Lendore and others v The Attorney General of Trinidad and Tobago

A lawful mandatory death sentence is not retrospectively invalidated by delay; only its execution becomes unlawful. The presidential power under the Constitution of Trinidad and Tobago to pardon and substitute a less severe punishment therefore extends to such cases. The President acts through executive clemency, not judicial sentencing, and section 70 of the Criminal Procedure Act does not authorise the court to vary the substituted sentence. Imprisonment is not cruel and unusual merely because it may last for life, provided there is a genuine prospect of release through review. Four-yearly reviews, procedural fairness and judicial review for legal error were sufficient; parole or a judicial tariff was not essential. Batch substitution did not itself invalidate the sentences. The procedural defect required reconsideration by the President.

These were test appeals by prisoners convicted of murder in Trinidad and Tobago and sentenced to the mandatory death penalty. Following the principle in Pratt and Morgan v Attorney General for Jamaica [1993] UKPC 37, execution had become unlawful through delay. The President accordingly granted conditional pardons, substituting life imprisonment or 75-year terms. The appellants challenged the President’s power to substitute sentence, the construction of section 70 of the Criminal Procedure Act, the adequacy of review and pardon procedures, the alleged irreducibility and collective imposition of the terms, and the appropriate remedy for the absence of an opportunity to make representations. The Court of Appeal required individual representations and remitted the decisions to the original decision-maker. The central questions were whether the President could substitute sentence and whether the existing terms were unlawful.

The Board dismissed both appeals.

1. A death sentence lawfully imposed under the mandatory statutory scheme is not itself invalidated by delay. Delay makes execution unlawful, but the conviction and sentence remain effective. The presidential power under section 87 of the Constitution of Trinidad and Tobago therefore extends to cases falling within the principle in Pratt and Morgan v Attorney General for Jamaica [1993] UKPC 37.
2. Substitution of a lesser punishment is an executive exercise of mercy, not judicial sentencing. The express constitutional power cannot be displaced by an abstract principle of separation of powers. Section 70 of the Criminal Procedure Act requires the court to give effect to the President’s conditional pardon and does not permit it to impose a different sentence.
3. Although the point did not arise directly, the High Court’s wide jurisdiction under section 14(2) of the Constitution would permit it, where no pardon had been granted, to declare execution unlawful and order commutation. The presidential power is supplemental, not exclusive.
4. A prisoner whose pardon is under consideration must have an opportunity to make representations. The material considered must ordinarily be disclosed, with sufficient time to respond. Procedural unfairness and legal error remain subject to judicial review.
5. Life imprisonment, including imprisonment described as being for the prisoner’s natural life, is a recognised indefinite sentence. A 75-year term is determinate and is not converted into a life sentence by the possibility that the prisoner may die before its expiry. Prison Rules 281, 282 and 285 provide for periodic review and remission.
6. The governing principle under section 5(2)(b) of the Constitution is that imprisonment without any prospect of release is cruel and unusual. A lawful system requires a genuine prospect of release, a review mechanism, and a non-arbitrary assessment based on mercy or legitimate penological grounds. Four-yearly reviews and presidential clemency satisfied that requirement. A parole system, judicial tariff or prescribed code of release criteria was not essential.
7. The fact that terms were substituted in batches did not itself make them cruel or unusual. The proper remedy for the absence of individual representations was remission to the President for individual reconsideration, not judicial resentencing.

1. Privy Council — In [2017] UKPC 25, the appeals were dismissed. The Board upheld the President’s power to substitute sentence, but required reconsideration because the appellants had not been given an opportunity to make representations.
2. Court of Appeal of the Republic of Trinidad and Tobago — The court held that prisoners were entitled to make representations during the pardon process and remitted the decisions to the President.
3. High Court — The court considered the validity of the substituted terms and held that procedural fairness required disclosure of review material and an opportunity to make representations.