Patrick Reyes v The Queen

 
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[2002] UKPC 11

Privy Council

Present at the hearing:-

Lord Bingham of Cornhill

Lord Hutton

Lord Hobhouse of Woodborough

Lord Millett

Lord Rodger of Earlsferry

Appeal No. 64 of 2001
Patrick Reyes
Appellant
and
The Queen
Respondent

From

THE COURT OF APPEAL OF BELIZE

[Delivered by Lord Bingham of Cornhill]

1

On 16 April 1997 Patrick Reyes, the appellant, shot and killed Wayne Garbutt and his wife Evelyn. He was tried on two counts of murder, convicted and sentenced to death on each count as required by the law of Belize on conviction of murder by shooting. His appeal against conviction was dismissed by the Court of Appeal and his petition for special leave to appeal against conviction was dismissed by this Board. But the Board granted the appellant special leave to raise two constitutional arguments not advanced in the courts below. The first argument challenges the constitutionality of the mandatory death penalty, which is said to infringe both the protection against subjection to inhuman or degrading punishment or other treatment under section 7 of the constitution of Belize and the right to life protected by sections 3 and 4. Under this head the appellant does not challenge the constitutionality of the death penalty as such: his submission is directed to the mandatory requirement that sentence of death be passed in certain cases, of which his is one. The second argument challenges the constitutionality of hanging as the means of carrying out the sentence of death. The crown has not been represented on the hearing of this appeal, but the Attorney-General has written to say that the Belize Government is content that the Board should decide the issues and that it adopts a neutral stance.

The facts

2

The main facts leading to the convictions were not in dispute. The appellant and the deceased occupied houses which were close to each other but divided by a strip of public land that had been reserved as part of a roadway. The deceased Wayne Garbutt obtained a lease of the public land from the government and decided to enclose it as part of his property. The appellant evidently heard of this intention, and understood that a fence was to be built some 2 feet away from the back of his house. On 16 April 1997 the appellant left for work in the morning, but before doing so told his son to inform him if work on building the new fence began. His place of work was some two miles away. Wayne Garbutt did begin building the fence and the appellant's son reported this to him. The appellant left work and returned home by bicycle. The building of the fence was under way. The appellant arrived on the scene and asked Wayne Garbutt to show him "the papers that he got for the lands". Garbutt said that he had "a paper" but refused to show it to the appellant. The appellant went into his own house and soon afterwards emerged with a gun which he pointed at those who were erecting the fence. There was a gunshot which injured one of the workmen and a further shot which killed Wayne Garbutt. He was shot in the back. Evelyn Garbutt then came on to the porch of their house, and the appellant shot her also. The appellant walked over to where Wayne Garbutt's inert body lay, looked at it, and then turned the gun on himself and pulled the trigger. His injuries were serious and he was kept in hospital for three months before being discharged and charged with the two murders.

3

It is understood that the appellant is a man of good character, with no previous record of violence. At the trial he called a priest who spoke highly of him. He was examined by two psychiatrists, one in hospital, the other in prison. The first found him to be hallucinating, and subject to a psychotic episode for which she treated him, but she was unable to express an opinion on his state of mind at the time of the killings. The second concluded that the appellant may on 16 April 1997 have been suffering from a brief psychotic disorder which could have impaired his mental responsibility, but he was unable to make a definitive diagnosis of the appellant's state of mind on the day of the incidents.

The Criminal Code of Belize

4

Section 102 of the Criminal Code of Belize originally provided:

"Every person who commits murder shall suffer death".

By section 114 of the code proof of murder requires proof of an intention to kill, and in succeeding sections defences of diminished responsibility and provocation are provided. In 1994 section 102 of the code was amended by re-numbering that section as subsection (1) and adding to it the following proviso:

"Provided that in the case of a Class B murder (but not in the case of a Class A murder), the court may, where there are special extenuating circumstances which shall be recorded in writing, and after taking into consideration any recommendations or plea for mercy which the jury hearing the case may wish to make in that behalf, refrain from imposing a death sentence and in lieu thereof shall sentence the convicted person to imprisonment for life."

