mercy_committee

The Quality of Mercy

BU reposted following article from elsewhere because of its topical interest.

doddsWe were astonished to read, earlier this week, in another section of the press, a claim that the decisions of the Mercy Committee of the local Privy Council were not subject to judicial review or, as it was put, “no court of law in Barbados has power to review the decisions of the Mercy Committee”. The writer purported to rely on “one of the regulations that govern the body”, although the express provision was not cited or even referenced by source. Given the current discourse in the public domain concerning some recent decisions of the Committee that have been made without reference to the families of the victims, we consider the matter one of topical public interest and therefore deserving of closer study.

It is correct to state that the weight of judicial opinion was, at one time, unwilling to question the executive decision to grant or refuse mercy in respect of issuing or not issuing a pardon or remission of a sentence for a criminal offence. Indeed, in one regional decision, Lord Diplock asserted for the Judicial Committee of Her Majesty’s Privy Council, “mercy is not the subject of legal rights. It begins where legal rights end”, and that “a person has no legal right to have his case considered in connection with the exercise of the prerogative of mercy…”

However, this view was later discredited by a differently constituted Bench in an appeal from Jamaica, There, it was held that a failure to allow the applicant to respond to material placed before the Mercy Committee and from making other representations infringed his constitutionally guaranteed right to a fair hearing and thereby nullified the adverse decision of the body.

Apart from this, the Caribbean Court of Justice [CCJ], in the relatively recent Barbadian case of Attorney General v Boyce & Joseph determined that the prerogative of mercy under the supreme law of Barbados is indeed subject to the demands of procedural fairness.

In that case, counsel for the Crown sought to argue that section 78 of the Constitution had codified, preserved and institutionalized the prerogative of mercy and that this section “ought not to be regarded as a mere statutory power subject to judicial review”. Their Lordships were not persuaded, holding that “there was nothing to prevent the court from examining the procedure adopted by the [committee] and testing it for procedural fairness by reference to the rules of natural justice and, for compliance with the fundamental rights and freedoms recognized in the Constitution…”

The legal position appears to be similar throughout the Commonwealth, and courts in India, South Africa, Singapore and New Zealand, for examples, have all claimed a power of judicial review in respect of the exercise of the power of mercy.

This is not an absolute power however. In the CCJ case referred to above, de la Bastide P. emphasized that justiciability concerning the exercise of the power of mercy applies not to the decision itself but to the manner in which it was reached. “It does not involve telling the Head of State whether to commute…”

Too besides, challenges are most likely to arise as a consequence of decisions adverse to a sentenced applicant. The present local scenario contemplates taking into account the views of the members of the victim’s family -a different determination.

Simply put, the critical issue is one of procedural fairness. Is it fair to all concerned that the decision to exercise the prerogative of mercy should be one made without reference to these alternative views? And complex legal problems of the standing of these individuals will still have to be resolved.

The decision however, is not itself free from judicial question.

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52 Comments on “The Quality of Mercy”

  1. Caswell Franklyn March 25, 2016 at 8:34 AM #

    If you want mercy in Barbados it is best that you have some strong connections with the party in power or a particular lodge. If those connections are in place, you can kill as many as you like. You would be fast tracked to the mercy committee and the reports going before them would make the killer sound like Mother Theresa.

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  2. David March 25, 2016 at 8:36 AM #

    Who are the members of the mercy committee?

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  3. Well Well & Consequences March 26, 2016 at 6:33 AM #

    Let’s hope they are not releasing 200 prisoners just so they can vote, knowing the politicians low mentality. Are convicted felons allowed to vote in Barbados

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  4. Mobert March 26, 2016 at 7:23 AM #

    Releasing prisoners to cut expenses at prison maybe?

    There will be repercussions. Can the state be sued for if / when one of these commits another violent felony, that results in harm to an individual?

    As for releasing a multiple killer, crimes committed over many years, against women, that is just ridiculous.

