which succeeds that quoted. He says, ibid:

`In my judgment, it is a principle of law that, if a servant takes advantage of his service and violates his
duty of honesty and good faith to make a profit for himself in the sense that the assets of which he has
control, the facilities which he enjoys, or the position which he occupies, are the real cause of his obtaining
the money as distinct from merely affording the opportunity for getting it, that is to say, if they play the
dominant part
(1970) 17 WIR 107 at 127

in his obtaining the money, then he is accountable for it to the master. It matters not that the master has
not lost any profit nor suffered any damage, nor does it matter that the master could not have done the act
himself. If the servant has unjustly enriched himself by virtue of his service without his master's sanction,
the law says that he ought not to be allowed to keep the money, but it shall be taken from him and given to
his master because he got it solely by reason of the position which he occupied as a servant of his master.'
Again, ibid, p 29:

`The uniform of the Crown and the position of the suppliant as a servant of the Crown were the only
reasons why he was able to get this money, and that is sufficient to make him liable to hand it over to the
Crown.''
LORDS NORMAND and OAKSEY agreed with the judgment of the Court of Appeal but made no
reference to the doctrine of unjust enrichment.
LORD PORTER'S judgment with which the Lord Chancellor, VISCOUNT JOWITT, agreed, must be
regarded as a declaration of the House of Lords as to the state of the common law of
England with respect to the doctrine of unjust enrichment and is consequently binding on
this court.
I agree with my learned brothers that we ought not slavishly to follow English or for that
matter any precedents. Indeed, I expressed the same view in the first civil case to come
before this court--Harris v Toolsie Persaud ((Civil Appeal No 67 of 1964)). Nevertheless, our
conclusions must be reached by the strict application of the accepted tenets of the judicial
process.

421
I disagree with my learned brothers that since the Independence Constitution of 1966, this
court is free to determine the common law of Guyana without reference to the proviso of
the Ordinance, supra.

I am unaware of any provision of the Constitution which abrogates the Ordinance. Indeed,
Art 5 of the Constitution of 1966, along with which the 1970 Constitution must be read
subject to necessary adaptations and modifications, saves existing laws.

Now that I am satisfied that the appellants will not reap an unjust benefit, I propose to rest
my decision on foundations simpler and, in my view, more clearly established than that
upon which my learned brothers rely. Accordingly, I would exercise my discretion and make
a declaration that the deductions made as from November 1966, were illegal.

The consequence is that I would allow this appeal, vary the judgment and order of the
learned trial judge only to the extent of the inclusion of the declaration, and make no order
as to costs in this appeal.
CRANE JA. [HIS HONOUR described the facts, and continued]: As I said, the amounts owing
are not disputed. What is disputed is the alleged unlawful manner in which they were made,
ie, that they were contrary to the Labour Ord, Cap 103 [G], in that they did not fall within s
24 of that law, which it is urged, are the only permissible deductions. The respondents
countered by asserting they had the right under that very section to make the deductions
since payments made to the club were in the nature of moneys advanced to it at the
request and on behalf of the appellants in anticipation of their regular period of wages. It is
evident, therefore, that both parties contested the matter on the footing that s 24 of Cap
103 [G], was relevant to their situation, for while the appellants were contending that
section was not complied with, the respondents were saying that it was.
On the above issue the learned judge found that "on the basis of Hewlett's case (Hewlett v
Allen ((1894), AC 383, 63 LJQB 608, 71 LT 94, 58 JP 700, 42 WR 670, 10 TLR 464, 38 Sol
Jo 455, 6 R 175, HL, 24 Digest (Repl) 1100, 475) (1893), AC 383) "the deductions are
legitimate as
(1970) 17 WIR 107 at 128
advancements under the Ordinance". For my part, I am unable to agree with this finding of
the learned judge. I consider s 24 (g) of Cap 103 [G], does not apply in any respect to the
facts of the case in hand since the deductions were not made in the respondents' interests
in that they derived no benefit from them. Clearly, they derived no interest or advantage
whatever from the operation of the club which, although its premises were situate on estate
land, had an entirely independent existence. Hewlett's case (Hewlett v Allen (1894), AC
383, 63 LJQB 608, 71 LT 94, 58 JP 700, 42 WR 670, 10 TLR 464, 38 Sol Jo 455, 6 R 175,
HL, 24 Digest (Repl) 1100, 475) was a decision on the English Truck Act, 1831, but, in my
view, there is no truck principle involved in the case under review. In Hewlett's case
(Hewlett v Allen (1894), AC 383, 63 LJQB 608, 71 LT 94, 58 JP 700, 42 WR 670, 10 TLR
464, 38 Sol Jo 455, 6 R 175, HL, 24 Digest (Repl) 1100, 475) it was held that payment to a
third party at the request of a worker was payment in full by the employer of the worker's
wages in the current coin of the realm. But the decision had nothing to do with payment by
an employer of advances to a worker in anticipation of his regular period of wages, as the
learned trial judge seemed to think. In any event, that case could not justify deductions in
and after November 1966, in view of the appellants' protests in writing stating that the
deductions were being made without their consent. The club had ceased to function in that
month and the authority to deduct further sums from workers' pay-packets was thereby
countermanded in writing. Therefore deductions after that date could not be justified. So,
speaking for myself, I cannot agree with the trial judge's view that para (g) of s 24 fits the
circumstances under which the appellants may be said to have authorised the stoppage of

