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The Judicial Committee of the Privy Council Decisions |
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You are here: BAILII >> Databases >> The Judicial Committee of the Privy Council Decisions >> Reyes v. R (Belize) [2002] UKPC 11 (11 March 2002) URL: http://www.bailii.org/uk/cases/UKPC/2002/11.html Cite as: [2002] 2 Cr App Rep 16, [2002] 2 AC 235, [2002] 2 WLR 1034, [2002] UKPC 11, [2002] 2 Cr App R 16, 12 BHRC 219 |
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Reyes v. R (Belize) [2002] UKPC 11 (11 March 2002)
Privy Council Appeal No. 64 of 2001
Patrick Reyes Appellant
v.
The Queen Respondent
FROM
THE COURT OF APPEAL OF BELIZE
---------------
JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL,
Delivered the 11th March 2002
------------------
Present at the hearing:-
Lord Bingham of Cornhill
Lord Hutton
Lord Hobhouse of Woodborough
Lord Millett
Lord Rodger of Earlsferry
[Delivered by Lord Bingham of Cornhill]
------------------
The facts
The Criminal Code of Belize
By section 114 of the code proof of murder requires proof of an intention to kill, and in succeeding sections defences of diminished responsibility and provocation are provided. In 1994 section 102 of the code was amended by re-numbering that section as subsection (1) and adding to it the following proviso:“Every person who commits murder shall suffer death”.
“Provided that in the case of a Class B murder (but not in the case of a Class A murder), the court may, where there are special extenuating circumstances which shall be recorded in writing, and after taking into consideration any recommendations or plea for mercy which the jury hearing the case may wish to make in that behalf, refrain from imposing a death sentence and in lieu thereof shall sentence the convicted person to imprisonment for life.”
The section was further amended by adding two further subsections:
“(2) The proviso to subsection (1) above shall have effect notwithstanding any rule of law or practice which may prohibit a jury from making recommendations as to the sentence to be awarded to a convicted person.
(3) For the purpose of this section –
‘Class A murder’ means:-
(a) any murder committed in the course or furtherance of theft;
(b) any murder by shooting or by causing an explosion;
(c) any murder done in the course or for the purpose of resisting or avoiding or preventing a lawful arrest, or of effecting or assisting an escape or rescue from legal custody;
(d) any murder of a police officer acting in the execution of his duty or of a person assisting a police officer so acting;
(e) in the case of a person who was a prisoner at the time when he did or was a party to the murder, any murder of a prison officer acting in the execution of his duty or of a person assisting a prison officer so acting; or
(f) any murder which is related to illegal drugs or criminal gang activity;
‘Class B murder’ means any murder which is not a Class A murder.”
The categories of murder listed in class A were plainly based on section 5(1) of the British Homicide Act 1957, but with the addition of an additional category of capital murder expressed in (f). It was because the murders committed by the appellant fell within subsection (3)(b) that imposition of the death sentence was mandatory.
The Constitution of Belize
“the supreme law of Belize and if any other law is inconsistent with this Constitution that other law shall, to the extent of the inconsistency, be void.”
In section 21 it was provided:
“Nothing contained in any law in force immediately before Independence Day nor anything done under the authority of any such law shall, for a period of five years after Independence Day, be held to be inconsistent with or done in contravention of any of the provisions of this Part.”
Section 21 was contained in Part II of the constitution, entitled “Protection of Fundamental Rights and Freedoms”. Thus, unusually if not uniquely, the continuing savings clauses found in many other if not all Caribbean constitutions, whether in the wider form found in some constitutions or the narrower form found in others, have no close counterpart in the constitution of Belize.
“3. Whereas every person in Belize is entitled to the fundamental rights and freedoms of the individual, that is to say, the right, whatever his race, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, to each and all of the following, namely –
(a) life, liberty, security of the person, and the protection of the law;
(b) freedom of conscience, of expression and of assembly and association;
(c) protection for his family life, his personal privacy, the privacy of his home and other property and recognition of his human dignity; and
(d) protection from arbitrary deprivation of property,
the provisions of this Part shall have effect for the purpose of affording protection to those rights and freedoms subject to such limitations of that protection as are contained in those provisions, being limitations designed to ensure that the enjoyment of the said rights and freedoms by any person does not prejudice the rights and freedoms of others or the public interest.