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  5. David March 26, 2016 at 7:32 AM #

    According to the Barbados Today report the AG confirmed those prisoners to be released have served their terms, the problem in Barbados one may never know.

    http://www.barbadostoday.bb/2016/03/25/close-to-200-prisoners-due-for-released/

    Like

  6. David March 26, 2016 at 7:34 AM #

    @Mobert

    You need to take a couple minutes and read the article:

    Apart from this, the Caribbean Court of Justice [CCJ], in the relatively recent Barbadian case of Attorney General v Boyce & Joseph determined that the prerogative of mercy under the supreme law of Barbados is indeed subject to the demands of procedural fairness.

    Like

  7. ac March 26, 2016 at 9:01 AM #

    Would be interesting to hear Comissiong views on this issue weighing in on time served by prisoner as the legatimate apparatus of fair and right justice is also dependant on a committe of Mercy for the individual release.

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  8. Well Well & Consequences March 26, 2016 at 9:37 AM #

    Is there a halfway house to counsel those who have served their time to facilitate their assimilation back into the society…or is that asking too much. I did not read the article, but can be sure that some of those being released have served 15 years or more, making their readjustment into the society a very difficult process, particularly if they are recidivists, particularly if they do not have an understanding extended family unit.

    Barbados is still tiny, the authorities knew these people have to be released, eere preparations made to accommodate, I will not hold my breath.

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  9. TheGazer March 26, 2016 at 9:49 AM #

    Looks like they are making room for a few people.

    I cannot imagine how 184 people are scheduled to be released at almost the same time. Since it is not a case of early release, it makes me wonder if some folks were held past the time sentenced.

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  10. Well Well & Consequences March 26, 2016 at 11:42 AM #

    And if that’s the case Gazer, just imagine the anger and psychological damage to those who were incarcerated and then illegally held past their due date of release, they cant stagger the release, how were they able to sentence so many at the same time that caused the same release dates.

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  11. David March 26, 2016 at 12:15 PM #
    .

    Don’t let him out!

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  12. ac March 26, 2016 at 1:41 PM #

    There should never have to be a debate or discussionof Merc on crimes of such a heinous nature. The judgement of gulity should be a sentence that fully satisfies the court and the family members of the victims.
    A sentence that sends a meaningful message of life in prison without parole

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  13. Look March 26, 2016 at 3:08 PM #

    http://www.barbadostoday.bb/2016/03/23/mcclean-pleads-for-help-from-china/

    Barbados I think should just relinquish its independence, but the queen I’m sure does not want it back in the mess it is in “on its knees”. So, I would suggest it surrender itself to another country. How about China? It’s already begging China for help.

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  14. Well Well & Consequences March 26, 2016 at 5:56 PM #

    McClean should be ashamed, the whole government should be ashamed, their yardfowls should be ashamed.

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  15. colonel Buggy March 26, 2016 at 6:03 PM #

    Look March 26, 2016 at 3:08 PM #
    If you were to visit Oistins Fish Festival this week end you would see China looming large there. As a fellow on the block told me Oistin is hosting the CCJ- Cheap Chinese Junk.

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  16. David March 26, 2016 at 6:09 PM #

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  17. David March 26, 2016 at 6:11 PM #

    Something for the HC crew.

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  18. colonel Buggy March 26, 2016 at 6:18 PM #

    Well Well & Consequences March 26, 2016 at 6:33 AM #
    Now there is no doubt left in our minds that these jokers in government are just as much terrorists as those who blew up the airport and train station in Belgium. Only Bokoharam, ISIS , the Taliban or the IRA would spring vicious killers and convicts from prison and let them loose on law abiding citizens.
    Perhaps we should outfit these many released prisoners in Black Shirts, as without any prospect of jobs or other support, except possibly from their benfactors who have secured their release, they may well become the Tough Arm Mongoose Gang of a republic Barbados.

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  19. David March 26, 2016 at 6:21 PM #

    The big question is what recourse do the aggrieved family of victims have instead of venting to the newspapers who just want to sell papers.

