Roger F.P. de Boucherville
The State of
THE COURT OF APPEAL OF
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JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL
Delivered the 9th July 2008
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Present at the hearing:-
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1. This appeal requires the Board to examine the effect and constitutionality of the sentence of imprisonment which the appellant (
4. The reason for this change lay in the Abolition of Death Penalty Act 1995 which came into force on 14 December. Section 2 of that Act amended the law in three significant ways. First, it abolished the death penalty (section 2(1)). Secondly, it provided that where under any enactment a court was empowered to impose a sentence of death it should instead of the death sentence impose a sentence of penal servitude for life (section 2(2)). Thirdly, it provided that where any person had been sentenced to death, and the sentence had not, at the commencement of the Act, been executed, that person should be deemed to have been sentenced to penal servitude for life and should undergo that sentence (section 2(3)). The appellant plainly fell within that subsection. Section 5(1) of the 1995 Act made what was described as a consequential amendment or repeal of section 222 of the Criminal Code by deleting subsection (1) and replacing it with a subsection which read:
“Any person who is convicted of–
(a) murder or murder of a newly born child, shall be sentenced to penal servitude for 45 years;
(b) attempt at murder or attempt at murder of a newly born child, shall be liable to penal servitude for 45 years.”
A person sentenced to 45 years’ penal servitude under this provision would, if entitled to remission of one third of the sentence, be entitled to release after 30 years.
5. By letters dated 5 March and
6. With effect from
“for life or, where the Court is satisfied that substantial and compelling circumstances exist which justify the imposition of a lesser sentence and has entered those circumstances on the record of the proceedings, for a term not exceeding 60 years.”
Thus a defendant convicted of murder could be sentenced to penal servitude for life or, if there were mitigating circumstances, for a fixed term of up to 60 years. That was the effect of section 4(1)(b)(i) of the 2007 Act and applied to those sentenced after the Act came into force. Section 5 contained transitional provisions applicable to prisoners sentenced before it came into force. So far as material the section provided:
(1) Any person who has, before the commencement of this Act, been sentenced, in respect of an offence other than the offence of manslaughter, to penal servitude for life or for a mandatory term of 45 or 30 years, which he is still serving, may make an application to the Supreme Court for the Court to review the sentence.
(2) The Court, in considering an application under subsection (1) -
(a) may consult the record of the original case; and
(b) may take into consideration a report on the original case by the Judge or Magistrate, as the case may be, who presided at the trial, or, where a report cannot be obtained from that Judge or Magistrate, a report by the Chief Justice, together with such other information derived from the record of the original case or from any other relevant official source.
(3) The Court, after considering an application under subsection (1), shall –
(a) in the case of a sentence of penal servitude for life, either maintain that sentence or substitute therefor a sentence of penal servitude for a term not exceeding 60 years;
(b) in the case of a mandatory sentence of penal servitude for a term of 45 or 30 years, substitute therefor a sentence of penal servitude for a term not exceeding 45 or 30 years, as the Court may determine to be appropriate.
(4) For the purposes of this section, ‘original case’ means the case in which the person who is the subject of the application was tried at first instance before the Supreme Court or the
The decisions of the courts
7. In the period from 2002 to the present the courts of
8. The first concerns
(1) The punishment of penal servitude is imposed for life or for a minimum of 3 years.
(2) Where in any enactment the punishment of penal servitude is imposed without a term being specified, the maximum term for which the punishment may be imposed is 20 years.”
By Act No 1 of 1985 the figure of “20 years” in subsection (2) was increased to “30 years”, but with the benefit of full remission he would still be entitled to release after 20.
9. Following due service on the parties,
10. The second relevant decision was that of the Supreme Court in the present proceedings. Prompted, it would seem, by the success of Mr Jeetun, the appellant issued a notice of motion on
11. In its judgment the court referred to the legislative changes noted above and referred to the case of
12. The court accepted that the appellant could not be sentenced to a more severe penalty than the maximum provided by law at the date of his offence in 1984, and that the maximum sentence of penal servitude in 1984 had been 20 years in cases where no term had been specified. But on its construction of section 11(1) of the Criminal Code penal servitude for life was a punishment for a specified term, namely life. The court noted certain incongruities in the law as amended in 1995, but concluded after reference to English authority that penal servitude for life could only mean that the penalty was to be served for life. The decision in
13. The authorities responded promptly to the Supreme Court’s decision in the appellant’s case, and proceedings were brought by the State of Mauritius against
14. Much of the court’s judgment is devoted to exploring and addressing the anomaly which would exist if those sentenced to penal servitude for life for manslaughter were required to stay in prison for the whole of their lives whereas those convicted of the more serious crime of murder were entitled to be released after 45 years. The court ordered that all detainees sentenced to penal servitude for life for manslaughter, whether before or after the coming into operation of the 1995 Act, should be treated as if sentenced to the maximum term of 20 years’ penal servitude. The order of
“In determining the sentence which a detainee has yet to serve, various factors might be taken into consideration, including pure retribution, expiation, expressions of the moral outrage of society, maintenance of public confidence in the administration of justice, deterrence, the interests of victims, rehabilitation and, last but not least, mercy.”
This judgment provided the background to the 2007 Act (para 6 above).
