Court/Judicial body: Court of Appeal of Barbados
Date: 1 March 2005 / 13 April 2005 CRC
Provisions: Article 37: Torture and deprivation of liberty
Other international provisions: Children and Young Persons Act, ss. 53, 105European Convention on Human Rights, art. 6
Domestic provisions:Constitution of Barbados, ss. 18, 26, 76, 78Juvenile Offenders Act (“JOA”), ss. 2, 13, 14, 15 Offences Against the Person Act, s. 2Human Rights Act 1988 (UK), s. 6
Background: Scantlebury was convicted of killing a man. At the time of the offence, Scantlebury was 17-years-old. Section 2 of the Offences Against the Person Act provides that “any person convicted of murder shall be sentenced to, and suffer death.” Section 14 of the Juvenile Offenders Act, however, disallows a sentence of death for any person under 18 years of age. Instead, Section 14 requires any such individual “to be detained during Her Majesty’s pleasure… in such place and under such conditions as the Governor-General may direct and whilst so detained, shall be deemed to be in legal custody.” Scantlebury was sentenced to detention “during Her Majesty’s pleasure.” He appealed.
Issue and resolution: Juvenile justice. Amongst other things, Scantlebury had challenged: (1) the ability of the courts to impose indefinite sentences on persons convicted of murder committed while they were below the age of majority; and (2) the constitutionality of the Governor-General’s role in directing the place and conditions under which such a sentence may be served. The Court found that the sentence was unconstitutional to the extent that it requires the government’s executive branch to determine the duration of the sentence.
Court reasoning: Detention during Her Majesty’s pleasure is not as severe as a sentence of detention for life, but implicit in the indeterminacy of this sentence is a punitive element. Since punishment is part of the purpose of the sentence, the minimum amount of time that will be spent in detention should be established before release is considered so that the punishment is proportionate to the crime. Section 14 of the JOA gives the executive branch of government the discretion to establish and review such sentence. Section 18(1) of the Constitution, however, guarantees the right of an individual to a fair hearing by an independent and impartial court established by law. This right, along with the constitutional principle of the separation of powers, is violated if a member of the executive is permitted to determine the duration of a sentence. Therefore, sentencing a juvenile to serve an indeterminate sentence (“at Her Majesty’s pleasure”) cannot be permitted.
Excerpt citing CRC and other relevant human rights 33. It seems clear to us that s 14 was incorporated in the JOA as a response by the Government of Barbados to the requirements of the UN Convention on the Rights of the Child. Barbados signed this Convention on 20 November 1989. The Convention entered into force on 2 September 1990 and was ratified by Barbados on 9 October 1990. Although the Convention as a whole has not been transformed into domestic law, the enactment of s 14 seems to suggest that Parliament, in 1989, desired to act in a manner consistent with Barbados’ international treaty obligations. Article 37 of the Convention contains an express prohibition against capital punishment for crimes committed by juveniles under the age of eighteen. Every country in the world has ratified the Convention, except the USA and Somalia; see the judgment of the US Supreme Court in Roper v Simmons (2005). 34. The underlying philosophy of the JOA is that children and young offenders should be dealt with differently by the law from adult offenders. The original JOA of 1932 was seriously deficient in comparison with its English counterpart of 1908 and the English consolidating Act of 1933, the Children and Young Persons Act (the ‘CYPA’), especially s 53(1) which corresponds to s 14 of the JOA. 35. The consequence was that, whereas a child or young person has not been liable to be sentenced to death in England since 1908, such a person in colonial Barbados of 1932 was liable to suffer the death penalty. This historical comparison of the legislative enactments of the colonial power and its colony provides insights into the penal system of colonial Barbados imposed by the colonial power. It was not part of the condition of subjects in the colonies to be accorded the same rights, privileges and advantages as the citizens of the colonising power.