4.(1) A person shall not be deprived of his life intentionally save in execution of the sentence of a court in respect of a criminal offence under any law of which he has been convicted.
6.(2) If any person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.
7. No person shall be subjected to torture or to inhuman or degrading punishment or other treatment.”
Section 20 gives the Supreme Court jurisdiction to afford redress where the provisions of sections 3 to 19 of the constitution have been contravened, but, as Mr. Fitzgerald QC for the appellant accepts, the terms of section 4(1) preclude a challenge to the constitutionality of the death sentence as such.
“52.(1) The Governor-General may –
(a) grant a pardon, either free or subject to lawful conditions, to any person convicted of any offence;
(b) grant to any person a respite, either indefinite or for a specified period, of the execution of any punishment imposed on that person for any offence;
(c) substitute a less severe form of punishment for any punishment imposed on any person for any offence; or
(d) remit the whole or any part of any punishment imposed on any person for any offence or of any penalty or forfeiture otherwise due to the Crown on account of any offence.
(2) The powers of the Governor-General under subsection (1) of this section shall be exercised by him in accordance with the advice of the Belize Advisory Council.
53. Where any person has been sentenced to death (otherwise than by a court-martial) for an offence, the Attorney-General shall cause a written report of the case from the trial judge (or the Chief Justice, if a report from the trial judge cannot be obtained), together with such other information derived from the record of the case or elsewhere as he may require, to be taken into consideration at a meeting of the Belize Advisory Council, so that the Council may advise the Governor-General whether to exercise any of his powers under section 52(1) of this Constitution.”
“(a) to advise the Governor-General in the exercise of his powers under section 52 of this Constitution;
(b) to perform such other tasks and duties as are conferred or imposed on it by this Constitution or any other law.”
The council is not to be subject to the direction or control of any other person or authority. The governor-general, again acting in accordance with the advice of the prime minister given after consultation with the leader of the opposition, is to appoint one of the members of the council to be its senior member. The senior member is to preside in the absence of the chairman. It is provided that five members of the council shall be a quorum, decisions are to be taken by a majority and on an equality of votes the chairman is to have a casting vote unless he is the governor-general. The council is to regulate its own procedure. The constitution thus provides that in exercising the prerogative of mercy the governor-general shall be advised by a balanced, independent body of high standing, whose advice he is bound to follow.
The penalty for murder
“Yet there is perhaps no single class of offences that varies so widely both in character and in culpability as the class comprising those which may fall within the comprehensive common law definition of murder. To illustrate their wide range we have set out briefly ... the facts of 50 cases of murder that occurred in England and Wales and in Scotland during the 20 years 1931 to 1951. From this list we may see the multifarious variety of the crimes for which death is the uniform sentence. Convicted persons may be men, or they may be women, youths, girls, or hardly older than children. They may be normal or they may be feeble-minded, neurotic, epileptic, borderline cases, or insane; and in each case the mentally abnormal may be differently affected by their abnormality. The crime may be human and understandable, calling more for pity than for censure, or brutal and callous to an almost unbelievable degree. It may have occurred so much in the heat of passion as to rule out the possibility of premeditation, or it may have been well prepared and carried out in cold blood. The crime may be committed in order to carry out another crime or in the course of committing it or to secure escape after its commission. Murderous intent may be unmistakable, or it may be absent, and death itself may depend on an accident. The motives, springing from weakness as often as from wickedness, show some of the basest and some of the better emotions of mankind, cupidity, revenge, lust, jealousy, anger, fear, pity, despair, duty, self-righteousness, political fanaticism; or there may be no intelligible motive at all.”
