Split Decision (Private Eye on the JCPC's judgment in Jay Chandler)

As reported in Private Eye Issue No.1466 (23 March- 5 April 2018)

Privy Council judges in London made the alarming decision last week not to allow an appeal by a prisoner facing execution in Trinidad – despite strong evidence that the man was suffering psychosis when he committed his crime and that, under international law, people with mental illness or disorders should never face the death penalty.

The judgement was so disturbing that two of the five judges on the Judicial Committee of the Privy Council (JCPC) took the highly unusual step of expressing their strong dissent. Lords Kerr and Lloyd-Jones said Jay Chandler, convicted of murder, should not pay the ultimate price of failings by his trial lawyers when he “plainly does have a viable defence on the grounds of diminished responsibility”.

The judges had heard that Chandler, now 39, was convicted and sentenced to death in 2011 for killing a fellow inmate in 2004 in bizarre circumstances in front of dozens of people in the jail’s exercise yard.

In neither of the two trials he faced (the first resulted in a hung jury) was the issue of his mental health raised. Yet when he was finally assessed by forensic psychiatrist Professor Nigel Eastman, who was brought in by the Death Penalty Project – it was found that Chandler was “more likely than not” suffering from psychosis at the time of the offence. That meant, under Trinidad & Tobago law, he was liable for manslaughter rather than murder and should not have faced the death penalty.

His counsel at both trials, Larry Williams, has repeatedly failed to say why, given Chandler’s medical history, there was no psychiatric assessment at the time and why diminished responsibility was never raised as a potential defence.

Nevertheless, Lord Carnwath, Lord Sumption and Lord Reed upheld the death penalty, saying: “There is no evidence that the failure to advance a case of diminished responsibility at the trial was anything other than deliberate.”

That, according to human rights lawyers, is worrying; not only for Chandler, but also for other mentally ill suspects facing the death penalty in countries where funding for mental health assessments is limited or unavailable. The majority decision flies in the face of not only international law, but also previous rulings by the JCPC itself.

One leading QC with years of Privy Council experience told the Eye: “This is the latest in a series of extraordinary decisions in death penalty appeals which appear to indicate that the current generation of judges no longer see their function as correcting gross breaches of human rights and due process in the Caribbean. It is a shameful judgement which scars the reputation of a court once respected for its integrity, consistency and humanity.”