[UPDATED] Privy Council rules: death penalty stays

The death penalty will remain on this country’s statute books as the punishment for murder.

On Monday, the Privy Council held the punishment, though deemed cruel and unusual internationally, was not unconstitutional as it dismissed the appeal of a convicted killer.

However, this country did not escape reproof from the Law Lords for keeping the hangman’s noose.

“It is striking that there remains on the statute book a provision which, as the government accepts, is a cruel and unusual punishment because it mandates the death penalty without regard to the degree of culpability.

“Nonetheless, such a provision is not unconstitutional,” said Lord Patrick Hodge, who wrote the decision.Also presiding on the appeal were Lords Reed Lloyd-Jones, Sales, Hamblen, Stephens and Hughes, Lady Arden and Sir Nigel Davis.

Trinidad and Tobago is the only country in the English-speaking Caribbean that retains the mandatory death penalty.

The Death Penalty Project, a non-profit organisation providing free legal representation to people facing capital punishment, estimated there were some 45 people on death row, and approximately 1,300 remanded for murder.

The challenge to the death penalty came from convicted killer Jay Chandler, who asked the Law Lords to rule on its mandatory nature as the only punishment for murder. Although he lost his previous appeals, the Privy Council agreed to review its prior decisions on the constitutional validity of the mandatory death penalty because of a 2018 ruling in the Caribbean Court of Justice (CCJ) on a Barbados case. In that case, the CCJ held the mandatory death penalty violated the rights protected under Barbados’s Constitution, departing from earlier judgments given by the Privy Council.

Chandler argued that section 4 of the Offences Against the Person Act 1925, which provides that “every person convicted of murder shall suffer death,” was inconsistent with critical rights afforded by the Constitution, including the right to life.

In asking the Law Lords to depart from the previous decision, which upheld the mandatory death penalty, Chandler’s lawyers argued because it was inconsistent with the rights protected by the Constitution, it was, therefore, unconstitutional, unlawful, and must be read as providing a discretionary death sentence.

However, in defence of the penalty, the State’s legal team, led by Senior Counsel Fyard Hosein, argued the death penalty was immunised from a challenge by the savings clause which insulates colonial legislation from review except by Parliament.

The Privy Council agreed, saying, “The 1976 Constitution has allocated to Parliament, as the democratic organ of government, the task of reforming and updating the law, including such laws.”

The Privy Council’s ruling on the saving clause –one of at least four cases in which it is being challenged – is now settled, as Hodge said to say now that existing laws were modified in 1962 when for many years the government and people of TT have conducted their affairs on the basis there was no modification “would be to introduce considerable uncertainty into the law.

“The relevant desiderata are that retroactive laws should be avoided, that legal rules should be clear, that there should be a constancy of law through time and that there should be the correct administration of the law. These desiderata are not rules of law, but they are statements of what is obviously desirable”

Hodge said for TT’s court of final appeal to reverse its previous decision on the mandatory nature of the death penalty would be to “militate against these desirable features of the law and against respect for the rule of law.”

The Law Lords also recognised the right of the CCJ to develop its own jurisprudence for countries that were subject to its jurisdiction: ”The CCJ is not bound to follow the board’s precedents.”

As it pointed to the differences between the Barbadian and TT constitutions on the savings clause, the ruling noted, for TT, “It was a conscious democratic decision to preserve existing laws and not to convert the savings clause into a transitional provision."

“As the board has mentioned, Parliament had the option of dispensing with a savings clause at that time and deliberately chose not to do so. By making that choice the legislature reserved to itself the responsibility for updating the laws of TT to reflect a developing appreciation of fundamental rights and freedoms and changes in social values...

“The policy questions posed by the savings clause are not limited to the mandatory death penalty but apply also to other preserved laws which are inconsistent with the higher standards enshrined in section 4 of the 1976 Constitution,” the decision said.

Hodge said laws that predated the 1976 Constitution, except the savings clause, will continue to exist only so long as Parliament chooses to retain them.

Chandler was convicted for the 2004 murder of remanded prisoner Kern Phillip. Both men were at the Golden Grove Prison, Arouca, when Chander lunged at Phillip and chased him with an improvised knife. He stabbed Phillip in the chest and was convicted by a jury on August 17, 2011.

He lost his appeal at the Court of Appeal on December 12, 2013 and in 2018, his appeal to the Privy Council was also dismissed. His sentence has since been commuted to life and the Privy Council said it observed that no one has been executed since 1999, “in part because of delays in the appellate process.”

Chandler was represented by a team of attorneys led by Edward Fitzgerald, QC, Douglas Mendes, SC, Rajiv Persad and Amanda Clift-Matthews.

Also sharing the lead for the State was Howard Stevens, QC, assisted by Tom Poole, QC, and Hannah Fry.

This story has been updated to include additional details. Read original below:

The death penalty stays.

On Monday, the Privy Council held that Parliament had the power to impose the sentence, despite its being considered internationally as cruel and unusual punishment.

This country did not, however, escape the reproval of the Law Lords, who noted that it was “striking” that such a provision remained on the statute books "a provision which, as the government accepts is a cruel and unusual punishment because it mandates the death penalty without regard to the degree of culpability.

“Nonetheless, such a provision is not unconstitutional.”

The Privy Council was asked to rule on the mandatory nature of the death penalty as the only punishment for murder in light of a 2018 ruling by the Caribbean Court of Justice (CCJ) that the mandatory death penalty in Barbados violated the rights protected under its constitution.

Bringing the challenge was convicted killer Jay Chandler, who was sentenced to death in August 2011. His sentence has since been commuted to life imprisonment.

Integral to the State’s defence of the retention of the death penalty was the “saving law” argument that the 1976 Constitution preserved the mandatory death penalty.

The State’s legal team, led by Senior Counsel Fyard Hosein, argued the death penalty was protected from challenge by the savings clause, which insulates colonial legislation from review except by Parliament.

“The 1976 Constitution has allocated to Parliament, as the democratic organ of government, the task of reforming and updating the law, including such laws,” the Privy Council said on Monday.

Chandler was represented by a team of attorneys led by Edward Fitzgerald, QC, Douglas Mendes, Rajiv Persad and Amanda Clift-Matthews.

Also sharing the lead for the State was Howard Stevens, QC, who was assisted by Tom Poole, QC, and Hannah Fry.