The biggest decision for the Law Lords

The Death Penalty Case

IT promises to be one of the most important decisions that the British Privy Council will have to make. After their decision in the Roodal case last November when the Law Lords ruled that the mandatory death sentence was unconstitutional, a Board of nine judges assembled in London between March 22 and 30 to hear, at the request of the Governments of Trinidad and Tobago, Barbados, and Jamaica, full arguments on the death penalty.

It was the very first time that nine judges sat on an appeal in the history of the Privy Council. Normally, attorneys can ‘read’ the judges and tell what the decision will be, long before a written judgment is delivered. But this time, it is going to be very close. Lords Bingham, Steyn and Walker who delivered the majority decision in the Roodal decision sat on this historic appeal. What was interesting though, was that they remained relatively silent throughout the six-day hearing. Lord Bingham, who was the president of the court, asked several questions, but Lords Steyn and Walker kept their silence. The other Lords were very vocal, in particular, Lords Nicholls, Hoffmann, Hope, and Scott. From their reaction and line of questioning, they are likely to go for the respondents in this case.

What about the other two - Lord Rodger and Sir Edward Zacca? It is difficult to tell. Lord Bingham has promised an early judgment and judging by the time they took to deliver the Roodal ruling, then the Law Lords could produce the judgment by the end of April or early May. The re-hearing of arguments relating to the death penalty came about through the efforts of Barbados Attorney General Mia Mottley. In January, Mottley petitioned the Privy Council and asked that the Privy Council hear new arguments relating to the death penalty. The Lords agreed and March 22 was set. The only difference was that there would have to be  a combined effort of three countries - Trinidad and Tobago, Barbados, and Jamaica. The appellants were Charles Matthews (Trinidad and Tobago), Lambert Watson (Jamaica), and Lennox Boyce and Jeffrey Joseph (Barbados). Because of the unusual number of judges sitting in the case, and the anticipated battery of lawyers assembling in London, the normal Privy Council courtroom was considered too small. What was the alternative? Moving to the Palace of Westminster to the House of Lords.

There was also another problem going to the Privy Council courtroom. Because it was situated next to the Prime Minister at 10 Downing Street, and because of the increase in security as a result of terrorist threats, everyone and every vehicle were subjected to searches. It was more rigid at the Palace of Westminster. Vehicles got a more thorough search and visitors were physically checked by the Metropolitan Police officers at the entrance to the Houses of Parliament. The appeal was heard in the Committee Room which is called the Moses Room after the fresco of Moses bringing down the Tablets of the Law from Mount Sinai. On the first morning, there were 44 lawyers on record in the case and hundreds of documents on tables and in boxes.

The issues before the Law Lords were the same as in Roodal:
(1) whether construed in light of Section 68 of the Interpretation Act 1962, section 4 of the 1925 Act prescribes a maximum and not the only penalty.
(2) Whether section 4 requires modification so as to provide for a discretionary death sentence in order to bring it into conformity with the 1976 Constitution of Trinidad and Tobago.
(3) Whether the imposition of a mandatory death sentence violates the constitutional principle of the separation of powers.
For persons interested in studying law, young lawyers, and even experienced counsel, the stage was set for hearing some of the best in constitutional law on both sides of the table.
Edward Fitzgerald QC, well known for arguing death penalty cases, was forceful in his submissions as he pressed upon the Law Lords not to depart from Roodal. He told the Law Lords that it was universally accepted that not everyone convicted of murder in Trinidad and Tobago deserves to die.
Douglas Mendes SC was the lone Trinidadian to address the Privy Council. Keir Starmer QC felt that if the Law Lords reversed the Roodal decision, then Trinidad and Tobago may very well resume hangings.
Nicholas Blake QC submitted that the mandatory death penalty violates the Jamaican constitution and the prohibition against inhumane and degrading punishment and treatment. He pointed out that the death penalty denies a defendant a sentencing hearing.
Sir Godfray Le Quesne QC, who has been representing the TT Government for years, said that contrary to what many believe, the mandatory death sentence was never abolished in TT. He said there was never any intention by the legislature to change the penalty for murder.
Sir Godfray said it was the late PNM Government Minister Francis ‘Boysie’ Prevatt who saved the day for TT when he stated in Parliament in 1976 that all the existing laws, including the death penalty were being ‘saved’ with the coming into being of the 1976 constitution.
He said Prevatt, speaking in the Senate, took charge of the Constitution Bill and ensured that the death penalty remained as the law of Trinidad and Tobago.
Mia Mottley was fired up....not as a lawyer but as a politician. She occupied the crease for 30 minutes in which she sought to convince the Law Lords that the international obligations were not part of the law in her country.
Jamaica’s DPP Kent Pantry QC and Solicitor General Michael Hylton QC, also argued for the death penalty to remain in the Caribbean.
It is now left up to the Law Lords to decide whether the mandatory death penalty will return, or whether as in the Roodal case, a judge will have the discretion to sentence a convicted killer to whatever sentence he chooses.
At the end of the hearing, Trinidad and Tobago’s High Commissioner to London Glenda Morean-Phillip hosted a reception at the Palace of Westminster for the lawyers involved in the case.
Making a brief stop were Baroness Amos, the Leader of the House of Lords and President of the Council, and Baroness Howell.