Hydes v R
| Jurisdiction | Cayman Islands |
| Judge | (Zacca, P., Taylor and Forte, JJ.A.) |
| Judgment Date | 04 April 2007 |
| Court | Court of Appeal (Cayman Islands) |
| Date | 04 April 2007 |
(Zacca, P., Taylor and Forte, JJ.A.)
H. Hamilton, Q.C. for the appellant;
S.W. Bulgin, Q.C., Attorney General, and T. Ward, Crown Counsel, for the Crown.
(1) Attin v. Trinidad & Tobago, Trinidad & Tobago C.A., Crim. App. No. 29 of 2004, October 14th, 2005, unreported, considered.
(2) D.P.P. (Jamaica) v. Mollison, [2003] 2 A.C. 411; [2003] A.C.D. 21; (2003), 100 (11) L.S. Gaz. 32; [2003] UKPC 6, followed.
(3) Deaton v. Att. Gen., [1963] I.R. 170, applied.
(4) Hinds v. R., [1977] A.C. 195; [1976] 1 All E.R. 353; [1976] Crim. L.R. 124; (1975), 119 Sol. Jo. 864, dicta of Lord Diplock applied.
(5) Scantlebury v. R., Barbados C.A., Cr. App. No. 34 of 2002, unreported, referred to.
(6) State v. O”Brien, [1973] I.R. 50, applied.
Youth Justice Law (2001 Revision), First Schedule, para. 1(1): The relevant terms of this sub-paragraph are set out at para. 17.
First Schedule, para. 2(2): The relevant terms of this sub-paragraph are set out at para. 2.
First Schedule, para. 5: The relevant terms of this paragraph are set out at para. 17.
Jamaica (Constitution) Order in Council 1962 (S.I. 1962/1550), s.4(1): The relevant terms of this sub-section are set out at para. 15.
Constitutional Law-Governor-confusion of executive and judicial functions-purported power of Governor, as Queen”s representative, to determine length of sentence under Youth Justice Law (2001 Revision), First Schedule, para. 2(2) (providing for sentence of imprisonment ‘during Her Majesty”s pleasure’) in breach of constitutional principle of separation of powers of executive and judiciary
Criminal Procedure-juvenile offenders-sentence-Governor”s order of imprisonment ‘during Her Majesty”s pleasure’ in Youth Justice Law (2001 Revision), First Schedule, para. 2(2) incompatible with constitutional principle of separation of powers of executive and judiciary-court has inherent jurisdiction to substitute order for detention ‘during court”s pleasure,’ until satisfied that sufficient time served to meet requirements of punishment and rehabilitation
The appellant was charged in the Grand Court with manslaughter.
The appellant, who was 15 years old, was convicted and sentenced to be detained under the Youth Justice Law (2001 Revision), First Schedule, para. 2(2), ‘until the pleasure of His Excellency the Governor be known,’ with a recommendation that he serve at least six years in custody before release on licence.
On appeal against sentence, the appellant submitted that since the Cayman Constitution guaranteed the separation of powers of the executive and judicial arms of government (a) his sentence was unlawful because para. 2(2) vested the power to determine his sentence in the executive (i.e. the Queen, acting through her representative, the Governor of the Cayman Islands), whereas only the judiciary could lawfully exercise that power; and (b) the court should modify or adapt para. 2(2) so that it conformed with the Constitution.
The Crown submitted in reply that (a) the appellant”s sentence was valid as he had been correctly convicted, imprisonment was justified due to the seriousness of the offence and para. 2(2) gave the court the power to impose a custodial sentence in an appropriate case; and (b) there was no express power in the Constitution allowing the court to construe legislation to make it comply with constitutional provisions.
Held, allowing the appeal:
(1) The Youth Justice Law (2001 Revision), First Schedule, para. 2(2) was in conflict with the principles underlying the Cayman Constitution, as it gave the Governor, who had no judicial powers or responsibilities, the power to determine the length of sentence for an offender below the age of 17 who would otherwise be liable to life imprisonment. The Constitution (which was based upon the ‘Westminster model’ and had as its foundation the separation of powers of the executive, legislative and judicial arms of government) assigned sentencing power to the judiciary. Nevertheless, a custodial sentence was appropriate due to the seriousness of the offence and had been lawfully imposed under para. 2(2). The only breach of the Constitution was that the appellant had been sentenced to detention during Her Majesty”s pleasure, and this would be rectified by ordering instead that he be detained during the court”s pleasure (para. 13; paras. 17–18).
(2) The court was unable to construe the Youth Justice Law in a manner compatible with the Cayman Constitution, since the Constitution was unusual in that it did not contain an express provision authorizing the court to modify or adapt legislation to conform with constitutional principles. However, the court had an inherent jurisdiction (under powers analogous to those allowing it to order imprisonment for civil contempt) to sentence the appellant to a period of detention until it was satisfied that he had served sufficient time to ensure both punishment and rehabilitation. This allowed the court to comply with the spirit of the legislation, which was designed to address the special circumstances of young offenders and to treat them differently from adults who committed similar serious offences. The appellant”s progress would be monitored and reviewed from time to time in accordance with guidelines which should be formulated by the Chief Justice, in consultation with the Grand Court judges. In addition, the court would advise the Attorney General to recommend that para. 2(2) be amended to conform with the Constitution (paras. 15–16; para. 19; para. 21).
1 FORTE, J.A., delivering the judgment of the court: The appellant was convicted of manslaughter on August 2nd, 2001. As he was 15 years of age at the time of his conviction, the learned trial judge, in accordance with the provisions of para. 2(2) of the First Schedule to the Youth Justice Law (2001 Revision), ordered that he be detained ‘until the pleasure of His Excellency the Governor be known.’ In addition, he recommended that the appellant serve a ‘minimum of six (6) actual years of detention before release on licence and in the event that release on licence does not then take place, annual review thereafter.’
2 Paragraph 2(2) of the First Schedule to the Youth Justice Law (2001 Revision) provides:
‘Where a young person is found guilty of any other offence before the Grand Court for which...
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