Selassie v The Queen (Bermuda)

Statutory periods before a life prisoner may seek release must be construed from the statutory language. A provision fixing a period may operate as a maximum without conferring power on the court to extend it. The words at least can recognise that release or consideration may occur later. A fixed minimum is unconstitutional where it removes the chance of regaining liberty regardless of the offence and offender’s circumstances. That conclusion does not make a maximum unconstitutional. A maximum limits the court’s power to impose a longer period; it does not itself arbitrarily deprive liberty. Under section 2 of the Colonial Laws Validity Act 1865, invalidity extends only to the repugnancy.

These conjoined appeals concerned mandatory life sentences imposed in Bermuda. Selassie was convicted of premeditated murder and received a 35-year period before eligibility for release, reduced by the Court of Appeal for Bermuda to 28 years. Pearman was convicted of murder and received a 25-year period, reduced to 21 years on appeal.

Each appellant challenged the period as contrary to section 286A(2) or the proviso to section 288(1) of the Criminal Code Act 1907. The Court of Appeal relied on Robinson v The Queen [2009] CA (Bda) 8 Crim. The central issue was whether the statutory periods were maximum periods and, if so, whether their maximum aspects were unconstitutional under the Bermuda Constitution.

Lord Wilson delivered the single judgment of the Board.

1. Outcome. The Board advised that both appeals be allowed to the extent of reducing the periods before eligibility for release on licence to 25 years for Selassie and 15 years for Pearman.
2. Construction of the statutory provisions. Sections 286A(2) and 288(1) of the Criminal Code Act 1907 were construed as specifying fixed periods, unalterable by the sentencing court, which operated as maximum periods. The phrase at least in section 288(1) did not confer power to increase the period. It recognised that actual release, or the consideration of an application, might occur after the period had expired. Section 70P(3), which expressly authorised an increased period in specified circumstances, confirmed that the phrase alone was insufficient.
3. Minimum periods. The Board approved the central conclusion in Robinson v The Queen [2009] CA (Bda) 8 Crim that a fixed minimum period imposed regardless of the circumstances of the offence and offender was unconstitutional. Fixing the period before eligibility formed part of the sentencing process, as explained in R (Anderson) v Secretary of State for the Home Department [2002] UKHL 46. Such a minimum arbitrarily deprived a prisoner of the chance of regaining liberty.
4. Maximum periods. The argument that the maximum aspects were equally unconstitutional was rejected. Under section 5(1)(a) of the Constitution of Bermuda, the relevant question concerned deprivation of liberty. A minimum period imposed irrespective of circumstances was arbitrary. A maximum period, by contrast, merely prevented the court from imposing a longer period in an appropriate case. Maximum periods were common in criminal legislation and involved no equivalent vice. The reasoning was consistent with Engel v The Netherlands (No1) (1976) 1 EHRR 647 and R v Governor of Brockhill Prison, ex p Evans (No 2) [2001] 2 AC 19.
5. Extent of invalidity. Section 2 of the Colonial Laws Validity Act 1865 required invalidity only to the extent of repugnancy to the Constitution. The invalid minimum aspects did not entail invalidity of the maximum aspects.

• Privy Council: Both appeals allowed to the extent of reducing the periods before eligibility for release on licence to 25 years and 15 years respectively.
• Court of Appeal for Bermuda: Selassie’s period was reduced from 35 years to 28 years on 17 June 2011. Pearman’s period was reduced from 25 years to 21 years on 8 November 2011.
• Trial courts: Selassie received a mandatory life sentence with a 35-year period; Pearman received a mandatory life sentence with a 25-year period.