The Mandatory Death Penalty

‘The mandatory death penalty for the crime of murder is in rapid retreat worldwide’

(Andrew Novak, 2012)

The mandatory death penalty for murder persists in Trinidad and Tobago (and until June 2018, in Barbados) as a colonial remnant, a legacy of the British Empire. Jane Cross (2014) writes that the legal cases on this issue highlight ‘the human rights tension resulting from the preservation of a colonial and criminal penalty.’

The paradox that a penalty once imposed by British legislators is one now fiercely protected by Caribbean governments while British courts urge reform is difficult to miss.

Elsewhere, courts in other jurisdictions have struck down the mandatory death penalty. In 1992, Jamaica enacted the first restriction on the mandatory death penalty across the English-speaking Caribbean through the Offences Against the Person (Amendment) Act. In June 2018, the Caribbean Court of Justice held this penalty to be unconstitutional in Barbados also (see The Death Penalty in Barbados). In the US too, in the 1970s, the mandatory death penalty for all types of murder (Woodson v North Carolina 428 US 280) and for certain types of murder (Roberts (Harry) v Louisiana 431 US 633) was also been declared to be unconstitutional. The US Supreme Court held that the mandatory death penalty, even for a restricted category of murder, violated the 8th and 14th amendments to the Constitutions regarding due process rights and the prohibition against cruel and unusual punishment. The Court stated, in Woodson, that: ‘The belief no longer prevails that every offense in a like legal category calls for an identical punishment without regard to the past life and habits of a particular offender.’

The mandatory death penalty has also been struck down in many African countries which, like Trinidad and Tobago and Barbados, were former British colonies. Andrew Novak (2012) writes that arguments against the mandatory penalty in these African nations have drawn on the wealth of case law from the Commonwealth Caribbean.

In the past decade, courts in Malawi (Kafantayeni v Attorney General [2007] MWHC 1), Uganda (Kigula v Attorney General, Constitutional Petition 6/2003, 2005) and Kenya (Mutiso v Republic, Crim. App. 17/2008, July 30 2010) have all found the mandatory death penalty to be unconstitutional, and have replaced it with discretionary systems which take into account mitigating factors. In 1995, the South African Constitutional Court, too, held in S v Makwanyane (1995 (3) SA 391) that the death penalty contravened the right to life and the right to freedom from cruel and unusual punishment. Justice Sachs, in his judgment, held that the death penalty was a foreign imposition of British and Dutch colonists.

Below, the case law on the various challenges to the mandatory death penalty originating from Caribbean jurisdictions are outlined. However, in a nutshell, it can be said that Trinidad and Tobago (and until June 2018 Barbados) has retained the mandatory death penalty because a) it has not enacted a law to restrict or abolish this, and b) the penalty is protected from constitutional challenge by the general savings clauses in the constitutions.

In a series of cases beginning in 2000, the Privy Council in London began to subject the mandatory death penalty to significant scrutiny. For example, in Lewis v Attorney General ([2001] 2 AC 50), from Jamaica, the Board made comments about the requirement of individualised sentencing. A mandatory death penalty does not provide for any opportunity for individualised sentence in cases of murder.

Then, in three cases appearing before the Privy Council, the lead case of which was Reyes v The Queen ([2002] 2 AC 235), the mandatory death penalty was struck down in Belize, St Lucia and St Kitts and Nevis.

However, Burnham (2005) writes that ‘promise held out by the 2002 mandatory penalty trilogy, of a thickened, internationalist perspective on human rights law in the Commonwealth Caribbean, has been all but extinguished.’

Following the decision in Reyes, the Boyce trilogy of cases in 2004 suggested a more cautious approach from the Privy Council, and also revealed the divisions within the court. The Reyes decision had been met with resistance in countries which still retained the mandatory death penalty. For example, after Reyes, Barbados took steps to protect its death penalty regime from constitutional review. Barbados amended its Constitution, to hold that challenges to sentence of death could not be grounded on arguments of delay or prison conditions.

The three cases in the Boyce trilogy were: Boyce (from Barbados), Matthew (from Trinidad and Tobago) and Watson (from Jamaica).

In the Jamaican case of Lambert Watson v The Queen ([2005] 1 AC 400), the mandatory death penalty, which existed for certain types of murder only, was ruled unconstitutional. As Jamaica had amended its law in 1992, the Board held that the amended law was not protected by the particular savings clause in the Constitution of Jamaica.

In what Lord Anthony Gifford (2009) described as a ‘knife-edge’ decision in the cases relating to Trinidad and Tobago and Barbados, four of the nine members of the Privy Council would also have quashed the mandatory death penalty in Trinidad and Tobago and Barbados, but the five remaining members held in Matthew v The State and Boyce and Joseph v R, that the particular savings clauses in the constitutions of these two countries protected the mandatory penalty from constitutional challenge.

In the case of Lennox Boyce and Jeffrey Joseph v The Queen ([2004] UKPC 34), from Barbados, the Privy Council held that the mandatory death penalty was protected by the ‘savings clause’ in the country’s Constitution. In a 5-4 majority, the Board held that although the mandatory death penalty constituted inhuman or degrading treatment or punishment according to the Constitution of Barbados, this could not invalidate the law as it had predated the Constitution. It was therefore up to the Parliament of Barbados to get rid of the mandatory death penalty, not the courts.

In Matthew v The State of Trinidad and Tobago ([2005] 1 AC 433), the Privy Council reversed the earlier decision of Roodal ([2005] 1 AC 328), and held that in Trinidad and Tobago, as in Barbados, the general savings clause in the Constitution protected the mandatory death penalty from constitutional challenge. In Trinidad and Tobago as well then, only legislation could remove this punishment. A strong dissent from Lord Nicholls of Birkenhead showed just how contentious the judgment was, Lord Nicholls stated that ‘Lives may depend on the outcome of this appeal’, he went on to say that despite acceptance of the mandatory death penalty until relatively recently:

Times have changed. Human rights values set higher standards today. The common endeavour, to rid the world of mans inhumanity to man, has not ceased. Conduct, once tolerated, is no longer acceptable. Murder can be committed in all manner of circumstances. In some the death penalty will plainly be excessive and disproportionate.

However, the majority of the Board held that the savings clauses of the constitutions of Trinidad and Tobago and Barbados meant that they were unable to act to strike down a punishment that would otherwise have contravened the constitutional rights guarantees of these countries.

Recently, there have been some moves away from the mandatory death penalty. In Trinidad and Tobago, a new Offences Against the Person Act was introduced in 2000. This would have introduced degrees of murder, capital and non-capital. However this Act was never commenced.

In Barbados, as noted, the Caribbean Court of Justice held that the mandatory death sentence was unconstitutional. Prior to this ruling, the government had given commitments regarding the abolition of the mandatory death penalty. It remains to be seen how the government will progress law reform in light of the recent ruling.


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