Watson v The Queen
| Jurisdiction | UK Non-devolved |
| Judge | Lord Hope of Craighead,Lord Bingham of Cornhill,Lord Nicholls of Birkenhead,Lord Steyn,Lord Walker of Gestingthorpe |
| Judgment Date | 07 July 2004 |
| Neutral Citation | [2004] UKPC 34 |
| Court | Privy Council |
| Docket Number | Appeal No. 36 of 2003 |
| Date | 07 July 2004 |
[2004] UKPC 34
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
Privy Council
[Delivered by Lord Hope of Craighead]
On 15 June 1999 the appellant was convicted in the Hanover Circuit Court of the Supreme Court of Jamaica of the murder on 18 September 1997 of Eugenie Samuels and Georgina Watson. The deceased were mother and daughter, and the appellant was Georgina's father. The deceased and the appellant had been seen by a police officer on the morning of 18 September. The appellant was seen later that day coming from the place where the bodies of the deceased were found. They had both died from severe stab wounds to the neck and body.
Section 2(1) of the Offences against the Person Act of 1864, as amended by the Offences against the Person (Amendment) Act 1992, provides that murder committed in the circumstances referred to in that subsection is capital murder. Section 2(3) of the Act, as amended, provides that murder not falling within subsection (1) is non-capital murder. Neither of the murders of which the appellant was convicted fell within section 2(1) of the Act. They were both non-capital murders. But section 3(1A) of the Act, as amended, provides that a person who is convicted of non-capital murder shall be sentenced to death "if before that conviction he has … (b) been convicted of another murder done on the same occasion". It was a reasonable inference from the facts that the deceased were both killed on the same occasion. The appellant was sentenced to death under section 3(1A).
The appellant applied for leave to appeal against his conviction of murder. On 5 March 2001 the Court of Appeal of Jamaica dismissed that application. The appellant then sought special leave to appeal to their Lordships' Board. On 31 October 2001 his petition for special leave to appeal against his conviction was dismissed. But in a supplementary petition for leave to appeal he also sought leave to appeal against the mandatory death sentence on grounds relating to its constitutional validity. The matter raised in the supplementary petition was remitted to the Court of Appeal of Jamaica to consider. On 16 December 2002 the Court of Appeal (Forte P, Panton JA and Clarke JA (Ag)) upheld the constitutional validity of the mandatory death sentence and dismissed the appeal. On 1 April 2003 the Court of Appeal granted the appellant final leave to appeal from that judgment to their Lordships' Board.
The issue which is before their Lordships in this appeal is whether the mandatory sentence of death which was imposed on the appellant under section 3(1A) of the Act of 1864, as amended, was unconstitutional. But the case has a wider significance, because the grounds on which the mandatory death penalty is said to be unconstitutional in this case extend to the constitutionality of the mandatory death penalty in every case where this penalty is provided for by the law as it now stands in Jamaica.
The statutory background
It is first necessary to describe the legislation under which the mandatory death sentence that was imposed in this case was passed.
The Offences against the Person Act was enacted in 1864 as the Offences against the Person Law, chapter 268. It contained these provisions:
"2. Whosoever shall be convicted of murder shall suffer death as a felon.
3(1) Upon every conviction for murder, the Court shall pronounce sentence of death, and the same may be carried into execution as heretofore has been the practice; and every person so convicted, shall, after sentence, be confined in some safe place within the prison, apart from all the other prisoners."
In 1958 section 3(1) of the principal Law was amended by inserting at the end thereof the following paragraph:
"Where by virtue of this subsection a person convicted of murder is sentenced to death, the form of the sentence shall be to the effect only that he is to 'suffer death in the manner authorized by the law.'"
The legislation was still in this form immediately before 6 August 1962, which was the date on which Jamaica attained independence under the Jamaica Independence Act 1962.
