Westlaw Delivery Summary Report For LEEVY-MALCOLM, TA 5204288

Westlaw Delivery Summary Report for LEEVY-MALCOLM,TA 5204288
Date/Time of Request: Thursday, August 7, 2008 17:49 Central

Client Identifier: TWEN-CLIENT
Database: LAW-RPTS
Citation Text: [1977] A.C. 195
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Documents: 1
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[1977] A.C. 195 FOR EDUCATIONAL USE ONLY Page 1
1975 WL 44922 (Privy Council), [1977] A.C. 195, [1976] 1 All E.R. 353, [1976] 2 W.L.R. 366, (1975) 119 S.J. 864,
[1976] Crim. L.R. 124
(Cite as: [1977] A.C. 195)
person detained for a firearms offence and was also

*195 Moses Hinds and Others Appellants v. The to cover the whole island. Such jurisdiction, at the
Queen Respondent time the Constitution came into force, had been
Director of Public Prosecutions Appellant v. Trevor exercisable only by a Supreme Court judge in the
Jackson Respondent, Circuit Court. The Full Court Division had never sat.
Attorney-General Intervener
[1976] 2 W.L.R. 366 The Constitution provided by section 20 (3) that all
proceedings of every court should be held in public
Privy Council subject to the exceptions in subsection (4), by
paragraph (c) (ii) of which a court was empowered to
PC (Jam) exclude the public in the interests of public safety,
public order and for the protection of the private lives
Lord Diplock , Viscount Dilhorne , Lord of persons concerned in the proceedings. The Gun
Simon of Glaisdale , Court Act provided by section 13 (1) that all
Lord Edmund-Davies and Lord Fraser of trials should be in camera "in the interest of public
Tullybelton safety, public order or the protection of private lives
of persons concerned in the *196
1975 June 25, 26, 30; July 1, 2, 3; 28; Nov. 5 proceedings...." Section 8 prescribed a
mandatory sentence of detention at hard labour
[On Appeal from the Court of Appeal of Jamaica] during the Governor-General's pleasure for specified
offences, determinable only by the Governor-General
Jamaica--Constitution--Gun Court--Act on the advice of the Review Board. The Review
establishing courts to try firearms offences--Three Board established by section 22 of the Act
magistrates to exercise Supreme Court jurisdiction-- consisted of five members of whom only the
All proceedings in camera--Mandatory sentence chairman was a member of the judiciary.
determinable by executive-- Whether
unconstitutional--Whether invalid provisions Each of the defendants was convicted in a Resident
severable-- Jamaica (Constitution) Order in Council Magistrate's Division of the Gun Court for an offence
1962 (S.I. 1962 No. 1550) , Sch. 2, ss. 20 (4), 22 carrying the mandatory sentence. They all appealed
(2), 97 (1) (4)-- Gun Court Act 1974 (No. 8 of to the Court of Appeal against conviction and
1974) , ss. 3, 4, 8, 13 (1), 22 sentence on the grounds that the Gun Court Act or
those of its provisions under which they had been
By the Gun Court Act 1974 the Parliament of tried and sentenced were inconsistent with the
Jamaica established a new court, the Gun Court, to Constitution and void. The appeals of four of them
try "firearms offences." The Act provided for three were dismissed, that of the fifth allowed (by the
divisions of the court; the Circuit Court Division and Court of Appeal differently constituted). The
the Resident Magistrate's Division, constituted by a unsuccessful parties appealed.
Supreme Court judge and a resident magistrate
respectively, and the Full Court Division constituted On appeal to the Judicial Committee: -
by three resident magistrates. The jurisdiction of the
first two divisions was that of a Circuit Court and of a Held:
resident magistrate respectively in relation to
firearms offences and certain other offences but (1) that the provisions of the Gun Court Act
extended geographically to cover the whole island relating to the Circuit Court Division and the
instead of being restricted to specific parishes. The Resident Magistrate's Division which did no more
jurisdiction of the Full Court Division was, with the than extend geographically the jurisdiction of a
exception of capital offences, expressed to be over Supreme Court judge in a Circuit Court and a
any firearms offence or other offence committed by a
© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

[1976] Crim. L.R. 124
(Cite as: [1977] A.C. 195)
resident magistrate respectively were not contrary to (4) (c) (ii) and 22 (2) (a) of the Constitution were
the Constitution and were valid; accordingly, the directed to the right to privacy of individuals and not
defendants were convicted by a court of competent to their physical safety (post, p. 224F-G).
jurisdiction (post, pp. 215 G-H, 216D-E, 231D-E). (3) That the principle of separation of powers was
Per Lord Diplock, Lord Simon of implicit in the Constitution and Parliament had no
Glaisdale and Lord Edmund-Davies. The attack on power to transfer from the judiciary to the Review
the constitutional validity of the provisions of the Board, the majority of whose members were not
Gun Court Act and the argument based on their qualified to exercise judicial powers, a discretion to
inseverability requires the Board, even though the determine the severity of punishment to be inflicted
defendants were tried and sentenced by a Resident on an individual member of a class of offenders and,
Magistrate's Division, to rule on the validity of the accordingly, the provisions of sections 8 and 22 of the
provisions purporting to confer jurisdiction to try Gun Court Act were contrary to the Constitution and
offences upon the Full Court Division of the Gun void and the sentences passed on the defendants
Court. Such rulings cannot be characterised as obiter unlawful (post, pp. 225G - 226A, 227H - 228A,
dicta (post, pp. 210E, 211B). There is nothing in the 231E-F).
Constitution to prohibit Parliament from establishing Deaton v. Attorney-General and Revenue
a court under a new name, but Parliament is not Commissioners [1963] I.R. 170 and The State
entitled to vest in a new court composed of members v. O'Brien [1973] I.R. 50 applied.
of the lower judiciary a jurisdiction that forms part of (4) That the provisions of the Act which were
the existing jurisdiction of the Supreme Court and, inconsistent with the Constitution were severable
accordingly, the provisions of the Gun Court Act from the valid provisions, since the valid provisions
1974, in so far as they provide for the establishment would survive without the invalid, and, on a fair
of a Full Court Division of the Gun Court, conflict review of the matter, it could be assumed that the
with Chapter VII of the Constitution and are void legislature, knowing that certain provisions were
(post, pp, 219D-E, 221H - 222B, 223C). invalid, would have enacted the valid provisions
Per Viscount Dilhorne and Lord Fraser of without enacting those which were ultra vires (post,
Tullybelton. The provisions of the Gun Court Act pp. 229E-G, 230D-F, 231E-F); that, accordingly, the
1974 as to the Full Court Division of the Gun Court appeals against conviction would be dismissed, the
do not conflict with Chapter VII of the Constitution fifth defendant's conviction would be restored, the
and were validly enacted (post, p. 231D). As it is appeals against sentence would be allowed and the
agreed that the provisions of the Gun Court Act as to cases remitted to the Court of Appeal for sentence.
the Full Court Division are severable from the Attorney-General for Alberta v. Attorney-General
provisions relating to the other two divisions for Canada [1947] A.C. 503 , 518, P.C.
anything said as to the validity of the Full Court applied.
Division is obiter (post, p. 231G-H). Decisions of the Court of Appeal of Jamaica
(2) That the presumption that the provision for varied.
trials in camera was reasonably required in the
interests specified in section 13 (1) of the Gun Court The following cases are referred to in the judgments:
Act could be rebutted by evidence of Parliament's
bad faith or misinterpretation of the relevant Attorney-General v. Antigua Times Ltd. [1976]
provisions of the Constitution under which it A.C. 16; [1975] 3 W.L.R. 232; [1975] 3 All E.R. 81,
purported to act, but the defendants had adduced no P.C. .
such evidence and matters of judicial knowledge in
Jamaica negatived such a suggestion; accordingly the
presumption had not been *197 rebutted, and Attorney-General for Alberta v. Attorney-General
the section was not in conflict with the Constitution for Canada [1947] A.C. 503, P.C. .
(post, p. 224C-F).
Per curiam. The reference to the Attorney-General for Australia v. The Queen
protection of private lives contained in sections 20 [1957] A.C. 288; [1957] 2 W.L.R. 607; [1957] 2 All
E.R. 45, P.C. .

[1976] Crim. L.R. 124
(Cite as: [1977] A.C. 195)
Attorney-General for Ontario v. Attorney-General Toronto Corporation v. York Corporation [1938]

for Canada [1925] A.C. 750, P.C. . A.C. 415; [1938] 1 All E.R. 601, P.C. .
Deaton v. Attorney-General and Revenue Valin v. Langlois (1879) 5 App.Cas. 115,

Commissioners [1963] I.R. 170 . P.C. .
Ladore v. Bennett [1939] A.C. 468; [1939] 3 All APPEALS (Nos. 4 and 5 of 1975) from the Court
E.R. 98, P.C. . of Appeal of Jamaica. The appellants, Moses Hinds,
Elkanah Hutchinson, Henry Martin and Samuel
Liyanage v. The Queen [1967] 1 A.C. 259; [1966] Thomas, were convicted in the Resident Magistrate's
2 W.L.R. 682; [1966] 1 All E.R. 650, P.C. . Division of the Gun Court of offences involving the
unlawful possession of firearms. The mandatory
State, The v. O'Brien [1973] I.R. 50 . sentence provided by section 13 (1) of the Gun Court
Act 1974 of detention at hard labour
determinable by the Governor-General was passed on
The following additional cases were cited in them. They appealed against conviction and sentence.
argument: On October 22, 1974, the Court of Appeal (Luckhoo
Ag.P., Swaby J.A. and Zacca Ag.J.A.) dismissed the
Attorney-General for Ontario v. Victoria Medical appeals (Swaby J.A. dissenting). The respondent,
Building Ltd. [1960] S.C.R. 32 . Trevor Jackson, was convicted in the same division
of the Gun Court of a similar offence, the mandatory
Bribery Commissioner v. Ranasinghe [1965] A.C. sentence was passed on him and he appealed. On
172; [1964] 2 W.L.R. 1301; [1964] 2 All E.R. 785, December 5, 1974, the Court of Appeal (Graham-
P.C. . Perkins J.A., Swaby J.A. and Zacca Ag.J.A.) allowed
his appeal against conviction (Zacca Ag.J.A.
Francis v. Chief of Police [1973] A.C. 761; dissenting). The unsuccessful parties to both appeals
[1973] 2 W.L.R. 505; [1973] 2 All E.R. 251, P.C. appealed to the Judicial Committee and the Attorney-
*198 . General intervened. All defendants were treated as
appellants for the purposes of the consolidated
Judicature Act 1924, In re [1924] 4 D.L.R. appeal.
529 .
The facts are stated in the judgment of the majority
Kariapper v. Wijesinha [1968] A.C. 717; [1967] 3 of their Lordships.
W.L.R. 1460; [1967] 3 All E.R. 485, P.C. .
July 28, 1975. Lord Diplock announced that in their
King-Emperor v. Benoari Lal Sarma [1945] A.C. Lordships' opinion, for reasons to be given at a later
14; [1945] 1 All E.R. 210, P.C. . date, the defendants had been convicted by a court of
competent jurisdiction but that the sentences imposed
were unlawful.
Labour Relations Board of Saskatchewan v. John
East Iron Works Ltd. [1949] A.C. 134, P.C. .
Richard Mahfood Q.C., Lloyd Barnett and
Roald Henriques (all of the Jamaica Bar) for the
Reg. v. Orpin [1975] Q.B. 283; [1974] 3 W.L.R.
defendants. The establishment of the Gun Court and
252; [1974] 2 All E.R. 1121, C.A. .
the assignment of judges thereto under section 10 of
the Gun Court Act is contrary to the
Stockport Ragged, Industrial and Reformatory Constitution. The Act contravenes section 97 of the
Schools, In re [1898] 2 Ch. 687, C.A. . Constitution in so far as it purports to confer

[1976] Crim. L.R. 124
(Cite as: [1977] A.C. 195)
jurisdiction on the Gun Court which is analogous to Court. Section 8 diverts the ordinary course of
and in competition with that of the Supreme Court. judicial process by directing that, where a defendant
The assignment by the Chief Justice of Supreme is charged with several offences, firearms offences
Court judges and resident magistrates to be judges of are to be tried first, in providing for a mandatory
the Gun Court is contrary to section 112 of the sentence and in destroying the discretion of the trial
Constitution. The effect of the Act is to deprive the judge as to the trial of a defendant for further
subject of safeguards provided by the Constitution7 offences where he considers that such further trial
to make far-reaching changes in established forms of would be unfair: see also sections 12 and 13 .
legal process and to violate *199 important Section 8 also empowers the Minister to add to the
principles of administration of criminal justice. In so offences which may be tried in the Gun Court.
doing it is unconstitutional. Sections 10 and 11 are contrary to the constitutional
provisions for the appointment of judicial officers.
The Supreme Court adopted by section 13 of the Section 16 gives the Minister unfettered power
Jamaica (Constitution) Order in Council 1962 to make changes in the Review Board thereby giving
was that existing immediately before independence the executive a very important part in the judicial
and its jurisdiction was derived from ordinary function of sentencing. Section 17 gives the
legislation. Section 13 is entrenched by section Chief Justice power to alter the scheme of courts set
21 of the Order in Council and section 49 (2) of up by the Constitution and to impose the character of
the Constitution. The Gun Court is given jurisdiction the Gun Court on the Supreme Court. Section 22
which is in competition with that of the Supreme reduces the role of the judiciary in sentencing to the
Court, it lacks the characteristics of an ordinary court making of a recommendation to the Review Board
and hinders the Supreme Court in the exercise of its which the latter need not accept.
normal jurisdiction. The Gun Court Act provides that
cases within the jurisdiction of the Supreme Court Parliament may add to the jurisdiction of the
shall be transferred to the Gun Court for trial; that the Supreme Court but cannot set up another superior
Circuit Court Division shall exercise the jurisdiction court of record in competition with it. Parliament can
of the Supreme Court; that the Full Court Division extend the jurisdiction of a resident magistrate to try
shall have jurisdiction over all criminal offences save offences summarily which had previously been only
capital offences. In doing so its purports to merge the triable on indictment; that may have the effect of
Supreme Court in the Gun Court, it interferes with reducing the Supreme Court's jurisdiction *200
the constitutional scheme relating to the judicature but cognisance of such offences cannot be excluded
and conflicts with the implied principle that there from the Supreme Court. Parliament cannot confer a
shall be only one Supreme Court in Jamaica. jurisdiction like that of the Supreme Court on any
[Reference was made to the Judicature (Supreme other court. Although it is conceded that Parliament
Court) Law .] The Act also alters the ordinary can establish both inferior and superior courts it
procedure for dealing with criminal offences, cannot interfere with or erode the constitutional
provides for a special method of designating judges structure and jurisdiction of the Supreme Court or the
to the divisions of the Gun Court, alters the ordinary Court of Appeal without constitutional amendment. A
rules of evidence and the presumption of innocence new court could be established without constitutional
and totally changes the ordinary scheme of amendment if its jurisdiction were not already part of
punishment known to the law. the existing jurisdiction of the Supreme Court. Any
provision purporting to give such jurisdiction would
Section 4 of the Gun Court Act incorporates be void to that extent.
part of the Supreme Court into the Gun Court.
Section 5 in extending jurisdiction to the whole The provisions of sections 100 and 101 of the
island and to any offence committed by a person Constitution emphasise the importance attached to
detained for a firearms offence confers Supreme judicial independence by the makers of the
Court jurisdiction on the Gun Court. Section 6 Constitution. The structure of the Constitution shows
makes the Supreme Court subservient to the Gun that it was based on the principle of the separation of