422
monthly sums from their salaries in payment of their club debts. As I say, s 24 (g) has no
bearing whatever, but, even so, from the evidence led, the authority given by each member
to the respondents was in the nature of a monthly standing order to pay over a debt
monthly to the club. The authority in no way anticipated the regular period of the member's
wages. No sum whatever was authorised to be paid before it became due to members. In
my view, para (g) envisages a case in which money in the nature of a loan which the
workman requests of his employers is paid before and in anticipation of the time his wages
actually fall due.

But, notwithstanding the deductions were unauthorised, are the respondents entitled to
succeed on their counterclaim? The guarantees pleaded in para 6 of the defence and
counterclaim were given by the respondents to various firms like Russian Bear Ltd and
D'Aguiar's Imperial House for the supplies of liquor and other goods to the club. At the date
of the trial there were outstanding amounts of $640.80 and $1,275, respectively, owed to
these two firms on those guarantees on which the club was the principal debtor and the
respondents the surety. The respondents seek in their counterclaim to make the appellants
liable on the strength of their membership of the club whose debts they, the respondents,
became liable to pay on the guarantees. Their claim is to the extent of the appellants'
indebtedness to their club. The counterclaim is couched in the familiar money form for
monies paid by the respondents to the appellants' use as members of the club. It is here, I
think, that the club's rules would have been of particular help, but, unfortunately, they, like
the authorisations, were never produced before the trial judge.

Usually the trustees and committee of management have only such authority to contract on
behalf of members generally as may be given to them expressly or by necessary implication
by the rules, but they have, as such, no power to pledge the credit of other members of the
committee or other members. This being so, it follows that members cannot be held liable
as the club's co-debtors to the respondents who stood surety for the club's debts because,
paradoxically as it may seem, though they as members were contributory causes of their
club's indebtedness, their indebtedness to the club cannot be identified with debts owed by
the club to other people. Though, in fact, members' debts were the club's debts, they were
not, in law, the club's debts. Members could not in law, therefore, be held liable within the
respondents' guarantee to the firms
(1970) 17 WIR 107 at 129

for their club's debts, and so they are outside the scope of the law of contract. But I think it
can be shown they may be brought within the doctrine of restitution which is inherent in the
very nature of this case. This was in fact the view of the trial judge who, in addressing
himself to the complementary aspect of that doctrine on which I am supporting his
judgment, said:

