Bowe (Junior) & Anor v. R.

B was convicted of murder and sentenced to death pursuant to s 3121 of the Penal Code which required the death penalty for any defendant convicted of murder. D was convicted of murder and also sentenced to death.

Both B and D petitioned the Privy Council seeking leave to challenge the constitutionality of the mandatory requirement that a sentence of death be passed on adults (other than pregnant women) convicted of murder on the grounds that it amounted to inhuman and degrading punishment contrary to section 32 of the 1973 Constitution. In particular, they argued that it was a fundamental principle of just sentencing that the punishment imposed on a convicted defendant should be proportionate to the gravity of the crime of which s/he has been convicted; that the criminal culpability of those convicted of murder varied widely; that not all those convicted of murder deserved to die; that such principles were recognized in the law or practice of almost all States which impose capital punishment for murder and that any discretionary judgement on the measure of punishment which a convicted defendant should suffer must be made by the judiciary and not by the executive.

The State, emphasising that the mandatory death penalty was provided for under section 2(1)3 of the 1973 Constitution (together with previous Constitutions), argued that a constitution was a living instrument capable of reflecting the standards and expectations of society as these changed and developed over time and that, accordingly, to abolish the mandatory death penalty would be anachronistic.

[Adapted from INTERIGHTS summary, with permission]

In allowing the appeals, quashing the death sentences and remitting the cases to the Supreme Court for consideration of the appropriate sentences, the court held that:

(1) The principle that criminal penalties should be proportionate to the gravity of the offence committed can be traced back to chapter 14 of the Magna Carta which prohibited excessive punishments. Subsequently, the cruel and unusual punishments clause of the Bill of Rights 1689 was intended not only to prohibit unauthorized punishments but also to reiterate the English policy against disproportionate penalties. The eighth amendment to the United States Constitution, adopted in 1791, reproduced the language of the Bill of Rights, and was concerned primarily with selective or irregular application of harsh penalties;

(2) More recently, the long-standing power of the court to quash a penalty which was excessive and out of proportion has been expressly recognized. It is, and has always been, considered a vital precept of just penal laws that the punishment should fit the crime;

(3) At the same time it has been recognized for very many years that the crime of murder embraces a wide range of offenses of widely varying degrees of criminal culpability. It covers at one extreme the sadistic murder of a child for purposes of sexual gratification, a terrorist atrocity causing multiple deaths or a contract killing, at the other the mercy-killing of a loved one suffering unbearable pain in a terminal illness or a killing which results from an excessive response to a perceived threat. All killings which satisfy the definition of murder are not equally heinous, and no one would now dispute that for many of these crimes it would be inappropriate to inflict the death penalty;

(4) This approach has led to the abolition of the mandatory death penalty in many jurisdictions. By 1963, all the states in the United States had replaced their automatic death penalty statutes with discretionary jury sentencing. By 1973, there appeared to be no jurisdiction in which the mandatory death sentence was retained;

(5) It is clear that it took some time for the legal effect of entrenched human rights guarantees to be appreciated, not because the meaning of the rights changed, but because the jurisprudence on human rights and constitutional adjudication was unfamiliar and, by some courts, resisted. The task of the court today is not to conduct a factual enquiry into the likely outcome had the present challenge been presented on the eve of the 1973 Constitution. Rather, it is to ascertain what the law, correctly understood, was at the relevant time, unaffected by later legal developments, since that is plainly the law which should have been declared had the challenge been presented then.

(6) In this case, all the building blocks of a correct constitutional exposition were in place well before 1973. In 1973 there was no good authority contrary to B and D’s argument, and much to support it. The most important consideration is that those who are entitled to the protection of human rights guarantees should enjoy that protection. B and D should not be denied such protection because, a quarter century before they were condemned to death, the law was not fully understood. In these circumstances, section 312 of the Code should be construed as imposing a discretionary and not a mandatory sentence of death, a construction which continued under the 1973 Constitution.

[Adapted from INTERIGHTS summary, with permission]

"The Board will accordingly advise Her Majesty that section 312 should be construed as imposing a discretionary and not a mandatory sentence of death. So construed, it was continued under the 1973 Constitution. These appeals should be allowed, the death sentences quashed and the cases remitted to the Supreme Court for consideration of the appropriate sentences. Should the Supreme Court, on remission, consider sentence of death to be merited in either case, questions will arise on the lawfulness of implementing such a sentence, but they are not questions for the Board on these appeals." Para. 43.