Roodal v State of Trinidad and Tobago
| Jurisdiction | UK Non-devolved |
| Judge | Lord Steyn,Lord Millett,Lord Rodger of Earlsferry |
| Judgment Date | 20 November 2003 |
| Neutral Citation | [2003] UKPC 78 |
| Court | Privy Council |
| Docket Number | Appeal No. 18 of 2003 |
| Date | 20 November 2003 |
[2003] UKPC 78
Present at the hearing:-
Lord Bingham of Cornhill
Lord Steyn
Lord Millett
Lord Rodger of Earlsferry
Lord Walker of Gestingthorpe
Privy Council
[Majority judgment delivered by Lord Steyn]
In Trinidad and Tobago judges have assumed that there is a fixed penalty for murder, namely death. Last year this assumption was tested in the Court of Appeal: the Court ruled that under the law of Trinidad and Tobago the penalty for murder is a mandatory sentence of death. Now the issue before the Privy Council is whether the penalty for murder is a mandatory or discretionary death sentence. It raises profoundly important questions about the application of the death penalty in Trinidad and Tobago and the working of the Constitution.
.
On 15 July 1999 at the San Fernando Assizes a jury convicted the appellant of murder. Section 4 of the Offences Against The Person Act 1925 provides that "Every person convicted of murder shall suffer death". The judge imposed what he regarded as a mandatory sentence of death. On 7 April 2000 the Court of Appeal of the Republic of Trinidad and Tobago dismissed the appellant's appeal against conviction. On 2 November 2000 the Privy Council dismissed a petition by the appellant for special leave to appeal against his conviction. On 12 November 2001 the Privy Council granted leave to appeal against the sentence of death and remitted the matter to the Court of Appeal to reconsider the matter of sentence. On 17 July 2002 M A de la Bastide CJ delivered the judgment of the Court of Appeal which dismissed the appellant's appeal against sentence and affirmed the mandatory sentence of death imposed on him.
.
There were three principal issues before the Court of Appeal namely –
(a) whether construed in the light of section 68 of the Interpretation Act 1962 section 4 of the 1925 Act prescribes a maximum and not the only penalty;
(b) alternatively, whether section 4 requires modification so as to provide for a discretionary death sentence in order to bring it into conformity with the 1976 Constitution of Trinidad and Tobago;
(c) in the further alternative, whether the imposition of a mandatory death sentence violates the constitutional principle of separation of powers.
The Court of Appeal rejected the contentions of the appellant on each of the issues. The Privy Council must now examine a challenge to the decision of the Court of Appeal. Before that can be done it is necessary to describe the matrix of the problem.
.
In Trinidad and Tobago the crime of murder is based on the English common law. Murder covers an extraordinarily wide spectrum of cases of homicide, most of which would not be regarded as murder in ordinary parlance. In R v Powell (Anthony) [1999] 1 AC 1, this point was explained (at 14H-15E):
"In English law a defendant may be convicted of murder who is in no ordinary sense a murderer. It is sufficient if it is established that the defendant had an intent to cause really serious bodily injury. This rule turns murder into a constructive crime. The fault element does not correspond to the conduct leading to the charge, i.e. the causing of death. A person is liable to conviction for a more serious crime than he foresaw or contemplated: see Williams, Textbook of Criminal Law, 2nd ed. (1983), pp. 250-251; Ashworth, Principles of Criminal Law, 2nd ed. (1995), pp 85, 261; Card, Cross & Jones, Criminal Law, 12th ed. (1992), pp 203-204. This is a point of considerable importance. The Home Office records show that in the last three years for which statistics are available mandatory life sentences for murder were imposed in 192 cases in 1994; in 214 cases in 1995; and in 257 cases in 1996. Lord Windlesham, writing with great Home Office experience, has said that a minority of defendants convicted of murder have been convicted on the basis that they had an intent to kill: 'Responses to Crime', vol. 3 (1996), at 342, n. 29. That assessment does not surprise me. What is the justification for this position? There is an argument that, given the unpredictability whether a serious injury will result in death, an offender who intended to cause serious bodily injury cannot complain of a conviction of murder in the event of a death. But this argument is outweighed by the practical consideration that immediately below murder there is the crime of manslaughter for which the court may impose a discretionary life sentence or a very long period of imprisonment. Accepting the need for a mandatory life sentence for murder, the problem is one of classification. The present definition of the mental element of murder results in defendants being classified as murderers who are not in truth murderers. … It results in the imposition of mandatory life sentences when neither justice nor the needs of society require the classification of the case as murder and the imposition of a mandatory life sentence."
