Court/Judicial body: Judicial Committee of the Privy Council
Citation:  UKPC 58,  2 WLR 581,  2 AC 235
Date: 16 December 2004
Instrument(s) cited: Offences against the Person Act 1868 (Barbados), Section 2 Offences against the Person Act 1994 (Barbados), Section 3 Juvenile Offenders Act 1932 (Barbados), Section 14 Barbados Independence Order 1966, Section 4(1)
Background: The case concerns an appeal from a murder conviction involving seven defendants, four of whom were under the age of 18 at the time of the offence, and three of whom were adults. In May 1992 the appellants stood trial in the High Court of Barbados for murder. The three adults were sentenced to death under the “felony-murder rule” (which stated that any defendant who kills someone during the course of committing a felony, will be deemed to have murdered the victim) and Section 2 of the Offences against the Person Act (which stated that any person convicted of murder will be sentenced to death). In March 2004, the Governor General commuted the death sentences imposed on the three adults to sentences of life imprisonment. In accordance with Section 14 of the Juvenile Offenders Act, the four juveniles were not sentenced to death, but ordered to be detained at Her Majesty’s pleasure as they were all under 18 at the time of the offence. The appellants appealed to the Court of Appeal against their convictions, but the appeal was dismissed.
Issue and resolution: Mandatory death penalty for adults; life imprisonment of children at Her Majesty’s pleasure. Whether the imposition of the mandatory death penalty for the three non-juveniles convicted of murder pursuant to Section 2 of the Offences against the Person Act violated their rights under the Barbados Constitution, and therefore should be overturned. The Court dismissed all the grounds of appeal submitted on behalf of the three non-juveniles. Whether the sentence of detention at her Her Majesty’s pleasure of the three juveniles was lawful. In the case of the four juvenile offenders, the Court allowed the appeal and ordered that their cases be remitted to the Barbados High Court for the court to resentence the appellants.
Court reasoning: With respect to the three adults, the Court found that the imposition of the mandatory death penalty was not inconsistent with their rights under the Barbados Constitution. First, the Court considered the appellants’ argument that the felony-murder rule operated in an arbitrary and disproportionate manner, and therefore was inconsistent with the defendants’ constitutional rights to “due process of law” and to “the protection of the law.” The Court rejected this argument because it found that the felony-murder rule in effect at the time of the murder (in 1991) was “at least as well defined as most other common law rules.” The Court then considered the appelants’ argument that the imposition of the mandatory death penalty was “inhuman and degrading.” The Court rejected this argument as well. The Court relied on a provision of the Barbados Constitution that provided that any statutory law in effect prior to 1966 (the year the Barbados Constitution was adopted) would not be deemed to be inconsistent with the Barbados Constitution. Since the Offences against the Person Act was in effect prior to 1966, the Court found that it could not violate the appelants’ constitutional rights on that basis. The Court also found that the common law felony-murder rule did not violate the appelants’ constitutional rights. With respect to the four juveniles, the Court allowed the appeals against their sentence relying on the argument that the sentence violated the constitutional principle of separation of powers which is embedded in the structure of the Barbados Constitution. The Court held that what is required to remedy that violation is that the determination of the length of the appellants’ sentences should be in the hands of the court, rather than of the executive. In the application of section 4(1) of the Barbados Independence Order 1966, the Court accordingly construed section 14 of the Juvenile Offenders Act as providing that the court shall sentence the offender to be detained until the court directs his release. The Court therefore advised that their cases should be remitted to the High Court for the court to sentence the appellants to be detained until it directs their release. The Court said it was “content to leave it to the judges and officials in Barbados to devise a system for operating such sentences that suits local conditions”. However, the Court ordered that a sentence of this kind requires that the court review the question of the detainees’ release at appropriate intervals. As up until this point, in the case of these appellants there had not been any review by the court, the High Court was ordered to take into account the fact that the appellants had already been detained for a period of over 12 years. Impact: Regarding sentences of detention at Her Majesty’s pleasure, there is now a significant body of case law to the effect that determination of the length of a sentence must be carried out by the courts rather than by the executive (see, for example: R v Venables and Thompson  AC 407; Browne v R  1 AC 45 (St Kitts and Nevis); DPP v Mollison  UKPC 6,  2 AC 411 (Jamaica), (2003) 67 JCL 314).
Notes: Further commentary on this decision can be found here. For more information on the issue of inhuman sentencing of children, including a selection of case law, please see CRIN’s ‘Inhuman sentencing’ campaign.