Ernest Lockhart v The Queen
| Jurisdiction | UK Non-devolved |
| Judge | LORD KERR |
| Judgment Date | 09 August 2011 |
| Neutral Citation | [2011] UKPC 33 |
| Date | 09 August 2011 |
| Docket Number | Appeal No 0050 of 2010 |
| Court | Privy Council |
[2011] UKPC 33
Privy Council
Lord Brown
Lord Mance
Lord Kerr
Lord Dyson
Lord Wilson
Appellant
Tim Owen QC
Elizabeth Prochaska
(Instructed by Simons Muirhead and Burton)
Respondent
Howard Stevens
(Instructed by Charles Russell LLP)
Introduction
This appeal requires the Judicial Committee to return to an area that it has visited a number of times in recent years. In what circumstances is it appropriate to pass a sentence of death, and what steps must be taken by a court which is considering the imposition of the death penalty in order to be sure that that ultimate penalty is warranted?
The facts
On 8 June 1999 some time between 8 and 9 pm a young man called Caxton Smith was shot in Fowler Street, New Providence in the Bahamas. He died shortly afterwards from the injuries that he had sustained as a result of a single gunshot wound to the back. Mr Smith was twenty-three years old when he died. The appellant, Ernest Lockhart, was convicted of Mr Smith's murder. At the trial of the appellant and one Jeffrey Prospero for the murder of Caxton Smith, Lockhart had been identified as the gunman who fired the fatal shot, while Prospero had acted as lookout.
Mr Lockhart was aged twenty-one when he murdered Caxton Smith. Both had been drug dealers. Mr Smith had been convicted of selling drugs and had served a term of imprisonment. The trial judge found that the murder had been carried out by Lockhart in order to protect his "turf', in other words, the territory on which he plied his trade of drugs supply. He had threatened the deceased some time previously. And, although it was not expertly executed, the killing had been planned by Lockhart with others.
By way of further background to the murder, the trial judge, Isaacs J, in his sentencing remarks, recounted evidence given to the court by Vanessa Woodside, the deceased man's girlfriend. She testified that some six months before the deceased was killed, he had been threatened by Ernest Lockhart. The appellant had said to Caxton Smith something to the effect that "if [he] (the deceased) thought that he had come out of prison to take bread out of his (Ernest Lockhart's) mouth, he would be killed." Ms Woodside also gave evidence that about two weeks before the killing Lockhart and another individual came to the home that she shared with Caxton Smith. On that occasion, she said, the second man spoke to the deceased outside the house but she could hear what was being said. This man asked Mr Smith to sell drugs for him and Lockhart, but Caxton had replied that he was not into that. At that point, according to Ms Woodside, Lockhart, who had been lurking by a coconut tree, said something to the effect that as Caxton did not wish to sell drugs for them, he could die like others before him.
At the age of fourteen years Lockhart had been sentenced to serve a period of detention for six months at the Boys Industrial School for housebreaking and theft. In 1994 he was sentenced to three months in prison for causing damage to property and in March 1996 he was fined $3,000.00 for possession of dangerous drugs. Before being found guilty of Mr Smith's murder, he had no convictions for violence to others.
The principles
What were described as "the two basic principles" that applied to the question whether the death penalty should be imposed were set out by the Board in Trimmingham v The Queen [2009] UKPC 25 in the following passages from paras 20 and 21:
"20. Judges in the Caribbean courts have in the past few years set out the approach which a sentencing judge should follow in a case where the imposition of the death sentence is discretionary. This approach received the approval of the Board in Pipersburgh v The Queen [2008] UKPC 11, and should be regarded as established law.
21. It can be expressed in two basic principles. The first has been expressed in several different formulations, but they all carry the same message, that the death penalty should be imposed only in cases which on the facts of the offence are the most extreme and exceptional, 'the worst of the worst' or 'the rarest of the rare'. In considering whether a particular case falls into that category, the judge should of course compare it with other murder cases and not with ordinary civilised behaviour. The second principle is that there must be no reasonable prospect of reform of the offender and that the object of punishment could not be achieved by any means other than the ultimate sentence of death. The character of the offender and any other relevant circumstances are to be taken into account in so far as they may operate in his favour by way of mitigation and are not to weigh in the scales against him. Before it imposes a sentence of death the court must be properly satisfied that these two criteria have been fulfilled."
In Maxo Tido v The Queen [2011] UKPC 16 the Board acknowledged that difficulties can arise in deciding which cases warrant the soubriquet, "the worst of the worst" or "the rarest of the rare". It is quite clear, however, that only the most exceptional will qualify. Attempting to define which will come within this egregious category is not easy and one must guard against the risks that attend over-prescription in a field that defies precise classification. Some analogical assistance might be derived, however, from considering the provisions of the Criminal Justice Act 2003 which in England and Wales specify the types of murder which call for the imposition of a whole life tariff. Schedule 21 to the 2003 Act provides in para 4:
"(1) If-
(a) the court considers that the seriousness of the offence (or the combination of the offence and one or more offences associated with it) is exceptionally high, and
(b) the offender was aged 21 or over when he committed the offence,
the appropriate starting point is a whole life order.
(2) Cases that would normally fall within sub-paragraph (1) (a) include—
(a) the murder of two or more persons, where each murder involves any of the following—
(i) a substantial degree of premeditation or planning,
(ii) the abduction of the victim, or
(iii) sexual or sadistic conduct,
(b) the murder of a child if involving the abduction of the child or sexual or sadistic motivation,
(c) a murder done for the purpose of advancing a political, religious, racial or ideological cause, or
(d) a murder by an offender previously convicted of murder."
The Board does not suggest that this should be used as a template for determining whether a particular case falls within the exceptional category that would call for the imposition of the death penalty. Many other factors, apart from those adumbrated in the paragraph, such as aggravating features of the defendant's previous offending, will have to be taken into account. The structure of the provision makes it unsuitable for use in that way, in any event. The application of the paragraph calls for the exercise of a value judgment at significant points - thus, the seriousness of the offence must be "exceptionally high"; the examples given in sub-paragraph (2) are those which are to be regarded as "normally" requiring the imposition of a whole life tariff; and if planning or premeditation are to operate as factors they must be "substantial". The provision cannot, therefore, function as a checklist for the presence or absence of factors that might warrant the most severe penalty but the considerations that underlie...
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...and Edwards, J.A.; Rawlins, C.J. dissenting). Daniel Dick Trimmingham v The Queen [2009] UKPC 25 applied; Ernest Lockhart v The Queen [2011] UKPC 33 applied. 8. A particular murder may not in its actual revolting and sadistic execution be rendered the worst of the worst or the rarest of ......
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