Privy Council rules mandatory death sentences unconstitutional

Saturday, November 22, 2003

LONDON, England: Hundreds of prisoners on death row in the Caribbean were given new hope yesterday as the Privy Council in Britain declared the mandatory death penalty in Trinidad and Tobago unconstitutional. 

The ruling means that 84 death-row inmates in Trinidad and Tobago will have their sentences reconsidered. But the judgment will also affect hundreds more in the Bahamas, Jamaica and Barbados, with similar challenges before the Privy Council. 

The Privy Council - composed of UK law lords sitting as a final court of appeal for some of Britain's former colonies - reached the decision by the narrow majority of three to two. 

Lords Steyn, Bingham and Walker decided the mandatory death sentence was inconsistent with the international obligations of Trinidad and Tobago, and unconstitutional. Lords Millett and Rodger dissented. 

The judgment follows unpaid work by British lawyers on behalf of prisoners on death row in the Caribbean. The appeal was brought by Balkissoon Roodal, who has been on death row since July 1999 when he was convicted of shooting a man in an argument over the theft of marijuana plants and sentenced to hang. 

In February 2000 the Trinidad appeal court dismissed his appeal. 

The automatic death penalty appears popular with the public in Trinidad and Tobago. Some observers argue that it should be for the country's parliament to decide whether the sentence remains, and not for judges, particularly those far away in a British court. 

But Lord Steyn said: "The constitution itself has placed on an independent, neutral and impartial judiciary the duty to construe and apply the constitution and statutes, and protect guaranteed fundamental rights, where necessary. 

"It is not a responsibility which the courts may shirk or attempt to shift to parliament." 

The judgment means that death will become the maximum penalty for murder, to be imposed only for the most serious killings, rather than as a mandatory penalty. 

Saul Lehrfreund, a human rights lawyer at the London solicitors Simons Muirhead & Burton, who represented Mr Roodal, said: "The ramifications and consequences of the Privy Council's ruling are huge. The cases of at least 80 men and four women on death row in Trinidad will now have to be reviewed." 

He went on: "The implications for future murder trials will be the introduction of a completely new set of procedures restricting the imposition of the death penalty in the first instance. 

"It will also have significant implications in Jamaica, the Bahamas and Barbados, where the constitutionality of the mandatory death penalty will have to be decided, affecting at least 200 men and women on death row. " 

Lord Steyn said the case raised "profoundly important questions about the application of the death penalty in Trinidad and Tobago and the working of the constitution". 

He said that the law regarding murder in Trinidad and Tobago was based on English common law. Murder did not require an intent to kill but only an intent to cause really serious bodily injury. 

Statistics showed only a minority of murderers were convicted on the basis of an intent to kill. Yet the mandatory death penalty treated all murders in the same way. 

The court also ruled Trinidad and Tobago had been party to the American Convention on Human Rights, barring mandatory death sentences, at the time of at least one of the murders. 

In July 2002 the 15 members of the Caribbean Community (Caricom) applied for a $100m loan to set up a Caribbean Court of Justice (CCJ) to replace the Privy Council. 

But the scheduled opening of the court this month has been delayed until next year. 

Caribbean leaders say the court will rid them of one of the last vestiges of colonialism. 

A spokesman for Jamaica's attorney general said the Privy Council was "out of step" with public opinion in the Caribbean.

But critics say the CCJ will be a "hanging court" with judges appointed by governments keen to clear their death rows. 

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