Death penalty not mandatory, says judge
LOCAL Appellate Court Judge Henderson Downer yesterday opened up a new avenue for prisoners awaiting execution with a controversial ruling that the death penalty was not mandatory.
Downer’s interpretation of the over 100 year-old Offences Against the Person Act could form the basis of a new ground of appeal for all prisoners on death row to have their cases reopened to determine if any mitigating factors could overturn their death sentences.
“… a mandatory death sentence is incompatible with Sections 14 and 20 of the Constitution… to sentence a person to death without hearing from him as regards his individual circumstances is inhumane. It prevents the person charged from enjoying the full protection of the law as adumbrated in Section 20 (6) of the Constitution,” said Justice Downer in the written ruling which was handed down in court yesterday.
The document — a justification for the local appellate court’s decision to acquit Dale Boxx of murder earlier this year — said that contrary to arguments by the acquitted man’s lawyer, Dr Randolph Williams, there was nothing wrong with the constitutionality of the Offences Against the Person Act. It states that murder convicts should “suffer death in the manner prescribed by law”.
When Boxx’s appeal came up for hearing before Justice Downer and his colleagues Justice Seymour Panton and Justice Neville Clarke, Dr Williams argued that his client’s constitutional rights had been breached in that he had not been afforded a chance to present a mitigation plea that could have influenced the judge to give him a sentence other than death. Boxx was freed, not on account of the constitutional issue, but because the judge that presided at his trial misdirected the jury.
However, Justice Downer argued, it was the conventional interpretation, which assumed that the Act made the death sentence mandatory, that was wrong.
“The statute ought to be construed so as to confer on the judiciary a discretion as to the appropriate sentence in each case…The critical phrase ‘to suffer death in the manner prescribed by law’, must be construed to harmonise with Section 20 (1) of the Constitution. In this way the judiciary will have the discretion provided in the Constitution to impose the death sentence or in the alternative to determine the duration of the appropriate custodial sentence,” he said.
The issue was also addressed in another ruling, also handed down yesterday by another set of judges — Justices Ian Forte QC, Panton and Clarke. In that ruling, involving murder convict Lambert Watson, which was written at the request of the Judicial Committee of the United Kingdom-based Privy Council, Justice Panton disagreed with Justice Downer’s analysis.
However, legal experts said it was a given that Watson’s case would be taken back to the English law lords for a final ruling and that their decision would determine once and for all, whether Supreme Court judges would change the current practice of passing the death sentence without taking the circumstances of each individual into consideration.