THE 1992 amendment that caused the ruling in the Lambert Watson case was made to the Offences Against the Person Act and it paved the way for two categories of murder capital murder, which attracts the death penalty, and non-capital murder, for which the sentence is life imprisonment. On the non-capital charge, a judge can determine the length of sentence a prisoner must serve before being eligible for parole.
The Privy Council's ruling yesterday means that the sentence for capital murder is discretionary. The judge, before passing sentence, must hear mitigation pleas and determine whether the death sentence or an alternative should be imposed.
39 PRISONERS ON DEATH ROW
All 39 prisoners on death row must now have their sentences reviewed by the Court of Appeal and they must be given the opportunity to challenge the sentence.
This is the second time within a year that the Privy Council has ruled that mandatory sentences in Jamaica are unconstitutional. The first ruling by the Privy Council was that it was unconstitutional to sentence juveniles convicted of murder to be detained at the Governor-General's pleasure.
The point of law raised by Watson in his appeal was of such great importance that a nine-member panel, including Jamaica's retired Chief Justice Edward Zacca, was selected to hear the case, instead of the customary five to seven-member panel.
When the case from Jamaica went before the Privy Council in March this year, it was consolidated with cases from Barbados and Trinidad and Tobago because the points being argued were similar. The appeal from Jamaica was allowed but the Privy Council ruled that the mandatory death penalties in Barbados and Trinidad and Tobago were not unconstitutional. The Privy Council, however, allowed the appeals of all those inmates now on death row in Trinidad and Tobago and as a result some 100 prisoners in that country will have their death sentences commuted to life imprisonment.
There have been mixed reactions in legal circles to the ruling handed down yesterday in the Jamaican case.
"I am not surprised by the result because during the hearing, the judges had made various comments which suggested they were leaning that way," Michael Hylton, Q.C., Solicitor General, said. Mr. Hylton said it was ironic that the reason the Jamaican law, which was the most progressive, was struck down was because the country amended its laws in 1992 to reduce the number of murder cases that would result in the death penalty. He said those were the grounds on which the Privy Council struck down the law.
JAMAICAN CONSTITUTION
Mr. Hylton explained that in the Jamaican Constitution, there was a provision which stated that laws before Independence could not be struck down. He said the Privy Council held that the law (in relation to capital murder), was not in force before Independence which took place in 1962.
Mr. Frank Phipps, Q.C., said he regarded the ruling as a "fair compromise". He said it was "a difficult decision for any one person (a judge) to take."
According to Mr. Phipps, consideration should be given to letting the jury, rather than one individual, decide on the death penalty.
DISAPPOINTED
"I am disappointed that the Privy Council did not speak to the matter of the death penalty being unconstitutional, as I am personally against it", he said.
In the Jamaican case, Watson had challenged the mandatory death sentence on the grounds that it was unconstitutional. He lost his case in the Jamaican Court of Appeal last year when it ruled that the death sentence was constitutional. However, on the day that Watson's case was thrown out by the Court of Appeal, Mr. Justice Henderson Downer (now retired), delivered a dissenting judgment in the case of Dale Boxx, in which he said that the mandatory death sentence was unconstitutional.
CEASED TO BE LAW
The Privy Council, in delivering the judgment yesterday, held that it must be concluded therefore that the law as to the mandatory death penalty which was in force immediately before the appointed day, ceased to be such law for the purposes of section 26 (8) of the Constitution as of October 13, 1992, when the Offences Against the Person Act was amended. "So the protection for existing laws in section 26 (8) does not apply to the amendments which the 1992 Act sets out," the Privy Council ruled.