[1976] Crim. L.R. 124
(Cite as: [1977] A.C. 195)
powers and that it was intended to preserve basic The mandatory sentence is unconstitutional. Where a
institutions and principles in existence before the minimum sentence is fixed by the legislature it may
Constitution came into force. [Reference was made to be an attempt to limit judicial *201 power,
Attorney-General for Australia v. The Queen [1957] particularly if such sentence is not to be related to the
A.C. 288 .] There is no case dealing directly gravity of the offence. [Reference was made to
with the Constitution of Jamaica but the adoption of Liyanage v. The Queen [1967] 1 A.C. 259 .] The
the Supreme Court negatives the possibility of the mandatory sentence provided for by section 8 (2) of
creation of another Supreme Court encroaching on the Gun Court Act is out of proportion with the
the former's jurisdiction. The creation of the Court of offences. The Act amounts to an Act of Attainder. In
Appeal on the day before independence was principle any mandatory sentence is unconstitutional.
deliberate so that, like the Supreme Court, it should There is a distinction between interference with
be an existing institution which could then be jurisdiction and regulation of powers. Sentencing
adopted by the Constitution. policy can be regulated by ordinary legislation. In
determining length of sentence the Minister has an
The powers conferred by section 48 of the important function: see regulation 10 (1) of the Gun
Constitution are subject to sections 49, 97, 98 and 99. Court (Review Board) Regulations 1974 .
The provisions of the Judicature Acts relating to the Notwithstanding section 8 (2) of the Act detention is
powers of the Supreme Court are entrenched and can at the pleasure of the Review Board which is an
only be altered by special procedure. Although administrative body and part of the executive.
section 97 of the Constitution refers to jurisdiction [Reference was made to Kariapper v. Wijesinha
and powers conferred by the Constitution "or any [1968] A.C. 717 ; The State v. O'Brien [1973]
other law," non-erosion of jurisdiction is a necessary I.R. 50 ; Deaton v. Attorney-General and
implication because, if any part of the Supreme Court Revenue Commissioners [1963] I.R. 170 .]
jurisdiction could be taken away, the court could be
entirely stripped of jurisdiction. Section 97 makes it If the foregoing is not accepted, then, alternatively,
plain that there is to be only one Supreme Court. The the provisions as to the Review Board are
section expressly authorises legislation to confer objectionable because they cut down the prerogative
"jurisdiction" and "powers" on the Supreme Court. If of mercy in providing that the Governor-General
that provision is to have any real content it must shall act on the advice of the Review Board which is
mean that Parliament can do so by ordinary the wrong body under the Constitution. The
legislation. "Jurisdiction" comprises matters or causes imposition of the same sentence for offences bearing
which a court is entitled to hear and determine no relation to one another and regardless of
whereas "powers" is directed to what the court may circumstances amounts to "inhuman" punishment and
do in relation to them. "Powers" only are referred to is unconstitutional. Any punishment not proportional
in section 97 (4) because it contemplates that to the gravity of the offence is inhuman.
Parliament can alter the powers but only add to the
jurisdiction. Judges of the Gun Court should be appointed by the
Governor-General on the advice of the Judicial
Parliament could not deprive the Supreme Court of Service Commission. The power to assign an existing
all its powers if to do so would be to take away the Supreme Court judge or Resident Magistrate to the
Supreme Court's character as a superior court of Gun Court is given by section 10 of the Gun Court
record. Powers may be conferred by virtue of section Act and unconstitutional because the appointment of
97 (1) and added to by virtue of section 97 (4). those officers was originally to a different court.
Any alteration of section 97 must be by constitutional "Assignment" means "appointment ": see Murray,
amendment. There is an irreconcilable conflict New English Dictionary, vol. 1 (1888), p. 508.
between sections 6 and 21 of the Gun Court Act: [Reference was made to In re Judicature Act 1924
section 6 necessarily divests the Supreme Court [1924] 4 D.L.R. 529 ; Attorney-General for
of jurisdiction. Ontario v. Attorney-General for Canada [1925] A.C.
750 .] A valid provision which has reference to

[1976] Crim. L.R. 124
(Cite as: [1977] A.C. 195)
invalid provisions will itself be invalid. Normal and substance. That doctrine cannot be invoked
judicial functions can only be exercised by a person where a provision is contrary to express
who has been appointed in accordance with the constitutional provisions. The transfer of three
Constitution to perform those particular functions. resident magistrates to a court having a jurisdiction
Even if an officer was previously properly appointed equivalent to a circuit court amounts to a new
to judicial office he can only be assigned to perform appointment and can only be made by the Judicial
judicial functions in another court if he is Service Commission.
constitutionally appointed to that other court.
[Reference was made to Toronto Corporation v. York Barnett following. The provision by section
Corporation [1938] A.C. 415 ; Attorney-General 13 of the Act for in camera trials is in conflict
for Ontario v. Victoria Medical Building Ltd. [1960] with section 20 (3) of the Constitution. Both
S.C.R. 32 ; Bribery Commissioner v. sections 19 and 20 of the Constitution are
Ranasinghe [1965] A.C. 172 ; Attorney-General directed to constitutional interests. If the fundamental
for Australia v. The Queen [1957] A.C. 288 ; right to a public trial is to be protected then sections
Valin v. Langlois (1879) 5 App.Cas. 115 ; 20 (3) and 20 (4) must be read conjunctively.
Labour Relations Board of Saskatchewan v. John Parliament is not permitted to say that a particular
East Iron Works Ltd. [1949] A.C. 134 ; Liyanage kind of offence is of such a nature as to make it
v. The Queen [1967] 1 A.C. 259 .] There is no always in the public interest that the public should be
power under the Constitution or any other Law in excluded.
Jamaica for the Chief Justice to appoint, transfer or
assign any person to a Resident Magistrate's Court. J. S. Kerr Q.C . (of the Jamaica Bar), Stuart
He has power to transfer resident magistrates from McKinnon and H. Downer (of the Jamaica Bar)
one jurisdiction to another. He has no power to make for the Director of Public Prosecutions. The
appointments to the *202 Gun Court. Section establishment of the Gun Court contravenes no
112 (2) of the Constitution has not been provision of the Constitution. Parliament is free to
amended so as to include the Gun Court. The Judicial enlarge or curtail judicial power or alter the agencies
Service Commission cannot delegate to the Chief through which such power is exercised without
Justice a power which it has not itself got. following any special procedure. That legislative
freedom is only qualified in so far as the Constitution
Even if the Gun Court had been an existing court it has set up agencies (the Supreme Court, the Court of
would have been unconstitutional for the Chief Appeal and the Judicial Service Commission) which
Justice to assign a judicial officer to it. It would still cannot be abolished or have their composition,
have had no validly appointed judge. Where a powers or duties changed except by special
Supreme Court judge is assigned to a circuit court his procedures set out in the Constitution.
appointment as a judge does not have to be
considered by the Judicial Service Commission The creation of courts is a purely legislative
because his jurisdiction is already high and wide, i.e., function. The Constitution envisaged Parliament
it embraces all lesser jurisdictions. But where the vesting judicial power in courts other than those
transfer is from a court of one type to that of another specified in the Constitution. For the powers of the
the appointment would have to be considered because pre-independence Parliament to create courts, see the
the quality of the appointee and his particular Colonial Laws Validity Act 1865 and compare it with
suitability is significant. A resident magistrate section 97 (1) and (4) of the Constitution. In the
appointed by the Chief Justice to the Gun Court absence of express limitation on the power of a
outside his parish falls into that category. If his legislature to create new courts a limitation can only
appointment were by the Judicial Service be implied if that is necessary to give meaning and
Commission it would be valid. There is a conflict effect to any provision. The Court of Appeal had to
between section 10 (1) of the Gun Court Act and be created by the Constitution, previously it had been
the express provisions of the Constitution which a division of the *203 Supreme Court and the
cannot be resolved by applying the doctrine of pith Court of Appeal Act 1962 removed almost all

[1976] Crim. L.R. 124
(Cite as: [1977] A.C. 195)
the appellate jurisdiction of the Supreme Court. terrorist.
Section 97 of the Constitution defines two areas by The Gun Court Act is concerned with a very narrow
which jurisdiction may be conferred: by "this field of offences: those within sections 10 and 20 of
Constitution" and by "any other law." If a court is the Firearms Act 1967. It is only when there is an
given a special jurisdiction there cannot be any offence committed within that narrow field that any
implication of further jurisdiction and powers. other offence committed by a defendant becomes
Jurisdiction can be cut down by constitutional cognisable in the Gun Court.
amendment, if it is conferred by Act of. Parliament it
can be so taken away. By section 97 there is an Although the jurisdiction of the Supreme Court is
express power in Parliament to interfere with the presumed, legislation can limit it. For the meaning of
powers of the Supreme Court. It follows that power jurisdiction: see Stroud's Judicial Dictionary, 4th ed.
given by section 97 can be cut down, restricted or (1972), p. 1452 and Rubinstein, Jurisdiction and
abolished by Parliament; but not to such an extent Illegality: A Study in Public Law (1965). Because
that the Supreme Court can no longer be regarded as courts are superior courts it does not mean that they
a superior court of record. Nor can Parliament take are equivalent in strength. Historically Jamaica has
away powers from the Supreme Court and bestow had more than one superior court: the Supreme Court
upon another court so much of its jurisdiction that it and the Court of Appeal. The jurisdiction of the Court
loses its character as a supreme court. A supreme of Appeal was in general confined to appellate
court is characterised by having an unlimited civil matters but its jurisdiction was not *204
jurisdiction, jurisdiction over most serious criminal exclusive: the Supreme Court had some appellate
offences and a right of supervision over inferior jurisdiction over appeals from justices in petty
courts of record. A superior court of record has sessions.
criminal jurisdiction unless limited by legislation.
Under the Constitution there can be more than one If a resident magistrate was moved from one division
superior court of record coexisting with each other to another of the Resident Magistrate's Court no
although there can be only one Supreme Court. The amendment of the Constitution would be necessary.
terms are not synonymous. Nor would it be necessary if the Chief Justice
assigned a Supreme Court judge to a particular court.
Section 13 (1) of the Order in Council in But an assignment of a resident magistrate to the
specifying that the Supreme Court shall be that in Supreme Court would be virtually a new appointment
existence immediately before independence does not whether or not the resident magistrate was originally
preclude Parliament from giving a concurrent appointed by the Judicial Service Commission.
jurisdiction provided that is not done in such a way as Although a judge of the Supreme Court enjoys
to make the Supreme Court a different kind of security of tenure, that of a resident magistrate is not
institution. It is a question of degree and depends on specifically mentioned in the Constitution. Section 98
how much of the jurisdiction is removed. Parliament (3) of the Constitution may allow too much
draws no distinction between jurisdiction and powers. flexibility. Parliament has power to take away the
Jurisdiction is presumed in section 97 (4) and right to be tried by a judge with security of tenure.
"powers" points to the exercise of that jurisdiction. The Full Court Division of the Gun Court is still an
Section 97 (1) enables Parliament to say that an inferior court: see section 3 (2) of the Gun Court
offence is no longer indictable and that it can be tried Act . The status of the court is not affected per
in another (inferior) court. It can and has (see Act No. se by the court's power of sentence. There is no
45 of 1973 ) returned an offence to the Resident reason why Parliament cannot invest a new court
Magistrate's Court. It can add and subtract with powers possessed by existing courts of Jamaica:
jurisdiction. The Constitution contemplates that see Attorney-General for Australia v. The Queen
changes may have to be made and Parliament is not [1957] A.C. 288 .
fettered in its power to meet events as they occur; in
this case to legislate to deal with a new form of The method of staffing the Gun Court is by

[1976] Crim. L.R. 124
(Cite as: [1977] A.C. 195)
assignment of existing office-holders and not by circumstances existed to justify such a declaration. If
appointment or transfer. An "appointment" fixes a court is so competent it can only do so against a
status, salary and tenure whereas "assignment" strong presumption that because Parliament has so
denotes an area of operation. declared the provision is reasonably required.
Although the Full Court Division of the Gun Court Downer following. The powers and duties of
exercises a different jurisdiction from that of a the Review Board do not conflict with those
resident magistrate and is constituted by three conferred on the Privy Council in Jamaica by section
resident magistrates acting by a majority the office of 90 of the Constitution. If section 22 of the Gun
resident magistrate in the Gun Court is not a new one. Court Act does conflict with section 90 then by its
The jurisdiction is conferred on three existing holders opening words it is expressly made subject thereto.
of the office instead of one and there is a change of The Constitution did not arise in vacuo but was based
name only and not of status. The power of sentencing on previous constitutions and the separation of
is attached to each particular offence as it is created powers. The Review Board is a provision by
and not to the office of the judge of the court having Parliament for the exercise of the prerogative of
cognisance of it: the power of sentencing does not mercy and the Constitution should be read as
increase the status of a court. [Reference was made to permissive in this respect and according to the pith
Reg. v. Orpin [1975] Q.B. 283 .] Even if a new and substance of what the prerogative of mercy is
court is created it does not necessitate (and in this designed to do.
case did not) involve the creation of a new judicial
office. Bribery Commissioner v. Ranasinghe [1965] L. Robinson Q.C., Attorney-General (Jamaica),
A.C. 172 and Liyanage v. The Queen [1967] 1 Gerald Davies and A. Davies (of the
A.C. 259 are distinguishable. Jamaica Bar) for the intervener. The proper way to
attack the constitutionality of a court is by invoking
Although the fixed sentence is of indefinite section 25 of the Constitution. An appeal under
duration it does not amount to a cruel or unusual section 14 (2) of the Gun Court Act presupposes
punishment and is not contrary to section 17 (1) a jurisdictional base for the sentence. The Court of
of the Constitution nor is it in any other way Appeal converted itself into a court of first instance
unconstitutional. Section 8 (2) falls within and is on the constitutional issue and was not competent to
saved by section 17 (2) of the Constitution. An do so. [Reference was made to King-Emperor v.
indeterminate sentence was lawful in Jamaica Benoari Lal Sarma [1945] A.C. 14 .] In so far as
immediately before independence. [Reference was the defendants wished to complain of general
made to Deaton v. Attorney-General and Revenue unconstitutionality, redress should have been sought
Commissioners [1963] I.R. 170 and The State v. by application for the appropriate prerogative writ.
O'Brien [1973] I.R. 50 .] It is conceded that
detention during the Governor-General's pleasure The creation of the Gun Court was not a violation
under section 8 (2) of the Gun Court Act amounts to a of the Constitution. The Constitution recognises an
punishment determined by an administrative body existing separation of powers; it does not introduce it.
not purporting to exercise the prerogative of mercy. Legislation is not inhibited by any system of "checks
and balances" from "usurping" or "infringing"
It is within the legislative competence of Parliament judicial or executive power. Parliament is sovereign
to provide for trials in camera without resort to the save that Bills on certain entrenched provisions of the
special procedures set out in the *205 Constitution must be submitted to referendum.
Constitution: see Francis v. Chief of Police [1973] Sovereignty is not limited by the requirement that
A.C. 761 . Parliament having declared in section some entrenched provisions can only be altered by
13 (1) of the Gun Court Act that trials in camera are special procedure. [Reference was made to sections 4
in the interests of public safety, public order or (1) and 21 of the Jamaica (Constitution) Order in
protection of private lives of persons concerned in Council ; sections 1 and 48 (1) of the
proceedings, no court can inquire whether Constitution; section 32 (1) of the Interpretation Act

