Challenge to the constitutionality of the mandatory death penalty in Trinidad and Tobago dismissed by UK Privy Council

A challenge to the constitutionality of the mandatory death penalty in Trinidad and Tobago, brought to The Judicial Committee of the Privy Council by The Death Penalty Project has been dismissed.

The NGO, based at Simons Muirhead Burton LLP had mounted the challenge as part of the appeal for their client Jay Chandler, who was sentenced to death by hanging in 2012. The Death Penalty Project appealed Chandler’s death sentence on the grounds that imposing the punishment automatically, without an opportunity to apply discretion, violated his right to protection of law and was therefore unconstitutional. It is now well established that the mandatory death penalty is a violation of the right not to be subjected to cruel and unusual punishment and contrary to fundamental notions of justice.

At the hearing which took place on 2 November 2021 before an enlarged panel of nine Justices, it was argued that this appeal should be allowed and that a previous decision (Matthew v The Queen [2004] UKPC 33) should be overturned because it was wrongly decided. In that case, the JCPC ruled by majority of five to four, that the existence of a savings law clause prevented the courts from declaring the mandatory death penalty to be unconstitutional. Reliance for the proposition that Matthew was wrongly decided was provided by two recent decisions of the Caribbean Court of Justice (CCJ) in cases from Barbados and Guyana.

Today, the Privy Council ruled that there was no good reason to depart from their decision in Matthew, standing by their previous judgment that the savings law clause, which protects laws written prior to Trinidad and Tobago’s independence, prevents any direct challenge to the mandatory death penalty.

Summarising their judgment, the Privy Council said:

“In the Board’s view, the 1976 Constitution saves existing laws, including the mandatory death penalty, from constitutional challenge. The consequence of that is that the state of Trinidad and Tobago has a statutory rule which mandates the imposition of a sentence, which will often be disproportionate and unjust. The sentence is recognised internationally as cruel and unusual punishment. The state does not dispute that characterisation…[96]

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 [98].”

The Government of Trinidad and Tobago have publicly accepted that the mandatory death penalty is a cruel and inhumane punishment, as noted by the Privy Council in their judgment, however they have argued that the decision to remove it should be left to politicians and not the courts.

Had it been successful, it would have seen the mandatory death penalty abolished, not only impacting Mr Chandler’s sentence, but making all those on death row in Trinidad and Tobago eligible for resentencing.

Parvais Jabbar, Co-Executive Director of The Death Penalty Project said:

“Whilst today’s decision by the Privy Council is extremely disappointing, the case has once again brought this critical issue to the fore. We hope it will lead Trinidad and Tobago to re-examine the savings law clause which continues to protect old laws most modern democracies consider morally objectionable, including laws which discriminate on grounds of gender, religion, or sexuality. Trinidad and Tobago remains the only country in the Commonwealth Caribbean to continue using a mandatory death penalty and it is imperative that the government now take the necessary measures to ensure that a punishment, that they themselves accept to be cruel and inhuman, is removed.”

Notes to Editor

JCPC decision

https://www.jcpc.uk/cases/jcpc-2020-0051.html

Facts about the case

Jay Chandler was sentenced to death by hanging in 2011, for the murder of Kirn Phillip on 8 October 2004. Phillip died after being stabbed, while both men were serving sentences at Golden Grove Prison, Arouca.

In March 2018, Chandler’s appeal against his conviction was dismissed by the JCPC, despite fresh evidence from forensic psychiatrist Professor Nigel Eastman, that showed Chandler has experienced a history of mental health issues and could have likely been experiencing psychosis at the time of the crime.

Mandatory death penalty

The mandatory death penalty is an automatic sentence of death for specified offences, which removes the opportunity for judicial discretion and fails to take into account mitigating circumstances, such as the mental health of the accused.

The death penalty in Trinidad and Tobago

Trinidad and Tobago is the only country in the English-speaking Caribbean that retains the mandatory death penalty. There are currently approximately 45 individuals on death row in the country and over 1,300 awaiting trial for murder.

There have been no executions carried out in Trinidad and Tobago for over 20 years. The last hanging took place in July 1999.

Trinidad & Tobago’s savings clause

Trinidad and Tobago’s 1976 Constitution preserves various fundamental rights, including the right of the individual to life and the right not to suffer cruel and unusual treatment or punishment. However, these constitutional protections are subject to a ‘savings law clause’, which overrides them in favour of laws pre-dating 1976, such as the mandatory death penalty, a punishment introduced under colonial rule.

When implementing a new bill of rights there was a concern among Caribbean states that new rights enshrined in constitutions would be inconsistent with pre-independence law. ‘Saved Law’ refers to the pre-independence law of a Caribbean state which is exempt from constitutional challenges. The judiciary will not entertain a challenge to the constitutionality of a law if it falls within the ambit of a savings law clause.

Death Penalty Project

The Death Penalty Project (DPP) is a legal action NGO based at, and supported by, London legal firm, Simons Muirhead Burton LLP. For more than three decades, the DPP has worked to protect the human rights of those facing the death penalty.

In Chandler vs. the State, The Death Penalty Project is representing the appellant and has instructed Ed Fitzgerald QC and Amanda Clift Matthews of Doughty Street Chambers, Douglas Mendes SC of Trinity Chambers, and Rajiv Persad of Allum Chambers, Trinidad and Tobago. All are acting pro bono for the appellant.

For interview requests, quotes or more information please contact Joey Greene, Death Penalty Project, Communications Lead, 020 3206 2849 or [email protected]