`I am prepared to go even further and state that, even if the deductions were not permissible on the ground
of being officious, although authorised, I should be prepared to grant the counterclaim. I should do so on
the basis that the plaintiffs cannot reap the benefit of unjust enrichment.'
The doctrine of unjust enrichment is derived from restitution, a natural law theory. It was
no less a judge than LORD MANSFIELD CJ, who was the first to attempt its introduction into
English law in his celebrated decision of Moses v Macferlan ((1760), 2 Burr 1005, 1 Wm Bl
219, 97 ER 676, 35 Digest (Repl) 167, 536), by attempting the fusion of legal and equitable
principles. From the existing counts for money had and received he sought to deduce a
general principle, which is an obligation based on natural justice to make restitution. His
attempt failed. The principle was vigorously repudiated by a succession of later judges,
paramount amongst whom were SCRUTTON LJ, and HAMILTON LJ, who, in Baylis v Bishop of
London ((1913), 1 Ch 127, (1911-1913), All ERRep 273, 82 LJ Ch 61, 107 LT 730, 29 TLR

423
59, 57 Sol Jo 96, CA, 35 Digest (Repl) 169, 550), scathingly referred to it as "that vague
jurisprudence attractively styled Justice between Man and Man". There is, however, among
contemporary judges a movement for the revival of Mansfield's doctrine as the trend of
decisions shows a consistent appeal to the natural law tenets as an aid to legal
development. LORD WRIGHT was one of the foremost of this revivalist group, and on the
doctrine, he makes the following pronouncement in his well-known LEGAL ESSAYS AND
ADDRESSES (1939), at p 36:

`Restitution is not concerned with damages, or compensation for breach of contract, or for torts, but with
remedies for what, if not remedied, would constitute an unjust benefit or advantage to the defendant at the
expense of the plaintiff. Hence (to state the matter very broadly) an action for restitution is not primarily
based on loss to the plaintiff but on benefit which is enjoyed by the defendant at the cost of the plaintiff,
and which it is unjust for the defendant to retain. The benefit may consist of money or property of the
plaintiff which the defendant is unjustly retaining, or it may be that the plaintiff has under particular
circumstances discharged a liability primarily resting on the defendant or has supplied necessary services or
goods to the defendant which would unjustly enrich the defendant if the plaintiff were not reimbursed. It is
this unjust retention of what should be restored to the plaintiff which constitutes the relationship in which
the remedy is based. This way of looking at the position may overlap other relationships, such as
conversion, contract, agency suretyship; and restitution may also be an alternative to damages. But the
essence of restitution is the different line of approach. Restitution covers the area of what is often called
quasi-contract, which again covers the area of what under the old pleading were called contracts implied by
law.'
The doctrine of unjust enrichment, however, forms no part of the law of England. This is the
categorical pronouncement of LORD PORTER in Reading v Attorney-General ((1951), 1 All ER
617, (1951), AC 507, (1951), 1 TLR 480, 95 Sol Jo 155, HL, 34 Digest (Repl) 149, 1028).