The section was further amended by adding two further subsections:

"(2) The proviso to subsection (1) above shall have effect notwithstanding any rule of law or practice which may prohibit a jury from making recommendations as to the sentence to be awarded to a convicted person.

(3) For the purpose of this section –

'Class A murder' means:-

  • (a) any murder committed in the course or furtherance of theft;

  • (b) any murder by shooting or by causing an explosion;

  • (c) any murder done in the course or for the purpose of resisting or avoiding or preventing a lawful arrest, or of effecting or assisting an escape or rescue from legal custody;

  • (d) any murder of a police officer acting in the execution of his duty or of a person assisting a police officer so acting;

  • (e) in the case of a person who was a prisoner at the time when he did or was a party to the murder, any murder of a prison officer acting in the execution of his duty or of a person assisting a prison officer so acting; or

  • (f) any murder which is related to illegal drugs or criminal gang activity;

'Class B murder' means any murder which is not a Class A murder."

The categories of murder listed in class A were plainly based on section 5(1) of the British Homicide Act 1957, but with the addition of an additional category of capital murder expressed in (f). It was because the murders committed by the appellant fell within subsection (3)(b) that imposition of the death sentence was mandatory.

5

Hanging is the means by which the death sentence is carried out in Belize.

The Constitution of Belize

6

On 21st September 1981 Belize became a sovereign independent state within the Commonwealth. Its constitution, (Laws of Belize, C4) was expressed in section 2 to be

"the supreme law of Belize and if any other law is inconsistent with this Constitution that other law shall, to the extent of the inconsistency, be void."

In section 21 it was provided:

"Nothing contained in any law in force immediately before Independence Day nor anything done under the authority of any such law shall, for a period of five years after Independence Day, be held to be inconsistent with or done in contravention of any of the provisions of this Part."

Section 21 was contained in Part II of the constitution, entitled "Protection of Fundamental Rights and Freedoms". Thus, unusually if not uniquely, the continuing savings clauses found in many other if not all Caribbean constitutions, whether in the wider form found in some constitutions or the narrower form found in others, have no close counterpart in the constitution of Belize.

7

Part II of the constitution contains the following provisions relevant to the appellant's arguments:

"3. Whereas every person in Belize is entitled to the fundamental rights and freedoms of the individual, that is to say, the right, whatever his race, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, to each and all of the following, namely –

  • (a) life, liberty, security of the person, and the protection of the law;

  • (b) freedom of conscience, of expression and of assembly and association;

  • (c) protection for his family life, his personal privacy, the privacy of his home and other property and recognition of his human dignity; and

  • (d) protection from arbitrary deprivation of property,

the provisions of this Part shall have effect for the purpose of affording protection to those rights and freedoms subject to such limitations of that protection as are contained in those provisions, being limitations designed to ensure that the enjoyment of the said rights and freedoms by any person does not prejudice the rights and freedoms of others or the public interest.

4.(1) A person shall not be deprived of his life intentionally save in execution of the sentence of a court in respect of a criminal offence under any law of which he has been convicted.

6.(2) If any person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.

7. No person shall be subjected to torture or to inhuman or degrading punishment or other treatment."

Section 20 gives the Supreme Court jurisdiction to afford redress where the provisions of sections 3 to 19 of the constitution have been contravened, but, as Mr. Fitzgerald QC for the appellant accepts, the terms of section 4(1) preclude a challenge to the constitutionality of the death sentence as such.

8

Part IV of the constitution defines and governs the rôle of the governor-general and Part V governs the executive. In this chapter there are a series of detailed provisions governing exercise of the prerogative of mercy which are relevant to a submission considered below. Sections 52 and 53 are in these terms:

"52.(1) The...

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