1 | Page

REPUBLIC OF TRINIDAD AND TOBAGO

IN THE COURT OF APPEAL

Civil Appeal No.177 of 2010

CV 2007-04568

NARESH BOODRAM

Appellant

AND

THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO

Respondent

Panel

Ivor Archie CJ

Alice Yorke-Soo-Hon JA

Mark Mohammed JA

Appearances

Mr. Mark Seepersad for the Appellant

Mrs. Pamela Elder S.C, Mr. Wayne Sturge, Mrs. Josefina Baptiste-Mohammed, Mr. Sean

Julien instructed by Ms. Christie Modeste for the Respondent

Date of Delivery: 8th March, 2018

2 | Page

JUDGMENT

Delivered by Ivor Archie, C.J.

1. This appeal is of significant and general constitutional importance in light of the cur-

rent focus on restorative justice and prison reform. The issues facing the court con-

cern the exercise of the power to commute death sentences under the principle estab-

lished in Pratt and Morgan1. Since that decision, our courts have routinely commuted

the death sentence to one of life imprisonment without the imposition of any tariff

[or minimum term to be served]. The appellant has challenged this, arguing that the

Court has and should exercise its unfettered discretion to sentence a convicted person

to a sentence other than one of life imprisonment in an appropriate case.

2. Although, there was one ground of appeal, at its heart lies two critical issues: firstly,

what is the nature of the exercise engaging the Court when being asked to grant relief

under Section 14 of the Constitution; and secondly, is the language of that section

wide enough to confer options other than life imprisonment.

3. The respondent has urged the Court to follow what was done by the Board in Pratt

and Morgan and re-affirmed in Matthews2. However, for the reasons that follow, we

hold that the provisions of section 14 of the Constitution are to be given their ordi-

nary and natural meaning. Courts are free to impose whatever sentence is appropri-

ate in the particular circumstances.

Factual Background

4. On 27 November 1996, the appellant was sentenced to death for murder. The State

did not carry out the execution within the presumptive period established in Pratt and

Morgan and was kept on Death Row for a further seven years. He was subsequently

1 [1994] 2 AC 1

2 [2005] 1 AC 433

3 | Page

removed from Death Row pursuant to an interim order made by Bereaux J (as he

then was) in a related proceeding.

5. On 3 December 2007, the appellant instituted proceedings under Section 14 of the

Constitution and sought two reliefs namely:

(i) That the sentence of death be vacated; and

(ii) That he be re-sentenced by the High Court to a sentence other than that of

death.

6. The appellant’s application raised identical issues to several others that were filed by

inmates on Death Row who had been awaiting execution at the time of the Privy

Council decision in Matthews. The appellant agreed to be bound by the decision of

Rajkumar J in the related matter {HCA 1412/2005: Andrew Dottin & Ors v John Rou-

gier, Evelyn Peterson & Ano.}

7. The trial judge made, inter alia, the following Orders:

(i) It is declared that all persons who were sentenced to death and awaiting execution as

at July 7 2004 who were the subject of the order of the Honourable Justice Benjamin

who remain parties to this motion as set out in appendix A annexed hereto are enti-

tled to have their sentences of death commuted to imprisonment for life.

(ii) It is further declared that the sentences of death imposed on those applicants who

remain parties to this motion as set out in the appendix A annexed hereto who were

the subjects of the order of the Honourable Justice Bereaux are commuted to impris-

onment for life.

8. For the purposes of this appeal, the analysis will begin with the Court’s jurisdiction

with regard to sentencing before considering the options that are available to the

Court.

4 | Page

The Court’s jurisdiction and discretion

The trial judge’s findings

9. While the trial judge accepted that the Court had wide powers under Section 14 of

the Constitution, he found that there was no evidence of any breach of the right not

to be subjected to cruel and unusual punishment (with respect to prison conditions

on Death Row) and sought to apply the ruling of the Privy Council in Matthews. He

agreed with the proposition that there was no sentencing discretion and further, indi-

cated that even if there were any breach(es) of any such right(s), it would be wholly

inappropriate to order a re-sentencing beyond commutation to imprisonment for life

(any breach would be remediable by an award of damages).

10. In so doing, after analyzing Pratt v Morgan and after highlighting several passages, he

appears to have limited his analysis to the issue of delay. He referred to the cases of

Roodal3 and Matthews and ultimately found that for persons on death row for more

than five years the expectation at a re-sentencing hearing, was really commutation of

the death sentence to one of life imprisonment.