In our own sphere, there are not many reported decisions on it, and, like in England, some
of our judges have while others have not applied it. But whilst in England the reason is
clearly due to the conservatism, tradition, temperament and outlook of those who adhere to
the old order, with us, I believe it is one of the interpretation we give to s 3 (B) of the Civil
Law of Guyana Ordinance, Cap 2 [G] (which I shall attempt hereunder). We must not,
however, be deterred by that, nor by the existence of a division of opinion which, as we
(1970) 17 WIR 107 at 130
have seen, exists among English judges of eminence on the future status and scope of the
doctrine of unjust enrichment and its application to the common law. At all times the
essential prerequisite is the attainment of justice in the cause. Our present status as the
country's ultimate tribunal makes it all the more necessary that we find the appropriate
answer to our problems. Of contemporary judges of England, an indefatigable protagonist in
the field for the adoption of the doctrine as part of the law of England is LORD DENNING MR. It
was this learned judge, when at first instance, who decided Reading's case (Reading v
Attorney-General (1951), 1 All ER 617, (1951), AC 507, (1951), 1 TLR 480, 95 Sol Jo 155,
HL, 34 Digest (Repl) 149, 1028). Reading was a British army sergeant stationed at Cairo.
On several occasions while in uniform, he boarded a private lorry and escorted it through
Cairo, thus enabling it to pass the civilian police without being inspected. The lorry was
loaded with cases, the contents of which were unknown. On each occasion the sergeant
received from a civilian a large sum of money, which the military authorities later seized
and of which they took possession on behalf of Her Majesty.
In his Petition of Right, Reading claimed to be entitled to the return of the money, but it is
instructive to note that DENNING J (as he then was) expressed the view that "the real cause
of action is a claim for restitution of moneys which in justice ought to be paid over". LORD
PORTER, who delivered the leading speech in the House was not of that view, however, for
after remarking that the exact status of the law of unjust enrichment is not yet assured to
English jurisprudence, notwithstanding it holds a predominant place in the law of Scotland
and in the United States, he categorically stated that it forms no part of English law, and for

424
the purpose of the case before him the right to restitution was too widely stated. Although,
it must be observed, the learned law lord did not close the door to the acceptance of the
doctrines of restitution, his observations are confined to unjust enrichment.
For my part, I can see no impediment to the application of the doctrine, just as I did not
when I decided the case of Olds Discount Coy (TCC) Ltd v Dilasia ((1964), LRBG 345).
There, I applied the equity of restitution to a hire purchase contract so as to prevent the
plaintiff company from unconscionably recovering their loss twice over--once on a recourse
agreement with the dealer, and again from the defendants.
For the reasons I have already given, I think it is clear the appellants could not, in contract,
be held liable to the respondents if it were sought to proceed against them on the
guarantee, for they were not co-debtors in the sense above explained. "But," as LORD
WRIGHT says, "the essence of restitution is the different line of approach." It overlaps
relationships such as contract, agency, suretyship, and, as he again had occasion to remark
in Brook's Wharf and Bull Wharf v Goodman ((1936), 3 All ER 696, (1937), 1 KB 534, 106
LJKB 437, 156 LT 4, 53 TLR 126, 80 Sol Jo 991, 42 Com Cas 99, CA, 39 Digest (Repl) 257,
94), ((1937) 1 KB at p 545):
`The obligation is imposed by the court simply … [on] defendants who would be unjustly benefited at the
cost of the plaintiffs if the latter should be left out-of-pocket by having to discharge what was the
defendant's debt.'

In my opinion it would be a rank piece of injustice if the appellants, while admitting their
indebtedness to their club in the amounts above specified, were to be allowed to dispute the
claim of the respondents to those amounts, so as not to be left out-of-pocket, after having
discharged what was in fact, though not in law, the appellants' debt which accrued by
reason of their failure to pay their club debts. Underlying the law of restitution is the
conception that no one should unjustly enrich himself at the expense of his neighbour. As I
see it, I must march with those in the vanguard of progress and try to develop the law by
means of the application of equitable remedies in the dualism of common law and equity
which is sanctioned by and built into our legal system--see s 3 (B) of the Civil Law of
Guyana Ord, Cap 2 [G], which provides as follows:
(1970) 17 WIR 107 at 131

`(B) The common law of the Colony shall be the common law of England as at the date aforesaid including
therewith the doctrines of equity as then administered or at any time hereafter administered by courts of
justice in England, and the Supreme Court shall administer the doctrines of equity in the same manner as
the High Court of Justice in England administers them at the date aforesaid or at any time hereafter.'

In my view, what is clearly meant by the above provision is that the Supreme Court (now
the High Court) was as from the year 1917, being authorised to administer and apply
locally, equitable doctrines side by side with the common law in much the same way as the
English Judicature Acts of 1873-75 sanctioned it in England. Such doctrines of equity as
were in existence in 1917, or at any time in the future, were henceforth to be administered
in Guyana along with English common law as our legal system.

