R v Gordon (Ian)

• Jurisdiction: Jamaica
• Judgment Date: 29 August 2005
• Judgment citation (vLex): [2005] 8 JJC 2901
• Date: 29 August 2005
• Court: Supreme Court (Jamaica)

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

Campbell J

REGINA

v

IAN GORDON

-MURDER-

CRIMINAL LAW - Murder - Capital

1 Sentencing Hearing

2 The accused, Ian Gordon was convicted of Capital Murder and sentenced to death on the 8 ^th October 2003, in respect of the killing of Garfield Gordon and Vincent Raffington on the 29 ^th August 2000.

3 Crown Counsel at this hearing proposed that the sentence of death was appropriate in the circumstances of Ian Gordon's case. The court had the benefit of a Social Enquiry Report, Psychiatric Report, Superintendent's Report, from the Department of Correctional Services and we had character evidence from a minister of religion. We heard an eloquent, helpful and at times impassioned plea of mitigation from Counsel for the convicted man.

4 Up until 1992 a conviction for murder carried a mandatory or automatic death penalty. In that year, The Offences Against the Person Act 1992 was enacted.

5 S. 2 (1) provided that capital murder was committed in circumstances where certain specified persons were murdered, or murder was committed in furtherance of certain specified offences or contract killing. Section (2) (3) provides that murder not falling in subsection (1) is non-capital murder.

6 The journey to that point had started with the overturning by The Judicial Committee of the Privy Council in Pratt and Morgan v Attorney General of Jamaica (1993) 43 WIR 340 of their decision in Riley v Attorney General of Jamaica (1983) AC 719 (1982) 35 WIR 279. In Riley the Privy Council had concluded that section 17 was not a bar to the execution of a duly convicted person merely because the execution was unduly delayed. The Board found that S17 (1) to the Jamaican Constitution which declares that "no person shall be subjected to torture or to inhuman or degrading punishment or treatment," was inapplicable to cases of delayed execution because such execution would not have been unlawful before, and therefore came within the exception established by section 17(2).

7 In overturning Riley, their Lordships held at page 361;

"...in any case in which execution is to take place more than five years after sentence there will be strong grounds for believing that the delay is such to constitute "inhuman or degrading punishment or treatment" under section 17(1) of the Jamaican Constitution."

8 The State apparatus that had been built on the jurisprudence of Riley had to e overhauled to ensure that the constitutional standards that a State who "wishes o retain capital punishment must accept the responsibility of ensuring that execution follows as swiftly as practicable after sentence, allowing a reasonable ime for appeal and consideration of reprieve. It is part of the human condition that condemned man will take every opportunity to save his life through use of the appellate procedure. If the appellate procedure enables the prisoner to prolong, the appellate hearing over a period of years, the fault is to be attributed to the appellate system that permits such delay and not to the prisoner who takes advantage of it." Pratt and Morgan Per Lord Griffiths pg. 358)

9 In order to ensure that the Constitutional mandates of Pratt and Morgan were obeyed, the following steps were taken: -

• (i) The Jamaican State moved to commute to life imprisonment the sentences of over 200 condemned men who had been on death row for five years or more.

• (ii) A legislative distinction was made between capital and non-capital murders; this had the effect of reducing death penalty) cases.

• (iii) In order to reduce the delay between trial and the Court of Appeal to a period of 6 months, administrative and technological changes were made.

• (iv) The problem with delay encountered before the International Organization were met by the introduction of time limits for consideration of capital cases b\ both the IACHR and the UNHRC. Specific time periods were laid down for the notification of the filing of petitions, for consideration of petitions by the human right body that was first petitioned.

• (v) Diplomatic initiatives were undertaken to ensure that the International bodies were made aware of the need of Jamaica to implement the relevant time periods for completion of consideration of petitions in capital cases, by these bodies.

10 The Government efforts to implement time limit in respect of petitions pending to the International bodies were not successful. These bodies met for brief periods each year and had thousands of complaint from all over the world.

11 In the result the Government opted for withdrawal from the optional Protocol to the International Convention on Civil and Political Rights.

12 These actions of the government were being implemented against a background of growing numbers of heinous murders. Witnesses to crimes were being killed. Many of the killings bore the hallmarks of contract murders. Policemen were being gunned done in the execution of their duty with frightening frequency. The elderly, the young and the defenceless were being shown no mercy. Drive-by shootings were a new feature to the criminal scene. Burglar bars, a standard feature in any architectural design was not sufficient to prevent marauders from invading homes and killing their defenceless victims, in many instances entire families.

13 A majority of the population has consistently supported the death penalty. The perceived failure of the justice system to respond effectively has resulted in mob and reprisal killings of persons suspected of having been involved in criminal activity. This perception has had the unwholesome effect of causing sections of the population to seek alternative means of redress. The Offences Against the Person Act 1992 was an attempt to address the mischief that faced the State, and to have the process proceed expeditiously.

14 It was with...