IN THE SUPREME COURT OF GRENADA
AND THE WEST INDIES ASSOCIATED STATES
IN THE HIGH COURT
(CRIMINAL)
CASE NO 19 OF 1984
BETWEEN
THE QUEEN
V
CALLISTUS BERNARD, LESTER REDHEAD,
CHRISTOPHER STROUDE, HUDSON AUSTIN,
BERNARD COARD, LIAM JAMES, LEON CORNWALL,
JOHN ANTHONY VENTOUR, DAVE BARTHOLOMEW,
EWART LAYNE, COLVILLE MCBARNETTE,
SELWYN STRACHAN AND CECIL PRIME
APPEARING: Mr. Christopher Nelson, DPP, with him Mr. Ramesh Maharaj SC. and
Ms. Dionne Lawrence for the Crown
Mr. Edward Fitzgerald, QC, for all defendants
Mr. Howard Hamilton, QC, for Callistus Bernard and Hudson Austin
Mr. Keith Scotland, instructed by Ms. Celeste Jules, for Bernard Coard and
Colville McBarnette
Ms. Jacqueline Samuels-Brown for Liam James and Lester Redhead
Mr. Cajeton Hood for Ewart Layne
Mr. Earl Witter, instructed by Mr. Jamo Thomas, for Leon Cornwall
Mr. Ruggles Fergusson and Mr. Ashley Bernadine for Christopher Stroude and Dave Bartholomew
Mr. Rajiv Persad instructed by Mr. John Heath for John Ventour
Mr. Derrick Sylvester for Cecil Prime
Mr. Anslem Clouden, instructed by Mr. Daniel Khan for Selwyn Strachan
___________________________________
2007: June 18 - 27, July 25
____________________________________
JUDGMENT ON SENTENCING
[1] BELLE J: - On 7th February 2007 Her Majesty’s Privy Council advised that the Grenada High Court should re-sentence the named defendants for the offence of murder committed on October 19th 1983.
[2] On 4th December 1986 the defendants were sentenced to death after a lengthy trial for the murder of Prime Minister Maurice Bishop and ten other persons including some of Bishop’s cabinet colleagues in the People’s Revolutionary Government of Grenada.
[3] The facts which have been traversed based on the trial transcript which is available, disclose that there was a split in the People’s Revolutionary Government caused by a rift in the ruling party over the issue of leadership and the decision to appoint Maurice Bishop the then Prime Minister and Bernard Coard as joint leaders of the New Jewel Movement Party.
[4] This crisis came to a head during the period 13th -19th October 1983. The Primer Minister had accepted the position of joint leadership and then appeared to have a change of heart after a trip to Europe. The change of heart was accompanied by a rumor that Phyllis and Bernard Coard, the Deputy Prime Minster and his wife were planning to kill Prime Minister Bishop. After a meeting at which Bishop was accused of spreading the rumor he was placed under house arrest.
[5] On 18th October meetings continued between the factions which by then had become apparent, in an attempt to resolve the crisis which was now causing great concern in the community. The meetings appeared to have borne fruit but on 19th October 1983 Maurice Bishop was freed from house arrest by a crowd of his supporters which rather than taking him to address a gathering in the market square in the centre of St George’s for some reason decided to go to Fort Rupert the then headquarters of the People’s Revolutionary Army and take over the said fort.
[6] The aforementioned series of events set the scene for a violent confrontation between the civilians who had taken over the fort and soldiers of the People’s Revolutionary Army who were sent to recapture the fort and kill Bishop and others. Indeed during the confrontation a number of both military and civilian lives were lost. At the end of the conflict Maurice Bishop and a number of his cabinet colleagues and others were summarily executed by firing squad on the orders of the Central Committee of the New Jewel Movement.
[7] The Privy Council in its decision of 7th February 2007 summarized the relevant facts as follows:
“On 4 December 1986 the 13 Appellants were convicted by Byron J and a jury of the murders of Maurice Bishop and 10 others and sentenced to death. Mr. Bishop was at the time Prime Minister of Grenada, having come to power as a result of a revolution which ousted the previous constitutional government in 1979. In 1983 the revolutionary party split into two factions led by Mr. Bishop and the appellant Mr. Coard respectively. On 19th October 1983 there was a violent confrontation in which Mr. Bishop and others were executed by Mr. Coard’s supporters. A week later Grenada was occupied by the armed forces of the United States and other Caribbean islands and constitutional government under the Governor–General restored. Elections for a new Parliament were held in December 1984.”
[8] The defendants are either members of the former Central Committee of the New Jewel Movement or former military officers of the People’s Revolutionary Army (PRA) who were either sent to recapture Fort Rupert or were actually based at the fort. The case against the Central Committee members (the Fort Frederick nine) was that they had met at Fort Frederick and conspired to murder the deceased Prime Minister Maurice Bishop and his cabinet colleagues and thereafter sent a contingent of soldiers to recapture Fort Rupert and liquidate Bishop and his supporters. The soldiers who did not form part of the Fort Frederick nine were therefore convicted of aiding and abetting the said crime. With the exception of Callistus Bernard and Cecil Prime they were not convicted of the murders of counts 9-11. Cecil Prime was convicted of counts 1-8 and 10. The eleven persons killed at Fort Frederick in respect of whose murders counts were preferred on the indictment were:
Count 1 Maurice Bishop, Count 2 Jacqueline Creft, Count 3 Unison Whiteman, Count 4 Norris Bain, Count 5 Fitzroy Bain, Count 6 Keith Hayling, Count 7 Evelyn “Bratt” Bullen, Count 8 Evelyn Maitland, Count 9 Avis Ferguson, Count 10 Vincent Noel, Count 11 Gemma Belmar.
[9] The convicted persons were all sentenced to death without any opportunity for a mitigation hearing in keeping with the constitutional principles and guidelines enunciated in Newton Spence v The Queen and Peter Hughes v The Queen, Criminal Appeal No. 20 of 1998. In that case the Honourable Sir Dennis Byron CJ in explaining the approach to individuation of the sentence for murder stated at paragraph 42 of the Judgment:
“A person convicted of murder could have committed the crime with varying degrees of culpability. The mandatory death penalty precludes the court from considering whether the penalty is appropriate to the particular offence and offender and there is no possibility of review from a higher court. The mandatory imposition of death deprives the person of their right to life solely upon the category of crime for which the offender is found guilty thereby eliminating reasoned basis for sentencing a peculiar individual to death and failing to allow a rational and proportionate connection between individual offenders their offences and the punishment imposed upon them.”
[10] In reference to the Inter-American Convention on Human Rights (ACHR) the learned Chief Justice further opined:
“The convention requires an effective mechanism by which a defendant may present representations and evidence to the sentencing court as to whether the death penalty is a permissible or an appropriate form of punishment in the circumstance of the case. The mitigating factors may relate to the gravity of the offence or the degree of culpability of the particular offender and may include such factors as the offender’s character and record, subjective factors that might have motivated his or her conduct, the design and manner of execution of the particular offence, and possibility of reform and social readaptation of the offender.”
[11] Saunders JA as he then was, explained the rationale for this approach in the following terms:
“While considering the question of sentence for the offense of murder the court must have regard to every relevant circumstance relating to the offense as well as to the offender. It is only if the offense is of an exceptionally depraved and heinous character and constitutes on account of its design and the manner of its execution a source of grave danger to the society at large the court may impose the death penalty.”
[12] In The Queen v Peter Hughes Privy Council Appeal No. 91 of 2001, the Board agreed with the Court of Appeal and pointed to the requirement that the court consider mitigating factors in sentencing in murder cases. Indeed the Court held that to do otherwise would be to take away from the judiciary and the person convicted of murder a right that he enjoys for any other offence other than treason. The mandatory death penalty was therefore declared to be in breach of the constitutional provisions protecting citizens against torture and inhuman and degrading treatment, and the right to due process which includes trial by judge and jury and sentence by a judge. The Board rejected the idea that an act of clemency of an Advisory Council or the like, which is an executive body mandated to carry out an executive act was a real substitute for judicial determination of the appropriate sentence. See Reyes v The Queen [2002] UKPC, 11.
[13] There is no argument that the death sentence of the convicted defendants imposed in 1986 was illegal because the defendants were not permitted to make any representation about any factors which may have mitigated the nature or circumstances of the offence and affected the kind of sentence to be imposed. The defendants were simply sentenced to death as was the practice at the time.
[14] The Board in its decision of 7th February 2007 rejected the argument that the issues of the illegality of the death penalty imposed on the defendants was res judicata. Their Lordships stated that they did not think that in practice the relief sought by the appellants (defendants) was ever available through the ordinary avenue of the appeal. This court was therefore convened for the purpose of a sentencing hearing in which the defendants’ pleas in mitigation and any relevant reports from the prison authorities or others about their progress over the period of incarceration would be heard. The prosecution would also be able to address the nature of the crimes committed and make a recommendation as to the appropriate sentence in the circumstances.
[15] The murders of 19th October 1983 would have to be described as a heinous crime. The Prime Minister and others had been captured and lined up in front of a wall on the top square of Fort Rupert ordered to take off their shirts and shot. Against the pleas for their lives and the life of Jacqueline Creft’s unborn baby the PRA soldiers carried out the execution. The victims’ bodies were later burnt and buried by soldiers.
[16] On the other hand, the defence says the convicted Fort Frederick nine were some distance away from the actual turmoil of the Fort and at best could not have known that the recapture of the Fort would have ended this way. At worst they ordered the deaths of the deceased out of a sense of panic and fear after the armed confrontation at Fort Rupert when reports of the loss of life and extent of injuries at the Fort had been reported.
[17] I am in the unfortunate position of not having presided at the trial. A judge who had done so would have been able to have a sense of the version of the facts which may have been accepted by the jury. Indeed it may not have changed the verdict but in the modern dispensation it could affect the sentence. A heinous crime of this nature would in ordinary circumstances attract a death penalty response. However we are without the benefit of any written reasons of the trial judge for his sentence since at the time that was not the accepted law or practice. I have to rely on transcripts and agreed summaries of the relevant facts.
Challenge to the Trial Judge
[18] Some interested persons sought to challenge my suitability to preside in the case on the grounds that I had some previous association with some of the defendants all be it more than 23 years ago, and based on a relationship between fraternal organizations. I made it clear that I had had no contact with these individuals since October 19th 1983 and indeed I can say with clear conscience for some months prior to that as well. I also made it clear that I had ceased all political activity some time in the early 1990’s and indeed could not have pursued such activity beyond August of 1993 when I left Barbados and joined the staff of the Attorney General’s Chambers in the British Virgin Islands as Senior Crown Counsel. I totally rejected as “a blatant lie” the statement of one Nelson Louison that I had provided support and arranged meetings and accommodation for the “Grenada Seventeen.” This was clearly impossible and never took place since the Grenada seventeen of course refers to 17 persons imprisoned charged and convicted of killing Maurice Bishop and others on October 19th 1983 in Grenada. There was never any contact between myself and these persons after October 19th 1983.
[19] The media have got many aspects of the facts relating to this matter entirely wrong. Indeed simple issues such as my nationality (indeed not of great importance except that I am not Grenadian) were not properly researched. Some media places also referred to me as acting Chief Justice of the Eastern Caribbean Supreme Court. I have never acted in such a capacity. It was also implied in some parts of the media that I was a member of the New Jewel Movement in Grenada. I was never a member of any Grenadian organization (save the Rotary Club of Grenada by virtue of membership of Rotary International) which I joined after my assignment there in September of 2003 and I never worked nor resided in Grenada until September of 2003. Indeed I worked in Grenada for 18 months commencing September 2003 with a 4-month break after Hurricane Ivan from October 2004 to January 2005, when I was assigned to Antigua and Dominica.
[20] I had no contact with any of the defendants in this matter during that period. I felt I had an open mind having heard a number of versions of what took place on October 19th 1983, but I accept the verdict of the jury in the trial of the defendants and I accept that they must now face sentencing in accordance with the law for the murder of Maurice Bishop other former members of his Cabinet and other persons at Fort Rupert on 19th October 1983. Those who wish to have a full and accurate account of what was said on this issue during the hearing should obtain a transcript of the proceedings.
The Issues
[21] I am satisfied that the issues in the matter have been somewhat narrowed by the Privy Council decision in Civil Appeal No. 10 of 2006. I have thought long and hard about those issues and feel that a sentence has to be handed down which reflects not only the seriousness of the crime but the fact that a Government of Grenada would find it well nigh impossible to deal objectively with these defendants. I have to take into account the fact that the defendants have spent 23½ of what the Privy Council considered to be an indeterminate sentence in spite of the wording of the warrant of commutation. As an officer of the court sworn to uphold the law, I would also have to take into account the sentencing practices in the Eastern Caribbean up to this point, noting that a High Court judge should follow well established precedent wherever possible.
[22] The Privy Council in its decision highlighted certain issues which must guide the deliberations on sentencing. These were stated as follows:
(1) The legality of the mandatory death sentence imposed upon the appellants has never been the subject of judicial decision.
(2) If the appellants were still at risk of execution, there can be little doubt that the Board would not allow the principle of res judicata to stand in the way of granting relief to prevent the carrying into effect of an unlawful sentence.
(3) There has never been any judicial contribution to determining the sentences which the appellants should serve. Byron J, correctly applying the law as it was understood at the time, exercised no discretion. And the appellants’ present detention is solely by authority of the executive.