But, as it seems to me, it cannot be too greatly stressed that in no way was the jurisdiction
of our High Court being thereby fettered from itself developing and expanding the common
law with the aid of those principles of equity in fitting cases. That our High Court is to
administer them "in the same manner as the High Court of Justice in England administers
them", in my view, simply means that those doctrines are to be administered within the
spirit and intendment of the Judicature Acts, 1873-75 [UK], that is to say, equitable
doctrines are to lend their aid to develop and supplement the deficiencies of the common
law. It is in this manner that a legal system fusing law and equity into one administration
was intended to be forged in Guyana as from the year 1917 and onwards. Certainly, the

425
words "in the same manner" cannot mean that our High Court is obliged to wait until the
doctrine of restitution is assured a place in English jurisprudence before applying it locally,
as some of us would appear to think. Such an interpretation, it seems to me, would tend to
put a brake on the progressive development of the law under the guidance of equitable
principle, and must be avoided. Were it so, I think the law would be placed in a veritable
straight-jacket, and would be fettered unjustifiably in its development as no recognition nor
concession would be given to the creative function of judicial equity as one of the channels
by which legal ideals are known to be infused into and to mould the development of the
common law.
But why should we, the judges of Guyana, consider ourselves obliged to await a lead from
the courts of England before applying the principle of restitution when we consider it meets
the justice of the case, when even in England there is in vogue a decided change of outlook
in the trend that is brought about by the revival of natural law as a basis for decisions? If
we look at modern-day judgments, we shall see that they are replete in appeals to such
idealism as "just and reasonable", "common sense and justice"; we would see that even the
House of Lords itself in the case ofNokes v Doncaster Amalgamated Collieries ((1940), AC
1014, (1940), 3 All ER 549, 109 LJKB 865, 163 LT 343, 56 TLR 988, 85 Sol Jo 45, HL, 10
Digest (Repl) 1137, 7911), had once interpreted in the light of the "rights of man", when it
refused to consider a miner in a company's employ as "property". I should have thought
that if a lead from England were at all required, here was one for us to follow, showing as it
does a decided swing of the pendulum in the opposite direction once again towards the
doctrine advocated by LORD MANSFIELD in 1760. It is evident that great judge had lived 200
years before his time. STREATFIELD J, too, considered "natural justice" in RB Policies at
Lloyd's v Butler ((1949), 2 All ER 226, (1950), 1 KB 76, 65 TLR 436, 93 Sol Jo 553, 32
Digest (Repl) 405, 290).

But, quite apart from the fact that I consider my interpretation of s 3 (B) of the Civil Law of
Guyana Ord, Cap 2, does permit the application of the doctrine in the way I have above
explained, contrary to the view expressed by my brother on my far right, the fact remains
that only last week the Parliament of Guyana had thought it desirable to put an end to all
civil appeals to Her Majesty in Council. Surely this is a pointer to the role we are now
(1970) 17 WIR 107 at 132
expected to play and to the responsibility we now perforce must assume as a fully-fledged
member of the Commonwealth, in the development of our own legal system! It is my
considered opinion that consequent on the removal of the Privy Council as our final court of
appeal, the doctrine of stare decisis, in so far as that court is concerned, is a dead letter
with us; its former judgments are now only of persuasive authority. Of course, we shall
regard them as we have always done in the highest esteem; we shall continue to cite, apply
and to follow them and, when we do so, they will thereafter speak with our authority; but
henceforth, it will be our privilege, if not our duty, to decline to follow them if we think fit to
do so. It seems to me that it is only the natural consequence of its abolition as the final
court of appeal for Guyana that the Privy Council should lose its place as a binding force in
the hierarchy of authority. Ispo jure, its pronouncements have ceased to be authoritative.

For the reasons I have endeavoured to give, I would dismiss this appeal with costs and
affirm the decision of the learned trial judge on the counterclaim, with costs.
Appeal dismissed.

426