A House of Lords Select Committee on Murder and Life Imprisonment in 1989 observed (HL Paper 78-1, 1989) in para. 27:
“The Committee consider that murders differ so greatly from each other that it is wrong that they should attract the same punishment.”
It made reference at page 22 to research showing that in England and Wales “murder is overwhelmingly a domestic crime in which men kill their wives, mistresses and children, and women kill their children”.“There is probably no offence in the criminal calendar that varies so widely both in character and in degree of moral guilt as that which falls within the legal definition of murder.”
“(a) The normal rule is that the offence of murder shall be punished with the sentence of life imprisonment. The Court can depart from that rule and impose the sentence of death only if there are special reasons for doing so. Such reasons must be recorded in writing before imposing the death sentence.
(b) While considering the question of sentence to be imposed for the offence of murder under section 302, Penal Code, the Court must have regard to every relevant circumstance relating to the crime as well as the criminal. If the Court finds, but not otherwise, that the offence is of an exceptionally depraved and heinous character and constitutes, on account of its design and the manner of its execution, a source of grave danger to the society at large, the Court may impose the death sentence.”
The Board was told that there has been no execution in Belize since 1985.“Add to this the notorious fact that in Guyana for some years as a matter of executive policy the death penalty is only implemented in some, not all, cases of persons convicted of murder, and the ‘sifting out’ of those cases in which the [offenders] are found not to warrant the ultimate penalty is done by means of the exercise of the prerogative of mercy rather than by amendment of the law relating to capital punishment.”
International developments
“3. Everyone has the right to life, liberty and security of person.
5. No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
10. Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.”
“Every person accused of an offense has the right to be given an impartial and public hearing, and to be tried by courts previously established in accordance with pre-existing laws, and not to receive cruel, infamous or unusual punishment.”
“Article 2
Right to life
1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
Article 3
Prohibition of torture
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
Article 6
Right to a fair trial
1. In the determination ... of any criminal charge against him, everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law ...”
“Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.”
Article 7 provides protection against subjection to torture or cruel, inhuman or degrading treatment or punishment. Article 14(1) provides that “everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law”. It also provides:
“(5) Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.”
The approach to interpretation
“Public opinion may have some relevance to the enquiry, but in itself, it is no substitute for the duty vested in the Courts to interpret the Constitution and to uphold its provisions without fear or favour. If public opinion were to be decisive there would be no need for constitutional adjudication. The protection of rights could then be left to Parliament, which has a mandate from the public, and is answerable to the public for the way its mandate is exercised, but this would be a return to parliamentary sovereignty, and a retreat from the new legal order established by the 1993 Constitution. By the same token the issue of the constitutionality of capital punishment cannot be referred to a referendum, in which a majority view would prevail over the wishes of any minority. The very reason for establishing the new legal order, and for vesting the power of judicial review of all legislation in the courts, was to protect the rights of minorities and others who cannot protect their rights adequately through the democratic process. Those who are entitled to claim this protection include the social outcasts and marginalised people of our society.”
Section 7: Inhuman or degrading punishment or other treatment
“I would agree with Laskin CJ in Miller and Cockriell v The Queen [1977] 2 SCR 680, where he defined the phrase ‘cruel and unusual’ as a ‘compendious expression of a norm’. The criterion which must be applied in order to determine whether a punishment is cruel and unusual within the meaning of section 12 of the Charter is, to use the words of Laskin CJ in Miller and Cockriell, supra, at p. 688, ‘whether the punishment prescribed is so excessive as to outrage standards of decency’. In other words, though the state may impose punishment, the effect of that punishment must not be grossly disproportionate to what would have been appropriate.”
In State v Makwanyane 1995 (3) SA 391 the Constitutional Court of South Africa reviewed the meaning of “cruel, inhuman or degrading treatment or punishment” in the context of the 1993 Constitution of South Africa. The issue before the court did not concern the constitutionality of a mandatory death penalty but the constitutionality of the death penalty itself. The court was therefore addressing a more fundamental question than that now before the Board. But the discussion of “cruel, inhuman or degrading” in paragraph 26 of the judgment given by Chaskalson P is illuminating, and his conclusion is apt:
“The question is not, however, whether the death sentence is a cruel, inhuman or degrading punishment in the ordinary meaning of these words but whether it is a cruel, inhuman or degrading punishment within the meaning of section 11(2) of our Constitution ...”