11. The Court cannot be unduly critical of the judge since the sentences imposed in those

cases have been consistently applied in this and other Caribbean jurisdictions but a

closer examination of all of the jurisprudence reveals an underlying philosophical

wellspring that requires a further and more nuanced examination and exploration,

having regard, in particular, to the manner in which the appellant advanced his ar-

gument.

12. The appellant’s ground of appeal was framed in the following way: the learned judge

erred in law in finding that he did not have the jurisdiction to order that the claimant

3 Privy Council Appeal 18/2003

5 | Page

be re-sentenced by the High Court and there was no right to individual re-sentencing,

or alternatively, that the remedy of re-sentencing was not available to the claimant.

13. The appellant argued that the trial judge conflated the two issues of discretion and ju-

risdiction. It is his position that the Court has a very wide jurisdiction under Section

14(2) of the Constitution and also has the discretion to fashion any appropriate relief.

In effect, his contention is that the words contained in Section 14, which gives the

Court power to “ make such orders, issue such writs and give such directions as it may

consider appropriate...”, mean exactly what they say and must be taken at face value.

Counsel submitted that post Matthews, the exercise engaging the Court is not one of

judicial sentencing for murder but one of imposing an appropriate alternative sen-

tence instead of the death sentence as part of the commutation exercise, the starting

point being the necessary vacation of the death sentence. They point out that the

Board never held that there was no discretion as to the sentence to be imposed by

way of commutation and that the sentences eventually imposed were actually an ex-

ercise of that discretion.

14. The respondent’s Counsel agree that Section 14 of the Constitution is the vehicle for

judicial commutation but differ on the issue of discretion. They contend that the ap-

pellant has misunderstood the distinction between Presidential powers of commuta-

tion as distinct from judicial commutation. Under Section 87(2) and (3) of the Con-

stitution, the President has no restrictions regarding commutation and the aforemen-

tioned section is a codification of the prerogative of mercy. They argue that mercy

has no place in judicial sentencing and that the Court’s discretion was fettered by the

Board’s ruling in Matthews. Leaving aside for the moment the question whether and

why, as a matter of principle, different considerations should apply to judicial as op-

posed to Presidential commutation, that line of argument precipitates a closer exam-

ination of the decision in Matthews and the line of cases leading up to it.

15. There is no disagreement about the fact that Section 14 of the Constitution is the ap-

propriate vehicle by which to effect a judicial commutation; that much was made

6 | Page

clear in Pratt and Morgan. Before that seminal case, our local Courts were faced with

the same issue in the case of Kirkland Paul & Andy Thomas v The Attorney General4. In

that matter, the applicants were found guilty of the murder of a police constable and

were sentenced to death on 20 May 1975. They filed constitutional motions on 20

December 1985 after having had their death warrants read to them. They alleged

several breaches of their rights under Sections 4 and 5 of the Constitution and, in par-

ticular, that having been on Death Row for the previous ten (10) years that to execute

them, in the particular circumstances, would constitute cruel and unusual punish-

ment.

16. Davis J. in dealing with the matter, did find that the planned execution would

amount to cruel and unusual punishment in the particular circumstances and in fash-

ioning an appropriate remedy turned to Section 14 of the Constitution. At page 53 of

his judgment, he stated:

“The jurisdiction is one which is exercisable for the purpose of protecting and enforcing the fundamental

rights and freedoms enshrined in the Constitution and the orders which the Court in this mode might

make are limited only to those which it considers “appropriate” to this constitutional purpose… To

flinch, however, in these cases, from making an order which will have the effect of vacating the death

sentences, would be tantamount to offering the applicants no remedy at all.”

It is clear that the court in that matter found that Section 14 was wide enough to craft

a remedy to deal with the constitutional relief being sought and exercised its discre-

tion to vacate the death sentences and order that the applicant’s be held at the Presi-

dent’s pleasure (a point which will be discussed later - suffice it to say at this juncture

that such a sentence inevitably contemplated that the applicants may not have had to

spend the rest of their natural lives in prison).

17. In Pratt v Morgan, the Board found that the language of Section 25 of the Jamaican

Constitution (the analog of our Section 14) was wide enough to ‘substitute for the sen-

tence of death such order as it considers appropriate’ [our emphasis]. It was evident here that

4 HCA 6346/1985

7 | Page

the Board, in commuting the death sentences to life imprisonment, was exercising its

discretion, inherent in that section to do so, without expressly limiting its considera-

tion to the sentence eventually imposed. This particular detail was glossed over and

certainly not critically examined in the cases that followed.

