Wednesday, July 11, 2018

Mandatory Death Penalty Outlawed in Barbados

Mandatory Death Penalty Outlawed in Barbados

The Caribbean Court of Justice has struck down the mandatory death penalty.

BRIDGETOWN, Barbados, Wednesday June 27, 2018 – The High Court in Barbados can no longer impose mandatory death sentences on convicted murderers.

This morning, the Caribbean Court of Justice (CCJ), the island’s highest court, struck down the mandatory death penalty on the grounds that it is unconstitutional.

The judgments, the last which Sir Dennis Byron will deliver as CCJ President as he will demit office next Tuesday, were delivered in a pair of unrelated death penalty cases from Barbados – filed by lawyers for Jabari Sensimania Nervais and Dwayne Omar Severin – that were consolidated because both appeals challenged the murder convictions of each of the men and the constitutionality of the mandatory death sentence for murder in Barbados.

Although dismissing the appeals against their convictions, the CCJ ordered that the appellants be expeditiously taken before the local Supreme Court for resentencing.

Before examining the issues raised by the appeal, the CCJ considered the state of the mandatory death penalty in Barbados for murder and found that it was indisputable that the country had acknowledged that it had an obligation to remove such mandatory sentence under Section 2 of the Offences against the Person Act.

Barbados had also given undertakings to the CCJ and the Inter American Court of Human Rights to rectify the mandatory sentence.

The CCJ held that Section 11 of the Constitution, which gives the right to protection of the law, was enforceable, and that the mandatory death penalty breached that right as it deprived a court of the opportunity to exercise the quintessential judicial function of tailoring the punishment to fit the crime.

However, Justice Winston Anderson disagreed with the majority’s view and contended that the appeals should be allowed on the basis that the judicial monopoly on the power to sentence, which is protected by the separation of powers principle, is consistent with “ensuring respect for, and adherence to, the ongoing evolution in the protection of human rights”.

Nervais was convicted of the murder of Jason Barton and the mandatory sentence of death by hanging was imposed on him. Barton was selling from a booth when an alarm was raised that caused him and the people gathered around to run away. Gunshots were fired by a group of men and Barton was struck by a bullet and died. Nervais was later arrested and charged with Barton’s murder after he made oral statements and a written confession to a police officer.

The Court of Appeal in Barbados dismissed his appeal against conviction and affirmed his sentence. Nervais raised a number of grounds of appeal before the CCJ, including addressing the trial judge’s alleged misstep in telling the jury that a witness’ evidence corroborated the disputed written statement.

As his second ground of appeal, Nervais contended that the learned trial judge usurped the fact-finding function of the jury because she determined a fact that was in issue, which undermined his alibi. However, in these and three other grounds raised by Nervais, the Court was satisfied that the judge did not usurp the function of the jury, there was no error or misdirection, and the necessary procedures were followed by the police.

In the other case, Severin was convicted before a judge and jury for the murder of Virgil Barton. The prosecution relied heavily on the evidence of Barton’s nephew, Judd Barton, who testified that he saw two men shoot at the deceased. The decased’s nephew managed to escape, but not before recognizing one of the shooters whom he had seen on two previous occasions.

While investigating the nephew’s suspicions, police conducted a search of Severin’s residence and found a Taurus semi-automatic gun along with 31 9-mm rounds of ammunition in his bedroom. Forensic testing confirmed that three of 14 cartridges retrieved from the murder scene were fired from that gun.

In his appeal to the CCJ, Severin challenged the reliability of Barton’s evidence, the fairness of the informal identification parade, and the instructions given by the judge to the jury at the trial.

After considering Barton’s evidence, the CCJ expressed its satisfaction that the shooter’s features would have been “fresh” in his mind. The court determined that the judge placed a balanced case before the jury, although there was the view that the judge could have been clearer in his lengthy instructions to them.



The Death Penalty in Barbados


On 27th June 2018, the Caribbean Court of Justice found Barbados’ mandatory death penalty unconstitutional. That Court delivered its judgment in the appeal of two men convicted of murder and sentenced to death, Jabari Nervais and Dwayne Severin. You can read the full judgment here: Full Judgment 2018-CCJ-19-AJ. You can read the Press Release from Death Penalty Project here. The CCJ also ordered that the two be expeditiously brought before the local Supreme Court for resentencing.

