A Privy Matter: Is the JCPC past its use-by-date?

 The world is in a constant cycle of change and reinvention. Nowhere is this truer than in the structure of the court systems. With the advent of the United Kingdom Supreme Court promulgate by the law reforms of the Blair Government, coupled with the rise of local nationalism in many nations still subscribing to the Judicial Committee of the Privy Council, particularly those in the Caribbean, the question has to be put - Is this ancient institution still relevant to the international demands of justice it involves itself with, as well as being a perceived defender of human rights, or is it an outdated, even alien body whose practical constraints make it more of an anachronism than a practical judicial organ?

If the Judicial Committee of the Privy Council – The JCPC or, more colloquially, the Privy Court – were brought up in discussion, three differing opinions of it emerge. The first is of a court that is isolated and exclusive, almost always being heard in London. The second is that it is an interference of sovereignty, a British court making judgements contrary to the circumstances of the nations that, through some reason or another, still subscribe to it. The third is the view of it as the last bastion of Human rights within many of these countries, making many lawmakers sceptical of the merits of abolition. Although the desire to change is lacking amongst the average voter, the recent referendum in Grenada (which was rejected), a planned referendum in Antigua and Barbuda plus a proposed change in Jamaica puts the issue of the JCPC as the final court of appeal under the spotlight.

What is the JCPC?

For those not familiar to what this is all about, the Judicial Committee of the Privy Council is a court of appeal which specialises as the final court of appeal for the British Overseas Territories and those Commonwealth Realms (those former colonies/dominions who retain The Queen as their head) and Commonwealth Republics who have opted to retain the court as their court of last resort. It must be remembered above all that, as an organ of the British legal system (though ironically it has little to do with the complex nature of the UK justice system, limited to Church of England issues and other minor things such as Chivalry and Prize courts), the business of the JCPC is almost universally heard in London. However, on recent occasions, the JCPC has ventured outside of the UK for hearings –in 2006 for the first time in its 170 year history it held a sitting outside of the UK in the Bahamas at the request of the president of the Bahamian court of appeals Dame Joan Sawyer, a feat repeated in 2009. Furthermore, a symbolic gesture has included the placement of the flag of the nation in respect to the case which is heard in lieu of the Union Jack.

Despite this change in attitude, the JCPC is as elusive for most as it has ever been. Retired East Caribbean Supreme Court Puisine Justice Rita Joseph-Olivietti, writing for Caribbean News Now, estimates the cost of going to the JCPC at EC$200,000 (US$75,000). In contrast, the Caribbean Court of Justice, set up originally to replace the JCPC but only now gaining interest, ranges in cost from EC$60,000-100,000 (US$22,000-37,000). Justice Adrian Saunders of the CCJ also corroborates this claim by arguing that cases either involve the state, the wealthy or those lucky to have barristers working pro-bono.

Furthermore, there is the argument of cultural ignorance of the lands which the JCPC’s jurisdiction extends. A differing perspective is the CCJ which is a roaming court with the ability to sit in any of its signatory countries and via videolink as well, added to the diverse selection process of justices allowing a regional view of law. In contrast the JCPC regularly sits in Middlesex guildhall (despite these overseas forays), and is always heard by UK Supreme Court Justices.

The Court in Action.

This perception of cultural ignorance has no doubt fanned the flames amongst those seeking to ditch the JCPC in favour of either the CCJ or an indigenous court of last resort. Much has been made of the JCPC stymieing efforts of governments to conduct executions to the point that it is claimed to be an overreach of sovereignty. This is a persuasive argument. As an organ of the British Legal and (until 2009) political system, the JCPC is almost always at the mercy of British attitudes to law. The fact that Britain is abolitionist towards the issue of capital punishment with no home nation conducting an execution since 1962 has, as Roger Hood argues, created a society which now sees executions as mortifying.