18. This leads us ultimately to the cases of Roodal and Matthews. In Roodal, the Board

held that the death penalty for murder should be discretionary. We do not propose

to recount the arguments placed before the Board but it is noted that the Board took

judicial notice of the decision of Hilaire & Ors v Trinidad and Tobago, a decision of the

Inter-American Court of Human Rights. There the court stated:

“In countries where the death penalty still exists, one of the ways in which the deprivation of life can be

arbitrary under Article 4(1) of the Convention is when it is used… to punish crimes that do not exhibit

characteristics of utmost seriousness, in other words, when the application of this punishment is contrary

to the provisions of Article 4(2) of the American Convention.”

19. However, Matthews subsequently overruled Roodal and established that the mandato-

ry death sentence was saved by Section 6 of the Constitution. In both cases, the ap-

pellants were within the guidelines outlined in Pratt v Morgan [having spent more

than five years on death row] and their appeals were against sentence and not com-

menced by way of constitutional motion. In Matthews, in the dissenting judgment of

Lords Bingham, Nicholls, Steyn and Walker, they noted at paragraph 36:

“Secondly, the State accepts that the mandatory death penalty for murder amounts to ‘cruel and unu-

sual punishment’ within the meaning of the Constitution…the correctness of this conclusion and its ap-

plicability to the mandatory death penalty in Trinidad and Tobago are accepted. It may seem surpris-

ing that the respondent State should strive to uphold a right to subject its citizens to what it acknowledg-

es to be cruel and unusual treatment or punishment but that is what it seeks to do and what the majori-

ty holds that it is entitled to do.”

20. The mandatory death sentence is the law in Trinidad and Tobago and it is within the

realm of Parliament to change it. However, the courts are charged with upholding

the Constitution, which is the supreme law of the land. We must resolve that tension.

In effect, we have kept in place a punishment that does violence to Sections 4 (a) and

5 (2)(b) Constitution, have said that the delay in carrying out executions constitutes

8 | Page

cruel and unusual punishment and yet have failed to fully grapple with the obligation

to uphold the rights and freedoms enshrined in our Constitution. Sentencing, wheth-

er by way of commutation or otherwise, is first and foremost an exercise of judicial

discretion. Once it is accepted that the death sentence must be set aside, there is

nothing in the language of Matthews that is inconsistent with the philosophy under-

pinning Roodal [where the majority remitted the matter for the trial judge to decide as

a matter of discretion what sentence to impose]. `

21. At any rate, Matthews did not place any express fetter on the nature of the appropri-

ate remedy. The majority of their Lordships in Matthews, when referring at paragraph

33 to “the absence of a judicial discretion as to sentence” were clearly dealing with the

function of the trial judge at the time of conviction. It is noteworthy that the minority

were also prepared to remit the matter [as in Roodal ] for the High Court to determine

what a just and appropriate sentence might be and the observation of Lord Nicholls

that an inflexible sentence lacks proportionality [and in our view is therefore inher-

ently arbitrary] is of considerable force especially in light of the express language of

the constitution.

22. Section 14(1) and (2) of the Constitution states:

(1) For the removal of doubts it is hereby declared that if any person alleges that any of the provisions of

this Chapter has been, is being, or is likely to be contravened in relation to him, then without prejudice

to any other action with respect to the same matter which is lawfully available, that person may apply to

the High Court for redress by way of originating motion.

(2) The High Court shall have original jurisdiction—

(a) to hear and determine any application made by any person in pursuance of subsection (1); and

(b) to determine any question arising in the case of any person which is referred to it in pursuance of sub-

section (4),

and may, subject to subsection (3), make such orders, issue such writs and give such directions as it may

consider appropriate for the purpose of enforcing, or securing the enforcement of, any of the provisions of

this Chapter to the protection of which the

person concerned is entitled.

9 | Page

The trial judge accepted the Board’s comments in Gairy v AG of Grenada5 and we ac-

cept that Section 14 is wide enough to craft and fashion any appropriate remedy for

the contravention of a protected right.

23. To this end, we hold that the Court in exercising its original jurisdiction under Sec-

tion 14 has the discretion to take into account normal sentencing factors on the va-

cating of the death sentence. The imposition of a mandatory death sentence is al-

ready in and of itself arbitrary and in violation of the Constitution and the Charter of

Inter American Human Rights to which this country is a signatory. To be clear, alt-

hough the expression ‘judicial commutation’ has been used, the Court, in fashioning a

remedy under Section 14, is not engaged in the exercise of the prerogative of mercy.

It is, in fact, re-sentencing the Applicant in recognition of the fact that he has already

been partly punished by reason of having endured the mental anguish of being on

death row for an inordinately long period. The Court must therefore ask itself what

additional punishment, if any, would be appropriate in the particular circumstances.

