April 2016 articles archive:

The Judicial Committee of the Privy Council – a colonial legacy

The Judicial Committee of the Privy Council is the highest court of appeal for many Commonwealth countries.

The Judicial Committee of the Privy Council is the highest court of appeal for many Commonwealth countries, as well as the United Kingdom’s overseas territories, Crown dependencies, and military sovereign base areas.


The18th February 2016 will be remembered as the day the Judicial Committee of the Privy Council handed down their judgment in Ruddock (Appellant) v The Queen (Respondent) (Jamaica) and the Supreme Court of the UK handed down their judgment in R v Jogee (Appellant). At the time you probably did not dwell on the fact that one of the cases concerned an appeal from Jamaica as you will have been more interested in what was being said about joint enterprise liability.


As we now know the Judicial Committee focused their attention on an earlier Privy Council appeal decision in Chan Wing Siu v R (1985). It had been held that for an accomplice to be guilty of murder it was sufficient for the prosecution to establish that he foresaw death or grievous bodily harm as a possible incident of the common design being carried out. The subsequent cases of R v Powell and another; R v English (1999) also came under scrutiny as they had also followed the decision in Chan Wing Siu. In so doing the Supreme Court called into question the decision in the case of Chan Wing Siu which is said to have taken a 'wrong turn' in blurring the distinction between foresight and intention, with the result that the courts, in following Chan Wing Siu, have not been faithfully applying the law as it stood at the time.


As far reaching as the decisions were, many law students may not go much further than mentioning the point that decisions of the JCPC are not binding on English courts but may have a persuasive effect on English courts. However, there are much wider issues involved and we need to go back to its origins if we are properly to understand the significance of the role of the JCPC.


The JCPC presently hears appeals from Jamaica's Court of Appeal and acts as a final court of appeal for Jamaica and a number of Commonwealth countries, Crown dependencies and United Kingdom overseas territories. If this were not the case we are unlikely to have heard of the local appeal to the Court of Appeal in Jamaica.


In May 2015 Jamaica, through its Minister of Justice Senator Mark Golding, tabled the three Bills seeking to replace the traditional Judicial Committee of the Privy Council (JCPC) in the United Kingdom, with the Caribbean Court of Justice (CCJ) established some 10 years ago. Having been passed in their House of Representatives just a few days earlier these constitutional changes now require a two-thirds majority in the Senate. Doubts have been raised about the necessary majority as the Government does not have a two-thirds majority and this has delayed the progress of the Bills.


Arguments for abolishment include sovereignty issues (sounds familiar), cost, bearing in mind hearings are ordinarily held in London and not usually in the Caribbean and lack of understanding of Caribbean culture. The most obvious cultural difference is that some Caribbean countries still have the death penalty and in recent times the JCPC has adopted an anti-death penalty position. This is understandable from our perspective but whilst this effectively puts an end to the death penalty in Caribbean countries it has not been brought about by statutory intervention by the countries themselves.


Whilst researching for this article I found an example of a death penalty appeal, Hernandez (Appellant) v The State ( Respondent) (Trinidad & Tobago), listed on the JCPC's own site. The facts of the appeal are that the Appellant was convicted on 29 November 2004 of the murders of Christine and Phillip Henry and sentenced to death. Although he originally confessed to the crime, at trial the Appellant recanted his confession. The Appellant has an IQ of 57. The issue being whether the death sentence imposed upon the Appellant was unlawful ab initio as a result of his intellectual disability and consequently that his sentence should be reduced.


Many may feel that as the death penalty has effectively ended in the Caribbean there is no longer a problem but the organisation Greater Caribbean for Life (GCL) reminds us that the last person hanged in the Caribbean was Charles La Place, of St Kitts and Nevis, who went to the gallows in 2008. However this does not alter the fact that Trinidad & Tobago is among 13 Caribbean countries that still retain the death penalty under their constitutions. GCL estimate that in 2015 between 59 and 80 prisoners were held on death row in eight Caribbean countries. Guyana had between 20 and 41 death row prisoners, with 11 in Barbados and Antigua and Barbuda and T&T each held seven.


Thirteen Commonwealth countries use the JCPC as their highest court of appeal and they include Antigua and Barbuda, the Bahamas, Grenada, Jamaica and Trinidad and Tobago.


Legislation enacted in New Zealand in October 2003 abolished appeals from New Zealand to the Privy Council in respect of all cases heard by the Court of Appeal of New Zealand after the end of 2003. This New Zealand legislation does not affect rights of appeal from the Cook Islands and Niue. Many other Commonwealth countries and former Commonwealth countries have abolished appeals to the JCPC and these include Canada, Hong Kong, India, Australia, Singapore and South Africa.


Crown dependencies are self-governing territories which are not part of the United Kingdom and they have their own legal systems and courts of law. Three Crown dependencies use the JCPC as their highest court of appeal and they are Jersey, Guernsey and the Isle of Man.


In what was described as a landmark case at the time, and one that has featured in examination questions, the JCPC in Attorney General for Jersey v Holley (2005) raised issues regarding precedent. Ordinarily the Court of Appeal is bound to follow the decisions of the House of Lords/Supreme Court but the Court of Appeal preferred to take note of and follow Holley in R v James & Karimi (2006) rather than follow the House of Lords in R v Smith (Morgan) (2000) on the question of what could properly be considered as a factor when determining what amounted to provocation. (Note that the law of provocation was repealed by the Coroners and Justice Act 2009 and replaced with the defence of loss of control).


The JCPC also hear appeals from Independent republics within the Commonwealth, these include the Republic of Trinidad and Tobago, Kiribati and Mauritius. The Judicial Committee also hears appeals from fourteen overseas territories of the United Kingdom including Anguilla, Bermuda, British Virgin Islands, Falkland Islands and Turks and Caicos Islands.

Appeals are also heard from two sovereign base areas in Cyprus - Akrotiri and Dhekelia.


R v Jogee and Ruddock v The Queen - YouTube

Law and Lawyers: Jogee and Ruddock ~ Judgments of the

R v Jogee (Appellant) and Ruddock (Appellant) v The .

Judicial Committee of the Privy Council

Bills to replace Privy Council with CCJ tabled in Senate

House Of Representatives Approves CCJ Bills | RJR News

The global fight to end capital punishment | World news

Beginners guide to the JCPC - The Supreme Court





Recent Posts

The latest posts from the lawmentor.co.uk blog archives.

Caparo three part test – revisited

In Robinson the Supreme Court laid to rest the proposition that there is a Caparo test which applies to all claims in the modern law of negligence.

Statutory interpretation - penal legislation is construed strictly

The Supreme Court reminded everyone per Lord Reed and Lord Hughes that 'Penal legislation is construed strictly, particularly where the penalty involves deprivation of liberty'.

Court of appeal gives judgment acknowledging unmarried woman's rights

The claim related to bereavement payments under the Fatal Accidents Act 1976 as amended.

European union law – in the case of conflict between national law and european law

Walker (Appellant) v Innospec Limited and others (Respondents) [2017] UKSC 47 On appeal from [2015] EWCA Civ 1000

Vicarious liability is alive and well

This decision extends the doctrine of vicarious liability in respect of foster carers for the fist time and it represents another example of the potential for the expansion of this form of liability.

Supreme court busy - make sure you are geared up for your course

The Supreme Court has been especially busy lately.

Gina miller v secretary of state for exiting the eu 2016 as an example of the importance of judicial independence

Law students are now required to take note of how the independence and work of the judiciary has been reformed

Policing and crime bill and provisions for bail after arrest but before charge

The clear intention is that decisions on pre-charge bail should come under scrutiny.