Ebanks (AG) v R

• Jurisdiction: Cayman Islands
• Judge: (Zacca, P., Forte and Mottley, JJ.A.)
• Judgment Date: 03 December 2007
• Court: Court of Appeal (Cayman Islands)
• Date: 03 December 2007

Court of Appeal

(Zacca, P., Forte and Mottley, JJ.A.)

A.G. EBANKS

and

R.

J. Austin-Smith for the appellant;

Ms. C.M. Richards, Solicitor General, for the Crown.

Cases cited:

(1) Att. Gen. v. Alli, [1989] LRC (Const) 474, dicta of Massiah, C. applied.

(2) Bolkiah (Prince Jefri) v. Brunei Darussalam (State), [2007] UKPC 62, dicta of Lord Bingham of Cornhill applied.

(3) Bribery Commr. v. Ranasinghe, [1965] A.C. 172; [1964] 2 All E.R. 785; (1964), 108 Sol. Jo. 441, dicta of Lord Pearce applied.

(4) Deaton v. Att. Gen., [1963] I.R. 170, dicta of Ó Dálaigh, C.J. applied.

(5) Euro Bank Corp., In re, 2001 CILR 156, referred to.

(6) Flynn v. H.M. Advocate, 2004 S.C. (P.C.) 1; 2004 SLT 863; 2004 S.C.C.R. 281; [2004] H.R.L.R. 17; [2004] UKPC D 1, dicta of Lord Carswell applied.

(7) Grant v. John A. Cumber Primary School (Principal), 2001 CILR 78, applied.

(8) Hinds v. R., [1977] A.C. 195; [1976] 1 All E.R. 353; (1975), 119 Sol. Jo. 864, dicta of Lord Diplock applied.

(9) Hydes v. R., 2007 CILR 152, referred to.

(10) James v. United KingdomHRC(1986), 8 E.H.R.R. 123; [1986] RVR 139, followed.

(11) Liyanage v. R., [1967] 1 A.C. 259; [1966] 1 All E.R. 650; (1965), 110 Sol. Jo. 14, referred to.

(12) Maclaine Watson & Co. Ltd. v. Department of Trade & Indus., [1990] 2 A.C 418; [1989] 3 All E.R. 523; [1990] BCLC 102, dicta of Lord Oliver of Aylmerton followed.

(13) Matthew v. State, [2005] 1 A.C. 433; [2004] UKPC 33, followed.

(14) Moncrieff v. R., 2003 CILR N[35], referred to.

(15) Morobe Provincial Govt. (Constitutional Ref.), [1985] LRC (Const) 642, referred to.

(16) Phillips v. EyreELR(1870), L.R. 6 Q.B. 1, followed.

(17) R. v. BurahELR(1878), 3 App. Cas. 889, followed.

(18) R. v. Lichniak, [2003] 1 A.C. 903; [2002] 4 All E.R. 1122; (2002), 1 Cr. App. R. 33; [2003] H.R.L.R. 8; [2002] UKHL 47, referred to.

(19) R. v. Smith, [1987] 1 S.C.R. 1045; (1987), 40 D.L.R. (4th) 435, considered.

(20) R. (Al-Skeini) v. Defence Secy., [2008] 1 A.C. 153; [2007] 3 All E.R. 685; [2007] H.R.L.R. 31; [2007] UKHL 26, considered.

(21) R. (Bancoult) v. Foreign & Commonwealth Secy., [2001] Q.B. 1067; [2001] A.C.D. 18; (2000), 97 (47) L.S. Gaz. 39, dicta of Laws, L.J. followed.

(22) R. (Uttley) v. Home Secy., [2004] 1 W.L.R. 2278; [2004] 4 All E.R. 1; (2004), 1 Cr. App. R. 15; [2004] H.R.L.R. 42; [2004] UKHL 38, dicta of Lord Rodger of Earlsferry followed.

(23) Reyes v. R., [2002] 2 A.C. 235; (2002), 2 Cr. App. R. 16; 12 BHRC 219; [2002] UKPC 11, referred to.

(24) Salomon v. Customs & Excise Commrs., [1967] 2 Q.B. 116; [1966] 3 All E.R. 871; [1966] 2 Lloyd”s Rep. 460, dicta of Diplock, L.J. followed.

(25) Shorter v. R., [1989] LRC (Crim) 440, followed.

(26) Soering v. United KingdomHRC(1989), 11 E.H.R.R. 439, referred to.

(27) State v. Makwanyane, 1995 (3) S.A. 391; [1995] 1 LRC 269, (1995), 6 BCLC 665, referred to.

(28) Waddington v. Miah, [1974] 1 W.L.R. 683; [1974] 2 All E.R. 377; (1974), 59 Cr. App. R. 149, referred to.

(29) Warren v. Immigration Bd., 2002 CILR 188, referred to.

Legislation construed:

Firearms (Amendment) Law 2005 (Law 17 of 2005), s.9(b): The relevant terms of this sub-section are set out at para. 3.

s.21: The relevant terms of this section are set out at para. 4.

Firearms Law (1998 Revision), s.15(5), as added by Firearms (Amendment) Law 2005 (Law 17 of 2005), s.9(b): The relevant terms of this sub-section are set out at para. 3.

Cayman Islands (Constitution) Order 1972 (S.I. 1972/1101), Schedule 2, s.29(1): The relevant terms of this sub-section are set out at para. 43.