[1976] Crim. L.R. 124
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1889 ; and the Jamaica Independence Act 1962, Laws made after August 6, 1962 are subject to
Schedule 6, paragraphs 1, 2, 3.] Parliament can Schedule 1 to the Jamaica Independence Act, section
enlarge or curtail executive or judicial power or 48 (1) of the Constitution and the interpretation
modify the agencies through which that power is permitted by section 32 (1) of the Interpretation Act
exercised save only that the Supreme Court, the 1889 . Immediately before independence the
Court of Appeal and the Judicial Service Commission Supreme Court enjoyed all powers of a superior court
which are expressly created by the Constitution can of record; for section 97 (4) to have any content the
only be modified by special procedures. The Gun subsection must mean that Parliament can reduce
Court Act does not purport to modify any of those those powers but only in so far as the court is not
institutions or the powers and duties of the Supreme deprived of its status as a superior court of record.
Court. Without amendment of the Constitution Parliament
can take any of the functions of the Supreme Court
The Judicature (Supreme Court) Law was in and place them elsewhere. It is open to Parliament to
force immediately before independence. It adjust the courts to prevailing circumstances.
consolidated all the then existing superior courts of Parliament could take away all the criminal
record under the name of "Supreme Court of jurisdiction of the Supreme Court.
Judicature": *206 see sections 5 and 24.
Section 13 of the Jamaica (Constitution) Order in The Constitution establishes only the Supreme
Council was a transitory provision, it does not Court and the Court of Appeal but it recognises the
prescribe what the jurisdiction and powers of the existence of public judicial offices other than those
Supreme Court are. It follows that unless the connected with those two courts (see section 112 of
Constitution provides otherwise it is open to the Constitution) and in doing so recognises the
Parliament to vary the powers and jurisdiction of the courts connected with the offices. Note that section
Supreme Court in pursuance of the power given by 112 is intended to apply only to offices of emolument
section 48 (1) of the Constitution to make laws in the public service. There are other judicial officers
for the peace, order and good government of Jamaica in Jamaica such as justices of the peace who are
from time to time as the occasion requires. unpaid. [Reference was made to In re Stockport
Ragged, Industrial and Reformatory Schools [1898] 2
Section 97 of the Constitution makes it clear that Ch. 687 .] Courts not established by the
the Constitution was not relying on the Judicature Constitution, but recognised by it in this way, are the
(Supreme Court) Law to determine the jurisdiction Resident Magistrate's Courts, Coroners Courts,
and powers of the Supreme Court because that Law Juvenile Courts, Petty Sessions Courts and Traffic
was subject to amendment or repeal by Parliament by Courts. They are all created by statutes to which
virtue of section 4 (1) of the Order in Council. section 4 (1) of the Jamaica (Constitution) Order in
The Constitution spells out precisely what Council applied and which can be amended and
jurisdiction and powers the Supreme Court shall repealed *207 at any time. In applying to "such
have, having regard to Schedule 1 to the Jamaica other offices connected with the courts of Jamaica as,
Independence Act 1962 and to its own provision in subject to the provisions of this Constitution, may be
section 48 (1) which is "subject to the provisions of prescribed by Parliament" section 112 recognises that
this Constitution." There are only two matters in Parliament has a right to create both new judicial
respect of which Parliament cannot interfere without offices and, by necessary implication, new courts in
amending the Constitution: the jurisdiction and which they may function. In creating a new court
powers contained in the Constitution itself (see Parliament may, subject to the Constitution, vest in it
sections 25 and 44), and that the Supreme Court shall whatever jurisdiction and powers it may wish, and
be a superior court of record. Jurisdiction may be jurisdiction may be exclusive or concurrent with that
conferred on the court by any other law and of any of the existing courts. But Parliament cannot
Parliament may add to the jurisdiction and powers of confer such jurisdiction and powers on a new court as
the court and repeal or amend any Act as seems fit for are given to the Supreme Court, the Court of Appeal
the peace, order and good government of Jamaica. or Her Majesty in Council by the Constitution itself:

[1976] Crim. L.R. 124
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see sections 25, 44 and 110 of the Constitution. Once legislature gives a discretion to the judiciary that
created, a new court becomes part of the judicature of discretion must be exercised judicially and the
Jamaica within the framework of Chapter VII of the Constitution requires as far as possible that the
Constitution. Judicial office connected with the court persons exercising it shall be independent. [Reference
may be held only by persons whose appointment as was made to Attorney-General for Australia v. The
judicial officers was made in accordance with Queen [1957] A.C. 288 .] In the present case the
sections 112 or 113 of the Constitution and judicial power was exhausted once the court had
subject to the supervision of the Supreme Court. The reached a conclusion as to guilt or innocence. *208
right of Parliament to establish new courts is also
recognised by sections 26 (1), 14 (1), 15 (1) and 20 The special characteristics of the Supreme Court
(1) (2) of the Constitution. Establishment of a new are that it must have the specific powers given by the
court must be in the manner prescribed by the Constitution and supervisory powers over inferior
Constitution to enable it to be independent and courts. In Australia the Commonwealth Parliament
impartial. set up a superior court of record with bankruptcy
jurisdiction which was carved out of the jurisdiction
The assignment of three resident magistrates to sit as of the Supreme Courts of the States. [Reference was
a Full Court Division of the Gun Court does not made to the Commonwealth of Australia Constitution
amount to a new office. It is a new job for existing Act 1900, s. 71 .]
office-holders and is not unconstitutional.
It happens frequently that a judge of an inferior court
Where Parliament has taken away a judicial is translated to a higher court. He does not have to be
discretion as to sentence then once sentence has been reappointed; a county court judge may be vested with
passed the judicial function is over. There is nothing divorce jurisdiction.
unconstitutional in a mandatory sentence. The powers
exercised by the Review Board are executive powers Mahfood Q.C. in reply. The Constitution
and have nothing to do with the judicial function. implies that there shall be one Supreme Court and the
Before August 6, 1962, the Governor had power to let existence of the Full Court Division of the Gun Court
out on licence persons serving terms of destroys that implied provision. Since the enactment
imprisonment. The Review Board is not advising the of the Gun Court Act the Supreme Court has not had
Governor-General on the exercise of the prerogative all the characteristics of a Supreme Court and there
of mercy. That is an executive power not touched by has therefore been no Supreme Court in Jamaica
the Review Board. since that time. The characteristics of a Supreme
Court are that it is primarily a court of unlimited civil
Gerald Davies following. If Parliament has jurisdiction; it tries the most serious criminal offences
declared trial in camera to be in the interest of public and has powers of sentence commensurate with that
safety, public order or the protection of private lives jurisdiction; it has general supervisory jurisdiction
of persons concerned in the proceedings, it is not for over inferior courts. The supervisory jurisdiction is
any court to inquire if such a declaration was the most substantial matter and it would be
reasonably required. Alternatively, if a court can so impossible for such a court to co-exist with others
inquire it must do so against a strong presumption having the same characteristics. Section 25 of
that the provision was reasonably required and only the Constitution is concerned with the supervisory
on cogent evidence. Attorney-General v. Antigua jurisdiction of the Supreme Court only in relation to
Times Ltd. [1976] A.C. 16 was concerned with fundamental rights.
substantially different statutory provisions.
[Lord Diplock indicated that their Lordships wished
Sentencing policy is a function primarily for the to hear counsel's submissions as to the severability of
legislature and not for the judiciary. Only where a any provisions of the Gun Court Act which their
court is given a discretion as to sentence does Lordships might find to be unconstitutional.]
sentencing become a judicial function. Where the

[1976] Crim. L.R. 124
(Cite as: [1977] A.C. 195)
Constitution, nor does the Gun Court Act itself

Kerr Q.C . If the Act contains provisions which contain any express amendment of those provisions.
are ultra vires those provisions may be severable: see All that it purports to do is to establish a new court
Attorney-General for Alberta v. Attorney-General for called the Gun Court with power to sit in three
Canada [1947] A.C. 503 . A Gun Court with a different kinds of division: a Resident Magistrate's
Resident Magistrate's Division alone would embody Division, a Full Court Division and a Circuit Court
the scheme contemplated by Parliament. The Division, and to confer on one or other of these
provisions of the Act regarding mandatory sentence, divisions jurisdiction to try certain categories of
creation of the Full Court Division and its jurisdiction offenders for criminal offences of every kind. Prior to
and the provisions as to the assignment of a resident the passing of the Act and at the date of the coming
magistrate as judge of the Gun Court by the Chief into force of the Constitution these offences would
Justice are severable. have been cognisable only in a resident magistrate's
court or in a Circuit Court of the Supreme Court of
Robinson Q.C., A.-G . If the provisions as to the Jamaica. The Act also lays down the procedure to be
mandatory sentence were deleted the Gun Court followed in each kind of division and, in particular,
would still have available the penalties provided by provides that all trials should be held in camera, and
the Firearms Act 1967 itself. that for certain specified offences relating to the
unauthorised possession, acquisition or disposal of
firearms or ammunition, the Gun Court should
Mahfood Q.C . Severance is only possible if the impose a mandatory sentence of detention at hard
court can be sure that Parliament would have passed labour from which the detainee can only be
the unobjectionable provisions in any event. The discharged at the direction of the Governor-General
court should not re-word a statute. If severance acting in accordance with the advice of the Review
produces results which were not contemplated by the Board, a non-judicial body established by the Act.
legislature the entire statute must fail. The provisions
of the Gun Court Act form part of a single scheme
intended to operate as a whole. Invalidity of a part The five named individuals who are parties to the
must result in failure of the whole. The scheme consolidated appeals to Her Majesty in Council, four
envisaged by Parliament was that all firearms as appellants in the first appeal and one as respondent
offences should be tried in the Gun Court sitting in in the second appeal, were each convicted by a
camera, where swift, severe mandatory punishment Resident Magistrate's Division of the Gun Court of
would be meted out and an accused person once an offence which carried with it under the Act the
brought before the court from any part of Jamaica mandatory sentence of detention at hard labour. Each
*209 should be tried in that court for any of them appealed to the Court of Appeal against his
offence once he had been convicted of a firearms conviction and also against his sentence, upon the
offence. Failure of any provision would undermine grounds that the Gun Court Act 1974, or alternatively
the basic strategy of the Act. those provisions of the Act under which he had been
tried and sentenced, are inconsistent with the
Constitution of Jamaica and are therefore void under
Cur. adv. vult. section 2 of the Constitution. The appeals of
the first four detainees were heard together and
November 5. The majority judgment of their earlier than that of the fifth detainee. They came on
Lordships was delivered by LORD DIPLOCK. before a court composed of Swaby J.A. and Zacca
Ag.J.A. presided over by Luckhoo Ag.P. Separate
In 1974 the Parliament of Jamaica passed the Gun judgments were delivered by all three members of the
Court Act 1974 as an ordinary Act of court. Luckhoo Ag.P. and Zacca Ag.J.A. concurred in
Parliament. It had not been preceded by legislation the result that the appeals should be dismissed
passed under the special procedure prescribed by although their reasons for doing so were not identical.
section 49 of the Constitution of Jamaica for an Swaby J.A. dissented. He would have allowed the
Act of Parliament to alter provisions of the appeals. The appeal of the fifth detainee was heard a

[1976] Crim. L.R. 124
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few months later by a court that was differently The inseverability of the provisions of the Gun Court
constituted, inasmuch as Graham-Perkins J.A. Act 1974 which create the three divisions of the court
presided in place of Luckhoo Ag.P. This was enough was the main thrust of the appellants' challenge under
to tip the balance. Graham-Perkins J.A. and Swaby the head of jurisdiction. This does not involve a direct
J.A. delivered a joint judgment allowing the appeal attack upon the specific provisions of the Act, under
although upon a ground different from those relied which the appellants were tried and convicted by a
upon in the *210 latter's earlier dissenting resident magistrate, when looked at in isolation. What
judgment. Zacca Ag.J.A. adhered to his previous is attacked directly is the constitutional validity of
opinion and was in favour of dismissing the appeal. those provisions of the Act which purport to confer
The unsuccessful parties to these appeals have now jurisdiction to try offences upon the other two
appealed to Her Majesty in Council under section 110 divisions of the Gun Court - a Circuit Court Division
(1) (c) of the Constitution. It is common and a Full Court Division. The next steps in the
ground that the constitutional issues raised by the argument are (1) the Gun Court Act 1974 embodies a
appeal that was the subject of the later judgments in comprehensive legislative scheme for the
the Court of Appeal are indistinguishable from those establishment of a single court, the Gun Court, with
raised by the four appeals that were the subject of the power to sit in separate divisions; and to confer upon
earlier judgments. Before their Lordships' Board all the Gun Court jurisdiction to try certain categories of
the appeals have been consolidated and all five offenders for criminal offences of all kinds. (2) The
detainees have been treated as appellants in the jurisdiction exercisable by the Gun Court when
consolidated appeal. sitting in a Resident Magistrate's Division is an
integral and inseparable part of the jurisdiction
The questions raised as to the true interpretation of intended to be conferred upon the court. It cannot
Chapter VII of the Constitution which relates to "The consistently with the legislative scheme of the Act
Judicature" are of outstanding public importance. The survive the striking down of the jurisdiction
attack upon the constitutional validity of those exercisable by the other two divisions. (3) A Gun
provisions of the Gun Court Act 1974 under which Court consisting only of a Resident Magistrate's *211
the appellants were tried and sentenced by a Resident Division would be a different kind of court from that
Magistrate's Division of the Gun Court can most which Parliament intended to create. This was the
conveniently be dealt with under four heads: argument on which the fifth detainee succeeded in his
jurisdiction, procedure, sentence and severability. The appeal to the Court of Appeal. It is, indeed, the only
arguments have been wide ranging - and necessarily ground on which there is a majority judgment in the
so, for when the constitutional validity of an Act appellants' favour. In order to deal with it their
passed by the Parliament of Jamaica is in issue, the Lordships cannot shirk the task of ruling upon the
problem cannot be solved by the court's confining its constitutional validity of those provisions of the Act
attention to those specific provisions of the Act that which purport to confer jurisdiction to try offences
are directly applicable to the particular case. Looked upon the Circuit Court Division and upon the Full
at in isolation from the legislative scheme embodied Court Division of the Gun Court. Such rulings, in
in the Act when taken as a whole, it may be that those their Lordships' view, cannot be characterised as
specific provisions, if separately enacted, would not obiter dicta. They form necessary steps in any
have been inconsistent with the Constitution; but if reasoning disposing of the appellants' case in so far as
other provisions of the Act are invalid a question of it is based upon inseverability.
severability arises. The court accordingly cannot
avoid the task of examining the constitutional validity That the appellants' contentions under each of the
of the other provisions of the Act in order to see four heads, jurisdiction, procedure, sentence and
whether those which must be struck down as invalid severability, raise questions of constitutional law of
form part of a single legislative scheme of which the considerable difficulty is evident from the conflicts of
specific provisions applicable to the particular case opinion, particularly under the first head, that are
are also an integral and inseparable part. disclosed in the four closely reasoned judgments of
those judges of the Court of Appeal who sat in one or