Despite this, the use of Capital Punishment in the West Indies is a popular tool by politicians whom wish to exploit anger and fear. In countless nations across the Caribbean, politicians demand the rope as a means of curbing crime. It is, as Amnesty International researcher Roger Bannister once argued in an article with the New York Times in 1997, ‘The English-Speaking Caribbean learning from the United States’. The Daily Mail’s David Jones similarly argues, executions are a means of the government as acting to look like doing something.

In the West Indies, attitudes to justice are reminiscent of those in yesteryear Britain – a legacy of colonialism that, in an ironic twist, had itself been condemned to the scrapheap in Britain decades ago. Indeed the last execution under the Union Jack anywhere in the world was in Bermuda in 1977 – a double hanging for the murder of the Islands Governor Sir Richard Sharples four years prior. The prominent feeling of how murderers should be treated is ‘an eye for an eye’. It is an us versus them mentality that veteran Jamaican journalist Ian Boyne wishes to encourage in an article he wrote for the Jamaican Gleaner in 2015. He argues that when it becomes necessary to take important and ‘tough’ action, political will fades in the face of Human rights activists ‘who are safely tucked away in their middle class communities’. His point is understandable. The level of crime and the manner in how it is committed brutalises everyone involved. The killer, the victim (should they survive) and their family, their community, the judge and jury, everyone. Given that this happens on a daily basis, it should be no surprise that those supporting human rights often do not understand public attitudes and what forms them. That being said, how some of the condemned are treated is at times as cruel as the crimes committed. Jones reported in the case of the execution of Charles Laplace in St Kitts and Nevis in 2009. Sentenced to meet the gallows for the murder of his wife, the condemned man was treated with ‘Shockingly dispassionate candour’, being ‘bound hand and foot and left to contemplate his fate’ with no access to a pastor, whilst the guards engaged in a rum fuelled gallows party. It was a case where the sentence was more than the legally prescribed sentence of death. The then Prime Minister claimed that the lawyers of Mr LaPlace had missed the deadline to appeal to the JCPC ‘by mistake’. With a rise in murders, it seems that politicians will use any loophole to see that justice is done.

More harm than good?

However, before jumping onto the bandwagon of criticising the practice of capital punishment in the West Indies as barbaric, it is worth remembering the dire situation that the West Indies (and indeed, the Caribbean Sea/ Gulf of Mexico region) has to endure. This is an area which is at the forefront of the drug trade in the Americas, used as a transit space for South American Cartels aiming to get drugs into the United States and other major Western Countries. Remaining colonies of western nations and independent former colonies are ripe for exploitation due to their geographical location and trade links to their current and/or former colonisers.

Furthermore, gun crime, heavily linked to but not exclusive to the drug trade, has dramatically increased to dire proportions. Jamaica, with a population of nearly 3 million, was reported by the Jamaica Observer newspaper to have had 1,192 murders. In contrast, the same paper reported that Chicago, with a population similar to Jamaica, recorded 468 murders in the same year. The Jamaican Governments aim of a rate of 320 murders a year by 2017 seems to be a losing cause. Elsewhere in the West Indies, the statistics are not for pleasant reading. Trinidad and Tobago, with half the population of Jamaica had a rate of 420 murders in 2015, Belize with a population of only 330,000, had a rate of 119 in 2015 (a drop from 145 in 2012). St Kitts and Nevis itself, a small archipelago of only 50,000 people, has seen a shocking rise in the murder rate. The execution of Laplace itself could have been a way of reassuring tourists after the murder of two welsh honeymooners, an act which could have doomed the island economy which is heavily reliant on the tourism industry. But perhaps if LaPlace was executed as a political act, other death row inmates would be more deserving. One is awaiting the gallows for the abduction and gruesome rape and lynching of an 11 year old girl, another is a local gangster for killing a police officer (though, as Jones suggests, he had not been brought to court for more gruesome crimes). 

