On 27th June 2018, the Caribbean Court of Justice found Barbados’ mandatory death penalty unconstitutional. That Court delivered its judgment in the appeal of two men convicted of murder and sentenced to death, Jabari Nervais and Dwayne Severin. You can read the full judgment here: Full Judgment 2018-CCJ-19-AJ. You can read the Press Release from Death Penalty Project here. The CCJ also ordered that the two be expeditiously brought before the local Supreme Court for resentencing.
The Court had heard the appeals in January 2018. The two appellants, Jabari Nervais and Dwayne Severin, were sentenced to death in 2012 and 2014 respectively (you can watch a recording of the proceedings from the January hearing here).
Barbados therefore NO LONGER retains the mandatory death penalty for murder. Although the government had committed to abolishing the mandatory penalty on a number of occasions, it had remained on the statute books, and all those convicted of murder were sentenced to death according to section 2 of the Offences Against the Person Act 1994.
Previous moves to curtail the death penalty had been met with resistance. For example, in response to the various rulings of the Privy Council (based in London) which sought to set minimum standards for the implementation of the death penalty (see section on ‘Human Rights‘ for more on this), the Constitution (Amendment) Act 2002 was enacted to remove restrictions on the use of the death penalty. The legislation removed various grounds of appeal including delay and prison conditions, effectively legislating against the previous judgments, and protecting the operation of the death penalty in Barbados. Barbados subsequently withdrew from the appellate jurisdiction of the Privy Council in London and joined the Caribbean Court of Justice.
However, subsequent rulings from the Inter-American Court of Human Rights held that Barbados cannot amend its Constitution to insulate the death penalty process from constitutional challenge. The Boyce and Cadogan rulings from this Court have also held that the mandatory death penalty for murder violated the right to life. The Court found that the mandatory penalty was arbitrary, and therefore violated Articles 4(1) and 4(2) of the American Convention on Human Rights.
The June 2018 judgment from the Caribbean Court of Justice has held that the ‘savings clause’ at section 26 of the Barbados Constitution (see ‘Savings Clauses‘ section) should be interpreted restrictively, and cannot interfere with fundamental rights.
The Promises of Reform – Proposed Legislation
Barbados committed to reform prior to the mandatory death sentence being found to be unconstitutional – however no action was ever taken. A commitment was given by the Attorney General in May 2009. In March 2014, Barbados again confirmed its intention to abolish the mandatory penalty and the Offences Against the Person (Amendment) Bill 2014 was introduced. It remains to be seen whether any of the pieces of draft legislation will now be progressed.
The Offences Against the Person (Amendment) Bill 2014 would abolish the mandatory death penalty for murder by creating a discretionary death penalty, under which persons could be death sentenced or sentenced to imprisonment for life. Under this framework, a person could be sentenced to death where:
- The murder was committed with a high level of brutality, cruelty, depravity or callousness;
- The murder involved calculated or lengthy planning;
- The deceased was involved in the administration of justice, i.e. a judge;
- The deceased was a police officer;
- The murder was a ‘hate crime’ based on membership of a certain ethnic, religious group etc;
- The deceased was a witness or a juror;
- The deceased was vulnerable through age, disability etc;
- The offender was convicted of 2 or more offences of murder;
- In the opinion of the court there are other exceptional circumstances which must be taken into account.
However, from the wording of the Bill, it would seem that even the presence of an aggravating factor in this list does not mean that a death sentence is automatic.
Under this legal framework, the imposition of a life sentence would result in either:
- Life without the possibility of parole when the court is satisfied that the offender poses a serious danger to the public;
- Or, life imprisonment with the possibility for the grant of a release order.
Where a person is sentenced to death under the 2014 Bill, but more than five years elapses following sentence, that person shall have sentence commuted to life without the possibility of parole.
Other Bills currently before Parliament for consideration include the Penal System Reform (Amendment) Bill 2014 which would provide guidance to judges on the consideration of aggravating and mitigating factors at the sentencing stage. The Prisons (Amendment) Bill 2014 which would abolish corporal punishment in prisons. Further, the Bill would also see a prisoners’ release board established and would provide for the early release of prisoners in certain circumstances. The Criminal Procedure (Amendment) Bill 2014 would introduce mandatory psychiatric evaluations for all those appearing before the High Court on a murder charge. Finally, the Constitution (Amendment) Bill 2014 proposes an amendment to the Constitution of Barbados which could facilitate the discretionary system of sentencing for people convicted of murder. Amnesty International (2015) has, however, expressed concern that this Bill would set restrictions on the rights of condemned persons to appeal their sentence on the ground that it constitutes torture, or cruel, inhuman or degrading punishment.