Similarly, in the present case, the task of the Board is to decide whether the mandatory death sentence imposed on the appellant under the Criminal Code of Belize is “inhuman or degrading punishment or other treatment” within the meaning of that expression in the constitution of Belize.
“The issue here is whether it is inhuman to impose a sentence of death without considering mitigating circumstances of the commission of the offence and the offender, whether the dignity of humanity is ignored if this final and irrevocable sentence is imposed without the individual having any chance to mitigate: whether the lawful punishment of death should only be imposed after there is a judicial consideration of mitigating factors relative to the offence itself and the offender.”
He made extensive reference to a number of authorities mentioned below, and expressed his conclusions on this point in paragraphs 43-46 of his judgment:
“(43) The experience in other domestic jurisdictions, and the international obligations of our states, therefore suggest that a court must have the discretion to take into account the individual circumstances of an individual offender and offense in determining whether the death penalty can and should be imposed, if the sentencing is to be considered rational, humane and rendered in accordance with the requirements of due process.
(44) In order to be exercised in a rational and non-arbitrary manner, the sentencing discretion should be guided by legislative or judicially-prescribed principles and standards, and should be subject to effective judicial review, all with a view to ensuring that the death penalty is imposed in only the most exceptional and appropriate circumstances. There should be a requirement for individualized sentencing in implementing the death penalty.
(45) This rationale conforms with my understanding of a prohibition against inhuman punishment and therefore explains and gives life and meaning to the express provision of section 5 of the Constitutions of Saint Lucia and Saint Vincent. I have found the jurisprudence to be persuasive and I adopt it in defining the extent of the protection which section 5 of the Constitution has guaranteed to every citizen.
(46) I am satisfied that the requirement of humanity in our Constitution does impose a duty for consideration for the individual circumstances of the offense and the offender before a sentence of death could be imposed in accordance with its provisions.”
“(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.
(215) The mandatory death penalty in these two countries, as presently applied, robs those upon whom sentence is passed of any opportunity whatsoever to have the court consider mitigating circumstances even as an irrevocable punishment is meted out to them. 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 case considered by the court that is to pronounce the sentence. …
(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.
(217) In reaching such a conclusion it does not perturb me that, in the past, the mandatory death penalty may have been regarded as a natural, inescapable, even acceptable consequence of all murder convictions. The spirit and intent of section 5 combined with the broad manner in which that section is drafted permit courts of law a wide discretion. … the court, at the instance of litigants with standing, is entitled to place punishments and treatments under continuous judicial scrutiny in order to ensure that they are not or have not become inhuman and degrading. A Constitution is a living document and the prohibition against inhuman treatment is peculiarly conditioned by ‘evolving standards of decency’. Were it otherwise, then the full measure of the right assured to the citizen by section 5 would be severely compromised either by the paying of homage to unenlightened common law relics or by slavish adherence to the outmoded mores of yesteryear.”
“A third constitutional shortcoming of the North Carolina statute is its failure to allow the particularized consideration of relevant aspects of the character and record of each convicted defendant before the imposition upon him of a sentence of death. In Furman, members of the Court acknowledged what cannot fairly be denied – that death is a punishment different from all other sanctions in kind rather than degree ... A process that accords no significance to relevant facets of the character and record of the individual offender or the circumstances of the particular offense excludes from consideration in fixing the ultimate punishment of death the possibility of compassionate or mitigating factors stemming from the diverse frailties of humankind. It treats all persons convicted of a designated offense not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death.
