Bade v The Queen

The Privy Council’s jurisdiction under the Judicial Committee Acts of 1833 and 1844 may be removed by necessary intendment. The post-independence constitutional and legislative arrangements for Solomon Islands, read together, removed all new appeals to the Privy Council, including appeals by special leave. The absence of express abrogation was not decisive. The different wording governing civil and criminal appeals to the Court of Appeal did not preserve special leave in criminal cases. Nor did the constitutional protection of the law require that jurisdiction to continue. Only transitional appeals for which leave had been granted before independence remained possible.

The applicant was convicted of murder by the High Court of Solomon Islands and received a mandatory life sentence, with a recommendation concerning parole eligibility: [2013] SBHC 126. The Court of Appeal dismissed his appeal against sentence: [2014] SBCA 13. He sought permission to appeal to the Privy Council, challenging the constitutionality of the sentence and the recommendation. The Board first had to decide whether jurisdiction to entertain the application survived Solomon Islands’ independence under the relevant constitutions and legislation. The central issue was whether that jurisdiction had been removed by necessary intendment.

Application refused. Lord Mance delivered the judgment, with whom Lord Wilson and Lord Hodge agreed. The Board advised that no jurisdiction existed to permit further consideration or grant of permission to appeal.

1. The jurisdiction to grant special leave under the Judicial Committee Acts of 1833 and 1844 continued unless removed expressly or by necessary intendment. The pre-independence provision stating that nothing affected Her Majesty’s right to grant special leave reflected that jurisdiction; it did not confer it.
2. The new constitutional and legislative arrangements had to be read as a whole. Before independence, appeals to the Privy Council were expressly addressed. After independence, the new Constitution and the Solomon Islands Independence Order 1978 dealt expressly with domestic courts and appeals but made no provision for future Privy Council appeals. The Solomon Islands Act 1978 expressly addressed appeals for which leave had already been granted before independence. That was readily explicable as a transitional provision.
3. The prima facie preservation of pre-existing United Kingdom enactments under Schedule 3 to the Constitution was subject to the Constitution and Acts of Parliament, including the Solomon Islands Act 1978. The provisions governing foreign decisions and judicial precedent also sat uneasily with any continuing right of appeal to the Privy Council.
4. The difference between an appeal that shall lie in civil matters and an appellant who may appeal in criminal matters was grammatical. Both forms described voluntary appeals to the Court of Appeal and gave no indication that the Court of Appeal’s decisions were subject to special leave in criminal cases.
5. The constitutional protection of the law did not determine whether special-leave jurisdiction survived. There was no basis for assuming that such jurisdiction was regarded as an essential constitutional protection. The necessary intendment was therefore that no further appeals were available, apart from transitional matters for which leave had already been granted.

• Privy Council: The application for permission to appeal was refused because no jurisdiction remained after independence, [2016] UKPC 14.
• Court of Appeal of Solomon Islands: The appeal against sentence was dismissed on 9 May 2014, [2014] SBCA 13.
• High Court of Solomon Islands: The applicant was convicted of murder and sentenced to mandatory life imprisonment, with a parole recommendation, [2013] SBHC 126.