(4) There appears to be no adequate mechanism in Grenada for providing the appellants, even now, with the judicial sentencing procedure to which they were entitled. The only prospect of a review of the sentences is by means of the exercise of the royal prerogative of mercy which depends entirely upon executive discretion.
(5) The relevant Minister who advises the Governor General on the exercise of the prerogative of mercy has not ensured that the Board of Review functions. In this case all but one of the appellants were interviewed by the Board in 2001, but there is no evidence that any advice was tendered to the Minister. The High Court has deemed this “unsatisfactory and inexcusable” yet no steps were taken to make the Board function up to the time that the case reached the Court of Appeal.
(6) It may be that the reason for the failure to review the sentences is that the authorities took the view that the terms of the warrant of commutation precluded any possibility of release. If that was the case, then, as their Lordships have already indicated, they think this was a misreading of the terms of the warrant.
(7) For obvious reasons the question of the appellants’ fate is so politically charged that it is hardly reasonable to expect any Government of Grenada, even 23 years after the tragic events of October 1983, to take an objective view of the matter. That makes it all the more important that the determination of the appropriate sentence for the appellants, taking into account such progress as they have made in prison, should be the subject of a judicial determination.
The Death Penalty Ruled Out
[23] It may come as a surprise to some that the death penalty as a sentence has been rendered academic in this case by the decision of the Privy Council in Pratt and Morgan (1993) 43 WIR 340, a decision in which it was laid down that the death penalty should be carried out promptly. In most cases that would mean within five years and on a failure to achieve this the imposition of such a penalty was rendered inhuman and illegal treatment and the sentence of death would be commuted to life imprisonment.
[24] Secondly, the executive of the country had decided in 1991 to commute the death sentences to life imprisonment. The Privy Council has stated in its 7th February 2007 decision that this commutation is dependent upon the validity of the sentence of death. In the absence of such a sentence the Governor General has no power to order that the appellants be imprisoned for life and the defendants therefore remain held in detention without lawful authority. The court is therefore left to consider two possibilities. These possibilities are firstly a sentence of life imprisonment and secondly a sentence of a term of years.
[25] In this context then counsel for the defendants Edward Fitzgerald QC presented arguments on a number of points. Among them were:
A: The Factual Issues
(1) The Privy Council remitted the defendants for sentencing because they suffered the illegal mandatory death sentence.
(2) The sentence of life for remainder of their natural lives was also illegal since it could only follow from the commutation of a legal sentence.
(3) During the years on death row the defendants endured very harsh prison condition and punishments.
(4) The defendants further suffered an illegal upholding of the death penalty by the Court of Appeal for reasons already stated and secondly because of the more than two year delay in dealing with the appeal.
(5) Consequently the defendants suffered the death row syndrome and the preparations for execution in 1991.
(6) The defendants further suffered another illegality in the form of the failure to immediately re-sentence them after the decision of Justice Benjamin in 2004 and they continued to be held without lawful authority.
(7) The defendants suffered yet another deprivation of rights in the failure of the authorities to establish a Review Board and conduct reviews of their life sentence
.
B: The Legal consequences:
(8) The defendants should benefit from discounts for the several breaches of constitutional rights.
(9) The defendants should not be sentenced to life imprisonment since this would subject them to the wishes of the executive.
(10) The defendants should be sentenced to concurrent sentences since the deaths arise from one order.
(11) The defendants have made great progress, spiritually academically and
socially and this must be taken into account
(12) The preference should be for a term of years rather than a life sentence for
reasons already stated.
[26] Counsel pointed out that each defendant would have suffered the illegal mandatory death sentence which was followed by nearly 5 years on death row awaiting execution. Counsel opined that this fact plus the upholding of the death sentence after a delayed Court of Appeal hearing; the near execution experience and finally commutation to a sentence which made the term of imprisonment indeterminate and the failure to review the sentences of the defendants albeit based on the belief that the defendants would never be released and finally the failure to re-sentence the defendants all cumulatively resulted in such injustice that the defendants should be able to benefit from substantial reductions in sentence.
[27] In support of this submission the defendants’ counsel argued that the applicable case law showed that some form of discount or reduction of sentence has always been the norm. Counsel referred to Pratt and Morgan and Henfield v Bahamas [1997] AC 413 where the death sentence was commuted to life imprisonment and to R v Adolph Harris where the defendant had spent 11 years on death row and received a fixed term sentence as a result rather than a life sentence. Counsel also noted Hughes in which Saunders JA reduced the death penalty to twenty years. Commonwealth decisions from the UK such as Mills v HM Advocate [2004] 1AC 41 were also referred to as examples where reductions in sentence were granted. The Canadian cases R v Dennison and R v McPherson were also demonstrations of this norm.
[28] Counsel argued that in cases such as these, life imprisonment was not imposed because there was no indeterminate feature of the killing which had to be observed. This was the point made in R v Basra in the following terms:
“In general it should be said that a life sentence when it is other than mandatory, as was the case here, is to be reserved for cases where the defendant is someone in respect of whom there is some relevant factor which cannot be determined at the time when the judge is passing sentence. The usual example of that will be some mental condition which affects the degree of risk which the release of the defendant into the community will present. Where there is no such imponderable feature, and where the question is simply that of punishment and the necessity to deter others, these matters can be gauged at the time of sentence, and so as a rule an indeterminate sentence would be inappropriate.”
[29] Counsel also argued that the sentences should be concurrent since they were based in the case of most of the defendants on one order to liquidate Maurice Bishop and his supporters at Fort Rupert. In aid of this proposition counsel sited the case R V Noble and invited the court to consider an increase in sentence for the multiple deaths rather than consecutive sentences, given the proximity in time of all the deaths.
[30] Counsel finally invited the court to look at the special context of social strife in Grenada at the time of the killings. He contended that in such circumstances the sentences handed down by the International Tribunal for the Former Yugoslavia where sentences in similar circumstances where in the cases Drazen Erdemovic the sentence was 10 years imprisonment for his part in the mass execution of unarmed civilians and Josipovic 10 years for murder as a crime against humanity and Bilsana Plavsic 11 years for her offences of crimes against humanity. In all of these cases the special circumstances were taken into account along with the need to promote reconciliation, the previous good character and post conflict good behaviour of the defendants
[31] Counsel emphasized that the defendants had done everything possible to make amends, to assist their fellow prisoners, cooperate with the authorities. He pointed to the evidence of their exemplary conduct at the time of Hurricane Ivan when they did not escape, but stayed in prison to help other prisoners and then helped to rebuild the prison. The affidavits of Winston Courtney, John Dogget and Leslie Pierre among others left it beyond doubt in his view that the defendants no longer posed any risk to the society. He called on the court to view all of these things as bases for a reduction in sentence and immediate release of the defendants.
Mitigation on the behalf of the Defendants - Individual Submissions In Mitigation
[32] Here I intend to address the pleas in mitigation made on the behalf of the defendants. Based on an analysis of all of the defendants’ pleas in mitigation it is evident that the mitigation submissions would fall into three categories. First there are the three military officers who apparently were convicted for aiding and abetting the murders of Prime Minister Maurice Bishop and others. These defendants are Lester Redhead, Christopher Stroude, and Cecil Prime. Callistus Bernard stands out as the commanding officer of the firing squad which actually carried out the execution of Maurice Bishop and others.
[33] Finally the Fort Frederick nine or the members of the Central Committee would have been convicted of conspiracy to murder Maurice Bishop and others in circumstances which are shared by all based on the evidence at the trial. They all suffered the death row experience and near execution and they have all improved themselves academically and spiritually. They have no previous records of conviction for any crimes and their conduct in prison for most of the time has been described as exemplary or creditable in most case. The other pertinent consideration is the deteriorating states of health of John Ventour, Colville McBarnette and Bernard Coard.
Bernard Coard
[34] The antecedents of Bernard Coard reveal that he is 63 years old. He is the son of Frederick Dennott Coard (deceased) and Flora Coard. He grew up with his parents and attended the St. George’s Anglican, St. George’s Methodist and the Grenada Boys Secondary Schools. On leaving school he was employed at the Grenada Boys Secondary School as a teacher. He migrated to the USA where he obtained his Bachelor in Economics. He proceeded to England where he attained a Masters in Economics.
[35] Finally, he returned to the Caribbean where he lectured at the University of the West Indies (UWI), Mona and St. Augustine Campuses for a period of two years. He returned to Grenada and entered politics. He is married and the father of three children. At the time of the offence he was Deputy Prime Minster and Minister of Finance of the People’s Revolutionary Government (PRG) and was living at Mt. Wheldale with his wife Phyllis Coard. He had no previous convictions.
[36] The mitigation plea was made on the behalf of defendant Bernard Coard by Mr. Keith Scotland. Mr. Scotland adopted all of the general points of law and fact made on the behalf of the defendants generally by Mr. Fitzgerald. He also stressed that Mr. Coard was always singled out as leader and targeted for very harsh punishment and torture. He referred to the 100 watt light bulb burning all night in the defendant’s cell, beatings which inspired a protest by all of the defendants, the death row experience, facing imminent death with death warrant being read to him, and meeting the hangman. The latter experience was described as being particularly harrowing since the wait for execution is seen as the worst part of the process of execution short of execution itself. Berrnard Coard’s sentence was commuted to life imprisonment for the remainder of his natural life. A sentence which although ultimately held to be illegal left no hope of release. He also suffered denial of the right to speak to his counsel for the purpose of making applications to the court.
[37] Bernard Coard was a member of the Central Committee which met at Fort Frederick and ordered the execution of Maurice Bishop and others at Fort Rupert on October 19th 1983. He was tried and convicted for his role in the killings of these persons. All of the experiences of the others who were imprisoned with him also apply to him. But he probably would have been more greatly humiliated as a Former Deputy Prime Minister and with his wife also imprisoned having been convicted of the same offences. In the course of these experiences he suffered infringements of his constitutional rights.
[38] He has consistently denied legal responsibility for the death of Maurice Bishop and others at Fort Rupert and has indicated that his intention was to leave the country after the unrest and protests in relation to Maurice Bishop’s house arrest began. He says he did not meet with the Central Committee to order the liquidation of Maurice Bishop. He says he had heard about Bishop’s death while lying in a bed at a secure location at Fort Frederick.
[39] Coard points to the same mitigating factors as the other Central Committee members but adds the peculiar hardship caused to his children who lost both mother and father and the fact that he had to sit by while his wife was tortured and could do nothing about it.
[40] These breaches of constitutional rights must result in a reduction of sentence counsel argued, this is the only way that the breaches can be adequately redressed in the circumstances. But this was not all. Counsel focused on the human progress of Bernard Coard spiritually and as a man. He said that Coard had been a tower of strength in the prison and referred to the affidavits of a number of prisoners to this affect. But most poignantly in Coard’s favour was his contribution of his business studies course and his contribution to an enviable prison education programme unparalleled in the Eastern Caribbean which was largely the work of Bernard Coard and his co-defendants. Coard in particular had launched the business studies course from which 112 inmates had graduated. He pointed out that the recidivism rate among these men was 14% while the general recidivism rate in the prison was 75%.
[41] As a Minister in the PRG he had been instrumental in starting four important institutions among them the National Commercial Bank and the Social Security Scheme. Bernard Coard had also written a number of books and one of these had contributed to a better understanding of the problems of black school children in England. Among these literary and academic works are: Youth in Trouble which covers matters ranging from “drug use and the youth” to “tips for young persons on making a new life.” “How To Do Well in Business” is a manual which supports the small business course which is taught by Coard and other inmates and “Globalisation: Its challenge to Caribbean Economies and Business” speaks for itself.
[42] Coard did not have any testimonials other than that of inmates and preachers at the time. But very recently Maxine Waters a US senator and a South African Minister of government had both lent their support for his release by writing letters to the effect that he would make a great contribution to society if released. Coard now suffers from deteriorating eyesight due to the twenty-four-hour hundred-watt bulb in his cell when on death row and the development of cataract and a damaged cornea.
[43] It is obvious that Bernard Coard is a man of great ability and intellect and his contribution to the prison community has not stopped there, but has been of benefit nationally and regionally. His approach of each one, teaching one has contributed to the empowerment of many inmates and he had counseled and helped many of them. Bernard Coard he submitted should have reductions for the violations of his constitutional rights and should benefit from consideration of his progress as was suggested by the Privy Council. In light of the statements of the government over the years Bernard Coard and the other defendants should not be placed at the mercy of the government which has failed to take any steps to establish a Board to conduct reviews of their sentences over the years. This was particularly so after the very recent statement of the Attorney General to the effect that if the courts decide that they must be released, Keith Mitchell and the New National Party is standing firm to make sure they keep them there.
[44] Bernard Coard was signatory to “Reflections and Apologies “ which was published in Grenadian Voice Newspaper on February 8, 1997. He has therefore shown contrition and remorse and he is no longer a threat to the society according to a number of affiants. Coard also published an apology to the families of the victims of the October 1983 crisis and to the Grenadian people on the behalf of his fellow defendants.
Lester Redhead
[45] Lester Redhead is now 47 years old. He is the son of Rodriguez and Theresa Redhead. At the time of the offence he resided at Mardigras, St. George’s where he grew up. He attended St. Paul’s Government School where he attained seventh standard. On leaving school he was employed as an artist and also did some farming. In 1979 he joined the People’s Revolutionary Army (PRA) and attained the rank of Captain. He is a single man and the father of one (1) child. At the time of the offence he was a member of the PRA and was living with his mother. He had no previous convictions.