[1976] Crim. L.R. 124
(Cite as: [1977] A.C. 195)
both of the appeals. Their Lordships desire to express between representatives of the various shades of
their indebtedness to those judgments and to the political opinion in the state as to the structure of the
arguments addressed to them by counsel for the organs of government through which the plenitude of
parties at the hearing by this Board. the sovereign power of the state is to be exercised in
future. All of them were negotiated as well as drafted
A written constitution, like any other written by persons nurtured in the tradition of that branch of
instrument affecting legal rights or obligations, falls the common law of England that is concerned with
to be construed in the light of its subject matter and public law and familiar in particular with the basic
of the surrounding circumstances with reference to concept of separation of legislative, executive and
which it was made. Their Lordships have been quite judicial power as it had been developed in the
properly referred to a number of previous authorities unwritten constitution of the United Kingdom. As to
dealing with the exercise of judicial power under their subject matter, the peoples for whom new
other written constitutions, established either by Act constitutions were being provided were already living
of the Imperial Parliament or by Order in Council under a system of public law in which the local
made by Her Majesty in right of the Imperial Crown, institutions through which government was carried
whereby internal sovereignty or full independence on, the legislature, the executive and the courts,
has been granted to what were formerly colonial or reflected the same basic concept. The new
protected territories of the Crown. These other constitutions, particularly in the case of unitary states,
constitutions differ in their express provisions from were evolutionary not revolutionary. They provided
the Constitution of Jamaica, sometimes widely for continuity of government through successor
where, as in the case of Canada and Australia, they institutions, legislative, executive and judicial, of
provide for a federal structure, but much less which the members were to be selected in a different
significantly in the case of the unitary constitutions of way, but each institution was to exercise powers
those states which have attained full independence in which, although enlarged, remained of a similar
the course of the last two decades. In seeking to apply character to those that had been exercised by the
to the interpretation of the Constitution of Jamaica corresponding institution that it had replaced.
what has been said in particular cases about other
constitutions, care must be taken to distinguish Because of this a great deal can be, and in drafting
between judicial reasoning which depended on the practice often is, left to necessary implication from
express words used in the particular constitution the adoption in the new constitution of a
under consideration and reasoning which depended governmental structure which makes provision for a
on what, though not expressed, is none the less a legislature, an executive and judicature. It is taken for
necessary implication from the subject matter and granted that the basic principle of separation of
structure of the constitution and the circumstances in powers will apply to the exercise of their respective
which it had been made. Such caution is particularly functions by these three organs of government. Thus
necessary in cases dealing with a federal constitution the constitution does not normally contain any
in which the question immediately in issue may have express prohibition upon the exercise of legislative
depended in part upon the separation of the judicial powers by the executive or of judicial powers by
power from the legislative or executive power of the either the executive or the legislature. As respects the
federation or of one of its component states and in judicature, particularly if it is intended that the
part upon the division of judicial power between the previously existing courts shall continue to function,
federation and a component state. the constitution itself may even omit any express
provision conferring judicial power upon the
Nevertheless all these constitutions have two things judicature. Nevertheless it is well established as a
in common which have an important bearing on their rule of construction applicable to constitutional
interpretation. They differ fundamentally in their instruments under which this governmental structure
nature from ordinary legislation passed by the is adopted that the absence of express words to that
parliament *212 of a sovereign state. They effect does not prevent the legislative, the executive
embody what is in substance an agreement reached and the judicial powers of the new state being

[1976] Crim. L.R. 124
(Cite as: [1977] A.C. 195)
exercisable exclusively by the legislature, by the is not expressly stated in the Constitution: Liyanage
executive and by the judicature respectively. To seek v. The Queen [1967] 1 A.C. 259 , 287-288.
to apply to constitutional instruments the canons of
construction applicable to ordinary legislation in the The more recent constitutions on the Westminster
fields of substantive criminal or civil law would, in model, unlike their earlier prototypes, include a
their Lordships' view, be misleading - particularly Chapter dealing with fundamental rights and
those applicable to taxing statutes as to which it is a freedoms. The provisions of this Chapter form part of
well established principle that express words are the substantive law of the state and until amended by
needed to impose a charge upon the subject. In the whatever special procedure is laid down in the
result there can be discerned in all those constitutions Constitution for this purpose, impose a fetter upon
which have their origin in an Act of the Imperial the exercise by the legislature, the executive and the
Parliament at Westminster or in an Order in Council, judiciary of the plenitude of their respective powers.
a common pattern and style of draftsmanship which The remaining Chapters of the Constitutions are
may conveniently be described as "the Westminster primarily concerned not with the legislature, the
model." executive and the judicature as abstractions, but with
the persons who shall be entitled collectively or
Before turning to those express provisions of the individually to exercise the plenitude of legislative,
Constitution of Jamaica upon which the appellants executive or judicial powers - their qualifications for
rely in these appeals, their Lordships *213 legislative, executive or judicial office, the methods
will make some general observations about the of selecting them, their tenure of office, the procedure
interpretation of constitutions which follow the to be followed where powers are conferred upon a
Westminster model. All Constitutions on the class of persons acting collectively and the majorities
Westminster model deal under separate Chapter required for the exercise of those powers. Thus,
headings with the legislature, the executive and the where a constitution on the Westminster model
judicature. The Chapter dealing with the judicature speaks of a particular "court" already in existence
invariably contains provisions dealing with the when the Constitution comes into force it uses this
method of appointment and security of tenure of the expression as a collective description of all those
members of the judiciary which are designed to individual judges who, whether sitting alone or with
assure to them a degree of independence from the other judges or with a jury, are entitled to exercise the
other two branches of government. It may, as in the jurisdiction exercised by that court before the
case of the Constitution of Ceylon , contain Constitution came into force. Any express provision
nothing more. To the extent to which the Constitution in the constitution for the appointment or security of
itself is silent as to the distribution of the plenitude of tenure of judges of that court will apply to all
judicial power between various courts it is implicit individual judges subsequently appointed to exercise
that it shall continue to be distributed between and an analogous jurisdiction, whatever other name may
exercised by the courts that were already in existence be given to the "court" in which they sit: Attorney-
when the new Constitution came into force; but the General for Ontario v. Attorney-General for Canada
legislature, in the exercise of its power to make laws [1925] A.C. 750 . *214
for the "peace, order and good government" of the
state, may provide for the establishment of new Where, under a constitution on the Westminster
courts and for the transfer to them of the whole or model, a law is made by the Parliament which
part of the jurisdiction previously exercisable by an purports to confer jurisdiction upon a court described
existing court. What, however, is implicit in the very by a new name, the question whether the law
structure of a Constitution on the Westminster model conflicts with the provisions of the constitution
is that judicial power, however it be distributed from dealing with the exercise of the judicial power does
time to time between various courts, is to continue to not depend upon the label (in the instant case "The
be vested in persons appointed to hold judicial office Gun Court") which the Parliament attaches to the
in the manner and on the terms laid down in the judges when exercising the jurisdiction conferred
Chapter dealing with the judicature, even though this upon them by the law whose constitutionality is

[1976] Crim. L.R. 124
(Cite as: [1977] A.C. 195)
impugned. It is the substance of the law that must be Turning now to the Gun Court Act 1974, the purpose
regarded, not the form. What is the nature of the of the Act as described in its long title is
jurisdiction to be exercised by the judges who are to "to provide for the establishment of a court to deal
compose the court to which the new label is attached? particularly with firearms offences and for the
Does the method of their appointment and the purposes incidental thereto or connected therewith."
security of their tenure conform to the requirements Their Lordships will deal first with the
of the constitution applicable to judges who, at the jurisdiction of the court established by the Act,
time the constitution came into force, exercised secondly with procedure, thirdly with the mandatory
jurisdiction of that nature?: Attorney-General for sentence *215 for offences against section 20
Australia v. The Queen [1957] A.C. 288 , 309- of the Firearms Act 1967 , of which the
310. appellants were convicted, and finally with the
question of severability.
One final general observation: where, as in the
instant case, a constitution on the Westminster model Jurisdiction
represents the final step in the attainment of full
independence by the peoples of a former colony or Although the institution established by the Act is
protectorate, the constitution provides machinery given a single name "The Gun Court" ( section 3
whereby any of its provisions, whether relating to (1) and provided with a single seal ( section 3
fundamental rights and freedoms or to the structure (3) ), in substance it comprises three different
of government and the allocation to its various organs courts called "divisions" with differing status,
of legislative, executive or judicial powers, may be differing composition, differing jurisdiction and
altered by those peoples through their elected differing powers. These divisions, in their Lordships'
representatives in the Parliament acting by specified view, call for separate consideration.
majorities, which is generally all that is required,
though exceptionally as respects some provisions the The Circuit Court Division
alteration may be subject also to confirmation by a
direct vote of the majority of the peoples themselves.
The purpose served by this machinery for The division exercising the widest jurisdiction is
"entrenchment" is to ensure that those provisions called the "Circuit Court Division." It is constituted
which were regarded as important safeguards by the by a "Supreme Court judge exercising the jurisdiction
political parties in Jamaica, minority and majority of a Circuit Court" ( section 4 (c) ); it is a
alike, who took part in the negotiations which led up superior court of record ( section 3 (2) ), and
to the constitution, should not be altered without its jurisdiction is the same as that of a Circuit Court
mature consideration by the Parliament and the established under the Judicature (Supreme Court)
consent of a larger proportion of its members than the Law, except that the geographical limits of its
bare majority required for ordinary laws. So in jurisdiction in respect of "firearm offences" extend to
deciding whether any provisions of a law passed by all parishes of Jamaica ( section 5 (3) ). The
the Parliament of Jamaica as an ordinary law are Chief Justice may designate any Circuit Court to be a
inconsistent with the Constitution of Jamaica, neither Circuit Court Division of the Gun Court ( section 17
the courts of Jamaica nor their Lordships' Board are (1) ) and may assign any Supreme Court
concerned with the propriety or expediency of the judge to sit as the judge of a Circuit Court Division
law impugned. They are concerned solely with ( section 10 (1) ). Nothing in the Act,
whether those provisions, however reasonable and however, is to be construed as divesting of any
expedient, are of such a character that they conflict jurisdiction a Circuit Court not designated as a
with an entrenched provision of the Constitution and Circuit Court Division of the Gun Court ( section 21
so can be validly passed only after the Constitution (1) ). A "firearm offence" is defined as
has been amended by the method laid down by it for meaning:
altering that entrenched provision. "(a) any offence contrary to section 20 of the
Firearms Act 1967 ; (b) any other offence
whatsoever involving a firearm and in which the

[1976] Crim. L.R. 124
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offender's possession of the firearm is contrary to Justice may designate any resident magistrate's court
section 20 of the Firearms Act 1967;..." to be a Resident Magistrate's Division of the Gun
Section 20 of the Firearms Act 1967 deals Court ( section 17 (2) ) and may assign any
with the unauthorised possession of firearms or resident magistrate to sit as a Resident Magistrate's
ammunition and creates offences all of which are Division.
triable summarily before a resident magistrate or on
indictment by a Circuit Court. In addition to this limited extension of the
geographical limits of the original criminal
In substance, therefore, all that is done by those jurisdiction previously exercisable by a properly
provisions of the Act to which reference has been appointed resident magistrate under the Judicature
made is to enlarge the previously existing criminal (Resident Magistrates) Law the Gun Court
jurisdiction of a Supreme Court judge holding a Act also makes a similar extension of the
Circuit Court so as to confer upon him jurisdiction to geographical limits of his jurisdiction to conduct the
try "firearm offences" committed outside the parish preliminary examination into any firearm offence
for which the Circuit is held, if that Circuit Court has which is a capital offence and any other capital
been given the designation of a "Circuit Court offence alleged to have been committed by a detainee
Division" of the Gun Court. In their Lordships' view ( section 5 (1) (b) ). So here too the Gun
there is nothing in the Constitution of Jamaica that Court Act 1974 does no more than to extend in
prohibits the Parliament from extending the respect of certain specified offences the geographical
geographical limits of the criminal jurisdiction limits of the criminal jurisdiction exercisable by a
exercisable by a properly appointed Supreme Court properly appointed resident magistrate under the
judge in the exercise of the jurisdiction of a Circuit Judicature (Resident Magistrates) Law and to attach
Court under the Judicature (Supreme Court) to him the label a "Resident Magistrate's Division" of
Law , whatever label may be attached by the Gun Court when exercising his jurisdiction over
Parliament to the Supreme Court judge when these offences.
exercising the extended jurisdiction. *216
The Resident Magistrate's Division The Full Court Division
Their Lordships will deal next with the division of Different considerations, however, apply to a "Full
the Gun Court which exercises the most restricted Court Division" of the Gun Court which exercises a
jurisdiction. It is called a "Resident Magistrate's jurisdiction intermediate between that of a Circuit
Division" and similar considerations apply to it. It is Court Division and a Resident Magistrate's Division.
constituted by one resident magistrate ( section 4 This is composed of three resident magistrates sitting
(a) ) and is a court of record; but unlike a together ( section 4 (b) ) and acting by a
Circuit Court Division is not a superior court of majority ( Interpretation Act 1968, section 54
record (section 3 (2)). Its original jurisdiction to hear ). The Chief Justice may designate any resident
and determine criminal offences summarily is the magistrate's court to a Full Court Division of the Gun
same as that of a resident magistrate's court Court and may assign any resident magistrate to be a
established under the Judicature (Resident member of that division (section 17 (2)). A Full Court
Magistrates) Law except that the geographical Division is thus a new court in substance as well as
limits of its jurisdiction are extended to all offences form. Unlike a Circuit Court Division and a Resident
committed in any parish of Jamaica in respect of (i) Magistrate's Division it is of different composition
offences triable summarily under section 20 of the from any previously existing court in Jamaica. Its
Firearms Act 1967, and offences ancillary thereto jurisdiction too is different from that of any
created by section 18 of the Gun Court Act previously existing court. It does not extend to any
and (ii) all other summary offences committed by a capital offence but with this exception it extends to
specified category of offenders ("detainees") to which all "firearm offences" and to all other offences of
further reference will be made hereafter (section 5 (1) whatever kind committed by detainees whether a
(a) and (c); section 9 (a); section 10 (2)). The Chief firearm was involved in the offence or *217