Colonial Laws Validity Act 1865 (28 & 29 Vict., c.63), s.2: The relevant terms of this section are set out at para. 33.

Human Rights Act 1998 (c.42), s.3: The relevant terms of this section are set out at para. 54.

s.6: The relevant terms of this section are set out at para. 55.

European Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, November 4th, 1950; Treaty Series 71 (1953)) (Cmnd. 8969), art. 3: The relevant terms of this article are set out at para. 10.

art. 5: The relevant terms of this article are set out at para. 10.

art. 7: The relevant terms of this article are set out at para. 10.

Human Rights-applicability of European Convention on Human Rights-significance for domestic law-minimum sentence-no power to set aside fixed minimum penalty of 10 years” imprisonment in Firearms Law (1998 Revision), s.15(5) (as added in 2005) as arbitrary and disproportionate, contrary to European Convention on Human Rights, art. 3 (Prohibition of torture), as Convention inapplicable in Islands

Statutes-retrospective effect-statute creating new minimum penalty-introduction of mandatory minimum penalty of 10 years” imprisonment in Firearms Law (1998 Revision), s.15(5) (as added by Firearms (Amendment) Law 2005, s.9(b)), even for offence committed before date of 2005 Law, not retroactive penalty-not imposition of ‘heavier penalty’ than applicable at time of offence since no increase in maximum sentence possible

The appellant was charged in the Grand Court with unlawful possession of an unlicensed firearm, contrary to the Firearms Law (1998 Revision), s.15.

The appellant had found a gun on his way home on April 18th, 2003 and the next day, while he was showing it to his brother, it was accidently discharged, injuring his brother”s leg. He immediately called an ambulance and notified the police. The appellant indicated at an early stage of the investigation that he was going to plead guilty, but due to a series of delays, he was unable to enter a plea until July 2006. The Grand Court

(Levers, J.) sentenced him to the mandatory minimum term of 10 years” imprisonment provided in the Firearms (Amendment) Law 2005 (‘the 2005 Law’), s.9(b), which had come into force on November 15th, 2005 and inserted a new s.15(5) into the Firearms Law (1998 Revision), under which no minimum penalty had been prescribed. The 2005 Law further provided, in s.21(2), that an accused person pleading guilty after its commencement date should be dealt with under the new Law, regardless of when the offence had been committed.

On appeal against sentence, the appellant submitted that both the sentence and the amendments made by the 2005 Law were unconstitutional, unlawful and ultra vires because (a) the mandatory sentence failed to take account of the facts of his individual case and was arbitrary and disproportionate to the crime, amounting to a breach of art. 3 of the European Convention on Human Rights and the English Bill of Rights 1689, which prohibited cruel and unusual punishment; (b) the penalty was retroactive and thus unjust, contrary to the rule of law and in breach of art. 7(1) of the Convention, and the Legislative Assembly was not competent to enact retroactive legislation in the absence of an express provision in the West Indies Act 1962, s.5 (under which it was empowered to make laws for the Islands); (c) in enacting the 2005 Law, the Legislative Assembly had breached the UK Human Rights Act 1998, to which it was subject as it was effectively a UK public authority; (d) the 2005 Law violated the principle of the separation of powers, since the Legislative Assembly, by prescribing a minimum sentence, was usurping the function of the courts; and (e) it was ultra vires the power to make laws provided in the Cayman Islands (Constitution) Order 1972, Schedule 2, s.29, since it was not passed for the ‘peace, order and good government of the Islands,’ and, being repugnant to the Constitution (an enactment of the UK Parliament) it was also void under the Colonial Laws Validity Act 1865, s.2.

The Crown submitted in reply that (a) by enacting a minimum sentence, the Legislative Assembly was giving effect to guidelines issued by the Chief Justice in 2001 and approved by the Court of Appeal and, while the Convention applied to the Cayman Islands under international law, the courts were not obliged to apply its provisions in the absence of legislation incorporating them into domestic law; (b) the imposition of a mandatory minimum sentence did not amount to retroactive legislation and, in any event, the prohibition in the Convention only applied to a change in the maximum penalty; (c) the Human Rights Act did not apply to the Cayman Islands; (d) it was within the powers of the Legislative Assembly to prescribe a fixed penalty and to do so did not usurp the functions of the judiciary; and (e) the Legislative Assembly was the sole judge of what legislation was necessary for the ‘peace, order and good government’ of the Islands, and the court should not substitute its own view of what those considerations required in practice, and furthermore, since the Law was not repugnant to any provision in the Constitution, it could not be challenged under the Colonial Laws Validity Act.

Held, dismissing the appeal:

(1) The sentence passed on the appellant was correct and would be affirmed. The prohibitions of inhuman or degrading treatment or punishment contained in the Convention, art. 3 could not be enforced in the Cayman courts in the absence of legislation incorporating it into domestic law. Although residents of the Islands had the right to petition the European Court of Human Rights directly, and in international law the UK Government had made the Cayman Islands subject to the Convention, the court”s duty was to enforce the domestic laws of the Islands, provided they were clear and unambiguous, even if those laws were in conflict with international obligations. The appellant had not shown that the changes made by the Firearms (Amendment) Law 2005 were repugnant to the Constitution, which did not contain any provisions guaranteeing fundamental rights and freedoms. Nor was it incompatible with any other law made under the authority of the West Indies Act 1962 (under which the Cayman Islands (Constitution) Order 1972 had been made) and it was not, therefore, void under...