15. The fourth relevant judgment was given by the Supreme Court (Court of Criminal Appeal) (YKJ Yeung Sik Yuen CJ, E Balancy and A Caunhye JJ) on
“In line with the principles outlined above, in relation to the statutory imposition of a mandatory death sentence, we believe that it would be equally objectionable for a law to require of the Mauritian Courts to impose any substantial amount of prison sentence which would be mandatorily fixed by the legislature and which would be binding the hands of the judiciary. There would, otherwise, be no possibility for an accused party to invoke that the mandatory prison sentence imposed by law would be disproportionate and inappropriate in spite of mitigating factors which could otherwise have been invoked, in relation to him.
A law which denies an accused party the opportunity to seek to avoid the imposition of a substantial term of imprisonment which he may not deserve, would be incompatible with the concept of a fair hearing enshrined in section 10 of our Constitution. A substantial sentence of penal servitude like in the present situation cannot be imposed without giving the accused an adequate opportunity to show why such sentence should not be mitigated in the light of the detailed facts and circumstances surrounding the commission of the particular offence or after taking into consideration the personal history and circumstances of the offender or where the imposition of the sentence might be wholly disproportionate to the accused’s degree of criminal culpability.”
Of the latter right it said that section 222(1), before its amendment in 2007, contravened the principle of proportionality and amounted to inhuman or degrading treatment or other such treatment inasmuch as it indiscriminately imposed a mandatory term of 45 years in all cases. The court, however, concluded that section 222(1) of the Criminal Code was unconstitutional only insofar as it provided for a substantial mandatory prison sentence of 45 years and the section should be read down in such a way that upon conviction an offender would be liable to a prison sentence in the discretion of the court but subject to a maximum of 45 years.
16. The Supreme Court commented on the transitional provisions in section 5 of the 2007 Act in these terms:
“We need pause here to make some observations on the apparent purport of section 5 of the Criminal Procedure (Amendment) Act which we have cited above. Although it was obviously passed with good intention, the contemplated application to the Supreme Court for a review of a mandatory sentence which had already been passed would, in our view, run counter to the sacrosanct principles of ‘functus officio’ and of finality of a judgment. Indeed, once a final judgment has been pronounced, the problem, if any, can no longer be a judicial one but one for the executive pursuant to section 75 of the Constitution which has constituted a prerogative of mercy.”
The Board understands that, unsurprisingly in the light of this ruling, no application for review has been made under section 5 of the 2007 Act.
18. The thrust of
19. The first response of
“The abolition of the death penalty has been lauded, and justified, in many ways; but it must have been founded at least on the premise that the life of every person, however depraved, has an inalienable value. The destruction of a life may be accepted in some special circumstances, such as self-defence or just war; but retributative punishment is never enough to justify it. Yet a prisoner’s incarceration without hope of release is in many respects in like case to a sentence of death. He can never atone for his offence. However he may use his incarceration as time for amendment of life, his punishment is only exhausted by his last breath. Like the death sentence the whole-life tariff is lex talionis. But its notional or actual symmetry with the crime for which it is visited on the prisoner (the only virtue of the lex talionis) is a poor guarantee of proportionate punishment, for the whole-life tariff is arbitrary: it may be measured in days or decades according to how long the prisoner has to live. It is therefore liable to be disproportionate – the very vice which is condemned on Article 3 grounds – unless, of course, the death penalty’s logic applies: the crime is so heinous it can never be atoned for. But in that case the supposed inalienable value of the prisoner’s life is reduced, merely, to his survival: to nothing more than his drawing breath and being kept, no doubt, confined in decent circumstances. That is to pay lip-service to the value of life; not to vouchsafe it.”
In R v Lichniak  UKHL 47, 
“If the House had concluded that on imposition of a mandatory life sentence for murder the convicted murderer forfeited his liberty to the state for the rest of his days, to remain in custody until (if ever) the Home Secretary concluded that the public interest would be better served by his release than by his continued detention, I would have little doubt that such a sentence would be found to violate articles 3 and 5 of the European Convention on Human Rights … as being arbitrary and disproportionate.”
The same reasoning applies in the present case.
21. The first of the release provisions relied on by the majority in Kafkaris in reaching its decision was article 53(4) of the Constitution of Cyprus which, as operative at the relevant time, empowered the President of the Republic, with the concurrence of the Attorney-General, to remit, suspend or commute any sentence passed by a Cypriot court (see paras 36-37). The Attorney-General might make recommendations or give advice to the president on the early release of prisoners sentenced to life imprisonment, but the President was not bound by such advice or recommendations (para 38). Under the Constitution (paras 61-62) the Attorney-General was an independent officer of high standing. He had the power, among others, “to institute, conduct, take over and continue or discontinue any proceedings for an offence against any person in the Republic”. Thus, as in other states, he had an important prosecutorial role.
22. The second of the release provisions referred to was section 14(1) of the Prison Law 1996 which as amended provided that (see para 59):
“Subject to the provisions of the Constitution, the President of the Republic, with the agreement of the Attorney-General of the Republic, may order by decree the conditional release of a prisoner at any time.”
23. The Grand Chamber’s decision in Kafkaris (with which
24. Section 17(2) of the Constitution confers power to make such orders as are appropriate for giving the protection to which a person is entitled under these sections, but such power is not to be exercised under the subsection where adequate means of redress are available under any other law.
25. The Board therefore allows the appeal, declares the sentence passed upon the appellant to be unconstitutional and invites the appellant to make application to the Supreme Court under section 5 of the 2007 Act.