Read David Rowe's article, "Trial by Jury- Right or Privilege" for a discussion of Hinds v R.
Below is an excerpt from the Privy Council Judgment :
Facts:
In 1974 the Parliament of Jamaica passed the Gun Court Act 1974 as an ordinary Act of Parliament. It had not been preceded by legislation passed under the special procedure prescribed by s. 49 of the Constitution for an Act of Parliament to alter provisions of the Constitution.
The Act purported to establish a new court called the Gun Court. The court was empowered to sit in three Divisions, namely a Resident Magistrate’s Division, a Full Court Division and a Circuit Court Division. One or other of these Divisions was empowered to try certain kinds of offences which, prior to the coming into force of the Act were cognizable only in a Resident Magistrates Court or in a Circuit Court of the Supreme Court of Jamaica.
The Act purported to establish a new court called the Gun Court. The court was empowered to sit in three Divisions, namely a Resident Magistrate’s Division, a Full Court Division and a Circuit Court Division. One or other of these Divisions was empowered to try certain kinds of offences which, prior to the coming into force of the Act were cognizable only in a Resident Magistrates Court or in a Circuit Court of the Supreme Court of Jamaica.
The Act provided, inter alia, that all the trials should be held in camera and that for certain specified offences the Gun Court should impose a mandatory sentence of detention at hard labour from which the detainee could only be discharged at the direction of the Governor General acting in accordance with the advice of a Review Board, a non-judicial body established by the Act.
The Review Board was to consist of five persons of whom the Chairman was to be a judge or a former Supreme Court or Court of Appeal Judge. None of the other members of the Board was a member of the Judiciary. They were to be the Director of Prisons, the Chief Medical Officer, a nominee of the Jamaica Council of Churches and a person qualified in psychiatry nominated by the Prime Minister after consultation with the Leader of the Opposition. Thus the majority of persons on the Review Board did not consist of persons appointed in the manner laid down in Chapter VII of the Constitution for persons entitled to exercise Judicial powers.
In substance therefore, the power to determine the length of any custodial sentence imposed for an offence under s. 20 of the Firearms Act 1967 was removed from the Judicature and vested in a body of persons not qualified under the Constitution to exercise judicial powers. The only function left to the Gun Court itself in relation to the length of the custodial sentence was the right to make recommendations for the consideration of the Review Board. Even though the Review Board was obliged to take the recommendations into consideration, it was not obliged to follow it. The power of decision rested with the Review Board alone.
Hinds and others were convicted in the Resident Magistrate’s Division of the Gun Court and sentenced to detention during the Governor General’s pleasure. They appealed to the Court of Appeal against conviction and sentence on the grounds, inter alia, that the provisions of the Act under which they had been tried and sentenced were in conflict with the Constitution of Jamaica and therefore void.
Held :
1. The provisions of the Act which provided for the establishment of a Full Court Division consisting of three Resident Magistrates were in conflict with the Constitution of Jamaica and, therefore, void since their practical consequence was to give to a court composed of members of the lower judiciary jurisdiction to try and to punish by penalties, extending in the case of some offences to imprisonment for like, all criminal offences, however grave, apart from murder or treason, committed by any person who had also committed an offence under s. 20 of the Firearms Act 1967.
2. The general rule in s. 20 (3) of the Constitution that trials should be held in public entrenches a previously existing common law rule. The rule however, was subject to the exceptions laid down in s. 20(4) and the exception applicable in this case was that which permitted persons other than the legal representatives of the parties to be excluded from the proceedings in the interests of public safety and public order. The Gun Court Act required all cases to be heard in camera. Parliament is vested with power under section 48(1) of the Constitution to make laws for the peace, order and good government of Jamaica.
Prima facie it is for Parliament to decide what is or is not reasonably required in the interests of public safety or public order. Such a decision involves considerations of public policy which lie outside the field of the judicial power and may have to be made in the light of information available to the Government of a kind that cannot effectively be adduced in evidence by means of the judicial process. In this case, therefore, in deciding the constitutionality of the section of the Act requiring all trials to be held in camera, the court must start with the presumption that the circumstances existing in Jamaica are such that hearings in camera are reasonably required in the interests of “public safety, public order or the protection of the private lives or persons concerned in the proceedings.”
