Tafari Morrison (Appellant) v The King (Respondent) (Jamaica)

A statutory minimum sentence is not insulated from constitutional scrutiny merely because a savings clause preserves punishments lawful before a new constitutional charter. Such a clause may preserve the authority to impose a sentence, but not a statutory requirement to impose an incompatible minimum. General constitutional protection for children does not, without clear language, incorporate detailed international requirements that detention be a last resort and for the shortest appropriate period. The threshold for inhuman or degrading punishment is stringent: the sentence must be grossly disproportionate. A minimum-sentence provision need not be struck down merely because it may operate incompatibly in some cases if it can operate compatibly in all or almost all cases.

The appellant, aged 16 when he wounded a victim with a firearm, pleaded guilty to wounding with intent under section 20 of the Offences Against the Person Act 1864. The High Court Division of the Gun Court imposed the statutory minimum of 15 years’ imprisonment. The Court of Appeal of Jamaica upheld the minimum as saved from Charter scrutiny by section 13(7), while substituting shorter concurrent sentences for firearm possession and aggravated robbery.

The appeal concerned whether the minimum sentence could be scrutinised; whether the Charter required detention of children only as a last resort and for the shortest appropriate period; whether the sentence was inhuman or degrading; and, if so, whether the minimum-sentence provision was invalid.

1. Appeal dismissed. The minimum sentence imposed for wounding with intent using a firearm was not incompatible with the Charter.
2. Savings clause. Section 13(7) did not prevent scrutiny. The amendment introducing the minimum sentence was enacted after the 1962 Constitution. If the minimum sentence was incompatible with the Constitution’s protection against torture or inhuman or degrading punishment, it was already unlawful before the Charter commenced and could not be saved as a pre-existing lawful punishment. The distinction recognised in R v Hughes [2002] UKPC 12; [2002] 2 AC 259, and followed in Bowe v The Queen [2006] UKPC 10; [2006] 1 WLR 1623, between conduct authorised and conduct required by legislation applied. Section 13(7) preserved the authority to impose 15 years or more, but not the requirement to impose the minimum where the Charter rendered it incompatible.
3. Children’s rights. Section 13(3)(k)(i) was a general protection for children. Its wording, legislative history and constitutional context did not incorporate the detailed requirements in article 37 of the UNCRC that detention be a last resort and for the shortest appropriate period. Section 14, dealing with freedom of the person in the criminal-law context, contained no such provisions. Juvenile Reeducation Institute v Paraguay Serie C No 112 concerned detention conditions, not sentencing policy, and provided no support for the appellant’s construction.
4. Inhuman or degrading punishment. The applicable test under section 13(6) was whether the sentence was grossly disproportionate. The threshold was stringent and was met only in rare and unique cases. The aggravating features of the firearm offending justified a very substantial sentence. Even allowing for possible double counting of age, the assessment that a sentence just under 13 years would have been appropriate without the minimum did not make 15 years grossly disproportionate: Reyes v The Queen [2002] UKPC 11; [2002] 2 AC 235, and Vintner v United Kingdom (2012) 55 EHRR 34, were considered in applying that stringent standard.
5. Remedy. The possibility that the minimum might produce an incompatible sentence in some cases did not require the provision to be struck down. Applying the high-threshold approach in Gangasing Aubeeluch v Mauritius [2010] UKPC 13, Reference by the Attorney General for Northern Ireland-Abortion Services (Safe Access Zones) (Northern Ireland) Bill [2022] UKSC 32; [2023] AC 505, and Christian Institute v Lord Advocate [2016] UKSC 51; 2017 SC (UKSC) 29; [2016] HRLR 19, the Board declined to invalidate the minimum-sentence provision.

1. Privy Council. The appeal from the Court of Appeal of Jamaica was dismissed.
2. Court of Appeal of Jamaica. The court held that the minimum sentence was saved from Charter scrutiny and upheld the 15-year sentence on the wounding count. It substituted sentences of nine years for firearm possession and 10 years and four months for robbery with aggravation.
3. High Court Division of the Gun Court, Kingston. The appellant pleaded guilty and received concurrent 15-year sentences on all three counts.