[1976] Crim. L.R. 124
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not, and its sentencing powers for such offences are firearm offence is to ensure that all offences falling
co-extensive with those of a Circuit Court. within the jurisdiction conferred upon a Full Court
Division of the Gun Court shall be tried by that
To appreciate how wide this jurisdiction is, it is Division to the exclusion of a Circuit Court of the
necessary to examine those provisions of the Act Supreme Court.
which create the category of offenders whom their
Lordships have hitherto referred to as "detainees." The attack upon the constitutionality of the Full
The Act provides that any court other than a Division Court Division of the Gun Court may be based upon
of the Gun Court before which a case involving a two grounds. The first is that the Gun Court Act 1974
firearm offence is brought shall forthwith transfer the purports to confer upon a court consisting of persons
case for trial by the Gun Court ( section 6 (1) qualified and appointed as resident magistrates a
) and shall remand the accused in custody to appear jurisdiction which under the provisions of Chapter
before the Gun Court ( section 6 (3) ). Upon VII of the Constitution is exercisable only by a
his appearing before the Gun Court, the Act provides person qualified and appointed as a judge of the
that the hearing of any charge against him of an Supreme Court. The second ground is much less
offence of unauthorised possession of firearms or fundamental. It need only be mentioned briefly, for it
ammunition under section 20 of the Firearms Act arises only if the first ground fails. It is that even if
1967 shall ordinarily be commenced within the conferment of jurisdiction upon a Full Court
seven days of his first appearance ( section 8 Division consisting of three resident magistrates is
(1) ). The practical consequence of this valid, section 112 of the Constitution requires that
provision is that the charge of unlawful possession any assignment of a resident magistrate to sit in that
will be heard and determined before any other division should *218 be made by the
offence that he may be charged with. Upon Governor-General acting on the recommendation of
conviction of the offence of unlawful possession, the the Judicial Service Commission and not by the Chief
Act prescribes the mandatory sentence of detention at Justice as the Gun Court Act 1974 provides.
hard labour during the Governor-General's pleasure.
Their Lordships will have occasion to consider the Chapter VII of the Constitution, "The Judicature,"
constitutionality of this sentence later. Its relevance was in their Lordships' view intended to deal with the
for the purpose of considering the extent of the appointment and security of tenure of all persons
jurisdiction exercisable by a Full Court Division of holding any salaried office by virtue of which they
the Gun Court is that the practical consequence of are entitled to exercise civil or criminal jurisdiction in
these provisions is to confer upon a Full Court Jamaica. For this purpose they are divided into two
Division jurisdiction to try all other crimes, however categories: (i) a higher judiciary, consisting of judges
serious, short of capital offences, committed by any of the Supreme Court and judges of the Court of
person who has also committed an offence under Appeal, and (ii) a lower judiciary, consisting of those
section 20 of the Firearms Act 1967, even though described in section 112 (2) , viz.:
those other crimes have nothing to do with firearms. "... Resident magistrate, judge of the Traffic Court,
The jurisdiction conferred upon a court consisting of registrar of the Supreme Court, registrar of the Court
three resident magistrates thus extends to all non- of Appeal and such other offices connected with the
capital offences which were previously triable only courts of Jamaica as, subject to the provisions of this
on indictment before a Supreme Court judge Constitution, may be prescribed by Parliament."
exercising the jurisdiction of a Circuit Court of the Apart from the offices of judge and registrar of
Supreme Court, if the offender is a person who has the Court of Appeal which were new, these two
been in unlawful possession of a firearm. Since categories embraced all salaried members of the
committal for trial in a Circuit Court of the Supreme judiciary who exercised civil or criminal jurisdiction
Court is preceded by a preliminary examination in Jamaica at the date when the Constitution came
before a resident magistrate's court, the practical into force. A minor jurisdiction, particularly in
consequence of the provision for mandatory transfer relation to juveniles, was exercised by justices of the
for trial by the Gun Court of cases involving a peace but, as in England, they sat part-time only,

[1976] Crim. L.R. 124
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were unpaid and were not required to possess any

professional qualification. Common to both The manifest intention of these provisions is that all
categories, with the exception of the Chief Justice of those who hold any salaried judicial office in Jamaica
the Supreme Court and the President of the Court of shall be appointed on the recommendation of the
Appeal, is the requirement under the Constitution that Judicial Service Commission and that their
they should be appointed by the Governor-General on independence from political pressure by Parliament
the recommendation of the Judicial Service or by the executive in the exercise of their judicial
Commission - a body established under section functions shall be assured by granting to them such
111 whose composition is different from that degree of security of tenure in their office as is
of the Public Service Commission and consists of justified by the importance of the jurisdiction that
persons likely to be qualified to assess the fitness of a they exercise. A clear distinction is drawn between
candidate for judicial office. the security of tenure appropriate to those judges who
exercise the jurisdiction of the higher judiciary and
The distinction between the higher judiciary and that appropriate to those judges who exercise the
the lower judiciary is that the former are given a jurisdiction of the lower judiciary.
greater degree of security of tenure than the latter.
There is nothing in the Constitution to protect the Their Lordships accept that there is nothing in the
lower judiciary against Parliament passing ordinary Constitution to prohibit Parliament from establishing
laws (a) abolishing their office (b) reducing their by an ordinary law a court under a new name, such as
salaries while they are in office or (c) providing that the "Revenue Court," to exercise part of the
their appointments to judicial office shall be only for jurisdiction that was being exercised by members of
a short fixed term of years. Their independence of the the higher judiciary or by members of the lower
goodwill of the political party which commands a judiciary at the time when the Constitution came into
bare majority in the Parliament is thus not fully force. To do so is merely to change the label to be
assured. The only protection that is assured to them attached to the capacity in which the persons
by section 112 is that they cannot be removed or appointed to be members of the new court exercise a
disciplined except on the recommendation of the jurisdiction previously exercised by the holders of
Judicial Service Commission with a right of appeal to one or other of the judicial offices named in Chapter
the Privy Council. This last is a local body VII of the Constitution. In their Lordships' view,
established under section 82 of the however, it is the manifest intention of the
Constitution whose members are appointed by the Constitution that any person appointed to be a
Governor-General after consultation with the Prime member of such a court should be appointed in the
Minister and hold office for a period not exceeding same manner and entitled to the same security of
three years. In contrast to this, judges of the Supreme tenure as the holder of the judicial office named in
Court and of the Court of Appeal are given a more Chapter VII of the Constitution which entitled him to
firmly rooted security of tenure. They are protected exercise the corresponding jurisdiction at the time
by entrenched provisions of the Constitution against when the Constitution came into force.
Parliament passing ordinary law (a) abolishing their
office (b) reducing their salaries while in office or (c) Their Lordships understand the Attorney-General to
providing that their *219 tenure of office concede that salaried judges of any new court that
shall end before they attain the age of 65 years. They Parliament may establish by an ordinary law must be
are not subject to any disciplinary control while in appointed in the manner and entitled to the security
office. They can only be removed from office upon of tenure provided for members of the lower
the advice of the Judicial Committee of Her Majesty's judiciary by section 112 of the Constitution. In their
Privy Council in the United Kingdom given on a Lordships' view this concession was rightly made. To
reference made upon the recommendation of a adopt the familiar words used by Viscount Simonds
tribunal of inquiry consisting of persons who hold or in Attorney-General for Australia v. The Queen
have held high judicial office in some part of the [1957] A.C. 288 it would make a mockery of
Commonwealth. the Constitution if Parliament could transfer the

[1976] Crim. L.R. 124
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jurisdiction previously exercisable by holders of the respectively in disputes about membership of either
judicial offices named in Chapter VII of the House of Parliament.
Constitution to holders of new judicial offices to
which some different name was attached and to The jurisdiction that was characteristic of judges of a
provide that persons holding the new judicial offices court to which the description of "a Supreme Court"
should not be appointed in the manner and upon the was appropriate in a hierarchy of courts which
terms prescribed in Chapter VII for the appointment included, in addition, inferor courts and "a Court of
of members of the judicature. If this were the case Appeal," was well known to the makers of the
there would be nothing to prevent Parliament from Constitution in 1962. So was the jurisdiction that was
transferring the whole of the judicial power of characteristic of judges of a court to which the
Jamaica (with two minor exceptions referred to description of "a Court of Appeal" was appropriate.
below) to bodies composed of persons who, not being
members of "the judicature," would not *220 In their Lordships' view section 110 of the
be entitled to the protection of Chapter VII at all. Constitution makes it apparent that in providing in
What the Attorney-General does not concede is that section 103 (1) that: "There shall be a Court
Parliament is prohibited by Chapter VII from of Appeal for Jamaica" the draftsman treated this
transferring to a court composed of duly appointed form of words as carrying with it by necessary
members of the lower judiciary jurisdiction which, at implication that the judges of the court required to be
the time the Constitution came into force, was established under section 103 should exercise
exercisable only by a court composed of duly an appellate jurisdiction in all substantial civil cases
appointed members of the higher judiciary. In support and in all serious criminal cases and that the words
of his contention that Parliament is entitled by an that follow, viz. "which shall have such jurisdiction
ordinary law to down-grade any part of the and powers as may be conferred upon it by this
jurisdiction previously exercisable by the Supreme Constitution or any other law," do not entitle
Court he relies on section 97 of the Parliament by an ordinary law to deprive the Court of
Constitution which provides as follows: Appeal of a significant part of such appellate
"97. (1) There shall be a Supreme Court for jurisdiction or to confer it upon judges who do not
Jamaica which shall have such jurisdiction and enjoy the security of tenure which the Constitution
powers as may be conferred upon it by the guarantees to judges of the Court of Appeal. Section
Constitution or any other law.... (4) The Supreme 110 (1) of the Constitution which grants to
Court shall be a superior court of record and, save as litigants wide rights of appeal to Her Majesty in
otherwise provided by Parliament, shall have all the Council but only from "decisions of the Court of
powers of such a court." Appeal," clearly proceeds on this assumption as to
the effect of section 103. Section 110 would be
It is, in their Lordships' view, significant that section rendered nugatory if its wide appellate jurisdiction
103 (1) and (5) which provide for the establishment could *221 be removed from the Court of Appeal by
of the Court of Appeal are in identical terms with the an ordinary law without amendment of the
substitution of the words "Court of Appeal" for Constitution.
"Supreme Court."
Their Lordships see no reason why a similar
The only other provisions of the Constitution which implication should not be drawn from the
expressly confer jurisdiction upon the Supreme Court corresponding words of section 97. The Court of
or the Court of Appeal are (i) section 25 (2) and Appeal of Jamaica was a new court established under
(3) which give them original and appellate the Judicature (Appellate Jurisdiction) Law
jurisdiction respectively to hear and determine claims 1962 , which came into force one day before
for redress for any contravention of the provisions of the Constitution, viz. on August 5, 1962. The
Chapter III relating to fundamental rights and Supreme Court of Jamaica had existed under that title
freedoms, and (ii) section 44 (1) which gives since 1880. In the judges of that court there had been
to them original and appellate jurisdiction vested all that jurisdiction in Jamaica which in their

[1976] Crim. L.R. 124
(Cite as: [1977] A.C. 195)
Lordships' view was characteristic of a court to which tenure more absolute than that provided by the
in 1962 the description "a Supreme Court" was Constitution for judges of inferior courts.
appropriate in a hierarchy of courts which was to
include a separate "Court of Appeal." The three kinds Their Lordships therefore are unable to accept that
of jurisdiction that are characteristic of a Supreme the words in section 97 (1), upon which the Attorney-
Court where appellate jurisdiction is vested in a General relies, entitle Parliament by an ordinary law
separate court are (1) unlimited original jurisdiction to vest in a new court composed of members of the
in all substantial civil cases; (2) unlimited original *222 lower judiciary a jurisdiction that forms a
jurisdiction in all serious criminal offences; (3) significant part of the unlimited civil, criminal or
supervisory jurisdiction over the proceedings of supervisory jurisdiction that is characteristic of a
inferior courts (viz. of the kind which owes its origin "Supreme Court" and was exercised by the Supreme
to the prerogative writs of certiorari, mandamus and Court of Jamaica at the time when the Constitution
prohibition). That section 97 (1) of the came into force, at any rate where such vesting is
Constitution was intended to preserve in Jamaica a accompanied by ancillary provisions, such as those
Supreme Court exercising this characteristic contained in section 6 (1) of the Gun Court Act
jurisdiction is, in their Lordships' view, supported by 1974 , which would have the consequence
the provision in section 13 (1) of the Jamaica that all cases falling within the jurisdiction of the new
(Constitution) Order in Council 1962 : court would in practice be heard and determined by it
"The Supreme Court in existence immediately instead of by a court composed of judges of the
before the commencement of this Order shall be the Supreme Court.
Supreme Court for the purposes of the Constitution."
This is made an entrenched provision of the As with so many questions arising under
Constitution itself by section 21 (1) of the constitutions on the West-minster model, the question
Order in Council, and confirms that the kind of court whether the jurisdiction vested in the new court is
referred to in the words "There shall be a Supreme wide enough to constitute so significant a part of the
Court for Jamaica" was a court which would exercise jurisdiction that is characteristic of a Supreme Court
in Jamaica the three kinds of jurisdiction as to fall within the constitutional prohibition is one
characteristic of a Supreme Court that have been of degree. The instant case is concerned only with
indicated above. criminal jurisdiction. It is not incompatible with the
criminal jurisdiction of a "Supreme Court," as this
If, as contended by the Attorney-General, the words expression would have been understood by the
italicised above in section 97 (1) entitled Parliament makers of the Constitution in 1962, that jurisdiction
by an ordinary law to strip the Supreme Court of all to try summarily specific minor offences which
jurisdiction in civil and criminal cases other than that attracted only minor penalties should be conferred
expressly conferred upon it by section 25 and section upon inferior criminal courts to the exclusion of the
44, what would be left would be a court of such criminal as distinct from the supervisory jurisdiction
limited jurisdiction that the label "Supreme Court" of a Supreme Court. Nor is it incompatible that a
would be a false description. So too if all its jurisdiction concurrent with that of a Supreme Court
jurisdiction (with those two exceptions) were should be conferred upon inferior criminal courts to
exercisable concurrently by other courts composed of try a wide variety of offences if in the particular case
members of the lower judiciary. But more important, the circumstances in which the offence was
for this is the substance of the matter, the individual committed makes it one that does not call for a
citizen could be deprived of the safeguard, which the severer punishment than the maximum that the
makers of the Constitution regarded as necessary, of inferior court is empowered to inflict. In this class of
having important questions affecting his civil or offences the answer to the question whether the
criminal responsibilities determined by a court, concurrent jurisdiction conferred upon the inferior
however named, composed of judges whose court is appropriate only to a "Supreme Court"
independence from all local pressure by Parliament depends upon the maximum punishment that the
or by the executive was guaranteed by a security of inferior court is empowered to inflict.

