Death Penalty for Murder in UK Law

The government of Barbados has always accepted that the execution of everyone convicted of murder would be unacceptably harsh and undiscriminating – in fact, cruel and inhuman. It argues that the mandatory sentence enables the law to achieve maximum deterrence while the power of commutation provides the necessary flexibility and humanity in its practical application.

If their Lordships were called upon to construe section 15(1) of the Constitution, they would be of opinion that it was inconsistent with a mandatory death penalty for murder. The reasoning of the Board in Reyes v The Queen [2002] 2 AC 235, which was in turn heavily influenced by developments in international human rights law and the jurisprudence of a number of other countries, including states in the Caribbean, is applicable and compelling.

To say that a constitution is based upon the principle of the separation of powers is a pithy description of how the constitution works. But different constitutions apply this principle in their own ways and a court can concern itself only with the actual constitution and not with what it thinks might have been an ideal one. All that matters is whether the mandatory death penalty and executive clemency are in accordance with the Constitution of Barbados.

Such a sentence, mandatorily passed in such circumstances, will be arbitrary and disproportionate. Where a jury have convicted following a direction under section 2A, sentence of death could rarely if ever represent proportionate punishment.

Until recently, it was rare for a defendant to plead guilty to murder. This may have been a throwback to a time when the penalty for murder was death. In that situation, the legal profession regarded it as inappropriate to allow a defendant to plead guilty.

Initially, the American Declaration of the Rights and Duties of Man (1948) was not viewed as creating legal duties.

Since paragraph 10 introduces these exceptions to the rights and protection which people would otherwise have under the Constitution, it must be construed like any other derogation from constitutional guarantees. In State v Petrus [1985] LRC (Const) 699, 720D-F in the Court of Appeal of Botswana, Aguda JA referred to Corey v Knight (1957) 150 Cal App 2d 671 and observed that