24. There is no logical reason why the sentence of life imprisonment should be imposed

carte blanche upon every person who has their sentence commuted. That is inherently

arbitrary and potentially disproportionate. The circumstances of each murder are dif-

ferent and a Court properly seised of the relevant facts would be able to substitute the

appropriate sentence.

25. Furthermore, to hold otherwise would ignore a rich vein of jurisprudential thought

that encompasses the views articulated by Davis, J. who grappled with and expressly

rejected the option of life imprisonment over three decades ago in Thomas & Paul

when he opted for detention at the President’s pleasure. He observed, inter alia, that

a life sentence at that time meant, in practice, imprisonment for less than ten years,

which he felt was insufficient to reflect the gravity of the crime. Leaving aside for the

moment the correctness or otherwise of his view of the practical effect of a life sen-

tence, it is therefore clear that the discussion in this case would not be complete

5 [2002] 1 AC 167

10 | Page

without an examination of the practical meaning of the expressions ‘life imprisonment’

and/or ‘imprisonment for life’.

26. However, once we leave the embarkation point, which is the vacation of the death

sentence, there is no apparent reason to artificially restrict our consideration to the

meaning of ‘life imprisonment’ or ‘imprisonment for life’. Courts must do what they are

set up to do, which is to fashion appropriate remedies for the violation of rights. In

that regard, the further comments of Lord Nicholls in Matthews are also apposite:

“A supreme court which fails to do this is not fulfilling its proper role as guardian of the Constitution. It

is abdicating its responsibility to ensure that the people of a country, including those least able to protect

themselves, have the full measure of protection against the executive which a constitution exists to pro-

vide.”

27. We are fortified in this conclusion by more recent judicial pronouncements from our

apex Court. Arguments in the instant case were heard before delivery of the decision

of the Privy Council in Lendore and Others v the Attorney General of Trinidad and Toba-

go6. Although that case was concerned with the exercise of the executive power of

pardon, the Privy Council did make observations about the power of the court on a

motion for constitutional relief by a prisoner in a ‘Pratt and Morgan’ scenario, to sub-

stitute a lesser sentence. Lord Hughes delivering the judgment of the Board noted

that the words of section 14 (2) of the Constitution of Trinidad and Tobago were

very wide. That section empowered the High court, if on a constitutional motion it

finds that execution has become unlawful by reason of unreasonable delay, so to de-

clare and order commutation to an appropriate substitute sentence. At paragraph 36

of the judgment His Lordship said:

“… But if for any reason there has been no pardon at the time when the High Court de-

termines an application under section 14, The Board can see no reason why the court

should feel constrained to confine itself to a declaration of unconstitutionality, together

with any other relief, and should not proceed to substitute an alternative sentence…”

6 [2017] UKPC 25

11 | Page

Sentencing Options Available

28. The appellant’s submission essentially is that the trial judge had three options availa-

ble to him, namely: life imprisonment, life imprisonment with a tariff and detention

at the Court’s pleasure. We have already come to the conclusion that the full range

of sentencing powers was available to the Court. The discussion that follows is there-

fore somewhat academic but is useful to illustrate the difficulties imposed by the pre-

vious narrow and restricted approach.

29. The appellant argued that life imprisonment operates differently in practice from the

law. While in law, it means for the rest of one’s natural life7, Counsel submitted that,

in practice, it can be 15 years or even 208 years and point to other decisions where

the local courts, on re-sentencing hearings have imposed sentences between the rang-

es of 32-35 years.

30. The respondent countered that the only available option open to the Court is one of

life imprisonment: the Court, it is said, must substitute the next most severe sentence

that would mirror the gravity of the offence, i.e. life imprisonment. However, that

argument is only tenable if all murders are regarded as equally grave. It requires the

Court to approach commutation as a rigid and inflexible exercise, which cannot take

into account the peculiarities of the individual applicant’s circumstances and shifts

responsibility to the Advisory Committee under Section 87 of the Constitution.

31. In our local Courts, there is up to now no definitive exposition of the meaning of ‘life

imprisonment’. During oral submissions, this court faced the issue frontally and en-

quired from Counsel what ‘life imprisonment’ means in this jurisdiction. Unsurpris-

7 R v Foy (1962) 2 All ER 246- “life imprisonment means imprisonment for life and prisoners so sentenced who are released from prison during their lifetime are only released on licence, the sentence of life imprisonment remain-ing on them until they die.” 8 Seepersad & Panchoo v The State- Cr. App 68/1983

12 | Page

ingly, we have been referred to several local cases that expose an inconsistency of

approach.

