Privy Council reserves ruling on death penalty

The content originally appeared on: Trinidad and Tobago Newsday

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WAS the mandatory death sentence imposed on a convicted killer unlawful and should the law be modified to make it a discretionary sentence?

These are among the questions nine judges of the Privy Council will answer when they give their decision in the appeal on sentence brought by convicted prisoner Jay Chandler who received permission to challenge his sentence on the basis that the mandatory death sentence was unconstitutional as had been deemed by the Caribbean Court of Justice (CCJ) in a ruling out of Barbados in 2018.

At the close of submissions by Chandler’s attorneys and those for the State, the judges acknowledged the case was an important one for both sides and have reserved their decision.

Chandler was convicted and sentenced to hang for the 2004 murder of an inmate at the prison in Arouca in 2011. He lost his appeal against conviction but was allowed to challenge the constitutionality of the death sentence as provided for in section 4 of the Offences Against the Person Act of 1925. He is asking for a modification of the law, which provides that anyone found guilty of murder “shall” be subjected to death by hanging to the discretionary “may,” leaving it up to the Judiciary to impose the appropriate sentence based on the severity of the crime.

His attorneys have advanced submissions that the court can modify the law while overruling its previous decision which reinstated the mandatory death penalty in 2005, despite it being “saved” by the provisions of the Constitution which protects colonial laws from challenge by the constitutional courts.

In response to his challenge, attorneys for the State have maintained that the sentence prescribed by the Offences Against the Person Act was valid and in conformity with the Constitution.

They have also argued there is no power to modify that section because it did not infringe on any rights afforded by the Constitution nor does it go against the principle of separation of powers or the rule of law.

However, the State, in its written submissions, noted that if the Privy Council was to reconsider its previous ruling on the mandatory nature of the death penalty, and finds it did have the power to modify section 4 of Offences Against the Person Act, it would not oppose a discretionary construction that reads, “Any person convicted of murder may be sentenced to, and may suffer, death.”

The State has maintained that the CCJ’s ruling was not binding on Trinidad and Tobago, nor was the separation of powers breached by the imposition of the mandatory death penalty.

Queen’s Counsel Robert Strang and Tom Poole, who led the case for the State, said the TT Constitution was of the Westminster type and implicit in it was the qualified separation of powers. Poole said it was qualified because the Westminster model has never required an absolute institutional separation between the three branches of State.

Poole said there was nothing inconsistent with the separation of powers in Parliament prescribing the penalty to be imposed for a particular offence, nor was it repugnant for Parliament to fix a penalty for the offence of murder.

He said Chandler has had the benefit of the Privy Council’s ruling which, while reinstating the death penalty, held it was cruel and unusual punishment although it did find that the savings law clause did insulate section 4 of the Offences Against the Person Act from a finding that it was inconsistent with the Constitution.

He said this gave Chandler protection of the law to the fullest extent.

Both Strang and Poole, as well as local attorney Fyard Hosein, SC, in their submissions warned of the effects of interfering with the savings law clause of the Constitution.

On Tuesday, the judges were told of the ramifications of this and on Wednesday, they again asked for a list of the cases in which the State has relied on the savings law clause, including two presently before them which challenge the public health regulations of the Government to deal with the covid19 pandemic in TT as well as the challenge to the Sedition Act.

The 2018 case of Jason Jones v State, which challenged the criminality of same-sex relations, and the recent challenge of a former murder accused who is asking for an amendment to the Bail Act to allow persons charged with the capital offence to apply for bail, are also rooted in the savings law clause and were also mentioned by both sides in submissions before the London-based court.

Two days were set aside for the hearing of the appeal done in a hybrid mode with

Chandler’s local attorneys, Douglas Mendes, SC, and Rajiv Persad making submissions virtually from Trinidad while his co-lead counsel, Edward Fitzgerald, QC, is at the Supreme Court building in London.

Also making up his legal team is Amanda Clift-Matthew for the UK-based human rights lobby Death Penalty Project which has taken up Chandler’s case pro bono.

Presiding over the appeal were Lords Reed, Hodge, Lloyd-Jones, Sales, Hamblen, Stephens, Hughes, Sir Nigel Davis and Lady Arden.