Spence v. The Queen; Hughes v. The Queen

NS and PH were convicted of murder in St Vincent and St Lucia respectively. In both jurisdictions, the offence is subject to a mandatory sentence of the death penalty. On raising constitutional arguments against the mandatory death sentence before the Privy Council, which had not previously been raised in the Eastern Caribbean Court of Appeal (the Court), the Privy Council remitted the matter to the Court to consider whether the mandatory death sentence imposed should be quashed or affirmed. The appeal was consolidated on the basis that the Constitutions of St Vincent & the Grenadines and St Lucia are almost identical. The appeal refers to the Constitution of St Lucia.

The appeal concerned four main issues. Firstly, whether the savings clause in para 10 of sched 2 of the Constitution prevents the appellants challenging the mandatory death penalty by protecting the law in existence before the Constitution came into force. Para 10 states ‘nothing contained in or done under authority of law shall be held to contravene s 5 of the Constitution [the prohibition on torture, inhuman or degrading treatment] to the extent the law authorises the infliction of any description of punishment before the Constitution was elected. Secondly, whether such a sentence contravenes the prohibition on torture, inhuman or degrading treatment (s 5, Constitution). Thirdly,  whether it contravenes ss 1(a) and 2(1) of the Constitution, which guard against the arbitrary deprivation of life, and finally whether it violates the constitutional separation of powers.

[Adapted from INTERIGHTS summary, with permission]

The Court held that the mandatory death sentence should be quashed.

Per Byron CJ (Saunders JA concurring):

1. Although it is for Parliament to set sentencing policy it is the duty of the courts to evaluate whether mandatory death penalty is constitutional by interpreting the ideals and principles entrenched in the Constitution, regardless of public opinion. Capital punishment is part of a developing area of jurisprudence in which courts are now refusing to be bound by older decisions which are inconsistent with current international human rights law, and domestic provisions should be interpreted in light of  international human rights treaties.
2. Legislation in force at the date of the Constitution has been consistently interpreted to apply a mandatory death sentence. However, the qualification in para 10 of sched 2 is limited to s 5 and even then, the prohibition is not total. There is a subtle but definite distinction between the punishment (ie death by hanging) and the method of imposing and carrying it out. The mandatory element of the sentence is not part of the punishment. The savings clause does not debar enquiry as to whether or not death by hanging is rendered inhuman or degrading by the failure to allow for judicial discretion on its imposition, or debar challenges based on other constitutional provisions besides s 5.
3. It is a well established principle of our penal law that for all crimes which are not a capital offence, the court will consider mitigating factors as part of the sentencing process. It is inconsistent and to some extent illogical that these humanising practices are absent from the imposition of the death penalty.
4. The courts of many common law jurisdictions retaining the death penalty have held that discretion must be exercised in the light of individual mitigating circumstances in order for the death sentence to be fair. Although the Constitution provides for the mercy committee the prerogative of mercy is a non-judicial power exercised after the lawful sentence has been imposed and the constitutionality of the sentence cannot be based on the subsequent exercise of mercy.
5. The discretion must rest with the courts, be guided by legislative or judicially-prescribed principles and exercised in a rational and non-arbitrary manner, subject to judicial review and require individualised sentencing; a distinction between capital and non-capital murder must also be drawn. A procedure which does not offer the opportunity for personal mitigation before imposing a mandatory death penalty is unreasonable, unfair and unjust and therefore inconsistent with s 2(1) of the Constitution.
6. The most appropriate response is to modify the legislation to conform it to the Constitution by introducing new procedures to be used on conviction for murder. These should provide that before sentence is passed, the accused is given the opportunity to mitigate on the same terms as he has to defend and the Prosecution should be able to adduce relevant evidence and both sides may address the court. The death penalty should be imposed by jury decision as to whether or not the offence is capital, after the judge has given them directions; the judge must then impose sentence upon the jury’s verdict. In the interim before such changes have been made, the courts must amend their procedures as described above. In relation to those on death row, a high court judge setting aside the mandatory sentence should decide whether or not the accused’s offence is capital and sentence him as above.

