IN THE SUPREME COURT TURKS AND CAICOS ISLANDS Action No.CL 107/20
IN THE MATTER OF THE TURKS AND CAICOS ISLANDS CONSTITUTION ORDER 2011 (“THE CONSTITUTION”)
IN THE MATTER OF THE PAROLE OF PRISONERS (AMENDMENT) ORDINANCE 2020
IN THE MATTER OF CRIMINAL PROCEEDINGS NO. CR 63/2016
CHRISTOPHER FORBES PLAINTIFF
THE ATTORNEY GENERAL OF THE TURKS AND CAICOS ISLANDS
Constitutional Law -Constitution-Fundamental rights and freedoms –Right to protection of the law- Lawful Administrative Action –European Convention on Human Rights- Offences Against the Persons Ordinance -Parole of Prisoners Ordinance -Parole of Prisoners (Amendment) Ordinance -Criminal Law- Murder –Penalty for murder- Sentencing- Release of Prisoners on Licence -Life Imprisonment . BEFORE:-
Lobban Jackson J.
Mr. Craig Oliver for the Plaintiff Dr. Michael Dillon for the Defendant Mr. Quinn Hawkins watching proceedings for the Director of Public Prosecutions
Date of Hearing: September 28, 2020 Delivered: October 14, 2020
1. On October 21, 2019, the Plaintiff was convicted of the murder of Yuneiry Veras sometime between April 18 and 23, 2016 and of Sorineida Arias between July 10 and 13, 2016. Pursuant to s. 5 of the Offences Against the Person Ordinance, he was sentenced to life imprisonment on each count to run concurrently. Life imprisonment is the mandatory penalty for the offence of murder under the said Ordinance.
2. The Plaintiff was sentenced prior to the coming into force of the Parole of Prisoners (Amendment) Ordinance (“the Ordinance”) on January 8, 2020. Under the transitional provisions provided by s.7 (1) of the Ordinance, the Plaintiff is to be returned to court and resentenced under s. 6A. This section requires the court to specify the period of incarceration which a person shall serve before they become eligible for release on licence. That period shall be thirty years unless there are extenuating circumstances which may reduce it; or aggravating circumstances which may increase the period.
3. Prior to the amendment, the Plaintiff was entitled under s. 6(6) of the Parole of Prisoners Ordinance Cap 18.04 to a review by the Parole Board, to be considered for early release after having served no less than ten years. That section has now been repealed. The change in the early release regime is at the heart of the application before the court.
4. The Plaintiff’s complaint is that the transitional arrangements in the amended Ordinance are incompatible with Article 7(1) of the European Convention on Human Rights (the Convention), which prohibits the imposition of a heavier penalty than the one that was applicable at the time when the offence was committed. Article 7 of the Convention is enshrined in section 6(4) of the Turks and Caicos Islands Constitution using similar words.
5. On September 8, 2020, the Plaintiff filed an Expedited Originating Summons pursuant to Order 7, r.2 of the Rules of the Supreme Court of the Turks and Caicos Islands 2000, which challenges the lawfulness of the Amendment and seeks the following declarations: (i) A declaration that section 7 of the Parole of Prisoners (Amendment) Ordinance 2020 constitutes an unlawful infringement of the Plaintiff’s right to protected by section 6(4) of the Constitution. (ii) Such Orders and Directions as the Court think appropriate.
6. Section 6 of the Constitution encompasses the provisions to secure the protection of law. Section 6(4) which is the one relevant to this application, provides as follows: “No person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence, and no penalty shall be imposed for any criminal offence that is severer in degree or description than the maximum penalty that might have been imposed for that offence at the time when it was committed”
7. The gravamen of the complaint, is that the Plaintiff has been stripped of that protection and that a harsher penalty has been introduced by section 6A of the Ordinance, which provides as follows:
“6A. (1) Not withstanding any other law to the contrary, when sentencing a person to a term of imprisonment for life, the court shall specify the period of incarceration the person shall serve before that person is eligible to be considered for release on licence, the period being such as the court considers appropriate to satisfy the requirements of retribution, deterrence and rehabilitation, but for murder, the period shall be thirty years before the prisoner is eligible for release unless there are-
(a) extenuating circumstances, exceptional in nature, in which case the court may impose a lower period of incarceration; or
(b) aggravating circumstances, exceptional in nature, in which case the court may impose a longer period of incarceration.”
