Watson (Lambert) v R

• Jurisdiction: Jamaica
• Judge: FORTE. P: , PANTON. J.A.
• Judgment Date: 16 December 2002
• Judgment citation (vLex): [2002] 12 JJC 1601
• Date: 16 December 2002
• Court: Court of Appeal (Jamaica)

IN THE COURT OF APPEAL

COR:

THE HON. MR. JUSTICE FORTE, P THE HON. MR. JUSTICE PANTON, J.A THE HON. MR. JUSTICE CLARKE, J.A. (AG.)

SUPREME COURT CRIMINAL APPEAL No. 117/99

LAMBERT WATSON

v.

R

Dr. Lloyd Barnett and Nancy Anderson for Appellant

Kathy Pike and Kenneth Ferguson for the Crown

CRIMINAL LAW - Murder - Petition to Her Majesty in Council for leave to appeal - Validity of mandatory sentence of death - Whether mandatory death sentence infringes doctrine of separation of powers - Savings Clause - Constitution of Jamaica, s. 26(8)

FORTE. P

1 The appellant was convicted on two counts of murder in the Hanover Circuit Court on the 19 ^th of July 1999, and as is provided for by Section 3(1A) of the Offences against the Person Act was sentenced to death. His application for leave to appeal to this Court against his conviction and sentence was refused by this Court and the convictions and sentences affirmed on the 5 ^th March 2001. Thereafter, he petitioned Her Majesty in Council, seeking leave to appeal his conviction. This was dismissed on 31 ^st October 2001, but his Supplementary Petition against the mandatory sentence of death imposed on him was heard by the Privy Council, treated as the hearing of the appeal and the issue raised therein remitted to this Court for consideration.

2 Their Lordships in their opinion to Her Majesty stated inter alia, and in so far as is relevant to this appeal, the following:

"(2) that in respect of the Supplementary Petition against the mandatory sentence of death imposed upon the Petitioner (A) special leave ought to be granted to the Petitioner to enter and prosecute his Appeal as a poor person against such sentence (B) the hearing of the Supplementary Petition be treated as the hearing of the Appeal and (C) the matter raised in the Supplementary Petition ought to be remitted to the Court of Appeal of Jamaica to consider the matter."

3 The Supplementary Petition referred to in the Order, was kindly provided to us by Counsel for the appellant. It reads:

"Supplementary Petition

• 2.1 This Petition is supplementary to the Petition for special leave to Appeal filed on behalf of the Petitioner on 26 ^th July 2001

• 2.2 The Petitioner respectfully adopts the submissions in the Supplementary Petition of Michael Pringle v. The Queen (a Petition from Jamaica) relating to the Constitutional validity of the mandatory sentence of death, a copy of which is attached hereto marked 'A'."

4 It is necessary, therefore to look at the Supplementary Petition in Michael Pringle, in order to determine the specific issues which have been referred to us for consideration. These appear under a paragraph headed "Core Submissions" in the Petition of Michael Pringle (also supplied by counsel for the appellant). The paragraph sets out the issues as follows:

" Core submissions

3. Your petitioner makes 3 core submissions in relation to this applicant.

• (i) The mandatory death penalty for capital murder provided for by sections 2 and 3 Offences against the Person Act 1864, (as amended by the Offences against the Person (Amendment) Act 1992 (vthe 1992 Act') (the '1864 Act'), is unconstitutional in that it offends against the constitutional principle of the separation of powers and violates your Petitioner's right to life and his right not to be subjected to inhuman and degrading treatment, protected, respectively, by sections 14(1) and 17(2) of the Jamaican Constitution (section 3 & Schedule 2 of the Jamaica (Constitution) Order in Council 1962, SI 1962/1550) (the 'Constitution').

• (ii) The savings clause in section 26(8) of the Constitution does not prevent a constitutional challenge to sections 2 & 3 of the 1864 Act because those provisions, as amended , were not in force immediately before the day upon which the Constitution came into force (the 'appointed day'), and do not fall within the category of amendments provided for by section 26(9) that are deemed to fall within section 26(8).

• (iii) The savings clause in section 17(2) of the Constitution does not prevent a constitutional challenge that the mandatory nature of the death penalty constitutes inhuman and degrading treatment; it only prevents a challenge that the death penalty itself constitutes such treatment."

5 In summary, the Petition raised the following contentions:

• (i) The mandatory death penalty infringes the doctrine of the Separation of Powers.

