Trinidad and Tobago: Murder—Constitutionality of Constructive Malice and Mandatory Death Sentence
| Author | Graeme Broadbent |
| DOI | 10.1350/jcla.68.4.301.36522 |
| Date | 01 August 2004 |
| Published date | 01 August 2004 |
| Subject Matter | Privy Council |
Privy Council
Trinidad and Tobago: Murder—Constitutionality of
Constructive Malice and Mandatory Death Sentence
Khan v The State [2003] UKPC 79
The appellant was involved, with others, in a robbery, in the course of
which the victim received fatal injuries. He was convicted of murder on
the basis of a version of the ‘felony murder’ rule (‘constructive malice’),
restored to law of Trinidad and Tobago by the Criminal Law (Amend-
ment) Act 1997. This inserted a new s. 2A into the Criminal Law Act
1979, which now reads:
Where a person embarks upon the commission of an arrestable offence
involving violence and someone is killed in the course or furtherance of
that offence (or any other arrestable offence involving violence), he and all
other persons engaged in the course or furtherance of the commission of
that arrestable offence (or any other arrestable offence involving violence)
are liable to be convicted of murder even if the killing was done without
intent to kill or cause grievous bodily harm.
Before the Privy Council, the appellant sought to challenge both his
conviction and the mandatory death sentence that had been passed on
him, both of which had been upheld by the Court of Appeal of Trinidad
and Tobago. With regard to his conviction, he contended that the revised
version of the ‘felony murder’ rule was wider than that existing at
common law and based on the commission of a felony. This had been
inadvertently, but consequentially, abolished when the distinction be-
tween felonies and misdemeanours had been abolished in 1979, and
restored by the 1997 Act, though using the concept of ‘arrestable offence
involving violence’ rather than felony. The scope of the rule was broad-
ened in that there were such arrestable offences that had not been
felonies. The revised offence was thus, he argued, unconstitutional in
that it infringed s. 4, which guaranteed the right not to be deprived of life
or liberty except by due process of law, and the right to protection of the
law and s. 5, which guaranteed the right to be presumed innocent until
proved guilty according to law. With regard to the sentence, he argued
that the mandatory death penalty imposed upon him was unconstitu-
tional. This sentence had been passed by virtue of s. 4 of the Offences
against the Person Act: ‘Every person convicted of murder shall suffer
death as a felon.’
H
ELD
(
BY A MAJORITY OF
3
TO
2)
DISMISSING THE APPEAL AGAINST
CONVICTION AND ALLOWING THE APPEAL AGAINST SENTENCE
,whilst there
was no reason in principle why the constitutional guarantees contained
in s. 4 should not apply to substantive law as well as to rules of process,
there was nothing that could support a constitutional challenge in the
present case. The rules contained in s. 2A defined what the prosecution
had to prove and there was nothing undermining the presumption of
301
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