Matthew v Trinidad and Tobago

JurisdictionUK Non-devolved
JudgeLord Hoffmann,Lord Bingham of Cornhill,Lord Nicholls of Birkenhead,Lord Steyn,Lord Walker of Gestingthorpe
Judgment Date07 July 2004
Neutral Citation[2004] UKPC 33
CourtPrivy Council
Docket NumberAppeal No. 12 of 2004
Date07 July 2004
Charles Matthew
The State

[2004] UKPC 33

Present at the hearing:-

Lord Bingham of Cornhill

Lord Nicholls of Birkenhead

Lord Steyn

Lord Hoffmann

Lord Hope of Craighead

Lord Scott of Foscote

Lord Rodger of Earlsferry

Lord Walker of Gestingthorpe

Mr. Justice Edward Zacca

Appeal No. 12 of 2004

Privy Council

[Majority judgment delivered by Lord Hoffmann]



The issue in these appeals is the constitutionality of the mandatory death penalty in Trinidad and Tobago. The relevant provisions of the constitution are sections 2, 4 and 5, and 6(1). Section 2 says that the constitution shall be the supreme law of Trinidad and Tobago and that any other law shall be "void to the extent of the inconsistency". Section 4 declares the "right of the individual to life" and section 5(2)(b) says that Parliament "may not impose or authorise the imposition of cruel and unusual treatment or punishment". But section 6(1) provides that "nothing in sections 4 and 5 shall invalidate … an existing law". The law decreeing the mandatory death penalty was an existing law at the time when the constitution came into force and therefore, whether or not it is an infringement of the right to life or a cruel and unusual punishment, it cannot be invalidated for inconsistency with sections 4 and 5. It follows that despite section 2, it remains valid.


The language and purpose of section 6(1) are so clear that whatever may be their Lordships' views about the morality or efficacy of the death penalty, they are bound as a court of law to give effect to it. As Lord Bingham of Cornhill said in Reyes v The Queen [2002] 2 AC 235, 246, "The court has no licence to read its own predilections and moral values into the constitution". And their Lordships do not understand the appellant to dispute that if one simply reads the constitution, there is no basis for holding the mandatory death penalty invalid for lack of consistency with sections 4 and 5.


This is a very important point. It is not suggested that there is any ambiguity about the constitution itself. It is accepted that it is simply not susceptible to a construction, however enlightened or forward-looking, which would enable one to say that section 6(1) was merely a transitional provision which somehow and at some point in time had become spent. It stands there protecting the validity of existing laws until such time as Parliament decides to change them.


Recognising this difficulty, the main argument advanced by Mr Fitzgerald QC for the appellant is that a provision in the Act of Parliament which brought the constitution into effect but did not form part of the constitution itself requires the existing law so far as possible to be modified to conform to sections 4 and 5 and that such conformity can be achieved by deeming the death penalty to be discretionary.


For substantially the reasons given by their Lordships in their judgment delivered today in Boyce and Joseph v R, they regard this argument as completely untenable. It is incompatible with the status of the constitution as the supreme law of Trinidad and Tobago and arbitrary to the point of absurdity in its results. It follows that it must be rejected.


The result is that although the existence of the mandatory death penalty will not be consistent with a current interpretation of sections 4 and 5, it is prevented by section 6(1) from being unconstitutional. It will likewise not be consistent with the current interpretation of various human rights treaties to which Trinidad and Tobago is a party. Their Lordships have anxiously considered whether there is some possible construction of the constitution which would avoid these results and have concluded that none exists. Their Lordships naturally respect the views of the minority who see more merit in Mr Fitzgerald's argument but since their opinion does not deal with the objections which their Lordships regard as insuperable, they remain unpersuaded. It follows that the decision as to whether to abolish the mandatory death penalty must be, as the constitution intended it to be, a matter for the Parliament of Trinidad and Tobago.


The effect of today's decision is to overrule the recent case of Roodal v State of Trinidad and Tobago [2004] 2 WLR 652. Henceforth the death sentence for murder will continue to be mandatory. But for reasons which their Lordships will explain, they do not think it would be fair to deprive anyone presently under sentence of death of the benefit of the Roodal decision. They will accordingly allow the appeal against sentence and substitute a sentence of imprisonment for life.

