Ricardo Farrington v The King (Bahamas)

A substitute sentence must be fixed through a fair sentencing process. The defendant must have an opportunity to address the appropriate sentence, including aggravating and mitigating matters. A serious procedural breach warrants reopening where the reviewing court cannot be confident that no possible submission could have affected the sentence. An ultimate appellate court has an exceptional inherent jurisdiction to revisit its own advice for such unfairness. Lower courts cannot revisit that advice through fresh constitutional proceedings where an adequate and identical remedy is available directly from the ultimate court. The life sentence was therefore quashed and resentencing remitted to the Supreme Court.

Mr Farrington was convicted of murder in The Bahamas in 1992 and sentenced to death. In 1996, following prolonged delay, the Board advised that the death sentence be replaced by life imprisonment. He had not been heard on the appropriate substitute sentence. Later constitutional motions were dismissed by the Supreme Court and, on 17 December 2018, by the Court of Appeal. The appeal concerned whether the 1996 process involved serious procedural unfairness, the proper procedural route, and the court responsible for resentencing. The matter was also treated as a direct application to the Board to reconsider its earlier advice.

Disposition and jurisdiction

1. The appeal against dismissal of the fresh constitutional proceedings was dismissed. The proviso to article 28(2) of the The Bahamas Independence Order 1973 precluded constitutional relief because an adequate and identical remedy was available through a direct petition to the Board.

2. The Board nevertheless had an exceptional inherent jurisdiction to revisit its earlier advice. As explained in R v Bow Street Metropolitan Stipendiary Magistrate, Ex p Pinochet Ugarte (No 2) [2000] 1 AC 119, and confirmed by Attorney General v Crosland [2021] UKSC 58, that jurisdiction is confined to serious procedural error through no fault of the party. It does not permit reopening merely because an earlier decision is thought legally or factually wrong. The proper procedure was a petition to the Board. Lower courts could not revisit the Board’s advice, and the proposed sequential procedure was deprecated.

3. Where sentence is not fixed by law, a defendant must be given an opportunity to address the court before sentence is imposed. The failure to provide that opportunity is a serious breach of procedural fairness: Moss v The Queen [2013] UKPC 32. The Board’s 1996 decision to substitute life imprisonment after finding execution unlawful was made without hearing Mr Farrington on the appropriate substitute sentence.

4. The Board could not be confident that no injury resulted. Submissions could have been made on the power to impose an appropriate substitute sentence, proportionality, culpability, aggravating and mitigating features, and the Bahamian sentencing guidance in Attorney General v Jones and Poitier v The Queen. The procedural error therefore justified revisiting the advice.

5. The Board refused permission for the proposed grounds based on the original death sentence and the alleged lack of appellate jurisdiction to substitute a lawful sentence. The death sentence no longer existed, and an appellate court may ordinarily quash an unlawful sentence and impose a lawful one. The Board varied its 1996 advice, quashed the life sentence, and remitted resentencing to the Supreme Court. This preserved a right of appeal to the Court of Appeal and enabled an individualised assessment of culpability and aggravating and mitigating features.

6. The Board also exercised its inherent power to admit the appellant to bail pending resentencing, subject to electronic monitoring. Any release under the prerogative of mercy would not remove the need for resentencing, since the appellant, the victim’s family and the public remained entitled to know the appropriate sentence.

1. Privy Council: The appeal concerning the fresh constitutional proceedings was dismissed, but the Board granted the direct application to revisit its 1996 advice, quashed the life sentence and remitted resentencing to the Supreme Court.

2. Court of Appeal of the Commonwealth of The Bahamas: On 17 December 2018, the court dismissed Mr Farrington’s appeal against Gomez J’s dismissal of his 2017 constitutional motion.

3. Supreme Court of The Bahamas: Gomez J dismissed the 2017 constitutional motion on 6 September 2017.