It can therefore be seen that there is a serious issue facing the West Indies that the individual nations that comprise the region are unable to adequately solve on their own. Many of these nations are tourism-based economies, to which one murder of tourists can become a western cause celebre which can ruin a nation’s reputation as a safe holiday spot for years, if not decades. To make matters worse, the people of the region have had enough of the murders, and want to see action. Therefore, the nations of the Caribbean resort to Capital Punishment not much as a deterrent but as a means to appear, as Bannister argues, to look like they are doing something. However, the tide of crime means that Hangings will do nothing to alleviate the crime rate – only increase the body count.  

Or a necessary evil?

This being said, any attempt to abolish Capital Punishment outright in the Caribbean faces an uphill battle. Public attitudes across the Caribbean resulting from violence have seen attitudes to crime and punishments harden. It is often said that polls conducted on the support of capital punishment in the region often seen support in large majorities. Jamaica Observer’s Stephen Vascianne argues that, though support stems from the staunch Christian beliefs (he points to Leviticus 24:17 – Whoever kills another man shall surely be put to death), there is a generational issue – he mentions a parliamentary vote under the Michael Manley government in 1979, which passed 24-19. This compared to 2008, which passed 34-19. It can be just as surely said that the length of time the West Indies has had to deal with this blight, compared to the high and constant rate, has lead to a belief that strong action must be taken. It is here that the JCPC enters the firing sights. The belief amongst the Caribbean nations is that the JCPC does not understand the issues these nations face, that it only upholds the norms and attitudes of an abolitionist nation that is perceived to be imposing its beliefs on them. This ideological and socio-political isolation prevents what West Indian politicians believe to be necessary punishments in order to reduce crime (or gain some political capital, in the most case), only intensifies the anger.

Governments may simply disregard the integrity of law as a means of protecting the rights of the convicted as detrimental to retributive justice. This was an attitude taken by Singapore when it abolished appeals to the JCPC for capital crimes in 1989 and altogether in 1995. The reasoning in the case of Singapore was criticism of the Government in its handling of the expulsion of the then opposition leader JB Jeyaretnm from the Singaporean bar. Although the unilateral withdrawal has been a right of independent nations since Moore v the Attorney General of the Irish Free State in 1935 (which ironically overruled the Government line that Ireland could not under the 1921 Anglo-Irish declaration), doing so as a means of trying to acquire a guilty verdict and punishment only harms a nations reputation. Singapore, despite being regarded as the Switzerland of South East Asia, has consequently been dubbed ‘Disneyland with the Death Penalty’ by its critics. Within the West Indies, the abolition of the JCPC is argued to have the same effect, with a court known to defend the rule of law and basic rights being dropped for what have been dubbed as ‘hanging courts’ being seen as to only entrench outside attitudes of these nations as legally unfair.

If this is the case, then the validity of the existence of the JCPC should seem secure. There are arguments that local justice systems are weak and inefficient. In one case, a Trinidadian prisoner once said to The Guardian that he ‘Always had faith in the Privy Council because the Justice in Trinidad and Tobago is very poor’. Much of this attitude stems from the fact that, for a 20 year period, the JCPC had not permitted an execution (the streak was only broken in 2015, when the JCPC ruled that, in a case of two murderers, the defendants had not raised the issue of the unconstitutionality of their sentence). Furthermore, it has made executions harder. In the case of Pratt and Morgan, one precedent was the ruling that anyone whom is kept under the sentence of death for more than 5 years should be released as their continued imprisonment is a breach of human rights.

Are there credible alternatives?

