Privy Council affirms judges’ discretion in commuting death sentences

The content originally appeared on: Trinidad and Tobago Newsday

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The Privy Council has dismissed an appeal by the Attorney General which sought to overturn a decision of the Court of Appeal on commuted death sentences for murder convicts.

On Monday, Lords Lloyd-Jones, Sales, Hamblen, Stephens, and Sir Tim Holroyde held that it was for the local courts to set a tariff for sentence as judges were “immersed in the standards of TT and who make their decisions informed by the realities of crime and punishment in that State.”

The Law Lords had been asked to determine if a court can substitute a sentence other than life when the death sentence is commuted.

The Attorney General filed the appeal in the case of Naresh Boodram, who was convicted of murder on November 27, 1996, and sentenced to death for murdering Anthony “Tooks” Greenidge and Stephen “Bulls” Sandy in 1992.

In 2007, Boodram filed to have his death sentence quashed and to be re-sentenced by the High Court.

His sentence was commuted to life on the basis that the court did not have the discretion to re-sentence him.

Boodram appealed and the Court of Appeal held that the High Court was not constrained to impose a sentence of life imprisonment and can re-sentence with clearly defined prison terms. It sent the case back to the High Court to consider an appropriate sentence.

The Court of Appeal’s ruling benefited some 82 death row inmates at the time. The court held sentencing judges had a full range of sentencing powers available to them and the discretion to impose prison terms other than life.

However, the AG argued that the only appropriate sentence, after it became unlawful to carry out the death penalty, was to commute the sentence to one of life, as the next most serious penalty to reflect the gravity of the offence. Although the State accepted crimes of murder covered a wide range of circumstances, its argument was that all murders must be treated as equally grave. The savings-law clause also featured prominently in the appeal.

On Monday, Lloyd-James and Holdroyde, who co-wrote the decision, said the crime of murder was always very serious, but some were more serious than others.

“The circumstances of murder cases vary across a wide range, from the terrorist who aims to overthrow a state by killing as many of its citizens as possible to the devoted partner who commits a ‘mercy killing’ in order to end the unbearable pain suffered by a loved one who is terminally ill.”

They said while the law in TT provides for the death penalty for murder convictions, in cases where there has been a long delay in carrying it out, it must be commuted, since section 14 of the Constitution gave the High Court the power to correct a wrong suffered by the condemned person.

“That remedy certainly includes the vacating of the death penalty, but it necessarily also includes the imposition of such substitute sentence as may be appropriate in the circumstances of the case.”

They said, “With respect to the Attorney General’s argument, it is semantic quibbling to seek to treat only the first part of the remedy as ‘constitutional’ and to object to the second part as impermissible ‘resentencing’: the remedy for the constitutional wrong is that the High Court vacates the death penalty and substitutes an appropriate sentence.”

While the appropriate substitute sentence would often be life imprisonment, they said, the High Court was not restricted to imposing such a sentence.

“There is nothing which prevents the High Court, in circumstances where there has been a long delay in carrying out the mandatory sentence of death and that sentence can no longer be implemented, from reflecting the differing circumstances of individual cases.”

The judges said there were considerations a court will look at when deciding on an appropriate sentence. They also said it was not clear what the practice was in TT when a sentence was commuted to life.

“It appears, however, that the period of time spent in custody by those serving such sentences varies: an unsurprising feature which in itself indicates the weakness in the Attorney General’s submissions, based as they are on the premise that all murderers must be treated alike.”

The Privy Council also ordered the State to pay Boodram’s costs in his constitutional challenge in the local courts.

“Having succeeded in his appeal, Mr Boodram should have been awarded his costs in the High Court and in the Court of Appeal. His cross-appeal must accordingly succeed.”

The AG was represented by Howard Stevens, QC, and Tom Poole, QC. Boodram was represented by attorneys Mark Peacekeepers, Joe Middleton and Vishala Seepersad.