[1976] Crim. L.R. 124
(Cite as: [1977] A.C. 195)
to be tried by a Full Court Division.

At the time of the coming into force of the
Constitution the maximum sentence that a resident In their Lordships' view the provisions of the Gun
magistrate was empowered to inflict for any of the Court Act 1974, in so far as they provide for the
numerous offences which he had jurisdiction to try establishment of a Full Court Division of the Gun
was one year's imprisonment and a fine of 100 Court consisting of three resident magistrates,
dollars. It is not necessary for the purposes of the conflict with Chapter VII of the Constitution and are
instant appeals to consider to what extent this accordingly void by virtue of section 2.
maximum might be raised, either generally or in
respect of particular offences, without trespassing Procedure
upon the jurisdiction reserved by the Constitution to
judges of the Supreme Court. The limit has in fact It is provided by section 13 (1) of the Act, which
been raised to two years in respect of some offences starts with the introductory words "In the interest of
including those under section 20 of the Firearms Act public safety, public order or the protection of the
1967. Their Lordships would not hold this to be private lives of persons concerned in the
unconstitutional; but to remove all limits in respect of proceedings," that all three divisions of the Gun
all criminal offences, however serious, other than Court shall sit in camera. The court is also
murder and treason, would in their Lordships' view empowered to direct that no particulars of the trial
destroy the protection for the individual citizen of other than the name of the accused, the offence
Jamaica intended to be preserved to him by the charged and the verdict and sentence shall be
establishment of a Supreme Court composed of published without the prior approval of the court.
judges whose independence from political pressure
by the Parliament or the executive was more firmly
guaranteed than that of the inferior judiciary. The appellants contend that this is contrary to
section 20 (3) in Chapter III of the
Constitution, which provides that all proceedings of
It is this that, in respect of a particular category of every court shall be held in public. This general rule
offenders, is sought to be achieved by the provisions that trials shall be in public entrenches in the
of the Gun Court Act 1974, relating to the jurisdiction Constitution of Jamaica a previously existing
and powers of a Full Court Division of the Gun common law rule. It is, however, subject to a number
Court. *223 As has been pointed out, the of exceptions which are laid down in section 20
practical consequence of these provisions as they (4) . The exception relevant to the instant case
stand would be to give to a court composed of is to be found in paragraph (c) (ii) and permits
members of the lower judiciary, jurisdiction to try persons other than the parties and their legal
and to punish by penalties, extending in the case of representatives to be excluded from the proceedings:
some offences to imprisonment for life, all criminal "to such extent as the court... may be empowered
offences however grave, apart from murder or or required by law to do so in the interests of defence,
treason, committed by any person who has also public safety, public order, public morality, the
committed an offence under section 20 of the welfare of persons under the age of 21 years or the
Firearms Act 1967. Even if, by reason of the protection of the private lives of persons concerned in
invalidity of section 8 (2) of the Act, the the proceedings."
jurisdiction of the Full Court Division over that The introductory words of section 13 (1) of the
category of offender does not extend to crimes in Gun Court Act 1974 amount to a declaration
which no firearm is involved this would not, in their by the Parliament that the hearing in camera of the
Lordships' view, affect the principle. It would not kinds of cases which fall within the jurisdiction of the
reduce the gravity of the class of offences which the Gun Court is reasonably required for the protection
Full Court Division had jurisdiction to try or the of the interests referred to, which include the public
severity of the sentences which it had power to safety and public order. By section 48 (1) of
impose. Its only effect would be a reduction, which the Constitution the power to make laws for the
would probably be only slight, in the number of cases peace, order and good *224 government of

[1976] Crim. L.R. 124
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Jamaica is vested in the Parliament; and prima facie it "public safety" and "public order" would appear to be
is for the Parliament to decide what is or is not based upon a misinterpretation of this phrase where it
reasonably required in the interests of public safety or is used in section 20 (4) of the Constitution. The
public order. Such a decision involves considerations phrase, which also appears in section 22 (2) (a)
of public policy which lie outside the field of the (ii) as a limitation upon freedom of
judicial power and may have to be made in the light expression, is not directed to the physical safety of
of information available to government of a kind that individuals but to their right to privacy, i.e., to
cannot effectively be adduced in evidence by means protection from disclosure to the public at large of
of the judicial process. matters of purely personal or domestic concern which
are of no legitimate public interest. Its use in section
In considering the constitutionality of the 13 (1) of the Act in collocation with public safety and
provisions of section 13 (1) of the Act, a court should public order suggests that the draftsman was treating
start with the presumption that the circumstances it as if it meant "the protection of the lives of private
existing in Jamaica are such that hearings in camera persons concerned in the proceedings" and was
are reasonably required in the interests of "public intended to refer to the intimidation of witnesses in
safety, public order or the protection of the private cases involving firearms which Luckhoo P. referred
lives of persons concerned in the proceedings." The to as being a matter of common knowledge. However
presumption is rebuttable. Parliament cannot evade a that may be, this particular interest is relied on in
constitutional restriction by a colourable device: section 13 (1) only as an alternative to the interests of
Ladore v. Bennett [1939] A.C. 468 , 482. But public safety and public order. Even if the words
in order to rebut the presumption their Lordships referring to it are struck out of the subsection, that
would have to be satisfied that no reasonable member which remains suffices to *225 bring the
of the Parliament who understood correctly the provision for hearings in camera within the exception
meaning of the relevant provisions of the laid down by section 20 (4) (c) (ii) of the
Constitution could have supposed that hearings in Constitution.
camera were reasonably required for the protection of
any of the interests referred to; or, in other words, In their Lordships' view section 13 of the Gun Court
that Parliament in so declaring was either acting in Act 1974 is not in conflict with any of the provisions
bad faith or had misinterpreted the provisions of of the Constitution.
section 20 (4) of the Constitution under which it
purported to act. Sentence
No evidence has been adduced by the appellants in Their Lordships have already had occasion to refer
the instant case to rebut the presumption as respects to the mandatory sentence of detention "at hard
the interests of public safety and public order. Unlike labour during the Governor-General's pleasure"
the judges of the Court of Appeal, their Lordships which is prescribed by section 8 (2) of the Act for an
have no personal knowledge of the circumstances in offence under section 20 of the Firearms Act 1967.
Jamaica which gave rise to the passing of the Gun To ascertain what is the real effect of such a sentence
Court Act 1974. They have noted, however, the it is necessary to turn to section 22 .
account contained in the judgment of Luckhoo P. in Subsection (1) provides:
the Court of Appeal of matters of common "Save as otherwise provided by section
knowledge of which he felt able to take judicial 90 of the Constitution of Jamaica, no
notice. These plainly negative any suggestion that the person who is detained pursuant to subsection (2) of
Parliament was acting in bad faith in declaring that section 8 shall be discharged except at the direction
section 13 was in the interests of public safety of the Governor-General,who shall act in that behalf
and public order. on and in accordance with the advice of the Review
Board established under the following provisions."
The reference to the protection of the private lives The Review Board is to consist of five persons of
of persons concerned in the proceedings as well as to whom the chairman is to be a judge or former judge

[1976] Crim. L.R. 124
(Cite as: [1977] A.C. 195)
of the Supreme Court or the Court of Appeal; but In the exercise of its legislative power, Parliament
none of the others is a member of the judiciary. They may, if it thinks fit, prescribe a fixed punishment to
are the Director of Prisons and the Chief Medical be inflicted upon all offenders found guilty of the
Officer or their respective nominees, a nominee of defined offence - as, for example, capital punishment
the Jamaica Council of Churches and a person for the crime of murder. Or it may prescribe a range
qualified in psychiatry nominated by the Prime of punishments up to a maximum in severity, either
Minister after consultation with the Leader of the with or, as is more common, without a minimum,
Opposition. Thus, the majority of the Review Board leaving it to the court by which the individual is tried
does not consist of persons appointed in the manner to determine what punishment falling within the
laid down in Chapter VII of the Constitution for range prescribed by Parliament is appropriate in the
persons entitled to exercise judicial powers. In particular circumstances of his case.
substance, therefore, the power to determine the
length of any custodial sentence imposed for an Thus Parliament, in the exercise of its legislative
offence under section 20 of the Firearms Act 1967 is power, may make a law imposing limits upon the
removed from the judicature and vested in a body of discretion of the judges who preside over the courts
persons not qualified under the Constitution to by whom offences against that law are tried to inflict
exercise judicial powers. The only function left to the on an individual offender a custodial sentence the
Gun Court itself in relation to the length of the length of which reflects the judge's own assessment
custodial sentence is the right, reserved to it by of the gravity of the offender's conduct in the
section 8 (3) (b) , to make recommendations particular circumstance of his case. What Parliament
for the consideration of the Review Board in any case cannot do, consistently with the separation of powers,
which in the court's opinions so warrants; but the is to transfer from the judiciary to any executive body
Review Board, though it must take the whose members are not appointed under Chapter VII
recommendation into consideration, is not obliged to of the Constitution, a discretion to determine the
follow it. The power of decision rests with the severity of the punishment to be inflicted upon an
Review Board alone. individual member of a class of offenders. Whilst
none would suggest that a Review Board composed
In the field of punishment for criminal offences, the as is provided in section 22 of the Gun Court Act
application of the basis principle of separation of 1974 would not perform its duties responsibly and
legislative, executive and judicial powers that is impartially, the fact remains that the majority of its
implicit in a constitution on the Westminster model members are not persons qualified by the
makes it necessary to consider how the power to Constitution to exercise judicial powers. A breach of
determine the length and character of a sentence a constitutional restriction is not excused by the good
which imposes restrictions on the personal liberty of intentions with which the legislative power has been
the offender is distributed under these three heads of exceeded by the particular law. If, consistently with
power. The power conferred upon the Parliament to the Constitution, it is permissible for the Parliament
make laws for the peace, order and good government to confer the discretion to determine the length of
of Jamaica enables it not only to define what conduct custodial sentences for criminal offences upon a body
shall constitute a criminal offence but also to composed as the Review Board is, it would be
prescribe the punishment to be inflicted on those equally permissible to a less well-intentioned
persons who have been found guilty of that conduct Parliament to confer the same discretion upon any
by an independent and impartial court established by other person or body of persons not qualified to
*226 law: see Constitution, Chapter III, exercise judicial powers, and in this way, without any
section 20 (1) . The carrying out of the amendment of the Constitution, to open the door to
punishment where it involves a deprivation of the exercise of arbitrary power by the executive in the
personal liberty is a function of the executive power; whole field of criminal law. In this connection their
and, subject to any restrictions imposed by a law, it Lordships would not seek to improve on what was
lies within the power of the executive to regulate the said by the Supreme Court of Ireland in Deaton v.
conditions under which the punishment is carried out. Attorney-General and the Revenue Commissioners

[1976] Crim. L.R. 124
(Cite as: [1977] A.C. 195)
[1963] I.R. 170 , 182-183, a case which judicial powers.

concerned a law in which the choice of alternative
penalties was left to the executive. As their Lordships have already emphasised
"There is a clear distinction between the Parliament cannot evade a constitutional restriction
prescription of a fixed penalty and the selection of a by a colourable device. It is the substance of the
penalty for a particular case. The prescription of a sentencing provisions of section 8 (2) and section 22
fixed penalty is the statement of a general rule, which of the Gun Court Act 1974 that matters, not their
is one of the characteristics of legislation; this is form. To adapt the words used in the judgments of
wholly different from the selection of a penalty to be the Supreme Court of Ireland in The State v. O'Brien
imposed in a particular case.... The legislature does [1973] I.R. 50 where a sentencing provision in
not prescribe the penalty to be imposed in an similar terms to section 8 (2) of the Gun Court Act
individual citizen's case; it states the general rule, and was held to be unconstitutional:
the *227 application of that rule is for "... from the very moment of the sentence the
the courts... the selection of punishment is an integral convicted person is undergoing punishment for a
part of the administration of justice and, as such, term which the judge was not to determine but which
cannot be committed to the hands of the executive..." was to be determined by [the Review Board]... ": per
This was said in relation to the Constitution of the Walsh J. at p. 64
Irish Republic , which is also based upon the and
separation of powers. In their Lordships' view it "The section... placed it in the hands of [the
applies with even greater force to constitutions on the Review Board] to determine actively and positively
Westminster model. They would only add that under the duration of the prisoner's sentence, and not just to
such constitutions the legislature not only does not, effect an act of remission. The determination of the
but it can not, prescribe the penalty to be length of sentence for a criminal offence is essentially
imposed in an individual citizen's case: Liyanage v. a judicial function": per O'Dalaigh C.J. at
The Queen [1967] 1 A.C. 259 . pp. 59-60.
Their Lordships would hold that the provisions of
It is contended by the respondents in the instant section 8 of the Act relating to the mandatory
appeal that the sentence "to be detained at hard sentence of detention during the Governor-General's
labour during the Governor-General's pleasure " pleasure and the provisions of section 22 relating to
prescribed by section 8 (2) of the Gun Court Act the Review Board are a law made after the coming
1974 is a fixed penalty applicable to all offenders into force of the Constitution *228 which is
against section 20 of the Firearms Act 1967 and that, inconsistent with the provisions of the Constitution
as such, it does not fall within the constitutional relating to the separation of powers. They are
restrictions upon the exercise of legislative power. In accordingly void by virtue of section 2 of the
support of this contention reliance is placed upon the Constitution.
fact that at the time when the Constitution came into
force a similar form of sentence was prescribed for Section 29 (1) of the Juveniles Law and
persons under the age of 18 years convicted of a section 49 of the Criminal Justice (Administration)
capital offence ( Juveniles Law, section 29 (1) Law are of no assistance to the respondents'
) and for habitual criminals ( Criminal Justice argument. They were passed before the law-making
(Administration) Law, section 49 ), and that in powers exercisable by members of the legislature of
the case of both these categories of offenders the Jamaica by an ordinary majority of votes were
length of the period of detention of the individual was subject to the restrictions imposed upon them by the
left to be determined by the executive. Reliance is Constitution - though they were subject to other
also placed upon the preservation by section 90 of the restrictions imposed by the Colonial Laws Validity
Constitution of Her Majesty's prerogative of mercy, Act 1865 . The validity of these two laws is
as amounting to a recognition that the length of all preserved by section 4 of the Jamaica (Constitution)
custodial sentences is a matter which may lawfully be Order in Council . No law in force
determined by a body exercising executive and not immediately before August 6, 1962, can be held to be