[46] Lester Redhead was at Fort Rupert when civilians took over the Fort and was among army officers placed under arrest by these civilians some of whom at some point became armed. He would also have been at the Fort when the contingent of army officers sent from Fort Frederick arrived and the exchange of gunfire took place causing the deaths of a number of civilians and soldiers alike. Redhead would have been among those PRA members who eventually subdued and placed Maurice Bishop and 8 others under arrest and took them up to the top square where they were executed.
[47] There is no evidence that Redhead gave any orders or fired any weapon that afternoon. However one witness identifies him cutting Maurice Bishop’s throat and severing his ring finder after he had been shot by the firing squad. One witness puts him standing next to Callistus Bernard as Bernard announced that Bishop and others would be executed on the orders of the Central Committee. He did not try to prevent the execution. But he did not participate in the shooting. Redhead’s actions would have to be seen as those of an officer obeying the orders of his superiors to retake the Fort and liquidate the leaders of the faction who had taken over the Fort. His actions would also have been that of an angry and frustrated young military officer confronted with a situation in which his once Commander In Chief had humiliated the PRA and placed many lives at risk by leading a crowd of civilians to take over the army’s headquarters
[48] Redhead like the others would have been convicted of murder, sentenced to death and spent 23½ years in prison by the time of the hearing. He would have suffered the same indignities of death row for five years with its bread and water diet and other strictures. He would have also experienced the near execution situation of August 1991 and the following commutation to life imprisonment for the rest of his natural life. He considers that he acted as a soldier on October 19th 1983.
[49] Redhead had spent his time productively and had educated himself to the point where he completed O level passes in English, Accounting, Commerce and History with Cambridge University, London. He also achieved A level passes in Accounting and Management of Business with Cambridge University, London. Redhead has assisted with the prison education programme. He writes poetry.
[50] During the years in prison after the commutation to the sentence of life imprisonment for the remainder of his natural life, Redhead’s conduct had been exemplary and he had contributed to assisting others in and out of prison during that period as well. Redhead was one of the authors of “Reflections and Apologies “ which was an open letter written to the people in Grenada in which the defendants expressed remorse in the sense that they accepted responsibility for what had taken place on 19th October 1983, but they maintained their innocence.
[51] All in all then we can say that Lester Redhead played a minor role in the atrocities of 19th October 1983 in that he did not kill anyone at the Fort. He was obviously at the Fort at the time of the executions. But there is no evidence that he played any part in the decision to execute Maurice Bishop and others that day. His appeal against conviction for count 10, the killing of Vincent Noel, was upheld by the Court of Appeal. Redhead is no longer a threat to the society. There has been no social or psychological report presented. But evidence as there is on this aspect of the defendant’s progress remains unchallenged.
Christopher Stroude
[52] Christopher Stroude is now 51 years old. He is the son of Michael Lewis and Joyce Stewart. He was born at San Souci, St George’s where he grew up with his mother. He attended the St. George’s Anglican, and Grenada Boys Secondary where he reached fifth form. He also attended the Grenada Technical and Vocational Institute, Personal Security School in Cuba and the Political Academy in then USSR. When he left school he was employed as a teacher and later after the Revolution he became a soldier in the PRA and attained the rank of Major. Stroude is married and has 2 children, and lived with his wife at Tanteen at the time of the offence.
[53] Christopher Stroude was the highest-ranking officer on Fort Rupert at the time when civilians invaded the Fort and disarmed the soldiers. It is evident then that Christopher Stroude who held the rank of Major at the time did not give orders to defend the Fort as the crowd approached as he would probably have been legally entitled to do. He too would have suffered humiliation and felt the anger of a ranking soldier who saw civilians led by his once commander-in-chief take over his Headquarters disarm his soldiers and place him and others under arrest while some of them armed themselves. He would have felt the pain of the unnecessary loss of life of civilians and soldiers as a result of this act. He did not resist the order to execute Maurice Bishop and others thereafter.
[54] There is absolutely no evidence that Stroude participated in the executions. He was seen helping to round up and lead Maurice Bishop and the others who were executed to the top parade square. However at the Preliminary Inquiry the Fire Chief placed him lower down the hill assisting in putting out the fire which had consumed his vehicle. His appeal against conviction for count 10, the killing of Vincent Noel, was upheld by the Court of Appeal.
[55] Stroude too was to suffer the conviction and death sentence, along with death row for a period of 5 years, along with the near execution experience of seeing and hearing the gallows being set up for his execution. He also experienced the commutation to life imprisonment for the remainder of his natural life and 23½ years in prison. Stroude had made spiritual and academic progress in prison and had shown remorse by contributing to the publication “Reflections and Apologies.”
[56] Stroude has educated himself while imprisoned. He has attained a BSc in Economics specializing in Sociology with the University of London External Programme. He contributed to the prison education programme, especially the Business Programme where he has assisted in the preparation of a few business plans for businesses that are operating successfully. Stroude is a devout Christian and has worked hard with the Prison Christian Council Ministry (PCCM). He has also contributed to the prison construction projects as a skilled worker.
[57] Stroude had also assisted fellow prisoners by helping with the prison education programme which is run by and large by the 12 defendants at the Richmond Hill Prison. He too maintained his innocence but accepts responsibility for the carnage at Fort Rupert on 19th October 1983. Stroude is no longer a threat to the society. There has been no social or psychological report presented. But evidence as there is on this aspect of the defendant’s progress remains unchallenged.
Cecil Prime
[58] Cecil Prime formerly of Tanteen Terrace, St George’s is 48 years old. He is the son of Walton and Rita Prime (deceased). He attended the St George’s Roman Catholic Boys,
St. John’s Christian and the Grenada Boys Secondary School where he reached fifth form. He is single and the father of two (2) children. At the time of the offence he was a First Lieutenant in the PRA. He had no previous convictions.
[59] On the 19th October 1983 Prime was captured and disarmed. After the assault on the Fort by the Forces sent to recapture the Fort and liquidated Bishop and others, Prime was one of the officers who led Bishop and others to the top square. However the evidence against him was that he was leaning over a wall at the time of the executions. He did not participate in the killings. His appeal against conviction for count 10, the killing of Vincent Noel, was upheld by the Court of Appeal.
[60] Prime too showed remorse by cosigning the publication “Reflections and Apologies.” He maintains his innocence and wish he had been dealt with as soldier acting in a very difficult and stressful situation. He has progressed dramatically spiritually and academically and has contributed to the prison school and assisting other prisoners. Prime completed Level Two in the Intermediate Examinations with the Association of Accounting Technicians. He is a leading member of the anti- drug organization Friends Forever. He works in the prison furniture shop and has done electrical work on numerous projects at the prison. Prime is no longer a threat to the society. There has been no social or psychological report presented on his existing state of mind. But evidence such as there is on this aspect of the defendant’s progress remains unchallenged.
Callistus Bernard
[61] Callistus Bernard is 47 years old. He is the son of Lucky Bernard (deceased) and Ruby Bernard. He attended St. David’s Roman Catholic and St David’s Secondary schools reaching fifth form. He was employed as a shoemaker on leaving school. In 1979 he became a member of the PRA and attained the rank of Lieutenant. He is single and was stationed in Carriacou at the time of the offence. He has no previous convictions.
[62] Mr. Howard Hamilton QC spoke on the behalf of Callistus Bernard. He spoke of the difficult task that the Court had in arriving at a sentence 21 years after the trial. But he thought this also provided the advantage of not having to speculate about the progress of the defendants. The court is therefore aware that in spite of the illegality of the sentence imposed by the court in 1986, the defendants have made great progress in their spiritual, and social lives.
[63] Mr. Hamilton insisted that the court consider four things namely (1) the impact on society, (2) the victims’ families and loved ones,(3) in 1983 the sentence that the judge would have given (4) the prospects for rehabilitation. But no court could impose a sentence contemplating what has happened over the last 23 years. No one could have predicted the harsh treatment including having to apply to the court to see their attorney.
[64] Seeking to set the scene, Mr. Hamilton posited that the setting of the conflict in which the crimes involved were committed was the Cold War. There were conflicting ideologies in those days. This has now changed. The men were young at the time of their imprisonment. 10 were below 30 years of age, 4 were 25 years old or less. Mr. Redhead was 23 years old. A list of the ages of all of the defendants at the time of their imprisonment in 1983 and now was submitted to the court. The incidents of 19th October 1983 shattered the dreams and aspirations of the defendants.
[65] Mr. Hamilton expressed the view that certain matters were disposed of and it would assist the court to know what those matters were. Firstly the death penalty is no longer an issue, secondly the issue of risk to society is no longer an issue, thirdly life imprisonment aught not to be an issue. The only issue left is whether these men had been punished sufficiently.
[66] Counsel called upon the court to put itself in the position of the relatives of victims, their pain and anguish the relatives of the deceased of Maurice Bishop, the person whose posterior was blown off, Avis Ferguson. Justice must be given to all. But everybody suffered in the tragedy both families of victims and the defendants. Then the court must put itself in the place of the defendants.
[67] Imprisonment was particularly painful for persons who were in positions where they could give orders and get things done. Imprisonment also meant according to Mr. Hamilton not being able to enjoy the outside world and not being able to enjoy children and grandchildren. Callistus Bernard had no children but Liam James was not able to attend his mother’s funeral. Marriages were broken up because of the hopelessness of the defendants’ situation. Mr. Coard could not see his wife even though she was right next door.
[68] All of the defendants had gone through the near execution experience. It is part of the record that they contemplated suicide at one time. They had spent 4½ years on death row.
[69] Mr. Hamilton had not seen the defendants for 21 years. He thought that they had risen to a higher elevation of spirit. The defendants show no bitterness according to counsel. They had gone through a process of introspection and had seen the beam in their own eyes. They were bearing their cross and forgave themselves and their captors. To some extent counsel thought this was their destiny to go to Richmond Hill and touch certain lives personally. The persons whom they touched went out into the outside world. These persons included a Mr. Passee. To some extent the defendants had capitalized on adversity.
[70] He had noted changes in the relationships between the prison guards and the defendants over the years. Initially in the 1980’s it was open hostility and today the relationship is cordial.
[71] It was Counsel’s view that had the defendants been executed the tragedy would have been compounded. Grenada could take no more blood letting.
[72] Specifically on the behalf of Callistus Bernard counsel submitted that he was a dropout from school and the 5th of 10 children. After imprisonment Bernard furthered his education. He moved from being a secondary school dropout to being a university graduate between June 1991 and June 1997. He was awarded the James Stuart Cook Award by the University of London for his performance in one academic year. Bernard regretted that he was never judged as a soldier. In that respect counsel reminded the court of the decisions of the Tribunal on Yugoslavia and the standards set by that court for the sentencing of persons in the position of Callistus Bernard.
[73] Callistus Bernard otherwise known as Adullah had been sent with a contingent of soldiers to recapture Fort Rupert on 19th October 1983. He was the commander of a security army contingent which guarded Fort Wheldale on 19th October 1983 and fired shots above the heads of the crowds who came to free Maurice Bishop. He was on the second armored car which was confronted with gunfire apparently from armed civilians on approaching the Fort. He saw a number of his PRA comrades wounded and had learnt that they had died. He was angered humiliated and out his depth in so far as skills to handle such a situation were concerned. He says he “lost it” and that it is these circumstances that Maurice Bishop and other were killed. Callistus Bernard was the commander of the firing squad which murdered Maurice Bishop and others. He personally shot Maurice Bishop and concentrated fire on him according to the evidence.
[74] He too would have experienced the death penalty being pronounced. He spent almost 5 years on death row with its harsh discipline, bread and water diet and solitary confinement. He endured the near death experience as he became aware of the authorities constructing the gallows and otherwise preparing for the hangings including weighing and measuring him for the hanging. He also experienced the sentence of life imprisonment for the rest of his natural life. He has spent 23½ years in prison.
[75] Callistus Bernard has made amazing spiritual and academic growth. He has moved from high school drop out to a BSc Economics (upper Second Class honours) with London University. He teaches in the prison education programme. He has been confirmed in the church and wants to make movies. A number of affiants have attested to the fact that Bernard is no longer a threat to the society. There has been no social or psychological report presented. But evidence as there is on this aspect of the defendant’s progress remains unchallenged.
Selwyn Strachan
[76] Selwyn Strachan is 59 years old. He is the son of Selwyn and Louisa Strachan (deceased). He was born at Woburn, St George’s where he grew up with his parents and was educated at the Grenada Boys Secondary School. During the years 1979 to 1983 he worked as a Minister in the People’s Revolutionary Government (PRG). He is married and the father of two children. At the time of the offence he was Minister of National Mobilization and was living with his family at Mt. Parnassus, St. George’s. He has no previous convictions.
[77] Selwyn Strachan was convicted of murder as being one of the Central Committee members who met at Fort Frederick on 19th October and ordered the execution of Maurice Bishop. He has experienced the illegal mandatory sentence of death being imposed upon him. He also experienced the harsh treatment in death row and the bread and water diet. He faced imminent execution along with the other defendants and the hopelessness of a sentence of life for the remainder of his natural life.
[78] Selwyn Strachan could be characterized as quiet. He was also a signatory to “Reflections and Apologies” the letter written to former detainees and others who had suffered during the revolution. Selwyn Strachan also taught many others at the prison and contributed to the education programme which has been referred to before. He has obtained an LLB and a Post Graduate Diploma in English Commercial Law from the External Programme of the University of London. He is well prepared to re-enter the society.
