Bernard Coard & 12 Ors v. Attorney General of Grenada

Facts

The 13 appellants appealed against the imposition of mandatory death sentences that had been commuted to life imprisonment in Grenada.

The appellants had been convicted of the murders of 11 persons including the then Prime Minister of Grenada (B) who had come to power as a result of a revolution that ousted the previous constitutional government. The revolutionary party split into two factions led by B and the first appellant (C) respectively. There had been a violent confrontation in which B and the others had been executed by C's supporters. Soon afterwards constitutional government had been restored. The first Act of the restored Parliament confirmed the validity of all laws made by the revolutionary government including the abolition of the right to appeal to the Privy Council.

The appellants had been tried and convicted and the mandatory death sentence imposed. The appellants took no part in their trial and behaved disruptively. Accordingly much of the trial took place in their absence. An appeal to the Court of Appeal of Grenada had been dismissed. Soon afterwards the pre-revolutionary judicial system had been restored. The death sentences had been commuted to life imprisonment. After the Eastern Caribbean Court of Appeal and the Privy Council had held that the mandatory death sentence was unconstitutional, the appellants had filed a constitutional motion claiming that the sentences imposed upon them had been unlawful. The appellants submitted that the mandatory death penalty was unconstitutional; that the constitution precluded the imposition of the death sentence where the trial took place in their absence; that the warrants of commutation were invalid; that their rights under s.8(3) of the Constitution of Grenada had been infringed because they had not been supplied with a copy of the judgment of the Court of Appeal; and that they had been denied their constitutional right to appeal to the Privy Council. The respondent Attorney General submitted that even if the mandatory death sentence was unconstitutional the validity of the sentence was as much res judicata as the validity of the conviction.

Held

(1) On the true construction of the Grenadian Constitution, the mandatory death sentences were unconstitutional when they were passed, Bowe v Queen, The [2006] UKPC 10, [2006] 1 W.L.R. 1623 applied. Section 230 of the Criminal Code had to be interpreted to mean, and to have meant since the Constitution came into force in 1974, that the death penalty for murder was discretionary. The judge did not exercise that discretion and the sentence was therefore unlawful. In the unusual circumstances of the case the Privy Council was not precluded by the doctrine of res judicata from remitting the case to the Supreme Court of Grenada for the appellants to be sentenced in accordance with the true construction of s.230. (2) There was nothing in the other grounds on which the appellants relied. They had disrupted their trial and the legislation contained an exception for disruption. The warrants of commutation were not invalid. In the circumstances there had been no record of the Court of Appeal proceedings made by or on behalf of the court and no breach of s.8(3). They had not been denied any constitutional right to appeal to the Privy Council, Mitchell v DPP of Grenada [1986] A.C. 73 applied.

Appeals allowed.

Comment

Appeals against death sentences imposed on the appellants in 1986 for the murder of a former prime minister of Grenada and 10 other people were allowed. The legality of the sentences had never been the subject of a specific application to the court, there was no adequate mechanism in Grenada for providing the appellants with the judicial sentencing procedure to which they were entitled, and the question of their fate was so politically charged that it was not reasonable to expect any government of Grenada to take an objective view of the matter.