[1976] Crim. L.R. 124
(Cite as: [1977] A.C. 195)
inconsistent with the Constitution; and under section be inconsistent with the Constitution to the extent
26 (8) of the Constitution nothing done in that (1) it provides for the establishment of a Full
execution of a sentence authorised by such a law can Court Division of the Gun Court and confers upon
be held to be inconsistent with any of the provisions that division jurisdiction to try offences which lie
of Chapter III of the Constitution. The constitutional outside the jurisdiction of the lower judiciary of
restrictions upon the exercise of legislative powers Jamaica; and (2) it *229 confers upon a
apply only to new laws made by the new Parliament Resident Magistrate's Division and Circuit Court
established under Chapter V of the Constitution. Division of the Gun Court a power and obligation to
They are not retrospective. impose a sentence of detention at hard labour during
the Governor-General's pleasure and provides for the
The royal prerogative of mercy, which has been establishment of a Review Board with power to
exercised in Jamaica since it first became a territory determine the duration of such sentence in the
of the British Crown, is expressly preserved by individual case. Under section 2 of the Constitution
section 90 of the Constitution, which provides that it the provisions of the Gun Court Act 1974 dealing
shall be exercised on Her Majesty's behalf by the with these two matters are therefore void. The final
Governor-General acting on the recommendation of question for their Lordships is whether they are
the Privy Council. It is, as is recognised by its severable from the remaining provisions of the Act so
inclusion in Chapter VI of the Constitution, an that the latter still remain enforceable as part of the
executive power; but, as an executive power, it is law of Jamaica.
exceptional and is confined, as it always has been
since the Bill of Rights, to a power to remit in the Regarded purely as a matter of drafting they are
case of a particular individual a punishment which readily severable. All references to the Full Court
has already been lawfully imposed upon him by a Division, the Review Board and to the mandatory
court - whether it be a punishment fixed by law for sentence of detention could be struck out, and what
the offence of which he was found guilty or one was left would be a grammatical piece of legislation
determined by a judge in exercise of his judicial requiring no addition or amendment But this, though
functions. In contrast to this the function of the it may point strongly to severability, is not enough.
Review Board, under section 22 (1) of the Gun Court The test of severability has been laid down
Act 1974 , is not to remit in the case of a authoritatively by this Board in Attorney-General for
particular individual a custodial sentence whose Alberta v. Attorney-General for Canada [1947] A.C.
duration has already been fixed by law or by a judge 503 , 518:
in the exercise of his judicial functions, but itself to "The real question is whether what remains is so
fix the duration of a sentence which has not inextricably bound up with the part declared invalid
previously been fixed by anyone else. This, in their that what remains cannot independently survive or, as
Lordships' view, is a power of a wholly different it has sometimes been put, whether on a fair review
character from that of the prerogative of mercy. Even of the whole matter it can be assumed that the
if it were an exercise of that exceptional executive legislature would have enacted what survives without
power, the respondents would be faced by the enacting the part that is ultra vires at all."
dilemma that under section 90 of the Constitution it is As regards the establishment and jurisdiction of
exercisable only on the recommendation of a the Full Court Division, its jurisdiction coincides, and
different body, the Privy Council, and not on the is exercisable concurrently, with that of the Circuit
recommendation of a body constituted in the same Court Division, except that it does not extend to
manner as the Review Board. capital offences. If the Full Court Division were
eliminated the whole range of firearm offences would
Severance still be cognisable by the two remaining divisions of
the Gun Court. The practical consequence would be
For the reasons that have been given under the that firearms offences which lie outside the
previous headings "Jurisdiction" and "Sentence," jurisdiction of a resident magistrate under the
their Lordships have held the Gun Court Act 1974 to Judicature (Resident Magistrates) Act , would

[1976] Crim. L.R. 124
(Cite as: [1977] A.C. 195)
be tried in camera by jury in the Circuit Court Gun Court Act 1974; and (b) the geographical limits
Division instead of being tried in camera without a of the jurisdiction of a Resident Magistrate's Division
jury in the Full Court Division. In their Lordships' and a Circuit Court Division of the Gun Court would
view what remains after the elimination of the Full still extend to firearm offences committed in any
Court Division still constitutes a practical and parish in Jamaica, but would not extend to offences
comprehensive scheme for dealing with firearm other than firearm offences committed outside the
offences which it can be assumed that Parliament parish within which the division sat by persons who
would have enacted if it had realised that it could not had already been convicted of an offence under
confer upon a Full Court Division the jurisdiction section 20 of the Firearms Act 1967.
which it purported to confer upon that division by
section 5 (2) . Their Lordships are confirmed What remains after all those provisions of the Act
in their view as to the severability of these provisions that are invalid have been eliminated still represents a
by the fact, of which they have been informed by the sensible legislative scheme for dealing with persons
Attorney-General, that although a Resident charged with any firearm offence by providing (1) for
Magistrate's Division of the Gun Court has been the trial in camera of all such offences, wherever they
established and is operating satisfactorily it has not have been committed in Jamaica, by a centralised
been found necessary up to the present to set up any court composed of members of the judiciary used to
Full Court Division. dealing with such offences; and (2) for the trial for an
offence of unlawful possession of a firearm to take
Their Lordships would observe that the question of place speedily and to precede the trial of the same
severance with which they are dealing is different offender for any other firearm offence he may have
from that which is dealt with in the judgment of committed. This may be only half the loaf that
Graham-Perkins and Swaby JJ.A. They had held the Parliament believed that it was getting when it passed
establishment of the Circuit Court Division as well as the Gun Court Act 1974, but their Lordships do not
that of the Full Court Division to be invalid. The doubt that Parliament would have preferred it to no
elimination of both of these divisions would bread. They would accordingly hold the invalid
transform the Gun Court from a court with provisions of the Act to be severable.
comprehensive jurisdiction *230 to try all
"firearm offences" whatever their gravity into a court Disposition of these appeals
with jurisdiction confined to the trial of a limited
number of comparatively minor offences. It is It follows that the appellants, whose trials for
unnecessary for their Lordships to express any view offences under section 20 of the Firearms Act 1967
as to whether upon this assumption the provisions took place before a Resident Magistrate's Division of
relating to the establishment of the Resident the Gun Court, were convicted by a court of
Magistrate's Division would have been severable competent jurisdiction; but that the sentences
from the invalid provisions of the Act. imposed upon them "that they be detained at hard
labour during the Governor-General's pleasure," were
As regards the power of the Gun Court to impose a unlawful sentences which the resident magistrate had
sentence of detention at hard labour during the no power to award. The appellants' appeals to the
Governor-General's pleasure, the length of which is Court of Appeal included appeals against these
to be determined by the Review Board, the practical sentences. By section 13 (3) and section 21 of the
consequence of the elimination of this power would Judicature (Appellate Jurisdiction) Law 1962, the
be that (a) offences against section 20 of the Firearms Court of Appeal, if they think that a different
Act 1967 would still be tried speedily and in camera sentence ought to have been passed:
in a Resident Magistrate's Division or Circuit Court "shall quash the sentence passed at the trial, and
Division of the Gun Court but the maximum sentence pass such other *231 sentence warranted
to be imposed would be that prescribed by the in law by the verdict (whether more or less severe)...
relevant provisions of the Firearms Act 1967, which, as they think ought to have been passed."
it is to be noted, are not repealed expressly by the The sentence warranted by law in the instant

[1976] Crim. L.R. 124
(Cite as: [1977] A.C. 195)
appeals was such a sentence as a resident magistrate in the Resident Magistrate's Division. As we all agree
had power to pass under section 20 of the Firearms that they are severable, it is not in our opinion
Act 1967 upon the summary trial on necessary for the disposal of these appeals or as part
information of an offence under that section. Their of the reasoning leading to the conclusions reached to
Lordships have therefore humbly advised Her decide whether the provisions establishing the Full
Majesty that (1) the appeals of Moses Hinds, Elkanah Court Division are invalid. That court has, we were
Hutchinson, Henry Martin and Samuel Thomas informed, never sat. When considering particular
against their convictions be dismissed; (2) the appeal provisions of an Act, it is, of course, right to have
of the Director of Public Prosecutions against the regard to its other provisions but it does not follow
order of the Court of Appeal quashing the conviction that the Board should pronounce on the validity of
of Trevor Jackson be allowed and his conviction provisions when their validity does not affect the
restored; and (3) the cases in both appeals be remitted result of the case under consideration and it is not in
to the Court of Appeal to pass such other sentences as our experience the normal practice of the Board to
they think ought to have been passed in substitution decide questions not directly relevant to the
for the sentences passed by the resident magistrate. determination of an appeal. An instance where the
Board refrained from deciding such a *232
VISCOUNT DILHORNE question is to be found in the recent decision of the
Board in Attorney-General v. Antigua Times Ltd.
and LORD FRASER OF TULLYBELTON [1976] A.C. 16 . In the circumstances we
delivered the following dissenting judgment. We do consider that anything said as to the validity of the
not agree with our noble and learned friends that the provisions of the Act relating to the Full Court
provisions of the Gun Court Act 1974 as to the Full Division cannot be anything but obiter. Reluctant
Court Division of the Gun Court, its jurisdiction and though we are to add to obiter dicta, nevertheless as it
powers conflict with Chapter VII of the is said that this case raises questions of outstanding
Constitution of Jamaica. In our opinion those public importance, we feel that it is incumbent on us
provisions were validly enacted by an Act passed in to do so.
the normal way by the Parliament of Jamaica.
The creation of the Full Court Division with its
We agree that the provisions of that Act as to the jurisdiction and powers did not involve any transfer
Resident Magistrate's Division and the Circuit Court of judicial power to the executive. That division,
Division of the Gun Court did not contravene the consisting of three resident magistrates sitting
Constitution. We agree also that the requirement that together, was given in relation to firearms offences
persons convicted of firearm offences must be and offences, other than capital, committed by
sentenced to be detained at hard labour during the persons detained at hard labour following conviction
Governor-General's pleasure, the detention being for firearms offences, jurisdiction and powers
terminable only on the advice of a non-judicial body, previously only exercisable by a Circuit Court
the Review Board established under the Act, was in presided over by a Supreme Court judge. The
conflict with the Constitution. We agree in holding jurisdiction and powers of a Circuit Court were not
that the provisions of the Act making such sentences reduced. After the enactment of the Gun Court Act, a
mandatory and as to the Full Court, its jurisdiction Circuit Court which is part of the Supreme Court can
and powers are severable from the rest of the Act. still deal with firearms offences and other offences
committed by persons convicted of firearms offences
but we recognise that the machinery provisions of the
The appellants in the first appeal and the respondent Gun Court Act would lead to all such cases being
in the second were convicted in a Resident dealt with in one or other of the divisions of the Gun
Magistrate's Division of the Gun Court and Court unless transferred by that court to another
sentenced, as the Act requires, to detention at hard court. They would be tried either by the Circuit Court
labour. Only if the provisions of the Act as to the Full Division of the Gun Court presided over by a
Court Division and the mandatory sentences are not Supreme Court judge or, if not capital offences, by
severable will their invalidity affect their convictions

[1976] Crim. L.R. 124
(Cite as: [1977] A.C. 195)
the Full Court Division. Luckhoo P. in the course of a court by ordinary enactment conflicts not with any
his judgment said: express provisions in the Constitution but with
"It is a matter of general public knowledge that in something that is implied so that before such a court
recent years crimes of violence in which firearms, is validly established, the Constitution requires to be
unlicensed or illegally obtained, were used, gave amended to such an extent as will make provisions as
cause for grave public concern and indeed alarm. The to the Full Court Division no longer inconsistent with
several measures taken over the past six or seven the Constitution.
years to control the rising incidence of crimes of this
nature have proved unsuccessful. Persons were shot The many constitutions that have been drawn up in
and killed by day and by night in the course of recent years and accepted by territories on their
robbing, rape and other offences or for no apparent becoming independent were, it cannot be doubted,
reason. Witnesses for the Crown at trial of persons the product of prolonged and detailed consideration.
accused of such crimes were often intimidated. Though they differ in some respects, in the main they
Victims of the crimes themselves were not follow what our noble and learned friend Lord
infrequently killed or shot at, most probably with a Diplock has felicitously called "the Westminster
view to their elimination as eye-witnesses who could model." They are more sophisticated than many
testify against the perpetrators of these crimes." written constitutions of greater antiquity and none of
It is not therefore surprising that the Government them, which are not federal constitutions, we believe,
and Parliament of Jamaica should have decided that limit the legislative capacity of the Parliament of the
special measures to deal with such offences were territory to which they apply. The Constitution of
necessary and the reason why Parliament made Jamaica certainly does not. Its Parliament can alter,
provision for the establishment of a Full Court modify, replace, suspend, repeal or add to any
Division with its wide powers and jurisdiction may provision of the Constitution, of the Jamaica
have been that it was considered necessary to provide (Constitution) Order in Council and of the
more facilities for the trial of such offences than were Jamaica Independence Act 1962 , a United
available in the Circuit Courts. It may have been Kingdom Act. Certain provisions of the Constitution
thought that the case load of the Circuit Courts was are entrenched, that is to say, they can only be altered
such that the establishment of the Full Court Division or repealed or amended by Parliament if special
was necessary to secure trials without undue delay. In procedures laid down in section 49 of the
this country for a long period of time quarter sessions Constitution are followed. A Bill to alter any of the
had jurisdiction to try and to sentence offenders for a provisions of the Constitution is not to be deemed to
large number of crimes which were also triable at have passed in either House unless it was supported
assizes before a High Court judge and it was only in each House by the votes of the majority of all the
comparatively recently that a *233 chairman members of each House and in some cases by the
of quarter sessions had to have legal qualifications. votes of not less than two-thirds of all the members.
Crown Courts and circuit courts in this country have If a Bill is to alter certain provisions of the
each jurisdiction to try a wide range of offences and Constitution, the Jamaica (Constitution) Order in
their powers as to sentence are the same. For the Council or the Jamaica Independence Act 1962, there
Parliament of Jamaica to create an intermediate court must be a delay of three months between the
between a resident magistrate's court and a Circuit introduction of the Bill into the House of
Court cannot be regarded as very revolutionary. We Representatives and the commencement of the first
do not doubt that before Jamaica became an debate on it and a further three months' delay
independent territory and the Constitution came into between the conclusion of the debate and the passage
force, there would have been no difficulty about the of the Act. An amendment of the Jamaica
creation of a court with the powers and jurisdiction of Independence Act 1962 or of the Jamaica
the Full Court Division, consisting of three resident (Constitution) Order in Council also requires a
magistrates and that no special procedure would have referendum to the electors.
to be followed to bring that about. Now it is said that,
since the Constitution came into force, to create such That the Parliament of Jamaica has power to create a