[79] Selwyn Strachan has said that he could not forget the contributions of the deceased Maurice Bishop, Jacqueline Creft, and Unison Whiteman. He paid homage to all of them. He said he was stunned by Maurice Bishop’s death because he considered Maurice Bishop an outstanding comrade.
[80] Selwyn Strachan communicated with the immediate families of Maurice Bishop, Unison Whiteman, Jackie Creft, Norris Bain, Vincent Noel and others via Christmas cards, just a few years after the trial ended in December. By this act he demonstrated the willingness 1986 to begin the process of healing with a view to helping to alleviate their pain and suffering. He actively participated in the interview with representatives of the regional and local media in the latter part of 1999, where he spoke to the Grenadian people and accepted political and moral responsibility for the October 19th tragedy. In that interview he specifically reached out to the families of those who died at Fort Rupert and expressed his sorrow for their huge losses.
[81] Selwyn Strachan is no threat to the society and his release has been recommended by a number of person in the Grenadian community and beyond.
Dave Bartholomew
[82] Dave Bartholomew is now 51 years old. He was born at Marli’s St Patrick’s. He grew up with his parents Dick Clement (deceased) and his mother Vitalis Bartholomew. He attended St’ Patrick’s Roman Catholic School where he attained seventh standard. On leaving school he did private classes and attained five GCE subjects. He was a member of the PRA from 1979 to 1981 and was transferred to the Ministry of Education as Secretary of Youth Affairs. He is single and the father of three (3) children. He has no previous convictions.
[83] Bartholomew was convicted as a member of the Central Committee who plotted the killing of Maurice Bishop and others on October 19th 1983. But Bartholomew states that he was in fact involved in strenuous efforts to peacefully resolve the political crisis. He denies legal responsibility for the death of Maurice Bishop and others but admits moral responsibility.
[84] In his school days and afterwards as well Bartholomew was an avid sportsman and a person with a strong social conscience being deeply affected by the plight of the poor. He was also an able youth worker having been a founding member of the Marli Sports Club and later the Chairman of the St Patrick’s Branch of the National Youth Organisation (NYO)- the youth arm of the NJM. In September of 1982 he became the President of the NYO and a member of the Central Committee of the NJM.
[85] In the area of progress, Bartholomew even under the harsh condition of prison, pursued studies in European and West Indian History and Sociology up to A level. He worked in the prison industries making furniture for the prison and other state institutions. In the second review period he was accepted at the University of London to pursue a law degree. He also taught in the prison education programme. In his third review period Bartholomew obtained the LLB with the University of London. It is also in this period that he participated in a public statement of remorse when he signed the statement titled “Reflections and Apologies,” expressing his sorrow and regret for the errors of the revolution and the tragedy of October 19th 1093. In the fourth period Bartholomew became more involved in religious activity in the prison becoming a member of Prison Christian Council Ministry (PCCM), and the prison chapter of Friends Forever an outreach programme of the Seven Day Adventist Church.
[86] In the fifth period of review Bartholomew began preaching at services attended by inmates and religious groups which enter the prison to fellowship with members. He calls on inmates in these sermons to change their lives through Jesus Christ. He also actively participates in Bible studies four afternoons each week. He has written personal letters to former detainees apologizing for the wrongs done to them during the revolution. Indeed one can say that during the 23½ years in prison he has experienced impressive spiritual and intellectual growth. He is not considered to be a threat to the society.
Liam James
[87] Counsel Mrs. Samuels Browns spoke on the behalf of Lester Redhead and Liam James.
Liam James is 52 years old. He is the son of Abraham James (deceased) and Bernadine James of Old Fort, St George’s. He was born at Birchgrove, St. Andrew’s and grew up at Beaulieau, St George’s with his parents. He attended the St. George’s Roman Catholic School from 1963 -1967 and Presentation Brother’s College from 1967-73 where he reached sixth form. He worked as a Trade Unionist between 1974 and 1979. In 1979 he was employed with the People’s Revolutionary Government as 2nd Vice Minster of Defence and Security. He is single and at the time of the offence he was living with his mother at the above address. He has no previous convictions.
[88] Liam James was a founding member of the NYO the youth arm of the NJM. In the 1976 General Elections James was Bernard Coard’s campaign manager in Coard’s successful bid to become Parliamentary Representative for the town of St George. During the revolution, James attained the rank of Lieutenant Colonel and Vice Minster of in the Ministry of Defence and Interior, with special responsibility for national security. He was a member of the Central Committee of the NJM and a member of the People’s Revolutionary Government.
[89] James studied and taught during the various periods of review. He taught basic literacy subjects and to the school leaving level to inmates in the Prison Education Programme. He taught in a business studies and Commerce and completed a BSc in Economics with the University of London. He was the main tutor in the business education programme in the prison. He has also reached level two (II )in the ACCA with two papers to complete that level. After Hurricane Ivan, James did not seek to escape but counseled and calmed other inmates to act responsibly.
[90] James has read Frankel’s book “Man’s Search for Meaning”. This has moved him in a spiritual though not religious direction. He is said to have purged his heart of hate and bitterness which may have resulted from his trial and the brutality of the years of incarceration. He has become a forgiving generous spirit who is self critical and accepting of various failings and shortcomings which contributed to the tragedy of the 1983 crisis. He appreciates the ideals of the revolution bur recognises it flaws and failures. He was a signatory to collective apology to the nation titled “Reflections and Apologies” in which he and others said sorry to those who suffered in any way during the revolution.
John Ventour
[91] John Ventour was born on August 18th, 1957 at Beaulieu St George’s, Grenada. He will be 50 years old in August. He grew up with his parents Israel and Lona Ventour at Beaulieau, St. George’s. He attended the St George’s Methodist and the Grenada Boys Secondary School where he reached fifth form. On leaving school he worked with W.E. Julien from 1975 to 1979. He was a Trade Unionist with the Commercial and Industrial Workers Union and a member of the PRA in which he held the rank of Captain. Ventour was living with his wife Hilda at the time of the offence in Creighton, St.Paul’s, St George’s. He has no previous convictions.
[92] John Ventour’s participation in the crime was said to be his participation in the huddle at Fort Frederick with other members of the Central Committee. This huddle was the only evidence of his being part of the agreement to kill Maurice Bishop and others at Fort Rupert on October 19th 1983. Counsel Mr. Rajiv Persad thought that this was the lowest possible level of participation in the agreement and could add up to nothing more than encouragement. The jury must have thought that John Ventour was a full participant in the agreement to kill Maurice Bishop and others and they convicted him. His conviction was upheld by the Court of Appeal.
[93] Ventour suffered various constitutional violations counsel says that these should be remedied by immediate release. Among the breaches counsel referred to are :
(i) Wrongful imposition and upholding of the mandatory death penalty.
(ii) The prolonged period spent on death row.
(iii) The prospect of impending execution in pursuance of an illegal sentence after unconstitutional delay in July and August of 1991.
(iv) Mistreatment in prison and repeated denial of reviews of the life sentence on the basis that they had to serve a lifetime in custody under the terms of the pardon of 1991.
[94] But John Ventour’s other serious mitigating factor is that of his health. He has been diagnosed with prostate cancer. It is thought that he can be treated but the best treatment with the least side effects would be radiation and Brach therapy. These are not available in Grenada. Counsel therefore refers to Section 83 of the Statutory Rules and Orders 14 of 1980 gazetted in accordance with section 53 of Act No. 11 of 1980. This section permits the Medical Officer assigned to the prison to report his opinion that a prisoner because of his physical health is likely to be injuriously affected by continued imprisonment.
[95] Ventour has made use of the time of imprisonment to earn improved academic qualifications in the form of Cambridge GCE A levels in Economics, and Accounting and the ACCA Level 1. He has contributed to the prison education programme by tutoring or assisting otherwise in the following inter alia: Business Education, Mathematics at school leaving level, Principles of Accounts and Commerce GCE O level Accounting at Cambridge A level, Prison Small Business Courses, Music and Computer Literacy.
[96] According to his counsel and others who have spoken on his behalf John Ventour’s experience of 24 years has served the requirements of retribution and there has been sufficient basis for rehabilitation. He asks for the immediate release of John Ventour based on the fixed term scale of 20 to 45 years, 36 of which he has already served. He feels that a life sentence for Ventour would be unreasonable.
Colville McBarnette
[97] Colville McBarnette is now 51 years old. He is the son of Jerome McBarnette and Mintrude McBarnette. He was born at Grenville Vale, St George’s where he grew up with his parents. He attended the St Luke’s, the St. John’s Anglican and the Grenada Boys Secondary School where he reached fifth form. He taught at the Anglican Senior School on leaving school for one (1) year. He was a member of the Central Committee of the People’s Revolutionary Government from 1980 to 1983 and was employed as the Secretary for information at the Prime Minister’s Office. He is married and the father of one child. At the time of the offence he was living with his wife at the above address. He has no previous convictions.
[98] Colville McBarnette’s conviction was based on the evidence that the members of the NJM Central Committee met at Fort Frederick and dispatched a contingent of soldiers to liquidate Maurice Bishop and his supporters who were at Fort Rupert. He had also signed a self-incriminating statement in which he said that he and other members of the Central Committee met at an upper level room at Fort Frederick and made a decision to execute Maurice Bishop and others on 19th October 1983. Counsel Mr. Scotland says this made him a minor participant in the murder. But he was convicted by the jury and sentenced to death.
[99] It is important to note that McBarnette was among those who were doing everything between 13 and 19th October to resolve the conflict in the party peacefully. Indeed counsel argues if he and others had wanted to murder Bishop and George Louison they had ample opportunity to do so between 13 to 18 October.
[100] McBarnette suffered harsh conditions in prison while he was on death row for almost 5 years. He suffered the bread and water diet and almost constant confinement. Later he was to suffer the near execution experience when he was told of his imminent execution. He observed and was aware of others being prepared for execution and he himself was prepared.
[101] McBarnette had suffered the unlawful imposition of the mandatory death penalty. He has suffered the death row and near execution experience. The commutation of the death sentence to life imprisonment for the rest of his natural life was another breach of his constitutional rights says counsel for which there should be some redress. Counsel also argues that McBarnette among others had to make an application to the court in 2002 simply to obtain the right to counsel. The subsequently faced delay in an immediate re-sentencing after the delivery of the Judgment in 1994 in which it was held that the mandatory death sentence imposed upon him was unlawful.
[102] The other mitigating factor for McBarnette is his health. He has had to be hospitalized on a number of occasions and he needs medical care that he is unable to receive in prison. The symptoms of what had been diagnosed as severe chronic prostatitis include increased urinary frequency, severe urgency, severe hesitancy, sensation of incomplete bladder emptying and excessive dribbling at the end of urination as well as lower abdominal and perineal pain. Counsel appealed for the application of sections 83 and 84 of the prison rules which permit the Medical Officer to write an opinion about the likely injurious impact of continued imprisonment. Indeed according to counsel the promised improved medical facilities at the prison have in fact deteriorated partly because of the devastation caused by Hurricane Ivan.
[103] Colville McBarnette has written profusely and it is thought that these writings along with his spiritual growth and his contribution to the prison education programme demonstrate the extent to which he could contribute positively to the Grenadian society if he is released. Not unlike other defendants his positive contribution and preparation to reenter society have been the subject of affidavits of ex-inmates, Ministers of Religion and average Grenadian citizens.
Ewart Layne
[104] Ewart Layne is now 49 years old. He grew up at La Digue, St Andrew’s and Richmond Hill St, St George’s with his parents Cornelius Layne and Cynthia Layne. He attended the Holy Innocence St. George’s Roman Catholic Schools and Presentation Brothers College where he reached sixth form. On leaving school he was employed as a teacher at St. David’s Secondary School for approximately two (2) years from (1977-79) he was later employed with the PRA as a soldier and attained the rank of Lieutenant Colonel. He is single and the father of one child. He has no previous convictions.
[105] Ewart Layne was one of the Fort Frederick nine and a member of the Central Committee who gave the order to take control of Fort Rupert and to “liquidate” Maurice Bishop and others. He was sentenced to death for 11 counts of murder for that single act. On appeal the conviction on count 10 was quashed.
[106] Layne was operational commander of the People’s Revolutionary Army at the time of the crisis and had signed a “confession” in which he accepted sole responsibility for issuing the orders to liquidate Bishop and Unison Whiteman upon being informed that soldiers had been killed. He has stated that he was beaten to sign this statement. Nevertheless it is not disputed that Layne had a duty to act in the circumstances to restore order.
[107] Prior to the Revolution, Layne was a devout Roman Catholic and had a passion for justice and service to humanity. He had considered and discussed joining the Presentation Brothers and dedicating his life to the Church. He was lured into the Revolution by a desire to effect change for the good. He abandoned plans to travel and take up residence in the United States to pursue a university education on the request of Prime Minister Maurice Bishop. Based on his commitment and leadership qualities he rose quickly in the ranks of the Revolution and at the age of 21 became a member of the Central Committee. By 1982 at the age of 23 he had risen to the rank of Lieutenant Colonel in the PRA.
[108] Layne was imprisoned for three years before trial in 1986. He went to court known as an individual who was under an obligation to take action and make a decision based on his post in the army. He was one of the youngest members of the Central Committee at the time and had no previous convictions. He was a leader in his community with excellent family background and a record of industry and public service.