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  20. Georgie Porgie March 26, 2016 at 7:13 PM #

    RE David March 26, 2016 at 6:11 PM #
    Something for the HC crew.

    seems to be after 1970
    in evidence are the late AG TANK WILLIAMS, RL PEPPY CLARKE, AND GG SPRINGER WHO IS WALKING OUT OF STEP OF THE OTHERS

    Like

  21. de pedantic Dribbler March 26, 2016 at 7:20 PM #

    David, the details on this subject are interesting and also confusing …

    …(and amusing re the pic of those cadets…didn’t go HC but being a part of the cadet culture of the day I believe two boys seem familiar… )

    But to the substance…When I read the original essay I wondered why the Mercy Committee (Local Privy council) in any case of ‘early’ release for those convicted of murder were not engaging the view of the public and particularly the family of persons who suffered from the convict ‘s actions.

    But it appears they do to wit: “The SATURDAY SUN was told that this past week members of the local Privy Council’s Mercy Committee had been conducting interviews to ascertain the tone of the community to James’ possible release. ” So that answered my first concern.

    …Den that picture ‘answered’ some of the confusing concerns raised by other bloggers ..Sir Winston Scott is no longer GG and both he and Tank Williams (not sure of Capt Clarke) are long deceased… My point, surely many prisoners have been released from jail over the years in the natural ebb and flow of life.

    So beyond the valid concerns of early release or what other jurisdictions may call parole how can we complain so vehemently about the release of prisoners!

    I would also expect that Col Nurse (from that Cadet era too) is an accomplished and well trained practitioner of his craft at Dodds and that any prisoner due for release is gradually moved into a program that gets him/her assimilated to what is happening in society. It would be absurd to expect anything else.

    Prisoners have been returning to society since whenever….is recidivism significantly greater now than before? I hear the concern – as no one wants to be next to or around bad people- but really not grasping the context of how a person who has paid their debt to society must remain a pariah.

    Of course if a fellow killed my sister and her child I will hate him forever (if my heart is not filled of Christian love) but if he did the jail time then I either accept him back to the village, leff de place or go spend some time at Dodds me-self!

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  22. de pedantic Dribbler March 26, 2016 at 7:32 PM #

    @Georgie Porgie at 7:13 PM…I hesitate to even question that memory of yours least I become a picture illiterate now too…

    But get your magnifying glass and check that picture again…based on the time frame (70s is right) I cannot perceive how that could be Dr Springer….

    Looks very much like Sir Winston Scott to me….but just saying…

    You know how we illiterates are … Rather presumptuous!

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  23. David March 26, 2016 at 7:37 PM #

    According to FB twitter:

    Tank, Pepi and Sir Winston Scott

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  24. de pedantic Dribbler March 26, 2016 at 7:44 PM #

    correction…”I cannot perceive how that could be [Sir Hugh] Springer”… not Dr Springer .

    Like

  25. de pedantic Dribbler March 26, 2016 at 7:51 PM #

    Of course its Sir Winston, David. That was quite pellucid.

    Sir Hugh could never have been in that pic as GG with Tank Williams as principal…the time lines don’t cross. Sir Hugh went to Gov’t House many years later…

    Anyhow enough history review for one night…

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  26. TheGazer March 26, 2016 at 7:55 PM #

    @Dribbler
    Do you think it natural/normal for the prison to release 184 prisoner in a matter of few month.
    If there is nothing unusual about such a large release, the prison should be near empty and not full.

    Like

  27. de pedantic Dribbler March 26, 2016 at 9:23 PM #

    @Gazer, I really have no proper perspective of what that 184 really means. Is it some combination of several convicts reaching their release time and maybe a concerted effort by the prison authorities to implement a more expansive approach to prison management.

    184 sounds high based on what I presume is a prison population in the low thousands but is it really so high depending on the circumstances of our regular release processes.

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  28. Well Well & Consequences March 27, 2016 at 7:10 AM #

    Colonel…there is a lot of danger in releasing ex-prisoners into a toxic economic environment as is now very clear on the island, these people will now have to do anything to survive given the unforgiving mentality of Bajans and if they do not have a solid family structure of support.

