Retired Chief Justice of Barbados Sir David Simmons is pushing hard for the region to adopt the Caribbean Court of Justice (CCJ) in its appellate jurisdiction, as he slammed public suggestions that Privy Council judges are infallible and their judgments are superior those from the CCJ.
Speaking in Antigua and Barbuda at an education campaign on the CCJ in preparation for a referendum , he pointed to the period 1994 to 2007, when a series of cases decided by the Privy Council (JCPC) reflected “flip flop” decisions with respect to the imposition of the death penalty, starting with the Pratt and Morgan  2 AC 1 case in Jamaica.
“This belief that the judges of the privy council are infallible, don’t make mistakes, is a joke. Between 1994 and 2007, they reversed themselves so often, and often on the same point that you couldn’t believe that that was what was happening at the highest level, the apex of our judicial system,” Sir David said.
He said the record in the case of Neville Lewis v The Attorney General of Jamaica in 1999 outlines Privy Council Judge, Lord Hoffman’s dissenting views on the matter concerning death penalty law, and concerning the relationship between International Law and Jamaican law.
“The judges of the Privy Council were giving (majority) decisions three to two, five to four, flip flopping. You give a decision on this point today and then two weeks later a different case comes up and they say something else to the point where, don’t take it from me, take it from one of them, to the point where Lord Hoffman said ‘look, this has got to stop, we are affecting the rule of law and the stability of the administration of justice in the Caribbean’,” Sir David pointed out.
Hoffman, it seems, proceeded in Neville Lewis from a literal reading of the law, while the majority of his colleagues were prepared to rely substantially on somewhat general changes in administrative law to strike down the death penalty orders in the case.
According to the records, the colonial death penalty system provided mandatory death sentence for all those convicted of murder irrespective of the particular nature of their offence and their individual mitigating circumstances.
This wide definition of the offence of murder meant that the death penalty was issued for offences committed without an intent to kill, it extended to all participants convicted on the basis of the joint enterprise doctrine, whilst affording only a limited defence of provocation, no excuse based on drunkenness, and no defence of duress.
However, by the 1970s, this no longer accorded with evolving international standards because of its denial of scope for individual mitigation prior to the judicial imposition of the death penalty.
Sir David said that most Caribbean jurisdictions throughout the whole period up until 2002 continued to impose the death penalty on all those caught within this wide definition of murder until the landmark trilogy of Privy Council decisions in Reyes  2 AC 235, Hughes and, Fox  2 AC 284.
But, he said if people were to examine the records when comparing the Privy Council with regional courts, they would find that the Eastern Caribbean Supreme Court (ECSC), a regional court presided over by eminent regional jurists, was already a step ahead of the Council and up to date with international law with respect to the death penalty.
He said the ECSC struck down the mandatory death penalty in 2001, a year before the Privy Council and it is ordered only in exceptionally depraved and heinous incidents. Sir David said this is just one of many examples of the work of the region’s finest legal minds.
The US and India had also set aside the mandatory death penalty long before the Council.
“Your highest court should be making laws that are certain and that conduce to the stability and equilibrium of the society, but the privy council was admitting in Neville Lewis, at least Lord Hoffman, this wasn’t happening, he was saying you cannot do it,” Sir David stressed.
Over a decade ago, CARICOM Heads of Government gave Sir David the task of presiding over the establishment of the CCJ during his tenure as Chief Justice of Barbados.
The Heads appointed him as the first Chairman of the Preparatory Committee to establish the Court (1999-2001) and Chairman of the High Level Task Force to supervise the inauguration of the Court (2004-2005). He was the first Chairman of the Regional Judicial and Legal Services Commission (2003-2004).