Per Saunders JA:

1. Para 10 of sched 2 saves only the type, form or description of punishment; any inhuman or degrading treatment that is severable from that punishment is not saved. Therefore, it does not protect the mandatory death penalty from challenge.
2. It is unsatisfactory to state that under the Constitution any inhuman treatment flowing from a law imposing the mandatory death penalty may be repaired by executive clemency in the form of the prerogative of mercy. Furthermore, the constitutional functions of the Advisory Committee do not depend on the mandatory imposition of the death penalty and it is untenable that it should carry out a sentencing function.
3. Where a punishment that could be so excessive and disproportionate must be imposed, the law requiring its imposition is inhuman. To the extent that the Criminal Codes of the countries concerned are interpreted as imposing the mandatory death penalty, they violate s 5. The dignity of human life is reduced by a law that compels a court to impose death by hanging indiscriminately upon all convicted of murder, granting to none an opportunity to have the individual circumstances of his/her case considered by the court.

[Adapted from INTERIGHTS summary, with permission]

“[8] The issue in this case, related as it is to the question of capital punishment, is part of a developing area of legal thought and jurisprudence on the value of human life. The legal norms that have been internationally accepted on this issue have undergone changes over the past half century. Any perusal of the relevant case law will demonstrate this. The differences between the older cases reflecting values that were harsher, more oppressive and discriminatory and the modern, which give effect to evolving standard of decency demonstrate a favourable modification of the rule of stare decisis. Courts are refusing to be bound by those older decisions which are inconsistent with current norms of international human rights law.”

“[34] These and other decisions to which the appellants referred demonstrated that in common law jurisdictions from which we could be persuaded, there was a strong line of judicial reasoning that recognized that the automatic application of the death penalty to all persons convicted of murder meant that the same irrevocable punishment was meted out in respect of crimes of varying severity and to offenders of varying culpability and antecedents, and therefore constituted a denial of the dignity and humanity of the individual offender.”

“[40] … [T]here is undoubtedly a wide range of behaviour which could properly result in a conviction for murder. It is a well established principle of our penal system that the court considers mitigating factors as part of the sentencing process in all crimes which do not carry capital punishment. This practice accords with the guarantee prescribed in the section of the Constitution against inhuman or degrading punishment. It is clearly inconsistent and to some extent illogical that when it comes to the imposition of the sentence of death that these humanizing practices are absent.

“[179] Before considering the matter, it is useful constantly to bear in mind three pertinent observations. First of all, death is a punishment like no other. It differs from all other punishments not by degree but rather by its very nature. It is completely irrevocable. It deprives the prisoner of the most fundamental constitutional right. Once this punishment is carried out all that remains of the prisoner is a memory of him. Secondly, murder is an offence for which the court has no discretion to determine the appropriate sentence. In deciding the punishment for other offences the court usually has a broad discretion and can pay regard to a wide variety of circumstances in arriving at a fit sentence. This is not the case upon a conviction of murder. Yet, and this is the third observation, murder is peculiarly a crime that admits of an enormous range both in character and in culpability. In other words, the circumstances in which murder is committed and the personal background and motive of the offender may vary radically from one accused to another.”

“[214] In any assessment of a possible violation of section 5, a court must confront the question as to what criteria should be used to evaluate punishment or treatment that is inhuman or degrading. In my view we would be embarking upon a perilous path if we began to regard the circumstances of each territory as being so peculiar, so unique as to warrant a reluctance to take into account the standards adopted by humankind in other jurisdictions. Section 5 imposes upon the State an obligation to conform to certain "irreducible" standards that can be measured in degrees of universal approbation. The collective experience and wisdom of courts and tribunals the world over ought fully to be considered.”

“[216] It is and has always been considered a vital precept of just penal laws that the punishment should fit the crime. If the death penalty is appropriate for the worst cases of homicide then it must surely be excessive punishment for the offender convicted of murder whose case is far removed from the worst case. It is my view that where punishment so excessive, so disproportionate must be imposed upon such a person courts of law are justified in concluding that the law requiring the imposition of the same is inhuman. For all these reasons and upon the strength of the authorities presented to me I am driven firmly to one conclusion. To the extent that the respective sections of the Criminal Codes of the two countries are interpreted as imposing the mandatory death penalty, those sections are in violation of section 5 of the respective Constitutions.”