32. Commutation has been described9 as the executive’s substitution in a particular case

of a less severe punishment for a more severe one that has already been judicially

imposed on the defendant.

33. The respondent referred us to Pratt & Morgan, Guerra v Baptiste10 and Matthews in

support of their contention. In Pratt v Morgan, the English position was explained in

the following passage11:

“It is difficult to envisage any circumstances in which in England a condemned man would have been

kept in prison for years awaiting execution. But if such a situation had been brought to the attention of

the court their Lordships do not doubt that the judges would have stayed the execution to enable the pre-

rogative of mercy to be exercised and the sentence commuted to one of life imprisonment.”

34. Therefore in matters that were before the Privy Council, the sentences of death were

simply commuted to life imprisonment but that still left up in the air what that would

mean in practice. In later cases, post Matthews, the Court of Appeal has imposed

sentences of life imprisonment with no tariffs [or minimum period to be served] be-

ing applied (Kenrick & Chandrouti London12; Clifford Beckles13).

35. The appellant put forward for consideration the cases of Sangit Chaitlal14 and Fazal

Mohammed15. In both cases, the parties had their death sentences commuted to im-

prisonment for the rest of their natural life by the President pursuant to Section 87 of

Constitution. Both parties filed constitutional motions arguing that that sentence was

9 Black’s Law Dictionary 8th Edition; see also in this regard Section 87(1)(c) of The Constitution 10 [1995] 1 AC 397 11 Paragraph C pg.19 12 Cr App 31&32/2002 13 Cr App 52/2002 14 HCA 2472/2003 15 HCA 2476/2003

13 | Page

not known to the law and that contention was upheld by Myers J. They were subse-

quently re-sentenced and received 35 years and 32 years respectively but Myers J. did

note that in the arguments before him neither side was able to adequately explain the

reason why the sentence of natural life was different from a life sentence.

36. The cases of Kirkland Paul (supra) and Thomas v Baptiste16 are the only cases where the

court vacated the sentence of death and ordered that the applicants be detained at the

State’s pleasure. Of course, these are older cases that pre-date the finding that deten-

tion at the state’s pleasure is not a lawful sentence. What this brief review does illus-

trate, however, is the lack of consistency in approach.

37. Other jurisdictions have had to grapple with the same question facing this court. We

reference them simply by way of illustration of the variety of approaches that have

been adopted. At the end of the day, what is before us is the interpretation and appli-

cation of section 14 of our constitution. In India, for example, several of their laws

deal with provisions relating to life imprisonment. For ease of reference, relevant sec-

tions of the Indian Penal Code 1860 (Sections 54,55,57) and Code of Criminal Pro-

cedure 1973 (Sections 433, 433A) are reproduced below:

54. Commutation of sentence of death

In every case in which sentence of death shall have been passed, [the appropriate Government] may,

without the consent of the offender, commute the punishment for any other punishment provided by

this Code

55. Commutation of sentence of imprisonment for life

In every case in which sentence of [imprisonment] for life shall have been passed, [the appropriate

Government] may, without the consent of the offender, commute the punishment for imprisonment

of either description for a term not exceeding fourteen years

16 HCA 1373/1998

14 | Page

57. Fractions of terms of punishment

In calculating fractions of terms of punishment, [imprisonment] for life shall be reckoned as equiva-

lent to [imprisonment] for twenty years.

433. Power to commute sentence. The appropriate Government may, without the consent of the

person sentenced, commute-

(a) a sentence of death, for any other punishment provided by the Indian Penal Code;

(b) a sentence of imprisonment for life, for imprisonment for a term not exceeding fourteen years or

for fine ;

(c) a sentence of rigorous imprisonment, for simple imprisonment for any term to which that person

might have been sentenced, or for fine ;

(d) a sentence of simple imprisonment, for fine

433A. Restriction on powers of remission or Commutation in certain cases. Notwithstanding any-

thing contained in section 432, where a sentence of imprisonment for life is imposed on conviction of

a person for an offence for which death is one of the punishments provided by law, or where a sen-

tence of death imposed on a person has been commuted under section 433 into one of imprisonment

for life, such person shall not be released from prison unless he had served at least fourteen years of

imprisonment

38. Their courts have experienced a similar tension in applying competing statutes. For

several years, there was much dissonance in the law as life imprisonment was under-

stood as meaning imprisonment for 14 years or 20 years. The attempts of their Su-

preme (Apex) Court sought to bring clarity to the law make for interesting reading.