• (ii) It also infringes the provisions of section 17(1) which gives the petitioner, as indeed to all citizens, the right not to be subjected to inhuman or degrading punishment or other treatment.

• (iii) The mandatory death penalty is not saved from unconstitutionality by either section 26(8) or section 17(2) of the Constitution.

6 Dr. Barnett who represented the appellant before us maintained these complaints.

7 Firstly, I will deal with (ii) and (iii) above, as there has been in recent times a trilogy of cases coming from Her Majesty's Privy Council which dealt in depth with those issues. However, in none of those cases, was a provision such as section 26(8) dealt with and so it will be necessary to determine what effect, if any, that section would have on the conclusion of their Lordships Board i.e. whether the provision of section 26(8) in the Jamaican Constitution distinguishes the consideration in this appeal from those in the trilogy of cases.

8 The cases referred are Reyes v. The Queen (2002) 2 W.L.R 1034, R. v. Hughes (2002) 2 W.L.R 1058, and Fox v. The Queen (2002) 2 W.L.R 1077.

9 Reyes v. The Queen is a case emanating from Belize. The facts and conclusions of the Board are conveniently set out in the headnote to the case which reads as follows:

"The defendant was convicted on two counts of murder by shooting, which by section 102(3)(b) of the Criminal Code of Belize Criminal Code, s 102, as amended: see post, para 4 was classified as a class A murder. Pursuant to section 102(1), which prescribed a mandatory death penalty for class A murder, he was sentenced to death on each count. By the proviso to section 102(1) in the case of a murder classified as class B the court might, where there were special extenuating circumstances, refrain from imposing a death sentence and instead pass a sentence of life imprisonment. The defendant's appeal against conviction and sentence was dismissed by the Court of Appeal of Belize. The Judicial Committee of the Privy Council dismissed his petition for special leave to appeal against conviction but granted leave to appeal against sentence so that he could challenge the constitutionality of the mandatory death penalty for class A murder on the ground, among others, that it infringed his right not to be subjected to inhuman or degrading punishment or other treatment, contrary to section 7 of the Constitution of Belize. Constitution of Belize s2: see post, para 6. By section 2 any law inconsistent with the Constitution was void to the extent of the inconsistency.

It was held , allowing the appeal, that since the character of the offence of murder by shooting could vary widely the imposition of the death penalty for some such offences would be plainly excessive and disproportionate, and so to deny a person convicted of murder by shooting the opportunity to seek to persuade the court, before sentence was passed, that in all the circumstances to condemn him to death would be disproportionate and inappropriate would be to treat him as no human being should be treated and thus to deny his basic humanity; that section 102 of the Criminal Code, in requiring a mandatory sentence of death to be passed on the defendant on conviction of murder by shooting and thereby precluding any judicial consideration of the humanity of condemning him to death, therefore subjected him to inhuman or degrading punishment or other treatment incompatible with the right afforded to him by section 7 of the Constitution; that that constitutional defect in the sentencing process could not be remedied by the subsequent opportunity to seek mercy from the executive pursuant to sections 52 and 53 of the Constitution; that section 102(3)(b) of the Code, to the extent that it indiscriminately referred to any murder by shooting, was thus void by virtue of section 2 of the Constitution, and, in accordance with section 134(1) of the constitution, any murder by shooting was to be treated as a class B murder as defined in section 102(3) of the Code; and that, accordingly, the death sentences would be quashed and the case remitted to a judge of the Supreme Court of Belize to pass appropriate sentence on the defendant after hearing or receiving any evidence and submissions on his behalf."

10 It is worthy of note that the Board after examining the law as it is in many jurisdictions of the world, nevertheless restricted its conclusion to the particular facts in the case, that is to say, the constitutionality of the mandatory death penalty for murder by shooting. Lord Bingham of Cornhill, who delivered the opinion of the Board said at page 1055:

"43. For purposes of this appeal the Board need not consider the constitutionality of any mandatory penalty other than death, nor the constitutionality of a mandatory death penalty imposed for any murder other than by shooting. ..."

11 Nevertheless, it is necessary to point out two important variations between the Constitution of Belize and that of Jamaica:

1 . Section 21 of the Constitution of Belize states:

"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."

12 Their Lordships commented on that section on page 1038 as follows:

"Section 21 was contained in Part 11 of...