The Court had heard the appeals in January 2018. The two appellants, Jabari Nervais and Dwayne Severin, were sentenced to death in 2012 and 2014 respectively (you can watch a recording of the proceedings from the January hearing here).

Barbados therefore NO LONGER retains the mandatory death penalty for murder. Although the government had committed to abolishing the mandatory penalty on a number of occasions, it had remained on the statute books, and all those convicted of murder were sentenced to death according to section 2 of the Offences Against the Person Act 1994.

Previous moves to curtail the death penalty had been met with resistance. For example, in response to the various rulings of the Privy Council (based in London) which sought to set minimum standards for the implementation of the death penalty (see section on ‘Human Rights‘ for more on this), the Constitution (Amendment) Act 2002 was enacted to remove restrictions on the use of the death penalty. The legislation removed various grounds of appeal including delay and prison conditions, effectively legislating against the previous judgments, and protecting the operation of the death penalty in Barbados. Barbados subsequently withdrew from the appellate jurisdiction of the Privy Council in London and joined the Caribbean Court of Justice.

However, subsequent rulings from the Inter-American Court of Human Rights held that Barbados cannot amend its Constitution to insulate the death penalty process from constitutional challenge. The Boyce and Cadogan rulings from this Court have also held that the mandatory death penalty for murder violated the right to life. The Court found that the mandatory penalty was arbitrary, and therefore violated Articles 4(1) and 4(2) of the American Convention on Human Rights.

The June 2018 judgment from the Caribbean Court of Justice has held that the ‘savings clause’ at section 26 of the Barbados Constitution (see ‘Savings Clauses‘ section) should be interpreted restrictively, and cannot interfere with fundamental rights.

The Promises of Reform – Proposed Legislation

Barbados committed to reform prior to the mandatory death sentence being found to be unconstitutional – however no action was ever taken. A commitment was given by the Attorney General in May 2009. In March 2014, Barbados again confirmed its intention to abolish the mandatory penalty and the Offences Against the Person (Amendment) Bill 2014 was introduced. It remains to be seen whether any of the pieces of draft legislation will now be progressed.

The Offences Against the Person (Amendment) Bill 2014 would abolish the mandatory death penalty for murder by creating a discretionary death penalty, under which persons could be death sentenced or sentenced to imprisonment for life. Under this framework, a person could be sentenced to death where:
  • The murder was committed with a high level of brutality, cruelty, depravity or callousness;
  • The murder involved calculated or lengthy planning;
  • The deceased was involved in the administration of justice, i.e. a judge;
  • The deceased was a police officer;
  • The murder was a ‘hate crime’ based on membership of a certain ethnic, religious group etc;
  • The deceased was a witness or a juror;
  • The deceased was vulnerable through age, disability etc;
  • The offender was convicted of 2 or more offences of murder;
  • In the opinion of the court there are other exceptional circumstances which must be taken into account.
However, from the wording of the Bill, it would seem that even the presence of an aggravating factor in this list does not mean that a death sentence is automatic.
Under this legal framework, the imposition of a life sentence would result in either:
  • Life without the possibility of parole when the court is satisfied that the offender poses a serious danger to the public;
  • Or, life imprisonment with the possibility for the grant of a release order.
Where a person is sentenced to death under the 2014 Bill, but more than five years elapses following sentence, that person shall have sentence commuted to life without the possibility of parole.

Other Bills currently before Parliament for consideration include the Penal System Reform (Amendment) Bill 2014 which would provide guidance to judges on the consideration of aggravating and mitigating factors at the sentencing stage. The Prisons (Amendment) Bill 2014 which would abolish corporal punishment in prisons. Further, the Bill would also see a prisoners’ release board established and would provide for the early release of prisoners in certain circumstances. The Criminal Procedure (Amendment) Bill 2014 would introduce mandatory psychiatric evaluations for all those appearing before the High Court on a murder charge. Finally, the Constitution (Amendment) Bill 2014 proposes an amendment to the Constitution of Barbados which could facilitate the discretionary system of sentencing for people convicted of murder. Amnesty International (2015) has, however, expressed concern that this Bill would set restrictions on the rights of condemned persons to appeal their sentence on the ground that it constitutes torture, or cruel, inhuman or degrading punishment.- Caribbean Death Penalty Research

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