39. In Gopal Vinayak Godse v The State of Maharashtra17, it was held by the constitutional

bench that a sentence of transportation for life or imprisonment for life must, prima

facie, be treated as transportation or imprisonment for the whole of the remaining

period of the convicted person’s natural life. Unless the said sentence is commuted or

remitted by the appropriate authority under the relevant provisions of the Indian Pe-

nal Code or the Criminal Procedure Code, a prisoner sentenced to life imprisonment

17 1961 SCR (3) 440

15 | Page

is bound in law to serve the life term in prison. This was confirmed in the case of

State of Madhya Pradesh v Ratan Singh18 where the Court held that imprisonment for

life does not automatically expire at the end of twenty years including remissions be-

cause the rules framed under the various jail manuals under the Prisons Act cannot

supersede the statutory provisions of the Indian Penal Code.

40. Similarly, in Mohammed Munna v Union of India19, the Court reiterated that life im-

prisonment was not equivalent to imprisonment for 14 years or 20 years; it means

imprisonment for the rest of one’s natural life. The court observed that there was no

provision either in the Indian Penal Code or in the Criminal Procedure Code where-

by life imprisonment could be treated as either 14 years or 20 years without there be-

ing formal remission by the appropriate Government.

41. However, as can be seen in other cases, the courts have imposed either life impris-

onment or life imprisonment with a tariff as an alternative to the death penalty. In

Subhash Chander v Krishan Lal & Ors20, five accused persons, including Krishan Lal

were put on trial for committing multiple murders. The trial court acquitted one of

the accused but convicted the rest of them and sentenced each of them to death. On

appeal, the High Court confirmed the conviction of all four accused but commuted

their death sentence to life imprisonment. On a consideration of the material facts

the Supreme Court felt that the High Court was not justified in commuting the sen-

tence of death of at least one accused, Krishan Lal. Counsel appearing on his behalf

implored that instead of the death penalty the Court might order imprisonment of

Krishan Lal for the remaining period of his life.

The Supreme Court accepted the plea made by counsel and made the following or-

der:

18 (1976) SCC (3) 470 19 (2005) 7 SCC 416 20 (2001) 4 SCC 458

16 | Page

"However, in the peculiar circumstances of the case, apprehending imminent danger to the life of

Subhash Chander and his family in future, taking on record the statement made on behalf of

Krishan Lal, we are inclined to hold that for him the imprisonment for life shall be the impris-

onment in prison for the rest of his life. He shall not be entitled to any commutation or premature

release under Section 401 of the Code of Criminal Procedure, Prisoners Act, Jail Manual or any

other statute and the rules made for the purposes of grant of commutation and remissions."

42. In Jayawant Dattatraya Suryarao vs. State of Maharashtra21, the Court had before it a

batch of five analogous cases. There were three appeals on behalf of three of the ac-

cused convicted by the trial court; another appeal by the State in regard to the ac-

cused who was acquitted by the trial court and a death reference in regard to one of

the appellants, Subhashsingh Shobhanathsingh Thakur who was given sentences of

death on two counts, one under the provisions of the Terrorist and Disruptive Activi-

ties (Prevention) Act (TADA) and the other under section 120-B of the Penal Code.

According to the prosecution’s case the appellants, along with a number of other co-

accused, armed with highly sophisticated weapons had raided J.J.Hospital in Mum-

bai where the victim, a member of another underworld gang, was admitted for

treatment. In the hospital they fired indiscriminately killing not only their target but

also two policemen who were on guard duty and injuring several others. The court

confirmed the conviction of appellant No.6 but modified the sentence from death

penalty to imprisonment for life.

43. We have, however, made note of additional Indian cases which demonstrate that the

court, in commuting the sentence of a petitioner, has exercised a discretion, ordering

imprisonment for life with a condition for a specified minimum period to be served.

The cases of which we speak are:

21 (2001) 10 SCC 109

17 | Page

i. Shri Bhagwan vs. State of Rajasthan22, the appellant, who was 20 years

old at the time of commission of the offence, had come to the Supreme

Court, condemned to death by the trial court and the High Court. Ac-

cording to the prosecution, he had killed five members of a family by

mercilessly battering them to death. The manner of killing was brutal

and the circumstances of the crime exhibited crass ingratitude on the

appellant's part. The motive was theft of gold ornaments and other ar-

ticles belonging to the victim’s family. In this case, K. G. Balakrishnan,

J. (as the Honourable Chief Justice at that time) wrote the judgment for

the Court and commuted the death sentence awarded to the appellant

to imprisonment for life subject to the direction that he would not be

released from the prison until he had served out at least 20 years of im-

prisonment including the period already undergone by him.