[1976] Crim. L.R. 124
(Cite as: [1977] A.C. 195)
court such as the Full Court Division, and give to inconsistent with the Constitution. Section 97
three resident magistrates sitting together the (1) , the first section in that Chapter, is clear,
jurisdiction and powers given to the Full Court precise and unambiguous. It is in the following terms:
Division by the Gun Court Act is not open to doubt, "There shall be a Supreme Court for Jamaica
but if any of the provisions doing so conflict with the which shall have such jurisdiction and powers as may
Constitution in its present form, then it could only do be conferred upon it by this Constitution or any other
so effectively if the Constitution was first amended so law."
as to secure *234 that there ceased to be any The Supreme Court cannot be altered or
inconsistency between the provisions and the abolished without prior amendment of the
Constitution. The Constitution does not prescribe that Constitution. Its existence is entrenched. This section
any special procedure has to be laid down for the clearly distinguishes between the Supreme Court on
valid enactment of a Bill, to which section 50 the one hand and its jurisdiction and powers on the
of the Constitution does not apply, which conflicts other. To find out what are its jurisdiction and powers
with the Constitution. It requires that a special one must look at the Constitution and the "other law."
procedure shall be followed for the amendment of the Those given by the Constitution can only be altered
Constitution. If the need for the Gun Court Act and or amended by amendment of the Constitution.
for the establishment of the Full Court was urgent, as "Law" for the purpose of the Constitution is defined
it may well have been, the passage of that Act and the by section 1 thereof as including any instrument
establishment of that court would inevitably have having the force of law and any unwritten rule of law.
been delayed for a considerable time if the
Constitution had first to be amended before such an The Jamaica (Constitution) Order in Council
Act could have validity. contained transitional provisions. By section 13
(1) it provided that the Supreme Court in
While one of the objects of a written constitution existence at the commencement of the Order was to
on the Westminster model is to secure that changes in be the Supreme Court for the purposes of the
"entrenched" provisions are only made if strongly Constitution and that the Chief Justice and other
supported in the legislature, another important object judges of that court should continue in office. It was
is to make it easy to discern in advance whether or silent as to the jurisdiction and powers of the court
not a particular legislative proposal conflicts with the but it provided by section 4 (1) *235 for
Constitution. Section 2 of the Constitution the continuance in force of laws existing at the date
provides that any law inconsistent with the of the commencement of the Order. It is to those laws
Constitution is to the extent of the inconsistency void. and to the Constitution itself that one must look to
This is subject to the exception contained in section ascertain the jurisdiction and powers of the Supreme
50 which provides that an Act containing provisions Court when the Constitution came into force.
inconsistent with sections 13 to 26 inclusive of
the Constitution shall if passed on a final vote in each One of the main functions of the legislature of
House by the votes of not less than two-thirds of all Jamaica is to make laws. By such laws passed in the
its members, take effect despite the inconsistency. It ordinary way it can add to the jurisdiction and to the
is not suggested that the Gun Court Act is powers of the Supreme Court. There is nothing in the
inconsistent with these sections but the sections with Constitution to indicate that it cannot by a Bill passed
which it is said to be inconsistent are not identified. in that way reduce or alter the jurisdiction and powers
(other than those given by the Constitution) which by
Chapter VII of the Constitution headed "The virtue of the Jamaica (Constitution) Order in Council
Judicature" deals in Part 1 with the Supreme Court, in the Supreme Court had when the Constitution came
Part 2 with the Court of Appeal, in Part 3 with into force. There is also nothing in the Constitution to
appeals to the Privy Council and in Part 4 with the suggest that unless the Constitution was amended, the
Judicial Service Commission. It does not deal with Supreme Court was to continue to possess all the
any other courts and it does not provide that the powers and jurisdiction it had at that time. In fact
creation by Parliament of any other court is there is nothing in the Gun Court Act which purports

[1976] Crim. L.R. 124
(Cite as: [1977] A.C. 195)
to alter the Supreme Court, its jurisdiction or powers which refers to the jurisdiction of the Supreme Court.
(see Gun Court Act, section 21 (1) ), though, as If the creation of the Full Court Division with its
we have said, the machinery provisions of that Act powers and jurisdiction contravenes the Constitution,
are designed to ensure that firearm offences and *236 it is presumably this section which
offences committed by those guilty of firearm would require to be amended. Presumably it would
offences are tried in one of the divisions of the Gun have to state that Parliament could by ordinary
Court, it may be in the Circuit Court Division of that enactment give to another court powers and
court or in the Full Court Division. jurisdiction exercised by the Supreme Court. But the
Constitution by section 97 (1) already makes it clear
We agree that the constitutions on the Westminster that apart from that conferred by the Constitution
model were evolutionary and not revolutionary but it itself, the Supreme Court is to have such powers and
does not follow from that that the Parliament of a jurisdiction as are given to it by Parliament and in our
territory cannot by ordinary enactment alter the view if Parliament can give jurisdiction to that court
jurisdiction and powers of any court named in the by a law passed in the ordinary fashion, it can alter
Constitution. It is not necessary ko express an that which has been given by such a law also by an
opinion on whether, when a constitution is silent as to ordinary enactment. If it can do this, it follows that it
the distribution of judicial power between various can validly enact without conflict with the
courts, it is implicit that they retain the jurisdiction Constitution that a new court is to be established and
and powers they had on the coming into force of the give that court powers and jurisdiction which are also
constitution for it is expressly provided by section 4 exercisable by the Supreme Court.
of the Jamaica (Constitution) Order in Council that
all laws in existence when the Constitution came into In our opinion the Attorney-General's contention that
force are, until amended or repealed, to continue in any transfer of the Supreme Court's jurisdiction, other
force. So apart from the jurisdiction and powers than that conferred by the Constitution, made by
given by the Constitution itself, provision was Parliament by ordinary enactment is not inconsistent
expressly made for the distribution of judicial power with the Constitution, is well founded provided that
between the courts of Jamaica by the existing laws the character of the Supreme Court as a superior
and not changed on the Constitution coming into court of record is not destroyed. It is not suggested
operation. that the creation of the Full Court Division deprived
the Supreme Court of that character. Section 97 (4)
We agree that when a constitution on the provides that the Supreme Court "save as otherwise
Westminster model speaks of a particular court in provided by Parliament, shall have all the powers of
existence when the constitution comes into force, it such a court." It is thus manifest that it is within the
uses the word "court" as a collective description of power of Parliament without contravening the
the individual judges entitled to sit and exercise its Constitution to reduce the powers of the Supreme
jurisdiction but we see no valid ground for assuming Court as a superior court of record below those
that it is contrary to the constitution for another court normally possessed by such a court so long as its
to be given power to try persons for offences character as a superior court of record is not
previously only triable in the Circuit Court of the destroyed. This being so, it appears to us odd that it
Supreme Court. If section 97 (1) had read: should be said that without any reduction of the
"There shall be a Supreme Court which shall have powers of the Supreme Court, to make some of its
such jurisdiction and powers as it had when this jurisdiction exercisable by another court is contrary
Constitution came into operation and such additional to the Constitution.
powers as are conferred on it by the Constitution or
any other law" then we would not dissent from our The remaining sections of the Part of Chapter VII
noble and learned friends but section 97 (1) does not headed "The Supreme Court " deal with the
say that and should not be interpreted as if it did. appointment of judges and acting judges of that court,
their tenure of office, remuneration and oaths.
Section 97 (1) is the only section of the Constitution Parliament can without amendment of the

[1976] Crim. L.R. 124
(Cite as: [1977] A.C. 195)
Constitution prescribe the qualifications for giving effect to the language of section 97 (1). It is
appointment as a Supreme Court judge: section 98 said that the words "There shall be a Court of
(3) . It can also without doing anything Appeal" import that the judges of that court should
conflicting with the Constitution, fix their exercise an appellate jurisdiction in all substantial
remuneration and terms and conditions of service so civil cases and all serious criminal cases and that the
long as they are not altered to the disadvantage of an words "which shall have such jurisdiction and powers
existing judge. So Parliament could if it wished - it is as may be conferred upon it by this Constitution or
inconceivable that it would - reduce the any other law" do not entitle Parliament to deprive
qualifications, salary and conditions of service for a the Court of Appeal of a significant part of its
new Supreme Court judge to those of a resident appellate jurisdiction which it had when the
magistrate. But it is said that without amendment of Constitution came into force or to confer it on any
the Constitution, it cannot give three resident other judges who do not enjoy the same security of
magistrates power to try some offences triable by the tenure as judges of the Court of Appeal. Such a
Supreme Court. It is also said that any express construction involves a limitation of the meaning of
provision in a constitution for the appointment or the words that it is to have the jurisdiction given by
security of judges of a particular court will apply to the Constitution and any other law and is to imply
all individual judges subsequently appointed to such a restriction on the same words in section 97
exercise an analogous jurisdiction whatever other (4) . Nor can we agree that section 110
name may be given to the "court" in which they sit. (1) of the Constitution which deals with
For this proposition Attorney-General for Ontario v. appeals from the Court of Appeal to the Privy
Attorney-General for Canada [1925] A.C. 750 Council clearly proceeds on the assumption made by
is cited. We cannot see that that case supports any the majority with regard to the Court of Appeal. The
such proposition. All that that case decided appears to contrast between section 110 (1) and section 103 (1)
us to be that a provincial legislature had exceeded its we think significant. Section 110 states when an
powers and contravened the British North America appeal lies from the Court of Appeal. Section 103
Act 1867 . If that proposition is right, it means does not say when an appeal lies to the Court of
that jurisdiction in relation *237 to firearm Appeal. To find out when an appeal does lie, one has
offences and other offences committed by persons to look at the other provisions of the Constitution and
guilty of such offences can only be exercised by a any other law and, save as provided by the
Supreme Court judge though the jurisdiction and Constitution, it is left to Parliament to decide by
powers of the Supreme Court are far more extensive passing an ordinary Act when an appeal shall or shall
than that. and it appears to us that this proposition is not lie.
inconsistent with the clear terms of section 97 (1).
Importance is attached by our noble and learned
In reaching their conclusion the majority attach friends to the Judicial Service Commission
significance to Part 2 of Chapter VII headed "The established by Part 4 of Chapter VII. Puisne judges
Court of Appeal." Section 103 (1) and (5) of the Part are appointed by the Governor-General on the advice
are precisely similar to section 97 (1) and (4) apart of that commission ( section 112 (1) ) and by
from the substitution of the Court of Appeal for the section 112 (2) appointment to the offices of
Supreme Court. The other sections of this Part follow resident magistrate, judge of the Traffic Court,
the same pattern as the other sections of Part 1. They Registrar of the Supreme Court and Registrar of the
deal with the appointment of judges, their tenure of Court of Appeal and appointment "to such other
office, remuneration, etc. Again Parliament can offices connected with the courts of Jamaica as,
prescribe the qualifications for their appointment subject to the provisions of this Constitution, may be
( section 104 (3) ) and their emoluments and prescribed by Parliament" is similarly made. We are
conditions of service ( section 107 ). We see no not satisfied that a resident magistrate sitting in a Full
reason to construe section 103 (1) and (5) differently Court Division of the Gun Court holds a new office.
from section 97 (1) and (4) and we do not think that If he does it is not one so prescribed and section 112
the terms of section 103 provide any ground for not does not apply to it. He is *238 still a resident

[1976] Crim. L.R. 124
(Cite as: [1977] A.C. 195)
magistrate and his salary, terms and conditions of reluctance to imply something not expressed. While
employment remain, so far as we are aware, we recognise that an inference may be drawn from
unaltered. the express provisions of a constitution: see Attorney-
General for Australia v. The Queen [1957] A.C.
There is no question of anyone sitting in any division 288 per Viscount Simonds at p. 312, we
of the Gun Court who has not been appointed on the do not agree that on the adoption of a constitution a
advice of the Judicial Service Commission either as a great deal is left to necessary implication. If this were
judge of the Supreme Court or as a resident so, a written constitution would largely fail to achieve
magistrate. For the purpose of constituting a Full its object. If it does not define clearly what
Court Division the Chief Justice may assign any Parliament can do and cannot do by ordinary
resident magistrate to that division ( Gun Court Act, enactment, then the Government and Parliament of a
section 17 (2) ). As one would expect the territory may find that as a result of judicial decision
security of tenure, remuneration and conditions of after a considerable lapse of time all the time spent in
employment of a resident magistrate differ from legislating has been wasted and that laws urgently
those of a Supreme Court judge but just as it is required have not been validly enacted. No doubt the
possible for Parliament by ordinary enactment to Constitution of Jamaica was drafted by persons
increase the powers and jurisdiction of a resident nurtured in the common law. That is apparent from
magistrate sitting alone, so in our view is it possible the Constitution itself. The principle that there should
for Parliament without resort to any special procedure be a separation of powers between the three organs of
to give increased jurisdiction and powers to three government is not just taken for granted. *239
resident magistrates sitting together in excess of those Effect is given to that principle by the written terms
possessed by a single magistrate without of the Constitution and consequently there is no room
contravening the Constitution. for the assumption.
So far we have considered the provisions of the No question arises in connection with the Full Court
Constitution which bear upon the question of the of any transfer of judicial power to the executive. The
validity of the provisions of the Gun Court Act question to be decided is as to the division of judicial
relating to the Full Court Division. In our opinion not power and there is in our opinion not only no valid
only do they give no support to the view that those ground for implying that Parliament cannot by
provisions of the Gun Court Act are inconsistent with ordinary legislation validly alter the jurisdiction the
the Constitution but they clearly show the contrary to Supreme Court had when the Constitution came into
be the case. They clearly distinguish between the force under any law other than the Constitution but
Supreme Court and the Court of Appeal and the also the terms of sections 97 (4) and 103 (1) negative
jurisdiction and powers of those courts and there is in any such implication.
our view no basis for implying from the use of the
words "Supreme Court" and "Court of Appeal" a It is for the reasons we have stated that we have
limitation on the meaning of the words which follow come to the conclusion that the provisions of the Gun
in sections 97 (4) and 103 (1). Court Act as to the Full Court Division and its
jurisdiction are not void as inconsistent with the
A written constitution must be construed like any terms of the Constitution.
other written document. It must be construed to give
effect to the intentions of those who made and agreed Representation
to it and those intentions are expressed in or to be
deduced from the terms of the constitution itself and Solicitors:Druces & Attlee ;Charles Russell &
not from any preconceived ideas as to what such a Co .
constitution should or should not contain. It must not
be construed as if it was partly written and partly not. (T. J. M. )
We agree that such constitutions differ from ordinary
legislation and this fact should lead to even greater

[1976] Crim. L.R. 124
(Cite as: [1977] A.C. 195)
(c) Incorporated Council of Law Reporting For

England & Wales END OF DOCUMENT

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Date/Time of Request: Thursday, August 7, 2008 17:49 Central

person detained for a firearms offence and was also

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Attorney-General for Ontario v. Attorney-General Toronto Corporation v. York Corporation [1938]

Deaton v. Attorney-General and Revenue Valin v. Langlois (1879) 5 App.Cas. 115,

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the appellate jurisdiction of the Supreme Court. terrorist.

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Constitution, nor does the Gun Court Act itself

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were unpaid and were not required to possess any

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to be tried by a Full Court Division.

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[1963] I.R. 170 , 182-183, a case which judicial powers.

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