Public Law - Pinder v The Queen - A Case analysis.

University Degree Law

Public Law- Seminar 5

Pinder v The Queen- A Case analysis

The appellant pleaded guilty on two counts of armed robbery and one of attempted robbery and asked for six other offences of armed robbery and one of possessing a firearm to be taken into consideration. He was sentenced to terms of imprisonment totaling 30 years, and also to a flogging to be administered in two installments of three strokes each. The Court of Appeal dismissed the appellant’s appeal against the sentence. He appealed to the judicial committee of the Privy Council, contending that the sentence of flogging violated article 17(1) and article 30(1). He further contended that the sentence of flogging offended against the principle of separation of powers since its severity depended on factors beyond the power of the sentencing court.
The Supreme Court in Nassau where he pleaded guilty first heard the appellant’s case. He appealed against this decision to the Court of Appeal of the Bahamas, which dismissed his appeal. As a result the appellant appealed further to the judicial committee of the Privy Council.
The case came before a panel of judges sitting in the United Kingdom, as it is the head of the commonwealth, which the Bahamas is a member of.
The judicial committee of the Privy Council dismissed the appeal and the decision of the Court of Appeal of the Bahamas was affirmed. It was also held that, the case should be remitted to the Court of Appeal of the Bahamas to complete the lacuna in the sentence by specifying the instrument to be used for punishment.
The ratio of Lord Millet was that although flogging was an inhuman and degrading punishment it remained constitutional. Its reintroduction in the 1991 Act was protected from unconstitutionality by article 17(2) which referred not just to existing laws but to “any law” and which, construed strictly and in accordance with its natural meaning, was clearly intended to permit the future reintroduction of any description of punishment which had been lawful immediately before 10 July 1973 notwithstanding that it would otherwise contravene article 17(1). He also believed that the pattern of the instrument used for flogging to be approved by the Governor General was a delegated legislative power of general application, which did not affect the severity of the punishment in any particular case, and therefore the judgment did not offend against the principle of separation of powers. However he did also mention that the sentencing court should have specified which instrument was to be used for punishment and its failure to do so rendered the judgment incomplete.
It is often remarked that the severity of the punishment is beyond judicial control and that it falls within the scope of the executive. But, under the 1991 Act all the factors bearing on the severity of corporal punishment which were capable of being prescribed in advance had so far as possible been laid down by the legislature or entrusted to the judiciary. The provision in section 4(2) that says that the pattern of the instrument used for flogging was to be approved by the Governor General was a delegated legislative power of general application, which did not affect the severity of punishment in any particular case and therefore did not offend against the separation of powers. In the words of Lord Millet “The punishment was ultimately subject to judicial control and involves no transfer to the executive a power that ought to be exercised by the judiciary.” Thus the principle of separation of powers plays a very passive role in this case.
The following are sources that were referred to by the majority that were not used by the minority:

Reyes v The Queen [2002] 2 WLR 1034
Otis v Parker [1903] 187 US 606
State v Zuma [1995] BCLR 401,412
Hinds v The Queen [1976] 2 WLR 366
Seventh report of the commission on the criminal law

The following are sources that were referred to by the minority that were not used by the majority:

American declaration on the rights and duties of man [1948]
Article 24 [1] of the Bahamas Independence order
Minister of home affairs v Fisher [1980] AC 319

The dissenting judges believe that the constitution should ...

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Reyes v The Queen [2002] 2 WLR 1034
Otis v Parker [1903] 187 US 606
State v Zuma [1995] BCLR 401,412
Hinds v The Queen [1976] 2 WLR 366
Seventh report of the commission on the criminal law

The following are sources that were referred to by the minority that were not used by the majority:

American declaration on the rights and duties of man [1948]
Article 24 [1] of the Bahamas Independence order
Minister of home affairs v Fisher [1980] AC 319

The dissenting judges believe that the constitution should not be interpreted in such a way that it leads to a result that cannot have been intended. They admit that on a literal reading of the constitution, the reintroduction of corporal punishment falls within the scope of article 17(2). However they opine that such an interpretation would be uncalled for, as it would give such an article an excessively wide scope, which exceeds the limited purpose for which the exception mentioned in the article was included into the constitution. In their view the purpose of Article 17(2) was to assist in the smooth transition from colonialism to sovereignty. According to them once a form of inhuman punishment had been abolished this provision would be spent, as it would have served its transitional purpose. Thus bearing in mind the purpose of such an article a narrower purposive interpretation was favored by them. This approach was given effect by their judgment, which states “the phrase ‘any law’ in article 17(2) is to be understood as confined to any law existing immediately before 10 July 1973 and any successor law directly or indirectly replacing an existing law without material alteration or without any intermission in operation.”
There are definite rhetorical differences between the majority and the minority judgments. The majority judges believe that one has to interpret the constitution by “carefully considering” the language used in it and that the court should not read its own moral values into the constitution. The minority argues that a literal interpretation should give way to a narrower purposive interpretation of the constitution. The minority claims that the constitution framers did not intend that a form of inhuman punishment once abolished, could lawfully be reintroduced in the years that followed and that the liberty to do so was only to allow the transition from colonialism to sovereignty to proceed smoothly. The majority adopted an alternative line of thought and said that it would have been rational on the part of the constitution makers to hold such a view as the extent of punishment should be re considered by the legislature from time to time in the light of changing circumstances. These differences clearly reveal a difference in the understanding of the law.