ii. Prakash Dhawal Khairnar (Patil) vs. State of Maharashtra 23 , the con-

demned appellant had committed the murder of his own brother, their

mother and four members of his brother's family because the deceased

brother was not partitioning the property that the appellant claimed to

be joint family property. In the totality of circumstances the Supreme

Court set aside the death sentence awarded to the appellant but di-

rected that for the murders committed by him, he would suffer impris-

onment for life and further that he would not be released from prison

until he had served out at least 20 years of imprisonment including the

period already undergone by him.

iii. Ram Anup Singh & others v State of Bihar24, a father and his two sons were be-

fore the Supreme Court. They had killed the father's brother, the brother's

wife, his daughter and his son-in-law. On conviction for the murders the fa-

ther was sentenced to life imprisonment but the two sons were given the

22 (2001) 6 SCC 296 23 (2002) 2 SCC 35 24 (2002) 6 SCC 686

18 | Page

death penalty. The Supreme Court set aside the death sentence and instead

sentenced them to suffer rigorous imprisonment for life with the condition

that they would not be released before completing an actual term of 20 years

including the period of imprisonment already undergone by them.

44. The numerous and varied cases that we have examined, provide a clear indication

that simply resorting to the imposition of ‘life imprisonment’ brings neither clarity,

proportionality nor certainty to the exercise of fashioning an appropriate remedy

under section 14 of the constitution. The Court must be specific in articulating the

punishment it intends to impose, and if it wishes to leave open the possibility of some

flexibility after further consideration at a later stage, should say so. For the reasons

that are articulated in the paragraphs that follow next, we are fortified in our conclu-

sion that the Court has a discretion to order either life imprisonment with a tariff, a

specific term of years or to be detained at the Court’s pleasure [with review at speci-

fied intervals].

The International Standard

45. There is a global trend towards the abolition of the death penalty and the United Na-

tions has indicated that the death penalty has no place in the 21st century25. Trinidad

and Tobago’s legislative regime has not followed that trend. The death penalty is still

constitutional in our jurisdiction, although, it may be said that the Pratt and Morgan

decision ushered in a new era of giving deference to international norms. The Euro-

pean Court of Human Rights in several of its decisions, has also highlighted that it is

doubtful whether deterrence can be achieved by life imprisonment. In fact, the court

has outlined that there must be a real and tangible prospect of release for prisoners

sentenced to indeterminate sentences such as life imprisonment. It is for that reason,

25 The United Nations Secretary General, Antonio Guterres, on 10 October 2017 said that the death penalty does little to deter crimes or serve victims.

19 | Page

in part, that this judgment began with a nod to the growing acceptance of the concept

of restorative justice in this jurisdiction.

46. Article 3 of the European Convention on Human Rights (ECHR), prohibits torture

and inhuman or degrading treatment or punishment. The European Court of Human

Rights (ECtHR) in the case of Vinter and Others v The United Kingdom,26 emphasised

that if it is to comply with the prohibition of cruel and inhuman punishment, life im-

prisonment must be accompanied by a possibility for release and regular review. The

court outlined three reasons for finding whole life sentences inconsistent with the Eu-

ropean Convention on Human Rights27:

a. Detention is only justifiable if it is based on penological ground (punishment,

deterrence, public protection and rehabilitation). The balance between the jus-

tification is not static, but shifting, and it may not be so after a lengthy period

into the service of the sentence. Accordingly, a review of the justification for

continued detention, is necessary.

b. If a prisoner is incarcerated without any prospect of release and without the

possibility of having his life sentence reviewed, there is a risk that he can nev-

er atone for his offence: whatever the prisoner does in prison, however excep-

tional his progress towards rehabilitation, his punishment remains fixed and

unreviewable.

c. It would be incompatible with the provision on human dignity to deny a per-

son of his freedom without at least providing him with the chance to someday

regain that freedom.

47. The decisions of the ECtHR reflect a penal philosophy that aims towards rehabilita-

tion of the offender. This rehabilitative approach is clearly expressed in Rule 6 of the

European Prison Rules, which provides that all detention shall be managed so as to

facilitate the reintegration into free society of persons who have been deprived of

26 Applications nos. 66069/09, 130/10 and 3896/10 27 Ibid, paras. 111-113

20 | Page

their liberty. The prospect of release is inextricably linked to rehabilitation of the

prisoner, which ultimately means that rehabilitative programmes through which of-

fenders can improve themselves, ought to be available.

