Jay Chandler v The State
| Jurisdiction | UK Non-devolved |
| Judge | Lord Hodge |
| Judgment Date | 16 May 2022 |
| Neutral Citation | [2022] UKPC 19 |
| Court | Privy Council |
| Docket Number | Privy Council Appeal No 0051 of 2020 |
[2022] UKPC 19
Lord Reed
Lord Hodge
Lord Lloyd-Jones
Lady Arden
Lord Sales
Lord Hamblen
Lord Stephens
Lord Hughes
Sir Nigel Davis
Privy Council Appeal No 0051 of 2020
Privy Council
Appellant
Edward Fitzgerald QC
Douglas Mendes SC
Rajiv Persad
Amanda Clift-Matthews
(Instructed by Simon Muirhead & Burton LLP (Newman Street))
Respondent
Howard Stevens QC
Tom Poole QC
Fyard Hosein SC
Hannah Fry
(Instructed by Charles Russell Speechlys LLP (London))
On 17 August 2011 the appellant, Jay Chandler, was convicted of murder. He was sentenced to death by hanging, which is the mandatory sentence for murder in Trinidad and Tobago. Section 4 of the Offences Against the Person Act 1925 (“the 1925 Act”) provides: “Every person convicted of murder shall suffer death”.
On 12 December 2013 the Court of Appeal (Weekes, Soo Hon and Narine JJA) upheld both his conviction and his sentence. He was granted permission to appeal against conviction to the Board and sought unsuccessfully to have medical and psychiatric evidence admitted which had not been led at trial but which, he argued, tended to show that he might have had a defence of diminished responsibility at trial. On 12 March 2018 the Board issued a judgment dismissing his appeal against conviction ( Chandler v The State (Trinidad and Tobago) [2018] UKPC 5). In this appeal he mounts a constitutional challenge to the mandatory death sentence with the permission of the Board.
The appellant's sentence has been commuted to one of life imprisonment and the Board observes that the state in Trinidad and Tobago has not executed anybody since 1999, in part because of delays in the appellate process. But the law remains unchanged, and the mandatory death penalty could provide legal authority to the government to execute any person convicted of murder. As explained below, the Board has decided to review its prior decision on the constitutional validity of the mandatory death penalty in the light of recent jurisprudence of the Caribbean Court of Justice (“the CCJ”) which has departed from earlier judgments of the Board.
The crime of which the appellant was convicted occurred on 8 October 2004. The appellant and Kirn Phillip were remand prisoners at Golden Grove Prison, Arouca. The appellant lunged at Mr Phillip when they were in a holding area of the prison and chased after him with a metal object which was later discovered to be an improvised knife. Mr Phillip suffered a stab wound to his chest. Prison officers subdued the appellant. Mr Phillip was taken to the Arima Health Facility but was pronounced dead on arrival.
The principal constitutional question raised on this appeal is the question whether the mandatory death penalty for murder is contrary to the Constitution which Trinidad and Tobago adopted in 1976 (“the 1976 Constitution”) when the state became a republic, on the ground that the 1976 Constitution required that the 1925 Act be modified to remove the mandatory death sentence for murder and to replace it with a discretionary death sentence so that the court could take account of the particular circumstances of the killing.
The Constitution of 1962, which was set out in Schedule 2 to the Trinidad and Tobago (Constitution) Order in Council 1962 (“the 1962 Order”), came into effect when Trinidad and Tobago became an independent nation. The 1962 Constitution declared in section 1 the fundamental rights and freedoms which existed in the state. Section 2 provided that, subject to sections 3, 4 and 5 of the Constitution, no law shall abrogate, abridge or infringe any of those recognised rights and freedoms. Section 3 of the 1962 Constitution contained a saving provision for existing law. It stated that sections 1 and 2 of the Constitution “shall not apply” in relation to any law that was in force at the commencement of the 1962 Constitution. The 1962 Order contained, in section 4, a modification clause which provided that the existing laws “shall be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with this Order”.
The 1976 Constitution was enacted by the legislature of the independent Trinidad and Tobago in the Constitution of the Republic of Trinidad and Tobago Act 1976 (“the 1976 Act”). Section 5 of the 1976 Act provides:
“(1) Subject to the provisions of this section, the operation of the existing law on and after the appointed day shall not be affected by the revocation of the Order-in-Council of 1962 but the existing laws shall be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with this Act.”
