Court/Judicial body: Judicial Committee of the Privy Council
Citation:  UKPC 21,  3 WLR 1158,  1 AC 45
Date: 6 May 1999
Instrument(s) cited:Offences against the Person Act 1873 (as amended), Section 3(1)Federation of Saint Kitts and Nevis Constitutional Order of 1983, Section 5(1)
Background: The appellant Greene Brown was convicted of a murder carried out when he was 15 years old. At the time of conviction, the appellant was 16 years of age and the judge sentenced him to detention during the Governor-General’s pleasure under Section 3(1) of the Offences against the Persons Act 1873 (as amended). This statute provides that a death sentence will not be imposed if at the time the offense was committed the offender was underage (under 18 years old), and in lieu thereof, a court must sentence such an offender to be detained during the Governor-General’s pleasure. The appellant appealed to the Court of Appeal of St. St. Christopher and Nevis against his conviction which was upheld. The appellant then further appealed to the Judicial Committee of the Privy Council with respect to the issue of whether the Governor-General’s discretion to determine the length of indefinite detention of children convicted of murder is in accordance with the Constitution of St. Christopher and Nevis.
Issue and resolution: Life imprisonment of children; Separation of powers. Whether the Governor-General, an executive officer, has the power to determine the duration of indefinite detention of children. The Privy Council held that the judiciary instead of the executive branch has the authority to impose indefinite detention and provide oversight of such a sentence. The Privy Council modified Section 3(1) by substituting the Governor-General’s pleasure with the court’s pleasure in order to make Section 3(1) constitutional. The Privy Council also provided a brief summary of indefinite detention and the policy reasons for imposing such sentences on children.
Court reasoning: With respect to the issue of separation of powers, Section 3(1) of the Offences against the Persons Act gives the Governor-General the discretion to determine the length of indefinite detention of children convicted of murder. This power runs counter to the basic principle of the separation of powers since it entrusts the executive branch, and not the courts, with oversight of the duration of indefinite detention. Pursuant to Section 5(1) of the Constitution, the execution of sentencing is entrusted to the judiciary branch. As a result, sentencing under the Governor-General’s pleasure is a deprivation of personal liberty under Section 5(1). In order to make Section 3(1) compatible with the Constitution, the Privy Council held that the determination of the length of indefinite detention must be performed by the courts. As a result, the Privy Council modified Section 3(1) by substituting the phrase “Governor-General’s pleasure” with the “Court’s pleasure”. With respect to the issue of life imprisonment, the Privy Council briefly addressed the character and reasoning for imposing a detention of indeterminate length on children under 18 years old. It found that such a sentence was not a life sentence, but was a discretionary sentence because its main feature is its indeterminate duration. According to the Privy Council Lordships, the policy behind imposing such sentences on children is to maintain flexibility and enable the duration of a child’s detention to take into account the child’s welfare, the desirability of reintegrating the child into society and the child’s developing maturity through his or her young life.
Link to full judgement: http://www.bailii.org/uk/cases/UKPC/1999/21.html