No second bite: Privy Council blocks constitutional route to reopen convictions in Wolda Salamma Gardner v DPP (Bermuda)

The Judicial Committee of the Privy Council has dismissed an appeal in Gardner v Director of Public Prosecutions (Bermuda), a significant decision addressing the relationship between constitutional rights and ordinary criminal appellate procedures.

Tom Poole KC with Charlotte Pope-Williams, Cindy Clarke and Shakira Dill-Francois acted for the respondents.

Background

The appeal arose from a 2015 conviction for murder and firearms offences. Following the later decision in Trott v DPP [2020] SC (Bda) 35 Civ, which held that Bermuda’s jury selection regime was constitutionally defective due to an imbalance between prosecution and defence rights whereby the prosecution could standby an unlimited number of jurors whereas the defence could only challenge three jurors without cause; the appellant sought to challenge his conviction by way of constitutional proceedings. Crucially, his case was a “closed case”: his trial and appeals had concluded years earlier, and he had not raised any constitutional challenge at the time.

The Issue

The central question for the Board was whether the appellant could rely on a subsequent constitutional ruling (Trott) to reopen his conviction by bringing a fresh constitutional claim, rather than seeking to reopen his criminal appeal. This turned on the proper interpretation of section 15 of the Bermuda Constitution, which provides a right to seek constitutional redress, but only where “adequate means of redress” are not otherwise available.

The Decision

The Board dismissed the appeal, holding that:

• The appellant did have an adequate alternative remedy, namely the ability to apply to reopen his criminal appeal.
• Constitutional proceedings cannot be used to circumvent the ordinary appellate framework.
• Section 15 operates as a “fail-safe” jurisdiction, not a parallel route for challenging convictions.

The Board emphasised that allowing such claims would:

• undermine the finality of criminal proceedings;
• create legal uncertainty; and
• risk abuse of process by enabling collateral attacks on concluded cases.

Key Principles

The judgment draws together and reinforces a line of authority including Arbour Hill, Cadder, and Chokolingo, confirming that:

• Finality is a fundamental principle in criminal law, particularly in “closed cases”.
• Later constitutional rulings will not ordinarily apply retrospectively to reopen convictions.
• Constitutional claims will be barred where ordinary appellate routes provide an adequate mechanism for redress.
• The constitutional jurisdiction is not to be used to “destabilise ordinary laws, procedures and judicial determinations”.

Significance

This is an important decision for Bermuda and other Commonwealth jurisdictions with similarly structured constitutional provisions.

It provides clear guidance that:

• constitutional rights must generally be vindicated within the ordinary criminal process;
• attempts to relitigate convictions via constitutional motions will face a high threshold; and
• the courts will robustly protect the integrity and coherence of the appellate system.

Comment

The case is a strong reaffirmation of the rule of law as procedural discipline: constitutional rights remain fundamental, but their enforcement must respect the structure of the legal system in which they operate.

For practitioners, the message is clear: constitutional arguments must be raised early and through the correct procedural route, not deployed retrospectively to reopen concluded litigation.

Read the full judgment here: https://www.jcpc.uk/cases/jcpc-2024-0040

If you would like to instruct Tom Poole KC and Charlotte-Pope Williams please contact James Donovan at jamesdonovan@3harecourt.com.