[109] As a person convicted of murder and placed in death row he endured torture and harsh treatment. He was removed from the ordinary cells and offered last rights on July 29th 1991 in preparation for execution. Later his sentence was commuted to life imprisonment for the remainder of his natural life. This was a succession of unlawful and unconstitutional acts. His counsel Mr. Cajeton Hood asks that there be redress by way of discount for these constitutional breaches.
[110] Ewart Layne is recognized as the main author of “Reflections and Apologies” a letter written to persons detained and hurt by the Revolution. Excerpts from this letter are quoted elsewhere in this judgment. Layne has excelled academically. He has completed the LLB (Honours) with London University and LLM and enrolled as an ACCA. He has also experienced a spiritual re-awakening and was a member of the first executive of the Prison Chapter of Friends Forever, an outreach programme of the Seventh Day Adventist Church specifically aimed at drug users and addicts. He is a key sports organizer in the prison and has devoted himself to the construction division of the Prison Industries.
[111] After Hurricane Ivan, Layne participated in a number of clean up and reconstruction projects to help to rebuild the prison and enhance the prison environment. Ewart Layne has also assisted with the prison education programme providing assistance to CXC examinees and students pursuing degrees in business management and environmental management with universities in the Caribbean and the UK. His conduct in prison has been described as exemplary.
Leon Cornwall
[112] Leon Cornwall is 53 years old. His parents are Alfred Cornwall (deceased) and Lenesha Cornwall. He attended the St. Paul’s Government and the Grenada Boys Secondary and the St George’s Methodist Schools. He also attended Teachers College. On leaving school he began teaching at the Grenada Boys Secondary School. In March 1979 he left teaching and joined the PRA and attained the rank of Major. He also worked with the Grenada Diplomatic Corps and served as Grenada’s Ambassador to Cuba from 1982-1983. He was married and fathered two children. At the time of the offence he lived at Morne Jaloux, St. George’s with his family. He has no previous convictions.
[113] Cornwall like the other Fort Frederick nine was convicted on the evidence of Cletus St Paul as being one of the members of the Central Committee who agreed to and gave the order to a contingent of soldiers of the PRA to recapture Fort Rupert and kill Maurice Bishop and others at Fort Frederick. Leon Cornwall spoke to the soldiers and then they were sent off to commit the crime. The evidence however also reveals that he was one of the soldiers who tried to stop the crowd from breaking into Mount Wheldale and removing Maurice Bishop before they had one last chance to bring about a peaceful resolution of the crisis.
[114] Cornwall endured all of the hardships of prison life especially while on death row. He suffered the bread and water diet and almost constant confinement for 1715 days. He experienced near execution and found himself prepared for execution and then replaced by someone else which left him feeling very guilty. The mandatory death sentence imposed upon him along with the later sentence of life imprisonment for the remainder of his natural life were both unlawful sentences for which redress should be available along with the other violations.
[115] In prison Cornwall has experienced phenomenal spiritual growth which has taken him back to the fold of the Methodist Church and to the status which calls upon him to preach to other inmates. His progress in this area has been so impressive that Tessica Hackshaw Superintendent of the Grenada Methodist Church Circuit on the behalf of the Methodist Church in the Caribbean and the Americas (MCCA) has invited him to join the regional circuit as a Full-Time Presbyter on being released. Paragraphs 5, 6 and 7of the letter read:
“The MCCA through the Connexional President, Rev, Dr. George McD Muralain, has also expressed willingness to accept you as a Full-Time Presbyter. Given your qualifications, the Church is quite willing to shorten your period of training as well as have you serve in any of the Districts in the MCCA, whenever the opportunity arises.
We assure you of our prayers, Leon. We pray daily for your freedom in order that you would join in this Christian Ministry to build the Kingdom of God through reconciliation and other forms of healing.
May the “Good Lord” deliver and sustain you for His Kingdom and Glory sakes...”
[116] Leon Cornwall has also won the support of former inmates and others who think that he has contributed greatly to his fellow men in the prison, would continue to do so in the wider community and poses no threat to the community.
Hudson Austin
[117] Hudson Austin is now 69 years old and the eldest of the 13 defendants. Austin grew up with his parents Elliott and Elizabeth Austin in St. Paul’s, St. George’s. He attended Morne Jaloux Roman Catholic and the Grenada Boys Secondary School. On leaving school he did various jobs. He held the positions of General in the PRA, Minister of Construction, Member of the Central Committee and Political Bureau of the New Jewel Movement. He received military training in Guyana and Trinidad. He is the father of three, and at the time of the offence he was living with his wife Ann Austin and family at St. Paul’s, St. George’s. He has no previous convictions.
[118] For Hudson Austin who was absent from the courtroom at the time because of illness counsel said he was the eldest of the group being 69 years of age. He is a father and grandfather. His main contribution was the construction of the prison after Hurricane Ivan. Austin helped to rebuild the prison that confined him. Austin has been very valuable and some would say that he is too valuable to permit him to leave. But Austin would give of his knowledge wherever needed in Grenada.
[119] A list of the projects he headed and designed in the prison are:
(i) Laying of inverts on 250 metres of road leading into the prisons;
(ii) Refurbishment of remand block;
(iii) Construction of water tank to supply prison farm;
(iv) Construction of cold room;
(v) Construction of Inmate services Room;
(vi) Construction of turkey and broiler pen and extension of pig pens;
(vii) Construction of water pond for watering animals;
(viii) Major refurbishment of female prison;
(ix) Construction of new concrete roof for section of security wing.
[120] After Hurricane Ivan, Austin’s skills were utilized in the reconstruction of female quarters, the chapel, the library, the doctor’s office, the welfare office, the kitchen, the bakery, Mess Hall, canteen, guard hut, administrative office, main water tank, generator room, front gate infirmary and female prison. Apart from his contribution in this area Austin contributes to the prison education programme especially at the basic literacy level.
[121] At the end of all of Hudson Austin’s review periods the statement appears, exemplary behaviour. Mr. Austin and others have experienced emotional, spiritual, and academic growth and understand the need to satisfy action for loss and suffering and the trauma of the Grenadian people.
Forgiveness and Restorative Justice
[122] Mr. Hamilton QC in his submissions asked the question, what are the objectives of sentencing taking into account all factors agreed to earlier? What is the impact on the victims? What has been the rehabilitative effect of the sentence imposed? A judge would have been well pleased that all would have been fulfilled in the defendants’ progress while in prison.
[123] It is true counsel said, that there is a depth of pain of those who have lost loved ones, and yes there may be the concern of persons who will say that they have not been punished enough. But these men are humbling themselves and coming forward on their knees. They plead for forgiveness. Counsel then spoke eloquently on the issue of forgiveness in the following terms. All major religions had this common thread running through them. That was the need to forgive. He was convinced that we all served one God. Christianity spoke of forgiving 70 times 7. Lewis Smedes in an article titled “Forgiveness: The Power to Change the Past” in Christianity Today, of January 7, 1983 States:
“To forgive is to set a prisoner free and discover that the prisoner was you”
[124] Counsel thought that feelings of vengeance debilitated the situation. Archbishop Desmond Tutu wrote to PM Mitchell in May 2004. He wrote on the situation of the Grenada 17 and asked for the grant of clemency for the sake of magnanimity. Counsel spoke of Nelson Mandela forgiving his captors for all that had been done to him and his followers. He did not think it was the nature of Grenadians to be unforgiving. He implores Grenadians to say, enough is enough! What hope was there in further punishment?
[125] Counsel quoted Romans 12:14 “vengeance is mine said the Lord!” According to Mr. Hamilton, you have to let go and let God! One day the defendants would have to meet divine judgment.
[126] This was indeed a very eloquent presentation on the behalf of the defendants especially Callistus Bernard and Hudson Austin. However what Mr. Hamilton failed to do was to connect this plea to any experience of his own and indeed to the legal system. But there is such a connection. Bishop Desmond Tutu the person credited for much of the success of the Peace and Reconciliation Commission in South Africa in his book “No Future Without Forgiveness” which provided in depth, understanding and analysis of that process had the following to say about that experience:
“We are bound up in a delicate network of interdependence because, as we say in our African idiom, a person is a person through other persons. To dehumanize another inexorably means that one is dehumanized as well. It is not too surprising that, having been involved in a policy as evil and dehumanizing as apartheid, Cabinet Minister Jimmy Kruger could heartlessly declare that the death in detention of Steve Biko ‘left him cold.’ Thus to forgive is indeed the best form of self-interest since anger, resentment, and revenge are corrosive of that summum bonum, that greatest good, communal harmony that enhances the humanity and personhood of all in the community.”
[127] Forgiveness is at the heart of Restorative Justice a modern approach to punishment. As I understand it, Restorative Justice is practiced in some countries in matters such as this when the convicted person meets with a victim or a victim’s relative, with a view to finding some closure to the matter and possible reconciliation. The restorative approach, with high control and high support, confronts and disapproves of wrongdoing while affirming the intrinsic worth of the offender. The essence of restorative justice is collaborative problem solving. Restorative practices provide an opportunity for those who have been most affected by an incident to come together to share their feelings, describe how they were affected and develop a plan to repair the harm done or prevent a reoccurrence. The restorative approach is reintegrative, allowing the offender to make amends and shed the offender label. There is obvious awareness of this process in the judgments of The International Criminal Tribunal for Yugoslavia which mention in terms of purposes and functions of the penalty; building “reconciliation” and the restoration of “true peace.”
[128] This is a process which takes time in the best of circumstances. Unfortunately, I know of no legal mechanism for putting such a process into practice in Grenada. So the fact is that the admonition to forgive, while meaningful, will be of practical significance in Grenada only at the informal level. Nevertheless it may be possible that the mechanisms for Restorative Justice could emerge spontaneously and purely out of necessity. Only time will tell.
General Comments in Mitigation
[129] Generally then it can be said that the defendants have displayed exemplary behaviour, academic achievement and social responsibility during their time in prison. An analysis of their academic achievement reveals application and industry pursuing their studies under difficult conditions.
[130] In addition to this the affidavits in support of the defendants which have not been refuted display a determination to educate, counsel and guide others away from recidivism. Some defendants stand out in this respect, namely Bernard Coard, Hudson Austin and even Callistus Bernard with his poetry. A number of the defendants have also suffered illness and would find it challenging to defeat their health problems while imprisoned; these include John Ventour, Colville McBarnette and Bernard Coard. The issue is what does this mean for their ability to obtain remission and discount in spite of the fact that they have not had any reviews. Their own growing dialogue with the Grenadian people is best reflected in their own voice and the voices of others who have spoken on their behalf. These things should be taken into account and the guidance of Re Cadman [2006] EWHC 586 is instructive in this regard.
Reflections and Apologies
[131] In a letter to all ex-detainees of the PRG titled “Reflections and Apologies” some former leaders of the NJM wrote a formidable exposition of their stance on various matters relating to the Grenada Revolution and its demise. A few extracts will provide some insight into the content and meaning which they intended to convey from the exercise. Under the caption “Your Support In Our Darkest Hours” the defendants stated:
“We will forever remember that in the very difficult days of July –August 1991, when frantic moves were afoot to execute some of us, people like Mr. Leslie Pierre and Lloyd Noel were very vocal against the impending hangings. Their efforts, we are convinced, played a decisive role in overpowering the hanging party, inside and outside the government, in facilitating the courageous actions of Sir Nicholas Brathwaite, Mrs. Joan Purcell and others. We are also aware of the public positions in opposition to the hangings taken by Mr. Maurice Patterson and also Mr. Errol Maintland. During that period and in the years since we experienced the humanity of Commissioner of Prisons, Mr. Winston Courtney, a man who we regard as a remarkable Grenadian. We have heard Mr. Winston Whyte publicly pronounce his willingness to forgive and reconcile. We have been surprised and touched by the public statement by Clem Langdon calling for forgiveness and amnesty in relation to us. Mr. Teddy Victor has been a regular visitor of ours, bringing words of encouragement and support. And we have been deeply touched by his attitude. We have also come into contact with Mr. Raymond DeSouza and Mr. Osbert James. We have been touched by their empathy. And we have come across Kennedy Budhlall, Ras Nang Nang, Reginald Phillip, Kade Layne and many more; and their lack of bitterness has impressed us. On a number of occasions Mr. Jerry Romain has accompanied Bishop Sydney Charles on New Year’s Day to fellowship with prisoners including us.”
[132] Under the caption ‘We Aplogise to the Entire Grenadian People’; the defendants had this to say inter alia:
“We were the ones who created the political and psychological climate and framework outside of which there could and would have been no October tragedy. It was our decisions and choices, strategy and tactics over four and a half years, which created the siege atmosphere. And it was this atmosphere which provided the fertile ground upon which political differences giving rise to a political problem and crisis could so quickly and catastrophically degenerate into a military situation, placing the country on the brink of civil war.
Calls for The Release of the Defendants
[133] There are a number of persons in the Grenadian community who have called for the release of the defendants. They have been impressed by their humility, their helpfulness, industry, spiritual and educational growth. Such persons include former inmates, Pastors, Priests, teachers, businessmen, other well-wishers and prominent persons in the Grenadian society. Among these are Chester Humphrey a former party colleague of the defendants who feels that given the exemplary commitment which he knew the defendants all had for the Revolution he did not believe the defendants would have contemplated or intended actions which to any person in ordinary intelligence would obviously have resulted in the death of the Revolution. Humphrey feels that twenty-three (23) years of imprisonment is a very long time and it probably represents considerably more than the period that would have satisfied the interest of retribution with regard to most of the defendants. The defendants he thought represented no threat to society.