3. Even though the Constitution does not expressly provide for Separation of Powers of the Executive, Legislature and Judicature, it is necessary by implication that the basic principle of separation of powers will apply to the exercise of their respective functions by these three organs of government. Thus even though the Constitution does not contain any express prohibition upon the exercise of legislation powers by the Executive or of judicial powers by either the Executive or Legislature, the doctrine of separation of powers sill applies.
3. Even though the Constitution does not expressly provide for Separation of Powers of the Executive, Legislature and Judicature, it is necessary by implication that the basic principle of separation of powers will apply to the exercise of their respective functions by these three organs of government. Thus even though the Constitution does not contain any express prohibition upon the exercise of legislation powers by the Executive or of judicial powers by either the Executive or Legislature, the doctrine of separation of powers sill applies.
It is a well established rule of construction applicable to constitutional instruments such as the Jamaican Constitution that the absence of express words to that effect does not prevent the legislature, the executive and the judicial powers of the state being exercisable exclusively by the Legislature, by the Executive and by the Judicature respectively.
The Parliament of Jamaica cannot, consistently with the separation of powers transfer from the judiciary to any executive body whose members are not appointed under Chapter VII of the Constitution a discretion to determine the severity of the punishment to be inflicted upon an individual member of a class of offenders.
The power conferred upon the Parliament to make laws for the peace, order and good government of Jamaica enables it not only to define what conduct shall constitute a criminal offence but also to prescribe the punishment to be inflicted on those persons who have been found guilty of that conduct by an independent and impartial court established by law. The carrying out of the punishment where it involves a deprivation of personal liberty is a function of the executive power; and subject to any restrictions imposed by a law, it lies within the power of the executive to regulate the conditions under which the punishment is carried out.
In the exercise of its legislative power, Parliament may, if it thinks fit, prescribe a fixed punishment to be inflicted upon all offenders found guilty of the defined offence – as, for example, capital punishment for the crime of murder. Or it may prescribe a range of punishments up to a maximum severity, either with or without a minimum, leaving it to the court by which the individual is tried to determine what punishment falling within the range prescribed by Parliament is appropriate in the particular circumstances of his case.
Thus Parliament in exercise of its legislative power may make a law imposing limits upon the discretion of the judges who preside over the courts by whom offences against that law are tried to inflict on an individual offender a custodial sentence the length of which reflects the judge’s own assessment of the gravity of the offender’s conduct in the particular circumstance of his case. What Parliament cannot do, consistently with the separation of powers is to transfer from the judiciary to any executive body whose members are not appointed under Chapter VII of the Constitution, a discretion to determine the severity of the punishment to be inflicted upon an individual member of a class of offenders.
Even though the Review Board would, no doubt, have acted in good faith, impartially and responsibly, a breach of a constitutional restriction is not excused by good intentions with which the legislative power has been exceeded by the particular law.
It is implicit in the very structure of a constitution on the Westminster Model that judicial power, however it be distributed from time to time between various courts, is to continue to be vested in persons appointed to hold judicial office in the manner and on the terms laid down in the Constitution. This was upheld in Liyanage v R [1966] 1 All E.R..650.
It followed that the provisions of the Act relating to the mandatory sentence of detention during the Governor General’s pleasure and to the Review Board were a law made after the coming into force of the Constitution which was inconsistent with the provisions of the Constitution relating to separation of powers and were void by virtue of s. 2 of the Constitution.
The Appellants whose trials for offences under Section 20 of the Firearms Act 1967 took place before a Resident Magistrate's Division of the Gun Court, were convicted by a court of competent jurisdiction; but that the sentences imposed upon them, "that they be detained at hard labour during the Governor General's pleaseure", were unlawful sentences which the Resident Magistrate had no power to award.
The Privy Council therefore recommended that the appeal of Hinds, Hutchinson, Martin and Thomas against their convictions be dismissed, the conviction against Jackson be restored and the sentences for the appellants be set aside, i.e. the cases be remitted to the Court of Appeal to pass such other sentences as they think ought to have been passed in substitution for the sentences passed by the Resident Magistrate.
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