Submitted by jhortolani on
JAMAICA
Title:
Director of Public Prosecutions of Jamaica v. Kurt Mollison (No. 2)
Court:
Judicial Committee of the Privy Council
Citation:
Privy Council Appeal No. 88 of 2001, [2003] UKPC 6; [2003] 2 WLR 1160, PC
Date:
22 January 2003
Instrument(s) Cited:
The Juveniles Act 1951: Section 29
Jamaica (Constitution) Order in Council 1962: Sections 15, 20, 26, Principle of Separation of Powers
Case Summary:
Background:
Kurt Mollison was convicted at age 19 of murdering a woman in the course of a robbery carried out when he was 16 years old. He was sentenced to be detained during the Governor-General’s pleasure. Under Jamaican law, persons convicted of capital murder shall be sentenced to death, but a child under 18 years of age convicted of murder must instead be placed in indefinite detention with the decision of release entrusted in the Governor-General’s discretion.
The Court of Appeal of Jamaica refused the respondent’s application for leave to appeal against the conviction, but the Court was concerned whether the sentence imposed on the respondent was compatible with the Constitution of Jamaica. The Court of Appeal then allowed the respondent’s appeal: the sentence of detention during the Governor-General’s pleasure was set aside and a sentence of life imprisonment substituted, with a recommendation that the respondent be not considered for parole until he had served a term of 20 years’ imprisonment. The Director of Public Prosecutions then appealed to the Judicial Committee of the Privy Council against the setting aside of the sentence of detention during the Governor-General’s pleasure. In response, the respondent cross-appealed to uphold that order, but cross-appealed against the sentence of life imprisonment which was substituted.
Issue and resolution:
Life imprisonment of children. The Privy Council dismissed the appeal and allowed the cross-appeal. It quashed the life imprisonment sentence and substituted it with a sentence of detention during the court’s pleasure. Life imprisonment and detention at the court's pleasure were seen to be of a different character. The Council further decided that release of the respondent should be determined by the court in accordance with Section 29(4) of the Juveniles Act 195,1 as modified in accordance with the Council’s opinion.
Separation of powers. The Privy Council ruled that the Governor-General’s power to sentence children to indefinite detention under Section 29 of the Juveniles Act 1951 is incompatible with the constitutional principle of separation of powers, the right to personal liberty and the right to a fair trial. The Privy Council decided that, in order to render Section 29 compatible with the Constitution, the judiciary, and not the Governor-General, is the appropriate authority to impose sentencing decisions under Section 29 of the Juveniles Act 1951.
Court reasoning:
With respect to the issue of life imprisonment, the Privy Council reasoned that indeterminate detention is specifically designed to address the special circumstances of children convicted of murder because they have not yet fully matured as adults. It further argued that indeterminate detention not only provides a means of punishment of the child, but also accounts for the child’s progress and development as the child matures so as to properly judge when the child should be released on license.
With respect to the issue of separation of powers, the Privy Council reasoned that Section 29 of the Juveniles Act 1951, in giving an executive officer the power to determine sentencing, infringes on Section 15 and Section 20 of the Constitution as well as the principle of separation of powers between the judiciary and executive branches. Section 15 provides that no person will be deprived of his/her personal liberty. Section 20 provides a right to a fair trial. A person detained during the Governor-General’s pleasure, the Council argued, is deprived of his or her constitutional right of personal liberty because he or she is at the discretion of the executive and not the court. Further, the Council reasoned that this infringes on a person’s right to a fair hearing by an independent and impartial court because the sentencing is passed by the executive and not by a court independent of the executive. Finally, Section 29 was found to infringe on the principle of separation of powers by giving the Governor-General, as an officer of the executive branch, the power to determine the measure of an offender’s punishment, instead of the judiciary.
Impact:
The Juveniles Act 1951 was repealed in 2004 and replaced by the Child Care and Protection (Act No. 11 of 2004) which now regulates the criminal sentencing of children in Jamaica (section 78). The Child Care and Protection Act can be accessed here.
Notes:
For more information on this case, see:
http://www.deathpenaltyproject.org/legal-resources/authorities-database/search/?id=115,
https://www.lccsa.org.uk/director-of-public-prosecutions-v-kurt-mollison-no-2-2003/.
For more information on the issue of inhuman sentencing of children, including a selection of case law, please see CRIN's 'Inhuman sentencing' campaign.
Link to Full Judgment:
http://www.internationaljusticeproject.org/pdfs/mollison.pdf
This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.
