In the days when pirates terrorised the waters of the Caribbean, British justice was necessarily harsh and persistent law-breakers often ended up swinging from the gibbet. Three hundred years later the people of these tropical islands are still subject to the death penalty, a direct colonial hangover in which British judges continue to have an important role.
For many of the 250 men and women languishing on death row on the islands of the Caribbean, their only hope of reprieve is an appeal to a group of privy councillors meeting 4,500 miles away in a small courtroom in Downing Street. Earlier this month a special panel of the Privy Council gave itself a historic opportunity to end the mandatory death penalty for Caribbean defendants convicted of murder. It was an opportunity that human rights lawyers believe was cruelly spurned. In a landmark ruling the panel delivered judgments that permit Trinidad and Barbados to continue to execute anyone convicted of murder.
The appeals concerned cases in which all the defendants had been sentenced to hang. In Trinidad Charles Matthew, 61, was convicted of killing his former lover, 22-year-old Louise Gittens. While in Barbados Lennox Boyce and Jeffrey Joseph were convicted of murder and similarly sentenced to death.
Dismissing their appeals, the judges of the Privy Council ruled it was up to the parliaments of these Caribbean islands to change the law and not a British court.
In so ruling the court paved the way for a Trinidad court to impose death sentences on the men responsible for killing former BBC newsreader, Lynette Lithgow Pearson, who was living in Trinidad. Lynette Lithgow Pearson, 51, her mother Maggie Lee, 83, and brother-in-law John Cropper, 59, were killed in a robbery in 2001. Other cases are expected to follow.
The Privy Council judgment drew immediate criticism from human rights lawyers who have been campaigning for many years to end capital punishment in the Caribbean. Edward Fitzgerald QC and Keir Starmer QC, two Doughty Street chambers barristers involved in the appeals, described the ruling as "bitterly disappointing".
Their sense of disappointment was exacerbated by the narrow ruling, with four judges, including Lord Bingham of Cornhill, the senior law lord, delivering dissenting judgements. The Doughty Street lawyers said: "The majority in the Privy Council have taken a step wholly inconsistent with that court's usual, enlightened, approach to human rights.
"Those charged with implementing the criminal law in Trinidad and Barbados will now be forced to apply laws which are universally acknowledged to be inhuman. The constitutions of Trinidad and of Barbados were intended to be read so as to protect human rights, not to deny them. The ruling is bitterly disappointing both for those on death row and more generally for the development of the law in the Caribbean."
Andie Lamb, director of Reprieve, the organisation that campaigns against capital punishment, says that international law requires that the death penalty should be reserved for only the most serious crimes. "By imposing a death sentence for all murder convictions the courts are failing to acknowledge mitigating circumstances, relating either to the offence or the offender."
She says: "In order not to deny an individual their basic human rights Reprieve is resolute that, even if convicted of murder, they must be allowed the opportunity to try and persuade the court that a death sentence might be an inappropriate or disproportionate sentence."
But in the case of Jamaica the Privy Council unanimously accepted that the imposition of a mandatory death penalty was unconstitutional.
In the appeal, Lambert Watson was convicted in the Hanover Circuit Court of the Supreme Court of stabbing to death his nine-month-old daughter, Eugenie Georgina Watson, and her mother. Here the judges distinguished the constitutions of Trinidad and Tobago and Barbados from that of Jamaica. They said: "In Trinidad and Tobago and Barbados these laws have remained, in all essentials, unchanged. In Jamaica the law was changed, because the inhumanity of requiring the death penalty to be imposed on all defendants convicted of murder was recognised."
In reaching its decision the Privy Council recognised that there was a very high incidence of murder and the widespread use of firearms in Caribbean countries. It said: "So long as those conditions prevail, and so long as a discretionary death sentence is retained, it may well be that judges in Jamaica will find it necessary, on orthodox sentencing principles, to impose the death sentence in a proportion of cases which is, by international standards, unusually high.
The council added: "Prevailing levels of crime and violence cannot affect the underlying legal principle at stake, which is that no one, whatever his crime, should be condemned to death without an opportunity to try and persuade the sentencing judge that he does not deserve to die."
The rulings will help to steady the Privy Council's relationship with the governments of the Caribbean but it is unlikely to curb the move towards a new Caribbean Court of Appeal to replace British judges.
There are about 50 men and women under sentence of death by hanging in Jamaica. Its government will be dismayed that after the Privy Council ruling they must now review all these cases. Jamaica is regarded as the driving force to create a new court that will be free from the "meddling" of the Privy Council. Some fear that the new court will become a "hanging court". But the initiative reflects the frustrations of the governments of Caribbean countries where capital punishment is popular with the voting public who see it as the most effective means of combating violent crime. Without an independent final court of appeal sited in London, countries like Trinidad and Barbados would have executed many more prisoners. Nevertheless, human rights lawyers say Britain'sassociation with this punishment serves only to condone its use.
Lord Nicholls of Birkenhead, in his dissenting judgment of Charles Matthew, made the point that until 1965 mandatory death sentences for murder existed in the UK and no one thought them an "unusual or inhumane form of punishment". But he said: "Times have changed. Human rights values set higher standards today. Murder can be committed in all manner of circumstances. In some the death penalty will plainly be excessive and disproportionate."
These changing times are reflected in a landmark judgment in April 2001 when the Eastern Caribbean Court of Appeal ruled that the mandatory death penalty is unconstitutional. This judgment was upheld by the Privy Council in March 2002. As a result, the mandatory death sentence has been outlawed in Antigua & Barbuda, Belize, Dominica, Grenada, St Kitts & Nevis, St Lucia and St Vincent & the Grenadines.
The Doughty Street lawyers say the battle against the mandatory death penalty will go on. Keir Starmer QC will be taking the Barbados case to the Inter-American Court. And in Trinidad another case is set for the court. For Lord Nicholls the case for reform is clear. "To condemn every person convicted of murder to death regardless of the circumstances is a form of inhumane punishment. A sentence of death which lacks proportionality lacks humanity."Reuse content