    Recently there have been accusations of such people, former prisoners and known killers being used by those with influence, money and business people to fulfill their own dirty ends and needs for a price.

    These former inmates will have to eat to survive, have families to take care of….do theae governments not use their useless brains.

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  29. colonel Buggy March 27, 2016 at 1:06 PM #

    WW&C , In today’s news we learn that many of these former inmates are adding to the homeless situation in Barbados, and are stretching the resources of the non-government, Barbados Vagrant and Homeless Society. (BVHS), The President of BVHS states that approximately 90% of those they help, were previously incarcerated.
    Reminds us of the immediate post-emancipation days, when the plantations were no longer indebted to look after the now freed persons. They had to break for themselves, some eating rats to survive , we were told.
    For years we have been hearing about rehab programmes for convicts, that would have given them a fighting chance, in society , on their release from prison.
    Lets hope that Dodds Prisons does not end up the safest place to live in Barbados.

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  30. Well Well & Consequences March 27, 2016 at 1:55 PM #

    Colonel…first you will have to ask the government ministers what happened to the money that was earmarked to help the released prisoners with a program to reintegrate them into the society and help them find gainful employment to feed themselves and families….but good luck getting an answer, the severed NCC workers I understand still have not received their severance money and they were not even in prison…lol

    One must pray that though the island is in financial dire straits, the people who are released from prison stay calm and do not become desperate….this is a bad time for everyone….they already know their governments are useless to the people who are not yardfowls and self-serving.

    Government would be more than happy to through them all on private organizations and dont accept any responsibility.

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  31. Well Well & Consequences March 27, 2016 at 1:56 PM #

    *throw

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  32. Anthony Davis March 28, 2016 at 7:23 AM #

    I totally agree with ac on this point! If they are not hanging them, they should not be eligible for parole! What i don’t understand is that the USA can have people on death row for donkey years and still execute them, but we are told that that is inhumane. Is this a case of he who pays the piper?

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  33. Well Well & Consequences March 28, 2016 at 11:58 AM #

    No Anthony…..it’s a case of the Barbados government signing on to a treaty that said “it’s inhuman” and then refusing to implement or recognize that treaty….just like all the other treaties they sign on to then ignore.

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  34. TheGazer March 28, 2016 at 10:05 PM #

    I love how some people are very fond of the death penalty.
    I hope they can always say ‘There but for the grace of God ….

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  35. Patenham March 29, 2016 at 11:08 AM #

    David this is a cost cutting measure. the government cannot afford to feed the prisoners. Do the maths.

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  36. David March 29, 2016 at 11:12 AM #

    Isn’t there a social cost to anticipate?

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  37. ac March 29, 2016 at 12:58 PM #

    But then if govt can/t afford to house these prisoners. The other side of the equation would take all of society down a road of having to deal with burdensome cost which impacts a society overall brought about by the varying challenges associated with the release of inmates who were not rehabilitate during their time in prison

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  38. David March 29, 2016 at 1:59 PM #

    Who listened to the lady who called the talk show today from Newbury? Now that was one scared Bajan.

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  39. Dompey March 29, 2016 at 4:41 PM #

    Well Well

    Excuse my wilful ignorance, but is there such a thing as a felony in Barbadian jurisprudence? I don’t think I’ve heard the terminology attributed to inmates in Barbados.

    Like

  40. Mobert April 1, 2016 at 5:37 PM #

    So, Canadians thrown in jail for cannabis, which is sold on the beaches (and I am told worse than that too), yet Baje releasing serial killers from jail.

    And when the folks talking about legalizing pot?

    Surely could have deported them?

    Gone literally stark raving mad.

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  41. Caswell Franklyn April 1, 2016 at 6:04 PM #

    Mobert

    Deportation is not a punishment for persons who don’t want to be here in the first place. When you come to this country and break our laws, you should expect to get the same punishment that others who break the same law would receive. Are you saying that the law should be applied differently to them because they are white Canadians? Would your position be the same if they were four black Jamaicans?