The appeal


On 3 December 1999 the appellant was convicted at the Port of Spain Assizes of the murder of Louise Gittens and sentenced to death. On 1 December 2000 the Court of Appeal dismissed his appeal against the conviction. He petitioned the Privy Council for special leave to appeal against conviction and sentence. On 12 May 2003 the petition for leave to appeal against the conviction was dismissed. But on 12 January 2004 the Judicial Committee granted leave to appeal against sentence. The only ground for appeal is that the judge wrongly thought that the death sentence was mandatory. It is submitted that in fact it had become discretionary in one of three ways: by virtue of a provision in the Interpretation Act Chapter 3:01 or by a necessary modification pursuant to section 5(1) of the Constitution of the Republic of Trinidad and Tobago Act 1976 Chapter 1:01 or to comply with the principle of the separation of powers.


The same submissions were advanced in the recent case of Roodal v State of Trinidad and Tobago [2004] 2 WLR 652, when a combination of the first two arguments was accepted by a majority of the Board. Subsequently, at the hearing of the appeals in Boyce and Joseph v The Queen, a case from Barbados which raised very similar questions, doubts were expressed about the correctness of the decision in Roodal. The appeals were adjourned to be reargued before an enlarged Board, together with this appeal and an appeal from Jamaica which was also thought to involve similar issues. The purpose of the combined hearing was to arrive at a definitive ruling which could be applied to all the constitutions having similar provisions in countries for which the Privy Council is the final court of appeal.


In its judgment delivered today in Boyce and Joseph v The Queen the Board has rejected the reasoning in Roodal and decided that the law imposing a mandatory death penalty for murder in Barbados remains valid. Their Lordships do not propose to repeat all that was said in their judgment in that case, to which reference should be made. They will confine themselves to setting out the relevant legislation in Trinidad and Tobago and explaining why the reasoning in Boyce and Joseph v The Queen also leads to the conclusion that the law imposing the mandatory death penalty for murder in Trinidad and Tobago remains valid. It will then be necessary to consider the practical consequences of the decision that Roodal was wrongly decided.


The mandatory death penalty in Trinidad and Tobago is contained in section 4 of the Offences Against the Person Act Chapter 11:08: "Every person convicted of murder shall suffer death". On the other hand, section 4 of the 1976 Constitution contains a declaration that certain fundamental human rights and freedoms "have existed and shall continue to exist". Among these is the "right of the individual to life". Section 2 declares the Constitution to be the supreme law of Trinidad and Tobago and provides that any law inconsistent with the Constitution shall be "void to the extent of the inconsistency". Section 5(1) reinforces the declaration of supremacy in section 2 by providing that "no law may abrogate, abridge or infringe" any of the recognised rights and freedoms and section 5(2)(b) says specifically that Parliament may not impose or authorise the imposition of cruel and unusual treatment or punishment.


Their Lordships consider that for reasons similar to those given in Reyes v The Queen [2002] 2 AC 235 and Boyce and Joseph v The Queen the mandatory death penalty is a cruel and unusual punishment and therefore inconsistent with sections 4(a) and 5(2)(b) of the Constitution. Their Lordships note that Trinidad and Tobago is, like Barbados, a party to the International Covenant on Civil and Political Rights and a member of the Organisation of American States and that the Human Rights Committee and Inter-American Commission have both decided that the mandatory death penalty is inconsistent with the international law obligations created by adherence to the ICCPR and membership of the OAS respectively: see Kennedy v Trinidad and Tobago (2002) CCPR/C/67/D/845/1998 and Edwards v The Bahamas (2001) Report No 48/01. The principle that domestic law should so far as possible be interpreted consistently with international obligations and the weight of opinion expressed in domestic cases decided in other jurisdictions supports the conclusion that sections 4 and 5 the Constitution should be similarly interpreted. For further discussion on this point, their Lordships refer to the judgment in Boyce and Joseph v The Queen.


The question in this case, however, is whether inconsistency with sections 4 and 5 has any effect on the validity of the mandatory death penalty. Section 6(1) contains an exception to the operation of the previous two sections:

"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...

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