The Plaintiff’s Submission
8. The plaintiff submitted that protection of law provided by s 6 of the Constitution is reinforced by s19 which provides that all decisions and acts of Government must be lawful, rational, proportionate and procedurally fair.1
9. In addition to s 6A of the Ordinance quoted above, the Plaintiff submits that s7 of the Ordinance which provides the transitional arrangements for persons to be resentenced, is unlawful and unnecessary.
10. The Plaintiff relied on a number of well-known cases to support their contention that the amended legislation is incompatible with Article7 of the Convention and also the s6(4) of the Constitution which mirrors it. For ease of reference Article 7 of the Convention provides as follows: “No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national law at the time it was committed. Nor shall a heavier penalty be imposed than the one applicable at the time the criminal offence was committed.”
11. The Plaintiff relied on Welch v. United Kingdom2 for the proposition that to render Article & protection effective, the court had to remain free to go behind appearances and assess for itself whether the particular measure amounted in substance to a “penalty” within the meaning of the provision. In the case of Welch, the applicant was a 22year old British citizen who had been arrested in 1986 for drug-related offences. He was found guilty and sentenced in 1988 under a law which came into force in 1987. In addition to a 22-year sentence, a confiscation order was made. He relied on Article 7 to challenge the order as a retrospective criminal penalty. The Court held unanimously, that the order amounted to a “penalty” and that there had been a violation of Article 7.
12. The cases of Uttley v United Kingdom3 and Flynn & Ors. v Her Majesty’s Advocate4 were relied on by both the Plaintiff and the Defendant. In the former case, the applicant had complained that a change in the Criminal Justice Act of 1991, relating to release and licence had imposed a heavier penalty, in that a release after two thirds of the term also included the imposition of conditions after release in some cases for the remainder of the term. Relying on Hogben v United Kingdom5 and Grava v Italy6, Uttley determined that a change in the release or parole regime did not invoke Article 7 of the Convention.
The Defendant’s Submissions
13. The Defendant submitted that it was established law that Article 7 does not protect against changes in the law that relate to the execution of a sentence as opposed to the imposition of an additional penalty. In support of their argument, they relied on a number of cases including Hogben. In this case the applicant had served 14 years of his life sentence when the parole policy changed. This was after he had been recommended by the Governor for early release. Under the new policy he was required to serve a minimum of 20 years before he could be considered for release. He had been sentenced to life imprisonment in 1973 for committing murder in the course of a robbery. The court stated it was clear that the penalty for this offence at the time it was committed was life imprisonment and thus no issue under Article 7 arises in this respect.
14. The Commission in Hogben went on to state the following:
“Furthermore, in the opinion of the Commission, the ‘penalty’ for the purposes of art7, para 1(art. 7-1), must be considered to be that of life imprisonment. Nevertheless, it is true that as a result of the change in parole policy the applicant will not become eligible for release on parole until he has served 20 years’ imprisonment. Although this may give rise to the result that his imprisonment is effectively harsher than if he had been eligible for release on parole at an earlier stage, such matters relate to the execution of the sentence as opposed to the “penalty” which remains that of life imprisonment. Accordingly, it cannot be said that the ‘penalty’ imposed is a heavier one than that imposed by the trial judge”
15. Hosein v United Kingdom8 relied on the identical principle to the one stated above. The European Court of Human Rights (the ECHR) is replete with cases which have been determined in a similar fashion. Ricketts & Ors v The Queen9 was decided by the Court of Appeal of the Cayman Islands. This is a persuasive authority which relies on the same line of cases from the ECHR, including Uttley and Del Rio Prada v Spain.10 The latter case also made clear the distinction between a ‘penalty’ and measures relating to its enforcement or implementation.
16. In Ricketts the issue raised on behalf of the applicants in this consolidated appeal is identical to the one presently before this court. They argued that the application of minimum terms imprisonment under the transitional provisions, similar to those enacted in this jurisdiction, amounted to a breach of section 8(1) of the Cayman Islands Constitution Order, (similar to s. 6(4) of the Turks and Caicos Islands Constitution Order 2011). They further argued that it resulted in imposing a heavier penalty than was applicable at the time the applicants committed their offences and is therefore unlawful. The arguments ultimately failed. The court held that the transitional provisions did not amount to the re-definition or modification of the penalty. They merely concerned its execution and enforcement.
17. Applying the settled law to this case, it is clear that the sentence of life imprisonment which was imposed on the Plaintiff on October 21, 2019 remains unchanged and the application of s6A and s.7 of the Ordinance, does not engage Article 7 of the Convention, nor does it infringe on protections afforded by s6 (4) of the Constitution.
18. For the reasons stated above, the application is dismissed.
19. No order made as to costs.
/s/ Hon. Justice T. A. Lobban-Jackson