HINDS AND OTHER V THE QUEEN; DIRECTOR OF PUBLIC

PROSECUT IONS V JACK S ON, ATTORNEY GENERAL OF JA MAICA

( I NTERVENOR) : PC 1 D EC 1975
The Gun Court Act 1974 of Jamaica established special courts at different levels to deal with varieties of
crimes involving guns. There was provision for hearings to be held in camera. Certain offences carried
mandatory life sentences reviewable only by a panel appointed by the Governor-General.
The appellants each appealed convictions by the courts complaining that Magistrates had had assigned
to them cases properly only triable by High Court judges, that the system infringed the duty to provide an
open system of trial, and that the review panels included non-judiciary exercising judicial duties, infringing
the doctrine of separation of powers.

Held: Though the courts themselves were validly constituted, certain powers which under the
Constitution were reserved to High Court judges had been wrongly assigned to magistrates. The
provisions allowing hearings in camera were valid, since there was sufficient reason in the need for public
safety to support them. The review panel effectively set terms of imprisonment, a function which was
assigned under the Constitution to the judiciary. The creation of the panel was an attempt by the
executive to exercise the duties of the judiciary, and was unconstitutional.
Diplock L: ‘In the field of punishment for criminal offences, the application of the basic principle of
separation of legislative, executive and judicial powers that is implicit in a constitution on the
Westminster model makes it necessary to consider how the power to determine the length and the
character of a sentence which imposes restrictions on the personal liberty of the offender is distributed
under these three heads of power. … In the exercise of its legislative power, Parliament may, if it thinks
fit, prescribe a fixed punishment to be inflicted upon all offenders found guilty of the defined offence –
as, for example, capital punishment for the crime of murder. Or it may prescribe a range of punishments
… What Parliament cannot do, consistently with the separation of powers, is to transfer from the judiciary
to any executive body whose members are not appointed under Chapter VII of the Constitution, a
discretion to determine the severity of the punishment to be inflicted upon an individual member of a
class of offenders.’
Elements of the statute providing for mandatory life sentences to be imposed by lower courts were void,
but the provisions were severable, and the remainder were valid for superior courts. In each case the
convictions stood, but the cases were remitted to the Court of Appeal of Jamaica for re-sentence.
‘[constitutions] differ fundamentally in their nature from ordinary legislation . . . They embody what is in
substance an agreement reached between representatives of the various shades of political opinion in
the state as to the structure of the organs of government through which the plenitude of the sovereign
power of the state is to be exercised.’
The Constitution established a regime which provided, in respect of the higher Jamaican judiciary ‘that
their independence from political pressure by Parliament or by the executive in the exercise of their
judicial functions shall be assured by granting to them such degree of security of tenure in their office as
is justified by the importance of the jurisdiction that they exercise.’ This independence was assured by the
provisions enacting that ‘They can only be removed from office upon the advice of the Judicial Committee
of Her Majesty’s Privy Council in the United Kingdom given on a reference made upon the
recommendation of a tribunal of inquiry consisting of persons who hold or have held high judicial office in
some part of the Commonwealth.’