[134] Humphrey noted that the defendants had made good use of their time in prison and have a lot to offer to Grenada and humanity. He pointed to the fact that the three co-defendants who were released from prison on December 2nd, 2006 were immediately reintegrated with their families and into their communities. Within weeks of their release they were gainfully employed. Humphrey also suggested that many leading participants in the Grenadian Revolutionary experiment are holding prominent positions in Grenadian Society and are contributing positively to it.
[135] George Joseph an ordained Deacon of the Maranatha Independent Baptist Church says that he had been convicted of murder in 1978 and sentenced to hang. He was weighed and scheduled to hang on or about March 13th when the Revolution took place. His sentence was commuted to life imprisonment. He says that the years he was in prison with the defendants they were always of exemplary discipline and a source of encouragement and support for him and other inmates. Since 1992 when he visits the prison on a weekly basis to discharge his duty as a Minister of Religion he comes into contact with members of the Grenada 17 in particular Leon Cornwall, Christopher Stroude and Bernard Coard who regularly attend his bible study class and religious service. He continues to admire their discipline and the positive impact they continue to have on the lives of prisoners and on the prison as a whole.
[136] The pastors and priests who have made representations on the behalf of the defendants include Dennis Cooke a Grenadian born Methodist minister, Nestor Wickham, Pastor of New Testament Church of God at Mt. Horne, St Andrew’s, Rev. Robert G. Lindsey of Beamsville Ontario, Canada. Rev. Eduard C. Prinselar also of Canada and the Rev. Gordon Miller of the Berean Bible Church of Grand Anse, St George’s. These persons have spoken to being struck by the spirituality of the defendants the fact that many of them now accept the Christian Faith and the Church. Cooke says this is particularly so of Leon Cornwall and John Ventour. Pastor Wickham speaks of the new life faithful to God that the inmates Leon Cornwall, Bernard Coard, Christopher Stroude and Dave Bartholomew are now living. Rev. Lindsey thinks that the defendants Coard, Cornwall and Ventour have much to offer society as leaders and educators upon their eventual release.
[137] Rev. Eduard C. Prinselar says the following:
“Writings by Bernard Coard, Leon Cornwall and others indicate an acceptance of their role which has contributed to the disastrous conclusion of what had started with a great deal of widely shared optimism and hope. After 24 years of imprisonment and exemplary behaviour during all of that time, the moment of unconditional release should be here.
I have no doubt about the significant contribution Bernard, Phyllis, Leon and Colville are able to make to society during the years that may be left to them. Healing reconciliation and forgiveness will close a chapter in Grenada’s history allowing the country to move forward.
It is therefore without hesitation that I place my name on record as one of those pleading for the release of these men.”
[138] Gordon Miller holds the view that some of the 17(now 13) at the prison should be given a chance to enter life again as any normal Grenadian. He feels they have much to offer the youth and by name he says, Bernard Coard, Dan “ton” Bartholomew, Leon “Bogo” Cornwall, Chris Stroude, Ewart Lane are notable achievers and their spiritual lives have spoken louder than any words uttered.
[139] Winston Courtney former Commissioner of Prisons says he is of the belief that having the defendants incarcerated is a waste of time. They are no risk to society. Indeed he thinks they have a lot of good to offer to Grenada and to humanity. Rev. John A. Dogget says that the defendants have changed in many ways, acquiring skills and achieving excellence. He recommends their release. Leslie Pierre says that he is satisfied that the defendants pose no threat to society if they are freed. In media interviews they have stated, they have no interest in politics and if freed they intend to leave the country.
The Victim Impact Statements
[140] In weighing up the mitigating circumstances against the crime and its impact I have to consider the evidence of various victim impact statements, among them were Mrs. Annie Bain and her sons, Mrs. Claudia Whiteman and Ms. Nadia Bishop. These were very moving statements of the impact the murders of the deceased had on these affected families. Indeed the children of the deceased still feel the pain and hurt and they complain that that there has never been any approach by government to compensate the families for those who died as Ministers of Government. Below are extracts from these statements:
“Mrs. Annie Bain’s statement spoke of the events of October 19th when she met her husband Norris Bain at the Market Square in St Georges where Prime Minister Maurice Bishop was supposed to address a public meeting. She then went up to Fort Rupert after hearing that the Prime Minister had been taken form his house to the operations room at Fort Rupert. She did see the Prime Minister and others at the said operations room at Fort Rupert. She then relates the tale of her husband along with Maurice Bishop Jacqueline Creft, Unison Whiteman and others being taken up the hill by Lester Redhead. She says this was the last time she saw her husband. Mrs. Bain accompanied the wounded Gemma Belmar to the hospital where she discovered that she too was wounded. She heard shots and later hid from a contingent of soldiers who came to search the hospital. On arrival home in Grenville and indeed along the way she heard people saying that her husband and colleagues had been killed at the Fort. She met a massive crowd at her home where people were bawling and wailing that they had killed Norris. She later got confirmation on the radio when Hudson Austin made the announcement.
Mrs. Bain describes being distraught and lifeless, like her heart had been ripped from her body especially when she saw the tears coming from her children’s eyes. She declared that life as she and her family knew it ended that day. She still carries both the physical and psychological scars. But she speaks also of the impact on her children. Her son Colville’s potential was severely curtailed. Her second son Andy was so traumatized that he had to be transferred from Presentation Boys College to a school in the Town of Grenville. The education of her third son Peter who was studying in Cuba ended abruptly and this permanently affected his career plans. Her daughter Yolande who was three months pregnant almost had a miscarriage because of the severe emotional trauma she suffered and the physical trauma she experienced in her attempts to escape the soldiers. She was left to raise the children, attend to the family business and pay large medical bills all on her own because the breadwinner of her family had been executed and his salaries and earnings had abruptly ended. She intimated that all of this has been exacerbated by the fact that the remains of her husband Norris Bain were never returned to the family so that a fit and proper burial could be performed and he could be put to rest in peace.
Andy Bain her son says that it was eight years after the tragic events and through the counseling of Father Ed the parish priest at St Andrew’s Church that he was able to express the repressed anguish and grief which he felt. On his first visit to the Fort to the annual memorial service he completely broke down when the memories started resurfacing. He says that the question which plagues him is “How can I put such pain and grief behind me knowing that my father is dead and the persons responsible for this tragedy are still alive today?” These persons he says were spared from the death sentence and granted life imprisonment and I believe that it should remain that way.
Colville Bain the son of Norris Bain relates being in school in New York when someone told him to call home. He learnt of his father’s death from this person. When he got home he had to bury the pain and hurt and take up the mantle of being the pillar of strength for his family. This took a toll on his body and soon he was using anti-inflammatory and pain killing medication for his back. Today he finds it hard to trust anyone because he has revered Maurice, Bernard, Selwyn and Unison and now he can find no reasons why the closest family of men he knew would destroy their brothers in such a violent act. He complains that his father’s life ended and his assets were frozen. He and his mother had to go through years of legal expenses and affidavits to try to obtain a death certificate because no body was found. At the time he was murdered he said his father was an elected Minister of Government who gave his life for his people. But to date no government had taken this into consideration and sought to make some measure of recompense. Not one penny and not even his father’s belongings from his Ministry had been returned to him.
Peter Bain states: today you men seek freedom without even telling the families of those you killed and dumped about their remains. What heartless men you are. I sometimes wonder if you have families of your own, or if you are God fearing people. Your freedom would once again spells doom for the Grenadian people.
Norris Patrick Bain states: the execution and loss of my father will remain the worse indentation in my life. I was forced to accept responsibility I was never prepared for. Dad to me was a father, brother, my director, my inspiration, we played cricket, table tennis, billiards, snooker, cards, all of this companionship I lost because of some irresponsible behaviour and decision expressed by power crave and trigger happy individuals.
Mrs. Claudia Whiteman the wife of Unison Whiteman says that since October 18th 1983 she has not seen her husband nor heard anything about his body. The atrocious act was a nightmare. It has set her back years and it is very difficult for her to participate in any activity related to that disastrous event. It has affected her mentally, physically and financially. Her children who were at the time 6 and 11 were badly affected. She says they lived in hell and fear being harassed for a long time even to the present. In her opinion forgiveness does not mean release or freedom. People should be made to pay the maximum penalty for crimes committed, whether they are forgiven or not, especially crimes of this magnitude. Let them continue to pay for what they did and let people get on with their lives and not be reminded of this atrocity over and over again.
Pamela Cherebin the daughter of Unison Whiteman states that her sisters never really got to know their father and have suffered emotionally because of loss and the way he was taken from them. At the time of the events she says she was in her final stage of nursing school but was so greatly affected by the memories and fear that she was unable to continue and eventually left the programme never to return. The wounds from the loss are still open, as members of the family still find it hard to talk about the events of October 19th. She has spent 24 years of waiting for the release of the remains and the pain has not eased. She has forgiven the men convicted of killing her father and bears them no ill will, but it does not change the fact of what their actions cost her family.
Sylvia Belmar speaks about her daughter Gemma Belmar and the fact that she went into hiding and was able to see her daughter in her seventeen days in a vegetated state on her hospital bed only four times. She was not around to hold her hand and whisper goodbye in her ears. She says her son became hallucinated after the tragedy and she had to send him to Canada for treatment. He was later diagnosed with schizophrenia. She went to visit him in hospital in Canada and she fell ill herself. She was subsequently diagnosed with depression. She started to have panic attacks with uncontrollable crying. She was diagnosed with post traumatic stress disorder. She suffered side affects of her medication and now suffers from Parkinson’s disease which affects her nervous system.
Sylvia Belmar says she felt suicidal after her son passed away in 1999 from the same illness he had developed after the tragedy. She also felt betrayed in 1999 after hearing that the defendants would be freed. The gruesome slaying of her daughter and the others kept replaying in her mind. The condition of Avis Ferguson’s body, lying on the floor and the bullet which entered her daughter’s head, that drained every bit of blood and brain from it.
Nadia Bishop the daughter of the late Maurice Bishop stated that she chose to focus on last days of her father’s life rather than on the pain and sorrow and loss so that the court may feel the measure of loss to her and her family. She focused on the decades of passionate and dedicated service to Grenada and her father’s vision of what all Grenadians could accomplish as a people. Even on his last day she says Maurice Bishop’s love for his people was undiminished and he was more concerned about the safety of his beloved people, than his own. Maurice Bishop taught her that love could make a difference in the world and his love made a difference in the lives of ordinary Grenadians who had never before had access to education, to health care, to a transformative vision for their lives. This legacy he has left his beloved Grenadians, not only in the form of social reforms, but as a beacon and challenge to the youth.”
Decisive Issues
[141] At this juncture it is important to set out the issues which must be resolved if we are to successfully follow the guidelines laid down in the Privy Council decision Appeal No. 10 of 2006. I identify these issues as follows:
- (a) Can a review process be guaranteed to the defendants?
(b) What is the response to the defendants’ progress?
- Other issues which require resolution are:
(a) If the death penalty applied to the case in 1986 based on the evidence, were there any mitigating circumstances?
(b) If a life sentence is to be imposed how can that now work in light of the Privy Council’s statement of the Government’s position?
(c) How would the defendants’ progress observed and not refuted affect any fixed term imposed?
(d) Is it true that persons benefiting from commutation in the past were released after 15 years? If so why would this not apply to the defendants?
(e) Points ancillary to the above.
Aggravating And Mitigating Factors - The Brutality of the Crimes
[142] In response to the outline of these issues and in his prepared submissions the learned DPP stressed the brutality of the crimes and argued that the defendants showed no mercy to the deceased. He rehashed the words “no fucking Prime Minister in this time!” spoken to Maurice Bishop by one of the executioners after Bishop asked for a cigarette; and “Keith Haylin you join the line … you is a fucking Bourgeoisie too.” Among the group was a pregnant Jacqueline Creft. She was not spared because of her pregnancy.
[143] The bodies according to the evidence were ripped up and torn up after the concentrated fire from the machine guns. Pieces of flesh were on the wall. The fire service had to be called in to wash away the remains. The bodies were rapped in blankets dumped on a truck and taken to Camp Calivigny where they were burnt with oil and car tyres. According to one witness they crackled like fried eggs. The bodies were not returned to the families of the victims. The DPP also spoke of other deaths that occurred, the cutting of Maurice Bishop’s throat and finger by Lester Redhead among other things which aggravated the murder.
[144] It must be observed however that many of these facts were not necessary to the conviction of the defendants for murder. Counsel for the defendants Mr. Fitzgerald cited Archbold Edition at 5.67-5.70 where the learned author states that as a matter of principle, a defendant falls to be sentenced for the crime of which he is convicted, and not for other crimes which were not the subject of any counts on the indictment. It is for the Prosecution to establish any aggravating factors and any doubts should be resolved in favour of the defendants ( R v Newton).