The overarching requirement for compatibility with article 3 is that the sentence must

be reviewable, this presents a prospect of release. A life sentence or extremely long

sentence, does not in itself, contravene article 3. Rather, there must be some review

mechanism available at the local or domestic level. This was the reasoning of the

court in the case of Kafkaris v Cyprus,28 wherein the majority held that a life sentence

was ‘not in itself prohibited by or incompatible with article 3’ but that the imposition of an

irreducible life sentence ‘may raise an issue’ under article 3. In that regard, the Court

took the view that: ‘where national law affords the possibility of review of a life sentence with

a view to its commutation, remission, termination or the conditional release of the prisoner, this

will be sufficient to satisfy article 3.’

48. The ECtHR jurisprudence proceeds on the assumption that a prolonged detention

will be arbitrary if the punitive element of the sentence has been served and the of-

fender no longer poses a risk to society. This jurisprudence has been adopted by the

courts of Antigua and Barbuda. In the cases of The Queen v Lorriston Corn-

wall29 and The Queen v Mellanson Harris30, the courts of Antigua and Barbuda, have in-

dicated that on a re-sentencing exercise, in considering whether to order a sentence

of life imprisonment or a lesser fixed term, in the absence of any statutory scheme,

the court ought to be guided by common law principles or aims of punishment in-

cluding retribution, deterrence, prevention, rehabilitation as well as restoration.

49. The judgments in the two cases considered authorities whereby the courts have said

that life imprisonment cases should be reserved for the offences of the utmost gravity

(there was a clear endorsement of the ECtHR position on the point). Where a case

falls, that is, on the scale of bad cases, worse cases, and cases which are the worst of

28

[2008] ECHR 143 29 Case No. 50 of 1995 30 Case No. 62 of 1995

21 | Page

worst, will be left up to the individual court's own sense. Antigua and Barbuda has

legislative provision for providing an available scheme for early release for offenders

serving life imprisonment or extended sentences for certain offences. The provision

is contained in the Offences Against the Person Act, Cap. 300 as amended by the Of-

fences Against the Person (Amendment) Act. No. 13 of 2013. Section 3B makes pro-

vision for review by a court after 30 years where the sentence is for life; and 20 years

in the case of a lesser term.

The Judge found that the reviewable period provided by the legislation demonstrates

that when an offender commits an offence of extreme violence it may be necessary to

impose a sentence designed not only to punish him but also adequate to allow for a

period within which the prisoner may be rehabilitated and also assessed for the de-

gree of danger to the public. Where the punitive portion may be satisfied, the prison-

er may yet be detained where it is determined that he is not yet rehabilitated or that

he continues to be a danger to the public.

The court has also indicated that, when a resentencing court is exercising its discre-

tion, in fixing a relevant sentence it ought to give consideration as to what parts of

the actual sentence satisfies punitive or retributive element. It would mean that a lat-

er reviewing court should only delay release on matters such as deterrence, rehabili-

tation and other public interests.

50. We are cognisant of the fact that unlike our jurisdiction, Antigua and Barbuda and

many of the European contracting states, have legislation that provides for a review

mechanism. Additionally, the decisions of the ECtHR are not binding on us, because

we are not a contracting party to the ECHR, as the Privy Council acknowledged in

the case of Lendore. But we do accept that they are of persuasive authority. In this re-

gard, we find that in keeping with international norms, as a State which takes its in-

ternational obligations seriously and the fundamental rights of our citizens, equally

seriously, it is incumbent on this court when called upon to commute a sentence, to

impose a sentence that is in accordance with the common law principles or aims of

punishment.

22 | Page

51. The appellant has been incarcerated for 21 years (convicted on 27 November, 1996)

for the murders of Anthony Curtis Greenidge (called Tooks) and Stephen Sandy

(called Bull). In 1997 the appellant had appealed his conviction, Sharma JA deliver-

ing the decision31 of the court found that there was no doubt that the murders were

indicative of highly hardened criminals. The two victims were brutally murdered,

and their bodies savagely mutilated and buried in a shallow grave in a rice field. A

resentencing court must ascertain whether the punitive element of the sentence has

been satisfied and also, whether the appellant has been rehabilitated and is safe for

reintegration into society. To ascertain the latter, the court has to be provided with

evidence that would answer that question either in the affirmative or negative. This

court does not have the requisite information to make such a finding. Accordingly,

we would remit this matter to the High Court for such consideration.

I. Archie, Chief Justice

I agree

A. Yorke Soo-Hon, JA

I also agree

M. Mohammed, JA

31 Naresh Boodram and Ramiah (Joey) v The State (1997) 55 WIR