The Role of the Court
Lord Bingham in ex p Coughlan observed that �the courts’ role in relation to the third category is still controversial; but, as we hope to show, it is now clarified by authority.’[633] Notwithstanding the CCJ’s very limited review of the case law relating to substantive legitimate expectations, it was able confidently to assert that:
In matters such as these, courts must carry out a balancing exercise.
The court must weigh the competing interests of the individual, who has placed legitimate trust in the State consistently to adhere to its declared policy, and that of the public authority, which seeks to pursue its policy objectives through some new measure. The court must make an assessment of how to strike the balance or be prepared to review the fairness of any such assessment if it had been made previously by the public authority. [634]The CCJ then proceeded to apply that test to the factual matrix before it. It noted that, on the one hand, there was the legitimate expectation of the condemned men that they �will be permitted a reasonable time to pursue their petitions with the Commission with the consequence that any report resulting from the Inter-American process will be available for consideration by the Barbados Privy Council’;[635] whereas, on the other, �there is whatever the state may advance as an overriding interest in refusing to await completion of the international process before carrying out the death sentence.’[636]
The CCJ noted that apart from the time constraints of the Pratt[637] time limit, the Barbados government claimed �no overriding interest in putting the condemned men to death without allowing their legitimate expectation to be fulfilled.’[638] It therefore concluded that:
In our view, to deny the substantive benefit promised by the creation of the legitimate expectation here would not be proportionate having regard to the distress and possible detriment that will be unfairly occasioned to men who hope to be allowed a reasonable time to pursue their petitions and receive a favourable report from the international body. The substantive benefit the condemned men legitimately expect is actually as to the procedure that should be followed before their sentences are executed.
It does not extend to requiring the BPC to abide by the recommendations in the report.[639]The CCJ agreed that the substantive legitimate expectation that the condemned person had was to the procedure that they expected to be followed in their case, and presumably in for all persons on death row whose cases were before an international body. The CCJ recognized that the state had no compelling interest, apart from abiding by the Pratt guideline, which, it noted, was never meant to be applied as rigidly as it seems to have been applied by Caribbean courts and administrators of justice alike.[640] Since the legitimate expectation was to a substantive right (although, exceptionally, it was to a procedure under the relevant treaty) where broader political issues and considerations would hardly militate against giving effect to it, the decision of the CCJ in Joseph does not risk fettering the discretion of the executive or assuming the mantle of the decision maker.
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