Concessions Re: Mitigating Factors
[145] In this regard the observation must be made that the DPP made a number of concessions these were 1. That there was a violent confrontation and that soldiers on both sides were killed. 2. He accepted that it may well be that the Fort had to be recaptured and that force was necessary for the recapture. 3. He accepted that shots may have come from the armed civilians on the Fort. 4. He did not dispute that events took place within a short time frame though he said that, Fabien Gabriel is to be believed there was an hour lull. 5. He accepted that the remains of the deceased may have been removed by what he called the “Yankee” forces and 6. That there was some mitigation in the background context because of the seizure of the Fort by Bishop supporters and the fact that it was an army headquarters. 7. In the cases of Stroude, Prime and Redhead there was no participation in the decision to execute nor the actual shooting. I believe that these concessions were proper in the circumstances. In the case of point 7 the Prosecution would have to decide in a mitigation hearing which facts they accept. It would not be possible to accept contradictory accounts of the facts in relation to the role of the soldiers who were not Central Committee members and who did not rip bodies apart with their guns.
[146] Counsel for the defendants further submitted that this was a situation of civil strife and not a long premeditated killing as in Julius Ceasar. Both sides were armed. Soldiers were disarmed and stripped at the Fort and soldiers sent to recapture the Fort were shot and killed. This is supported by evidence given at the Preliminary Inquiry. Leslie Pierre in his affidavit also speaks of Alister Huges in an interview confirming that the shooting came first from the civilians. No one was ever prosecuted for killing these soldiers. It is common in situations of Civil War that violent reprisals often occur and these are the kind of circumstances in which Maurice Bishop and others were killed. This is supported by the statement of Callistus Bernard. This is why he refers to the Yugoslavian cases as proper references on suitable sentences.
Where are the Bodies?
[147] There were statements produced at the hearing which imply that the bodies of some of the persons who were executed at Fort Rupert were buried at Camp Calivigny . However there is also evidence of the removal of some of the remains of those bodies from that spot. The US authorities deny that these include the bodies of Jacqueline Creft and Maurice Bishop. However a former Jamaican Defence Force officer stated that the bodies of these persons and others were removed from the grave at Camp Calivigny by the Americans.
[148] The defendants, while regretting not turning over the bodies at the time because they held the view that funerals would become rallying points for political opponents state that they cannot account for what happened at Camp Calivigny after the Americans arrived in Grenada and took charge of these sites.
[149] Earl Brown the Jamaican soldier mentioned above says that he took part in the digging up of bodies and that the bodies of persons such as Maurice Bishop were still identifiable. The American pathologist was not able to verify this but he does accept that some remains were found.
Relevance of the Death Penalty
[150] It is common grown between the parties that the death penalty is not applicable to this case because of the length of time for which the defendants have been held in prison under sentence of death and indeed thereafter for 23 years. To take any further steps in the direction of the death penalty would obviously be met with the objection that it constitutes inhuman and degrading punishment. The guidelines laid down in Pratt v AG for Jamaica (PC) have been adopted into the practice in the Eastern Caribbean Supreme Court in the case Mervyn Moise v The Queen Criminal Appeal No. 8 of 2003. In Moise’s case the appellant had been on death row 4 years by the time the appeal against sentence was heard. Rawlins JA said in the circumstances that this was sufficient to bring the case within the Pratt and Morgan principles. Rawlins JA also held that the case fell within the Guerra special circumstances rule because during the 4 years on death row the appellant had laboured under a mandatory death sentence 3 years and 4 months after the ECSC Court of Appeal had held in April 2001 that it was unconstitutional and unlawful.
[151] Counsel for the Prosecution argued that in spite of these contraventions of the constitution the court still imposed a life sentence, rather than giving a discount and term of years. But it can be observed that this was in a case where there was no evidence of the redeeming qualities of the appellant and there had been no direction from the Privy Council to take the progress of the appellant into account, nor was there any misgiving about the executive’s ability to review the sentence of the appellant.
Indian And South African Jurisprudence
[152] Director of Public Prosecutions Mr. Nelson pointed out that in Moise Rawlins JA did say that the death penalty was to be reserved for extreme cases and those for whom there was no hope of reform. However Rawlins JA had also said that two considerations governed the decision to sentence to death or otherwise, these are firstly the circumstances of the case and the mitigating factors. He argued that in the Eastern Caribbean the court is guided by the Indian jurisprudence. In India the guidelines are laid down in a number of cases and in those cases where the crimes are heinous and have the features of this case the death penalty is applied. Counsel argued that this was also the position of the South African cases. In the case State of Rajasthan v Kheraj Ram [2003] 3 LRI 692 The Supreme Court of India (Criminal Appeal Division) stated at paragraph [39]
“In rarest of rare cases when collective conscience of the community is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability of retaining death penalty, death sentence can be awarded. The community may entertain such sentiment in the following circumstances:
When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse and extreme indignation of the community.
…………………………………………………………………………………
When the crime is of enormous proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality are committed.
When the victim of a murder is an innocent child, or a helpless woman or old or infirm person or a person vis-à-vis whom the murder is in a dominating position or a public figure generally loved and respected by the community.”
[153] The learned DPP also cited Krishna Mochi and Others v State of Bihar [2002] 2 LRI 361 where a similar approach was adopted. Counsel also cited the ECSC Cases Francis Phillip & Kim John v R CA No. 4 of 2003 [St. Lucia] Kyron McFarlane v R CA No 4 of 2002 (Grenada) and Harry Wilson v R CA No. 30 of 2004. All of these were of a kind which called for extreme punishment and retribution was to play a decisive role in the sentencing process. The killings in these cases including setting a priest on fire, mutilating a Swedish tourist and raping her and the perpetrator in Wilson murdering his two year old daughter and attempting to murder his wife. In Berthill Fox v R (ECSC) CA No. 40 of 1998 Unreported (St. Kitts), Mr. Fox had shot two women in cold blood his death sentence after the re-sentencing process was replaced by life imprisonment.
[154] Counsel for the defendants pointed out however that the Eastern Caribbean Supreme Court Jurisprudence has gone beyond the Indian cases and the conditions fit for imposition of the death penalty are now proscribed by the dicta that the death penalty should only be imposed in those exceptional cases where there is no reasonable prospect of reform and the object of punishment would not be achieved by any other means. The crime must be very grave and the offenders must be beyond “reasonable prospect of reform”. Counsel said this was not the case here. Put differently I have now been able to see the future and the prospect of reform in the progress the defendants have made.
[155] I have weighed the evidence of the circumstances of the murders against mitigating circumstances and conclude that in most instances the death penalty would have been applicable as an appropriate sentence to be imposed on the defendants in 1986.
Contrition and Remorse
[156] Counsel for the Prosecution Ramish Maharaj SC argued that in the Yugoslavian cases which counsel for the defendants cited the sentences were based partly on the defendants’ remorse. Such remorse had not been shown by the defendants in this case he submitted. Counsel opined that in the cases from the International Criminal Tribunal for Yugoslavia the fact that some of the defendants were remorseful was specifically identified as a relevant consideration in their relatively moderate sentences. Counsel Mr. Fitzgerald accepted that this was a consideration but referred to the case Prosecutor v Naser Oric Case No. IT-03-T, 30 June 2006 a decision of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991. In this decision the court in response to a submission by the Prosecution that the accused had shown no remorse remarked that the appeals Chamber had held that an accused can express sincere regrets without admitting his participation in a crime and this is a factor which can be taken into account accepted. Counsel for the defendants in his response said that while it is true that the defendants have not admitted guilt, they have shown remorse for the moral responsibility. An acceptance of legal responsibility has to be based on an individual’s view of the facts and the relevant law and in this case one has to consider that perhaps they are not admitting legal guilt because they are not guilty.
Consequences of Constitutional Breaches
[157] Counsel Lawrence Maharaj also pointed to the argument that some discount should be given for constitutional breaches. He first said that in the Canadian cases it appeared that the courts only provided remedies for constitutional breaches in criminal proceedings when the breaches are deliberate. In particular he was referring to the cases which were cited by the defendants counsel Regina v Dennison (1990) 60 CCC (3rd) 342 and Regina v MacPherson 100 CCC (3rd) 216. In Dennison for example the issue was the failure to accord the right to speak. Counsel for the defendant had argued that the Court had held that the sentence for attempted murder be reduced meaningfully as a result of the constitutional breach. But Mr. Maharaj argued that this was done because the failure to accord the right was deliberate. While the facts of the cases referred to in this hearing may seem to imply that such is the norm it is known that the Canadian Courts have in recent times ordered remedies in favour of litigants in criminal trials where there is delay as a result of institutional deficiencies which are not deliberate. Such a case was R v Card Ontario Superior Court of Justice 6th February 2007, reported in Commonwealth Judicial Journal Vol. 17 No. 1 June 2007. In this decision Stinson J made reference to the guidelines in Morin and Askov. He referred to the decision of Nordheimer J in R v Osei January 30, 2007 in the following terms:
“On the issue of the failure of the trial to proceed in the Superior Court as scheduled due to lack of judicial resources, the decision in Askov also makes it clear that delay caused by the lack of institutional resources is delay for which the Crown must bear the responsibility since it is the Crown that is responsible for the provision of those resources.
In addition to all of these consideration of course, is the fact that the guidelines in Morin, following on the decision in Askov, have now been with us for about 15 years. We are not then faced with a situation that is unknown to the Crown or one for which the Crown is not on notice respecting the consequences if the directives of the Supreme Court of Canada are not respected. Notwithstanding that fact, here we have a fairly straightforward case where the preliminary hearing and the trial both occur outside of those guidelines. They both result from a lack of institutional resources.”
[158] In R v Morin [1992] 1 SCR 771 the factors relevant to deciding whether the right to trial within a reasonable time had been infringed were identified as follows:
1. The length of the delay;
2. Waiver of time periods;
3. Reasons for the delay;
(a) inherent time requirements of the case,
(b) actions of the accused,
(c) actions of the Crown,
(d) limits of institutional resources.
It therefore cannot be said that the breaches of Constitutional Rights at least in the Canadian constitutional framework have to be deliberate to attract remedies such as a stay of proceedings which was granted in Card because in Mr. Card’s case a delay of more than 17 months elapsed between the date of arrest and the completion of the preliminary inquiry. This delay attributable to institutional delay and to the Crown were responsible for more than 12 months of that delay, two to four months in excess of the Askov-Morin guidelines, in addition there was a 14-month delay in the trial proceeding before the court, which was six to eight months greater than the Askov-Morin guidelines.
[159] Mr. Maharaj argued that not every constitutional breach creates an entitlement to a remedy. The breach of a right prior to the right being established in law, need not be compensated. He noted that in Maharaj v Attorney General of Trinidad and Tobago (No2) [1979] AC 385 at 399 Lord Diplock in referring to erroneous judicial decisions remarked: “The fundamental human right is not to a legal system that is infallible but to one that is fair.” In this regard he argued that the illegal imposition of sentence of death and delays in delivering the decision of the Court of Appeal would not require a remedy. However, I think that the consequences involved in erroneous decisions which can be appealed and the erroneous imposition of the death penalty which was almost carried out are two totally different things. The Privy Council did not take the unlawful death sentence lightly. At paragraph 29 of the decision in Privy Council Appeal No. 10 of 2006, the learned Law Lords stated that if the appellants were still at risk of execution, there can be no doubt that the Board would not allow the principle of res judicata to stand in the way of granting relief to prevent the carrying into effect of an unlawful sentence.
[160] I agree with counsel for the defendants that this was no mere error of law but a series of determinations and delays which caused the defendants much suffering. I agree with counsel for the defendants that an error of law which may result in loss of property or freedom will not necessarily be treated as a constitutional breach and can be remedied for example in damages under the law of tort, or in some cases there may be no remedy. However an error which causes persons to be subjected to the death row and face the possibility of hanging within days or hours cannot be equated with just any breach. The same thing goes for an error which permits the defendants to remain on death row while there is undue delay in dealing with their appeal. However I accept that part of the remedy in the latter case is the commutation of the death penalty to life imprisonment such as flowed from the decision in Pratt & Morgan. In that regard I do not find cases such as Mills v HM Advocate [2004] 1 AC 41 and Boolell v The State [2006] UKPC 46 very helpful.
[161] Counsel for the defence observed that this case is totally different to the circumstances of Chokolingo v Attorney General of Trinidad and Tobago which referred to a mere misunderstanding of substantive law, which does not constitute a breach of the constitution. He referred to cases such as Pratt, Hughes, Adolph Harris Claim No. 339 of 2006 of the Supreme Court of Belize and the Canadian Cases in aid of his submission to demonstrate the way in which Commonwealth Courts have provided remedies for breaches of constitutional rights
[162] In Harris Chief Justice Conteh referred to the decision of De La Bastide P. and Saunders J of the Caribbean Court of Justice in the appeal Attorney General et al v Jeffrey Joseph and Lennox Boyce delivered on 8th November 2006 and reported on the CCJ’s website: http://www.caribbeancourtofjustice.org/judgments.html where in Reference to Pratt the learned judges opined:
“We respectfully endorse without reservation the proposition that the practice of keeping persons on death row for inordinate periods of time, is unacceptable and infringes constitutional provisions that guarantee humane treatment. In this respect Pratt has served as an important reminder to all that the constitution affords even to persons under sentence of death, rights that must be respected and that the true measure of the value of those rights is not just how well they serve the law-abiding section of the community, but also, how they are applied to those for whom society feels little or no sympathy”
[163] The leaned DPP had submitted and I accept that there would not necessarily be redress for harsh prison conditions and some delays as is John Junior Higgs and David Mitchell v Minster of National Security Privy Council Appeal No. 45 of 1999 where it was held that there are other means of redress for harsh prison conditions and delays.