    Sent from my iPad

    >

    Like

  42. David April 1, 2016 at 6:08 PM #

    @Caswell

    He is applying an analogy? i.e. weed will be decriminalized at some point in the near future in Barbados yet current decision-making is about to release harden criminals, and we know rehabilitative programs at Dodds is a nonsense. A pragmatic position Mobert has taken.

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  43. Caswell Franklyn April 1, 2016 at 6:17 PM #

    David

    Don’t get mixed up with the reason for releasing hardened criminals back into society prematurely. It has nothing to do about mercy or any other grand philosophical reasons. There are two main reasons for this proposed early release: Government wants to cut back on the food bill at Dodds, since the money is scarce; and those persons who are released early would be expected to show their gratitude at the polls in the next general elections.

    Sent from my iPad

    >

    Like

  44. David April 1, 2016 at 6:30 PM #

    @Caswell

    There is something not adding up. The same moral high road preventing the decision to decriminalize weed is being compromised by releasing prisoners early for immoral reasons? Surely somebody is inviting karma to their doorstep.

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  45. Caswell Franklyn April 1, 2016 at 7:17 PM #

    David

    Divorce yourself of any notion that rational people can be found in Cabinet and force yourself to think like an idiot. Now here is the problem confronting the Cabinet: Government needs to cut cost and the prison is earmarked as one of the departments that should spend less. Their answer is to reduce cost by buying less food. Well prisoners eat food and if they weren’t in prison the Government would not have to feed them, so release them and one problem solved.

    How quickly they forgot when they did not provide enough money to the Child Care(less) Board, there was not enough money to provide food. As a result, Jahan King was not taken into care and we know what happened.

    These clowns will release prisoners into an environment where there are no jobs and expect these people to find their own food. What would you expect? These fellows are not in prison because they are averse to crime. When John Nurse swing open those doors to let them out, his comment would be: they’ll be back.

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  46. David April 1, 2016 at 7:19 PM #

    @Caswell

    You have said a mouthful.

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  47. TheGazer April 1, 2016 at 7:58 PM #

    @Mobert
    Caswell took the words out of my mouth but let me be a little more lenient “What if it was four islanders?”.

    I find it difficult to understand how for some the penalty is deportation and for others it should be an extended stay in jail. How do we decide who to deport and who to jail? I am hoping that you do not venture to Canada with 146 lbs of ganja and think you will be deported. I will hasten to add that even if you resemble these Canadian beauties you will still do time.

    Mentally, a lot of us are still slaves……

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  48. Alvin Cummins April 1, 2016 at 8:42 PM #

    They could let Well Well be their advocate.

    Like

  49. Mobert April 1, 2016 at 10:16 PM #

    David, Exactly.

    Caswell, no , if they were four islanders, same stands. And if they were four Jamaican beauties, more so. haha.

    Honestly, when any friend of yours who come to the island and goes to the beach, tells you that they were offered drugs (not just ganja) in St.Lawrence or on Accra beach, you are really going to send four girls to prison??

    When every man knows that, surely the Police know that drugs selling everywhere?

    Oooohh, let us show that we are hard on drugs. Bellylaugh.

    But, on the other hand, a couple a serial killers wunna letting go?

    To chop up some visitors and locals alike?

    Wunna just gone stark, raving mad. Honestly.

    It is patently ludicruous.

    But what else can one expect? Everyhting else going to ‘pot’ (sic).

    Like

  50. ac April 2, 2016 at 7:02 AM #

    Does the Mercy committee take into consideration the psychological pain and punishment that is also inflicted upon the families of the murder victims which they would have to endure the rest of their lives
    Along with asking forgiveness of the families of the murder victims , Should it not be mandatory that after the inmate is released he enters a special program of volunteerism where he is required to be active in community service programs for the rest of his life.
    Forgiveness is not a one way street but those seeking or asking forgiveness should show indicators that there are worthy of forgiveness in the eyes of the society and not be given a carte blanche forgiveness card solely on two or three mortal souls
    Doesnt the inmate owe society a debt of gratitude in seeking forgiveness ?

    Like

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