However, this faith in the JCPC may well be misplaced. The UK has itself begun the process of legal reform to the point that, within England and Wales, the JCPC is only the court of appeal for obscure issues. Furthermore, there is angst within the UK legal system in maintaining it. Australia abolished appeals to the JCPC in 1986 (aside from the theoretical Section 74 of the Constitution). The reasoning was much influenced by Chief Justice Sir Owen Dixon who argued that differing jurisdictions could have their own distinct interpretation and practice of common law, and his argument that ‘It is only those who dwell under a Federal Constitution who can become adequately qualified to interpret and apply its provisions’. Australia, it seems, was lucky to avoid the wrangling between Dominion and Westminster as was the case in Canada, which an attempt to abolish appeals to the JCPC was ruled ultra vires in the case of Nadan v R as it was considered that, unlike Australia, the authority to abolish did not lie with the Canadian Parliament. It was eventually abolished after the Statue of Westminster was passed in 1931. What emerged are in the case of both countries two highly reputable and widely respected courts of last resort, of which the confidence of the people is widely abundant. The suggestion that fair justice can only be delivered by the JCPC in its isolation in London at the expense of regional courts has been proven to be incorrect. If anything, these courts have strengthened individual liberty.

There is also the human impact capital cases can have on the UK Supreme Court Justices. Lord Phillips argues that it takes up the time of the concurrent Supreme Court (Capital cases from foreign jurisdictions has been known to take up to 25% of the court’s proceedings). Lord Dyson has said that hearing capital cases had made him feel ‘extremely uncomfortable’. Attitudes to the CCJ as a ‘Hanging court’ may themselves be misplaced. Philip Dayle, writing for the Guardian, notes that one of the first hearings of the court overruled a death sentence which in his words was ‘arguably in the liberal tradition of the Privy Council’, whilst also conceding that it’s true test will come regarding civil liberties. Future cases may involve the CCJ suggesting to its member nations to fix issues in their own legal systems. But perhaps it is a case of the comfort of knowing you are judged by your peers instead of a foreign court, even if the ruling will be the same. If the CCJ makes the recommendation, it would be dangerous for nations to further drop the CCJ in retaliation.

However, in the interest of Justice, the role of the JCPC cannot be understated. If nations wish to emulate Singapore and abolish the JCPC because it is actually producing fair results which can be targeted by those nations in question, then all support for the JCPC must be mobilised. Justice is too delicate to be allowed to fall into the hands of politicians. Australia, New Zealand, Canada and the West Indies as a collective may have the ability to abolish the JCPC and replace it with their own bodies for the same purpose, but if it is permitted for nations to replace it with nothing more than a kangaroo court, then it brings the whole system into disrepute. As long as populist governments take the lazy way out and exploit public fear and sentiment to execute anyone without due regard for legal procedure or even basic human rights just to save their own careers, the Privy council will continue to prove an important part of common law justice.

The Final Word

It will be sad to see the JCPC go, however time is moving faster these days. A court run by a foreign nation, and which that nation would have abolished had it not been to international obligations, cannot adequately rule for other nations. Regardless of issues regarding judicial and legal practices, one independent nation should not rule another of equal status in any form without that nations input in the daily running and accessibility of said forms. It may be hypocritical to support the CCJ in lieu, but the CCJ is a conglomerate court created and run jointly for the benefit of its member nations and their people. Regardless of attitudes to Capital Punishment, no matter how abhorrent it may be found to be, the JCPC does not have the knowledge of the issues facing these nations. The CCJ, in its structure can make a more qualified and just decision given the chance. Despite this upswing of support for the JCPC as a harbinger for regional human rights, the rise of the CCJ as a possible and credible alternative means it should not be assumed that JCPC’s place as it currently stands should be guaranteed. Things change. The momentum amongst politicians, particularly in the Caribbean is against the Privy Council as a court of last resort. Alternatives such as regional or a Commonwealth Court of Last resort to usurp the JCPC as an international court could be an option if promulgated. But it is clear that, despite being a bastion of human rights, the Judicial Committee of the Privy Council is slowly becoming irrelevant. The time is fast approaching where it may have to be allowed to fade into a distinguished part of history. Either way, despite opinion, it is for the people of the individual nations that subscribe to the court to make that decision. For all the talk of sovereignty and democracy, it would be wrong not to.