Burden of Proof In Mitigation
[164] In Moise Rawlins JA stated that the convicted person is to raise mitigating circumstances at the sentencing hearing by adducing evidence unless the mitigating factors are obvious from the evidence given at trial. The burden to rebut the presumption then shifts to the Crown. The Crown must negative the presence of mitigating circumstances beyond a reasonable doubt. The duty of the sentencing judge is to weigh the mitigating and aggravating circumstances that might be present in order to determine whether to impose a sentence of death or some lesser sentence. In this case the sentence of death is not possible therefore the weighing would be to determine the sentence of life imprisonment or some lesser sentence.
[165] The Prosecution has pointed to the brutality of the crimes and the fact that the bodies were not returned along with certain non essential things such as the cutting of Bishop’s throat and his finger by Lester Redhead. Counsel Maharaj SC even argued that the crimes may have been long premeditated since there was evidence form Cletus St. Paul about a conversation he had with Callistus Bernard in which Bernard asked him how he knew what they were planning, this was a basis for the view that the crime was long premeditated and not a response to the shocking turn of events in which Maurice Bishop and others took over the army headquarters on October 19. Be that as it may the fact is that it was not necessary to go into these things to prove murder and one cannot be sure about the basis of the jury’s decision to return a guilty verdict. In Moise Rawlins JA observed that a sentencing judge can only draw such reasonable inferences from the facts which he or she finds from the evidence that are relevant to the circumstances of the offence.
[166] In Moise Rawlins JA outlined the essential components of the sentencing hearing process. He said the following:
“It is a mandatory requirement in murder cases for a judge to take into account the personal and individual circumstances of the convicted person. The judge must also take into account the nature and gravity of the offence; the character and record of the convicted person; the factors that might have influenced the conduct that caused the murder; the design and execution of the offence, and the possibility of reform and social re-adaptation of the convicted person.
………………………………………………………………………………………
In summary, the sentencing judge is required to consider, fully, two fundamental factors. On the one hand, the judge must consider the facts and circumstances that surround the commission of the offence. On the other hand, the judge must consider the character and record of the convicted person. The Judge may accord greater importance to the circumstances, which relate to the commission of the offence. However, the relative importance of these two factors may vary according to the overall circumstances of each case.”
In this case it seems clear that the relative importance of the character and progress of the defendants after 23 ½ years of imprisonment grows exponentially.
Conclusion
[167] Having reviewed the legal submissions, and considered their impact on the circumstances of this case. It remains my view that I am still bound to follow the directions of the Privy Council delivered in their decision in this matter on 7th February 2007. The Privy Council made it clear that that the Review Board had not functioned in spite of a rebuke by Benjamin J that the situation was “unsatisfactory and inexcusable”. Their Lordships expressed the view that if the Board had failed to function because it assumed that the terms of the warrant of commutation precluded any possibility of release then this was a misreading of the terms of the warrant. They also expressed the view that the question of the appellants’ fate is so politically charged that it is hardly reasonable to expect any Government of Grenada, even 23 years after the tragic events of October 1983, to take an objective view of the matter. This made it more important that the determination of the appropriate sentence for the appellants, taking into account such progress as they have made in prison, should be the subject of judicial determination.
The Option of life Imprisonment
[168] It is true that the decision does not explicitly state that the sentence of life imprisonment has been ruled out. But if it were to be considered seriously I believe it would have occurred to the Privy Council just as it has been agreed by the parties in this case that the death penalty does not apply and therefore the matter could only proceed on the basis that at this juncture the court would not be considering the mitigation of the death penalty but only a lesser sentence. That being the case the suggestion which arises is that the Privy Council has recognized that a possible sentence of life imprisonment is to be mitigated “taking into account such progress as they (the defendants) have made in prison”.
[169] In my view, to say that I have taken the defendants’ progress into account but then declare that the sentence is life imprisonment, is to rubber stamp the status quo and hand the defendants over to the executive for their discretion in spite of the Privy Council’s misgivings. Such a decision would be totally illogical and would constitute a rejection of the Privy Council’s ruling vis-à-vis taking into account the progress the defendants have made in prison. I do not therefore see how a judge bound by the decision of the Privy Council can consider imposing a sentence of life imprisonment at this juncture.
Statements of the Government
[170] Members of the Government of Grenada have found it fit to make public statements intimating that they will not be releasing the defendants from prison. They have done this even though the courts have told them that their failure to convene a Board of Assessment to assess the progress of the prisoners is unacceptable. They ignored this admonition from Benjamin J, ignored it from the Eastern Caribbean Court of Appeal and again ignored it when the Privy Council made mention of it in the context of their observation that no government of Grenada could now deal with the defendants objectively. Yet during the hearing they promised me that they would now convene such a Board in two weeks. In my view this was too little too late, and one can only assume that the Board would either not function or function only to rubber stamp the will of the government of the day. It therefore follows that the only logical sentence now available to a sentencing judge properly exercising his discretion and taking into account the purposes of sentencing would be a term of years since to sentence the defendants to life imprisonment would be tantamount to handing them over to the whim of the executive which the Privy Council feared was unable to deal with them objectively. The court takes into account the statement of Mr. Elvin Nimrod Attorney General made at a public meeting in Carriacou on June 10 to the effect that even if the court said the defendants should be released the New National Party is standing firm to keep them there. The relevant part of this statement was reported verbatim in attachment to an affidavit of Chester Humphrey sworn on 18th June and filed on 19th June, which had been copied from the New National Party’s Website. It states:
“We have spent millions of dollars to make sure that we protect this country. But is the opposition. The opposition that is fighting to release the people on the hill; let me say when the time comes, if the court decide that they must be released, let us make it clear that Keith Mitchell and the New National Party is standing firm to make sure that we keep them there, because they have committed crimes against our country, and we will do everything necessary and appropriate - because now, as of today we have employed the best legal minds to fight with the opposition because the opposition with Ruggles Ferguson, Peter David, Nazim Burke-they’re trying to release the guys on the hill. We are saying that we cannot afford to do this. We are fighting to keep them on the hill my dear people; help us to keep them there.”
[171] In the words of Conteh CJ in R v Adolph Harris I do not feel comfortable or confident that a term of life imprisonment would necessarily spur the authorities to action.
Consecutive Sentences
[172] Although I understand that there were two acts considered to be acts of murder in the trial I cannot see the benefit of the imposition of consecutive sentences after 23 years. A sentence when imposed at the time of the conviction has an immediate impact on the convicted persons, the victims and their relatives and the community in general. But 23 years after the event this is blurred by the passage of time and diminished interest in the case. It is also blurred by any progress which the defendants have already made while imprisoned, having already suffered punishment. We should also distinguish this case from one in which the defendants are apprehended and tried for the first time decades after the commission of the offence. In such a case justice proceeds to impose the penalty from the date of trial in spite of the lapse of time passed between trial and the actual crime. In this case the highest penalty was immediately imposed and would have had its effect there and then. It is also true that very few sentencing judges would be able to see the future as I have seen and be able to reflect on the possibility for reform which I have been able to reflect upon. In any event the decision to kill Maurice Bishop was one act which resulted in multiple deaths. It is not the series of acts that the actual shooters were convicted of.
[173] In this context therefore I think it should be said that this case tells a story of the marriage of strange bedfellows namely hope and despair. The revolution ushered in hope for those involved and those who supported it, but it ended in despair. After 23½ years in prison there is hope that the defendants have progressed in a positive manner and can reenter the society which made it possible to achieve the goals they set for themselves while in prison, but this is confronted with the despair of a possible life sentence, based on the statements of government ministers, without any hope of reprieve on the part of the government, by way of a Board of Review decision in their favour. To end the cycle of hope and despair I think that the opportunity should be given at some time for these defendants to reenter society and make a contribution. This may not be done immediately but I think that the decision of the court should reflect the hope that it will be done some time in the future.
Sentencing Practice in the Eastern Caribbean
[174] Generally sentencing practice in Grenada and the Eastern Caribbean is guided by the consideration of deterrence and prevention, just punishment and retribution, and the possibility of reform. In this case there is evidence of all of these factors operating in the case of each individual defendant. The question therefore would be whether anything more is required to meet these considerations including of course the application of the Mervyn Moise guidelines. I accept that from the outset this case called for a high degree of retribution and there has been such just retribution.
[175] In considering a fixed term sentence it is also evident that in a number of cases that the Eastern Caribbean Supreme Court on the review of sentences has directed that the sentence should run from the time of the arrest and charge with the offence for which the defendant has been convicted The court will follow that practice in this case.
[176] I have been given notice of the decision of Edwards J as she then was in The Queen v Alexander Deterville, Suit No. 43 of 2003. I am not bound by this decision. However it appears to confirm the view that normal term of a life sentence has been 20 years imprisonment in the Eastern Caribbean and that a review should be given of any sentence which exceeds 20 years. Indeed not a single case was cited from the Eastern Caribbean in which any mentally competent person convicted of murder and sentenced or commuted to life imprisonment, had spent more than 20 years in prison.
[177] I note the evidence of William Courtney that persons who had their sentences commuted to life imprisonment were released after 15 years. This has not been contradicted. But I do not accept that all cases of life imprisonment in Grenada must end after 15 years. I do not consider myself to be bound by the tariff system of the UK in which persons who review sentences are not politically influenced. I accept it can provide helpful guidelines as indeed can be obtained from the case of the International Criminal Tribunal on Yugoslavia. But I am bound by neither. I also reject the idea that the defendants should be sentenced at this stage as one would sentence a terrorist in England or the United States. Indeed it should be obvious that the terrorists are differently motivated and would not have shown clear signs of reform or progress at the time of their sentencing. But yet we have heard recently of the release of a convicted terrorist in Germany.
The Sentence
[178] The sentence of this court calculated to reflect the seriousness of the offences, the defendants’ previous good character, just retribution, deterrence, prevention and reform following Mervyn Moise above; also reflecting a meaningful reduction for constitutional breaches; the defendants’ progress over the last 23½ years and their exemplary conduct in prison, noting the approach of the Canadian cases Regina v Macpherson, Regina v Dennison and Adolph Harris v The Attorney General of Belize Claim No.339 of 2006 is forty (40) years imprisonment with hard labour. But there are three exceptions to this sentence.
[179] In the cases of Cecil Prime, Christopher Stroude and Lester Redhead, the sentence of the court is 30 years imprisonment from the date of their detention, since they played a lesser role in the offence according to the evidence. Also it clear that they were not in any way responsible for the deaths of the persons identified in counts 9-11. Indeed it must have been that they watched to ensure that the executions were carried out according to orders. They would have been obeying these orders and would ordinarily have been subject to the section of the Criminal Code which stipulates that persons in such a position should be convicted of manslaughter.
[180] The sentences of 40 years and 30 years imprisonment respectively running concurrently on each count are to be recognized as sentences which would ordinarily have been imposed at the end of the trial in 1986. But there is now an established practice in the Eastern Caribbean for the court to order that the sentence should run from the date of detention or remand. The most recent instance of this that I am aware of was in the Criminal Appeals Nos. 4, 5, 6 and 14 of 2006 of St Christopher and Nevis where the court ordered the sentences of 10 years for attempted murder imposed on Kenneth Mills, Kurt Mills, Antwon Thompson and Leon Norford to run from the date of detention. I adopt that practice in this case and the sentences shall run from the date of detention or remand by the court as I earlier intimated.
[181] The individual terms of imprisonment therefore are:
Bernard Coard 40 years, on all of the relevant counts, to run concurrently,
Lester Redhead 30 years, on all relevant counts, to run concurrently,
Christopher Stroude 30 years on all relevant counts, to run concurrently,
Callistus Bernard 40 years on all relevant counts, to run concurrently,
Selwyn Strachan 40 years on all relevant counts, to run concurrently,
John Ventour 40 years on all relevant counts, to run concurrently,
Colville McBarnette 40 years on all relevant counts, to run concurrently,
Ewart Layne 40 years on all relevant counts, to run concurrently,
Leon Cornwall 40 years on all relevant counts, to run concurrently,
Liam James 40 years on all relevant counts to run concurrently,
Dave Bartholomew 40 years on all relevant counts to run concurrently and
Hudson Austin 40 years on all relevant counts to run concurrently.
[182] In all cases where the defendants are to remain in prison for more than 2 years I recommend that there be a review of their sentences by the Prison Review Board within two years in accordance with the prison rules since a 40 year sentence is a fixed, and long term sentence which is the equivalent of two consecutive life sentences, in the Eastern Caribbean.
[183] Defendant Hudson Austin should be considered for special remission for his exemplary conduct in prison and service to the prison and to the Grenadian community for the role he played in rebuilding the prison after the passage of Hurricane Ivan and the assistance to the prison generally in the areas of building and maintenance.
[184] In the special case of John Ventour who suffers from prostate cancer I recommend a Prison Board review within 6 months or as recommended by the medical officer assigned to the prison, in light of his health issues.
[185] I also recommend that there be a Board review of the sentence of Colville McBarnette within 12 months or as recommended by the medical officer assigned to the prison in light of his health issues.
[186] I hope that no moment will be spared by the defendants in supporting efforts to bring healing to the wounds of the victims’ families, and all of the people of Grenada who have suffered as a result of their deeds.
[187] I regret that I was unable to achieve the delivery of this judgment in two weeks as promised and I apologize for the delay but the pressure of work placed that target out of reach. Nevertheless it cannot be said that the parties had to wait an inordinately long time for the judgment. I thank counsel on both sides for their hard work and industry in guiding me through this difficult assignment.
Francis H V Belle
High Court Judge