Section 2 of the 1976 Act defines “existing law” as “a law that had effect as part of the law of Trinidad and Tobago immediately before the appointed day”. The appointed day was 1 August 1976, which was the day on which the 1976 Constitution came into operation by Proclamation of the Governor General.
The 1976 Constitution is set out in Schedule 2 to the 1976 Act. The preamble, which precedes the substantive legal provisions of the Constitution, confirms among other things that the nation is founded upon principles that acknowledge the supremacy of God, faith in fundamental human rights and freedoms and the dignity of the human person. The preamble also records the people's assertion of their belief in a democratic society and their wish to make provision for ensuring the protection of fundamental human rights and freedoms. Section 1 of the Constitution provides:
“The Republic of Trinidad and Tobago shall be a sovereign democratic state.”
Section 2 of the Constitution provides that the Constitution is the supreme law of Trinidad and Tobago and that any law that is inconsistent with the Constitution is void to the extent of the inconsistency.
The constitutional provisions that are most relevant to the principal challenge mounted in this appeal are sections 4, 5 and 6 of the 1976 Constitution which the Board sets out so far as relevant. Section 4 provides:
“It is hereby recognised and declared that in Trinidad and Tobago there have existed and shall continue to exist, without discrimination by reason of race, origin, colour, religion or sex, the following fundamental human rights and freedoms, namely:
(a) the right of the individual to life, liberty, security of the person and enjoyment of property and the right not to be deprived thereof except by due process of law …”
Section 5 of the Constitution provides:
“(1) Except as is otherwise expressly provided in this Chapter and in section 54, no law may abrogate, abridge or infringe or authorise the abrogation, abridgement or infringement of any of the rights and freedoms herein before recognised and declared.
(2) Without prejudice to subsection (1), but subject to this Chapter and to section 54, Parliament may not —…
(b) impose or authorise the imposition of cruel and unusual treatment or punishment; …
(f) deprive a person charged with a criminal offence of the right —…
(ii) to a fair and public hearing by an independent and impartial tribunal…”
These constitutional protections are subject to the saving of existing law in section 6 of the Constitution. Section 6 provides:
“(1) Nothing in sections 4 and 5 shall invalidate -
(a) an existing law;
(b) an enactment that repeals and re-enacts an existing law without alteration; or
(c) an enactment that alters an existing law but does not derogate from any fundamental right guaranteed by this Chapter in a manner in which or to an extent to which the existing law did not previously derogate from that right….
(3) In this section -
‘existing law’ means a law that had effect as part of the law of Trinidad and Tobago immediately before the commencement of this Constitution, and includes any enactment referred to in subsection (1)…”
The relationship between sections 4 and 5 on the one hand and section 6 on the other is the principal issue on this appeal.
It is not in dispute that a mandatory death sentence for murder laid down in section 4 of the 1925 Act is a cruel and unusual punishment. Section 2 of the 1976 Constitution would therefore invalidate it because it would contravene section 5(2)(b) of the 1976 Constitution unless section 6 of the Constitution applies to save it as existing law. As discussed below, it is important to recall that section 6 of the 1976 Constitution has preserved many laws which existed before the adoption of that Constitution as well as the mandatory death penalty.
As more fully explained below, the constitutional validity of a mandatory death sentence for murder has come before the Board on a number of occasions in recent years. In 2002 the Board ruled on an appeal on this issue from Belize in Reyes v The Queen [2002] UKPC 11; [2002] 2 AC 235 (“ Reyes”). In 2003 the Board again addressed the issue in an appeal from Trinidad and Tobago in Roodal v State of Trinidad and Tobago [2003] UKPC 78; [2005] 1 AC 328 (“ Roodal”). In 2004 the Board heard an appeal on the issue from Barbados in Boyce v The Queen [2004] UKPC 32; [2005] 1 AC 400 (“ Boyce”). As more fully described below, as a result of doubts expressed as to the correctness of the decision in Roodal, the Board convened a panel of nine judges to rehear Boyce and hear a further appeal from Trinidad and Tobago in Matthew v State of Trinidad and Tobago [2004] UKPC 33; [2005] 1 AC 433 (“ Matthew”) and an appeal from Jamaica in Watson v The Queen [2004] UKPC 34; [2005] 1 AC 472. In this appeal the Board is asked to review the decision which it reached in Matthew.
In Reyes the Board addressed the...
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