The law on this matter remained in that form after independence. But it was not long before questions began to be raised as to whether it should be changed. In June 1979 the Minister of Justice nominated a Committee under the chairmanship of Mr H Aubrey Fraser, Director of the Norman Manley Law School, with the following terms of reference:
"To consider and report within a period of eighteen (18) months whether liability under the Criminal Law of Jamaica to suffer death as a penalty for murder should be abolished, limited or modified and if so, to what extent, by what means and for how long, and under what conditions persons who would otherwise have been made to suffer capital punishment should be detained and what changes in the existing law and the penal system would be required."
The Fraser Committee reported in December 1981. Its recommendations are set out in paras 14–20 of the Report. It recognised that discussion of the question of capital punishment is usually a highly emotional affair in which people's responses are inspired by strong instinctive impulses. The evidence which it had heard had shown that a proposal that capital punishment be wholly abolished would not generally be accepted by the Jamaican public, having regard especially to the state of violent crime in the society. The thrust of opinion was not wholly in favour of the retention of the penalty, nor was it wholly against the abolition of the penalty. It seemed to the Committee that a significant body of opinion was spread across a span between phased abolition on the one hand, and on the other hand its retention as a penalty for certain offences only. It was noted that the Report of the Commission of Enquiry into incidents which occurred at the St Catherine District Prison on 27 December 1974, known as the Barnett Report, had expressed the view that the long delay in the execution of the death penalty after it had been pronounced constituted cruel and inhumane punishment and that it had recommended that capital punishment, being of questionable deterrent effect, should be abolished.
In para 18 if its Report the Fraser Committee concluded as follows:
"The Committee is likewise of opinion that death as a penalty for murder should be abolished. The Committee feels strongly however that such a step should be undertaken as part of a comprehensive system of penal reform which should commence without delay. This opinion finds support in the concern expressed by many witnesses who appeared before us. Many spoke about the inadequacies in the penal system and about some of the existing conditions in penal institutions which themselves contribute to crime. The introduction of a system of penal reform is likely to require careful research and study until such a scheme can be undertaken. The Committee recommends that, as an interim measure, consideration be given to modifying the circumstances under which capital punishment is now imposed as a penalty for murder."
The recommendations of the Fraser Committee were not implemented, and executions following the imposition of the mandatory death sentence continued in Jamaica during the 1980s. But questions as to the need for change continued to be asked. In September 1992 a joint select committee of the House of Representatives and the Senate recommended that the law should indeed be changed. A Bill was introduced which sought to amend the Offences against the Person Act by providing that the death penalty be retained in respect of certain murders only, to be defined as "capital murders", that life imprisonment be imposed for non-capital murders and that, in sentencing a person to life imprisonment, the court might specify a period which should elapse before the grant of parole to that person.
Attached to the Bill, which was to become the Offences against the Person (Amendment) Act 1992 ("the 1992 Act"), was a Memorandum of Objects and Reasons by the Minister of National Security and Justice. In the opening paragraphs of this Memorandum it was stated:
"Under the existing law in relation to homicide the death penalty is imposed on a conviction for murder.
The Bar Association of Jamaica, at an Extraordinary General Meeting voted against a Resolution for the total abolition of the death penalty, but made certain recommendations as to the retention of the death penalty for certain murders.
The Government has decided, after considering the views of the Bar Association and others, to make certain changes in the law relating to homicide."
The 1992 Act repealed section 2 of the 1864 Act ("the 1864 Act") and substituted a new section which defined murder which was committed in the circumstances set out in subsection (1) as capital murder. Section 2(1) was modelled on the provisions of the Homicide Act 1957, Part II of which created the offence of capital murder in Great Britain following the report of the Royal Commission on Capital Punishment in 1949 (Cmnd 8932). None of these circumstances apply in this case. Section 2(3) of the 1864 Act, as amended by the 1992 Act, provides:
"Murder not falling within subsection (1) is non-capital murder."
Section 3 of the 1864 Act, as amended by the 1992 Act, provides:
"(1) Every person who is convicted of capital murder shall be sentenced to death and upon every such conviction the court shall pronounce sentence of death, and the same may be carried into execution as heretofore has been the practice; and every person so convicted or sentenced pursuant...
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