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In a significant judgment handed down on 11 May 2023 in Tafari Morrison v The King  UKPC 14 Sir Declan Morgan, writing for the Judicial Committee of the Privy Council (‘the Board’), handed down judgment confirming that the Appellant’s sentence for wounding with intent was not unlawful because it was determined in accordance with a statutory minimum.
The appellant had pleaded guilty to three offences, including illegal possession of a firearm, aggravated robbery, and wounding with intent. He was sentenced to 15 years imprisonment on each count, to run concurrently, the trial judge considering he was statutorily bound to impose these minimum sentences. The Court of Appeal allowed the appeal in part, reducing the sentences imposed for illegal possession of a firearm and aggravated robbery.
However, the Court of Appeal upheld the appellant’s 15 year sentence for wounding with intent on the basis that the offense was subject to the mandatory minimum sentence of 15 years, and that the minimum sentence was constitutional. The Board upheld the judgment of the Court of Appeal. Sir Declan reasoned that the savings clause at section 13(7) of the Charter of Fundamental Rights and Freedoms did not prohibit the Board from scrutinising the sentence. This was because that section preserved the authority of the courts to impose a sentence of 15 years or more for the offence with which the appellant was charged, but no requirement to pass such a sentence was preserved. The Appellant could not, however, rely on section 13(k)(i) of the Charter to invalidate the sentence because that section was concerned with general protection for children rather than sentencing policy. This section of the charter did not operate to transpose the detailed rights of the United Nations Convention on the Rights of the Child into the Charter (‘UNCRC’), especially but not only given the legislative history demonstrated that certain parts of the UNCRC were omitted from the Jamaican Child Care and Protection Act 2004, which had been passed to reflect Jamaica’s ratification of the UNCRC.
The Board went on to conclude that the sentence was not unlawful by reason of inconsistency with section 13(6) of the Charter, which guarantees protection against inhuman and degrading treatment. The Board followed the test applied in the jurisprudence of the European Court of Human Rights, namely, that a sentence would be deemed to constitute inhuman and degrading treatment where it was grossly disproportionate. The Court of Appeal had observed that, absent the mandatory minimum, a sentence of just under 13 years would have been appropriate in the circumstances of the Appellant’s offending. The Board could not therefore be satisfied that the mandatory minimum sentence of 15 years was grossly disproportionate in the Appellant’s case. The Board additionally observed there was no evidence to support a more general challenge to the constitutionality of the minimum sentencing regime.
Peter Knox KC and Adam Riley represented the Crown.
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May 19, 2023
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