Follow up: The Barbados parliament amended the Juvenile Offenders Act in 2009 to replace the possibility of sentences to be served “at Her Majesty’s pleasure” with sentences to be served “during the Court’s pleasure.” Under this new provision, juveniles “so sentenced… [are] liable to be detained in such place and under such conditions as the court may direct to give effect to this provision and whilst so detained shall be deemed to be in legal custody”. For more details, click here.
Notes: For the period before Section 14 of the JOA was amended by Parliament, the court set out instructions for trial judges to follow when sentencing offenders to detention for an indeterminate period of time. These instructions may serve as guidance in future sentences ordered to be served “during the Court’s pleasure”:
1. Where a person, under the age of 18 at the date of the offence, has been subsequently convicted for murder, he/she shall be sentenced to detention “during the Court’s pleasure”.
2. At the time of the imposition of such a sentence, the trial judge must state in open court what he/she considers to be the appropriate minimum sentence (the tariff) to be served. In making a determination of the minimum sentence the court must take into account: (a) the penal objectives of retribution and general deterrence; (b) the seriousness of the offence and the principle of proportionality in accordance with the criteria stated in sections 35 and 36 of the Penal System Reform Act, Cap. 139; (c) the principle of individualised sentencing; (d) any aggravating or mitigating factors; and (e) any other relevant matters.
3. The trial judge must state in open court his/her reasons for making the order.
4. Aggravating factors relevant to a charge of murder include – (a) planning and premeditation; (b) taking advantage of an elderly or disabled victim; (c) causing torture or suffering to a victim before death; (d) killing a person providing a public or security duty; (e) treatment of the deceased after death.
5. Mitigating factors relevant to a charge of murder include – (a) an intention only to do serious bodily harm; (b) spontaneous action rather than premeditation; (c) mental disability; (d) provocation or some evidence of self-defence even though it was rejected by the jury; (e) the age of the offender.
6. Sentences to be served “during the Court’s pleasure” must be reviewed by a judge of the High Court (preferably by the original sentencing judge, if available) at four-yearly intervals. If the sentencing judge is not available, the sentence should be reviewed by the Chief Justice.
7. For the purposes of a review of sentence, the Court must be provided with: (i) a full report on the offender from the Superintendent of Prisons addressing the conduct of the offender during detention; his/her responses to the punishment and any counselling and/or rehabilitative programmes sponsored by the prison authorities; his/her attitude to the crime, for example, genuine sorrow and remorse; any recommendations by the Superintendent for the guidance of the Court; (ii) a report from the Chaplain of the Prisons detailing the offender’s response to any moral and/or religious teaching; (iii) an up-to-date medical report from a medical practitioner assigned to the Prisons; (iv) such other information derived from the record of the case or otherwise as the Court may require.
8. Where under s. 13 of the Mental Health Act, Cap. 45, a person on trial before the High Court is found unfit to plead or is found guilty but is suffering from insanity or diminished responsibility, the order of the Court for detention “until Her Majesty’s pleasure is known” shall henceforth be “until the pleasure of the Court is known” and the references to the Governor-General in s. 13(1) and (2) of Cap. 45 shall be substituted by references to “the Court”. This Act should be amended by Parliament.
9. Where under s. 4(6) of the Offences against the Person Act, Cap. 141, an offender is convicted of manslaughter following a trial for murder in which evidence of diminished responsibility was adduced, and the Court exercises its discretion under s. 4(6)(b) to order a sentence of indeterminate detention, the Court shall order detention “until the Court’s pleasure is known”. The subsequent references to “the Governor-General” and “Her Majesty” in s. 4(6)(b) shall be accordingly construed as “the Court”. This Act should also be amended by Parliament.
CRIN Comments: CRIN believes that this decision represents a step towards greater respect for children’s rights in juvenile justice, and that children in conflict with the law should not be sentenced to indeterminate sentences without specific guidelines for release. However, as required under the CRC, CRIN does not believe that the purpose of juvenile sentences should be to punish, but rather to rehabilitate. As such, CRIN hopes that Barbados will further amend its Juvenile Offenders Act to reflect this goal and better meet its obligations under the CRC.
Citation: (2005) 68 WIR 88