These observations apply with far greater force in Trinidad and Tobago where it is also sufficient to establish murder to prove an intent to cause serious bodily harm and where at present the view is that all who fall within the class of convicted murders must be sentenced to death.
The Report of the Royal Commission on Capital Punishment (1949- 1953) (Cmd 8932) at para 21 states that "there is perhaps no single class of offences that varies so widely both in character and in culpability as the class comprising those which may fall within the comprehensive common law definition of murder". The Royal Commission illustrated this point with many examples which need not be set out. For present purposes it is sufficient to say that at one end of the range of cases may be the serial killing of young children and at the other end an assault which went wrong and unexpectedly resulted in the death of another.
The Royal Commission further observed (para 22) that no one would now dispute that for many of these crimes "it would be monstrous to inflict the death penalty". The same applies to the current practice in Trinidad and Tobago. It appears from the statistics provided by the Royal Commission that in England in the first half of the 20th Century 45 per cent of persons sentenced to death were reprieved, and of those twice as many served terms under five years (in some cases less than one year) as served terms over 15 years. In Trinidad and Tobago for the period 1961-1988 in 29 out of the 51 cases, which were referred to the Advisory Committee on the Power of Pardon, executions were carried out: The Prescott Commission's Report on the Death Penalty in Trinidad and Tobago (1990), Appendix 3. In the other cases the prisoners were mostly released within 15 years. In three cases the prisoners were released within 5 to 6 years. This further illustrates how unjust it is to impose on all persons convicted of murder a mandatory death sentence.
This view is reinforced by the judgment of 21 June 2002 of the Inter-American Court of Human Rights in Hilaire, Constantine and Benjamin Et Al v Trinidad and Tobago. The Court observed about section 4 (at paras 104-106):
"The Court finds that the Offences Against the Person Act has two principal aspects: a) in the determination of criminal responsibility, it only authorizes the competent judicial authority to find a person guilty of murder solely based on the categorization of the crime, without taking into account the personal conditions of the defendant or the individual circumstances of the crime; and b) in the determination of punishment, it mechanically and generically imposes the death penalty for all persons found guilty of murder and prevents the modification of the punishment through a process of judicial review.
The Court concurs with the view that to consider all persons responsible for murder as deserving of the death penalty, 'treats all persons convicted of a designated offence not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the death penalty'. [The citation is from Woodson v North Carolina (1976) 428 US 280, 304; 49 L Ed. 2d 944, 961.]
In countries where the death penalty still exists, one of the ways in which the deprivation of life can be arbitrary under Article 4(1) of the Convention is when it is used, as is the case in Trinidad and Tobago due to the Offences Against the Person Act, to punish crimes that do not exhibit characteristics of utmost seriousness, in other words, when the application of this punishment is contrary to the provisions of Article 4(2) of the American Convention."
A mandatory sentence of death is contrary to the Inter-American Convention on Human Rights: Schabas, The Abolition of the Death Penalty in International Law, 3rd ed., 2002, at 111.
.
The first issue focuses on the Interpretation Act and the second on the Constitution. The Court of Appeal approached these two issues as if they must legally be put in separate boxes. That is not entirely right. The Constitution, statute law and common law coalesce in one legal system. The Constitution has a direct effect on statute law and common law as well as an indirect radiating influence on both. It is therefore ultimately not possible to consider the Interpretation Act divorced from the constitutional dimension. Subject to this important qualification, it is possible to start with a preliminary examination of the first issue.
.
Section 64 of the Interpretation Act 1962 provides:
"Where a written law provides (in whatever terms) that a person is liable to a penalty if he commits a specified act, that act shall be deemed to have been constituted an offence by such written law."
Section 68 of the Interpretation Act provides:
"(1) Where a punishment is provided by a written law for an...
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