This Court has previously recognised that ‘[f]or the determination of sentences, justice generally requires consideration of more than the particular acts by which the crime was committed and that there be taken into account the circumstances of the offense together with the character and propensities of the offender’. ... Consideration of both the offender and the offense in order to arrive at a just and appropriate sentence have been viewed as a progressive and humanizing development ... While the prevailing practice of individualizing sentencing determinations generally reflects simply enlightened policy rather than a constitutional imperative, we believe that in capital cases the fundamental respect for humanity underlying the Eighth Amendment ... requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.
This conclusion rests squarely on the predicate that the penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.”
“To be sure, the fact that the murder victim was a peace officer performing his regular duties may be regarded as an aggravating circumstance. There is a special interest in affording protection to these public servants who regularly must risk their lives in order to guard the safety of other persons and property. But it is incorrect to suppose that no mitigating circumstances can exist when the victim is a police officer. Circumstances such as the youth of the offender, the absence of any prior conviction, the influence of drugs, alcohol, or extreme emotional disturbance, and even the existence of circumstances which the offender reasonably believed provided a moral justification for his conduct are all examples of mitigating facts which might attend the killing of a peace officer and which are considered relevant in other jurisdictions.
As we emphasized repeatedly in Stanislaus Roberts and its companion cases decided last Term, it is essential that the capital sentencing decision allow for consideration of whatever mitigating circumstances may be relevant to either the particular offender or the particular offense. Because the Louisiana statute does not allow for consideration of particularized mitigating factors, it is unconstitutional.”
A Nevada statute to similar effect was held to be unconstitutional by the Supreme Court of the United States in Sumner v Shuman (1987) 483 US 66.“But, apart from that, a provision of law which deprives the court of the use of its wise and beneficent discretion in a matter of life and death, without regard to the circumstances in which the offence was committed and, therefore, without regard to the gravity of the offence, cannot but be regarded as harsh, unjust and unfair ... Thus, there is no justification for prescribing a mandatory sentence of death for the offence of murder committed inside or outside the prison by a person who is under the sentence of life imprisonment. A standardized mandatory sentence, of that too in the form of a sentence of death, fails to take into account the facts and circumstances of each particular case. It is those facts and circumstances which constitute a safe guideline for determining the question of sentence in each individual case ... Section 303 excludes judicial discretion. The scales of justice are removed from the hands of the Judge so soon as he pronounces the accused guilty of the offence. So final, so irrevocable and so irrestitutable is the sentence of death that no law which provides for it without involvement of the judicial mind can be said to be fair, just and reasonable. Such a law must necessarily be stigmatised as arbitrary and oppressive. Section 303 is such a law and it must go the way of all bad laws.”
“This does not mean that the judge or the legislator can no longer consider general deterrence or other penological purposes that go beyond the particular offender in determining a sentence, but only that the resulting sentence must not be grossly disproportionate to what the offender deserves.”
If a sentence prescribed by law is grossly disproportionate in that sense, it could be justified (if at all) only under section 1 of the Canadian Charter.
“Proportionality is an ingredient to be taken into account in deciding whether a penalty is cruel, inhuman or degrading …. No court would today uphold the constitutionality of a statute that makes the death sentence a competent sentence for the cutting down of trees or the killing of deer, which were capital offences in England in the 18th century …. But murder is not to be equated with such ‘offences’. The wilful taking of an innocent life calls for a severe penalty, and there are many countries which still retain the death penalty as a sentencing option for such cases. Disparity between the crime and the penalty is not the only ingredient of proportionality; factors such as the enormity and irredeemable character of the death sentence in circumstances where neither error nor arbitrariness can be excluded, the expense and difficulty of addressing the disparities which exist in practice between accused persons facing similar charges, and which are due to factors such as race, poverty, and ignorance, and the other subjective factors which have been mentioned, are also factors that can and should be taken into account in dealing with this issue.”
“147. The mandatory imposition of the death sentence, however, has both the intention and the effect of depriving a person of their right to life based solely upon the category of crime for which an offender is found guilty, without regard for the offender’s personal circumstances or the circumstances of the particular offense. The Commission cannot reconcile the essential respect for the dignity of the individual that underlies Articles XXV and XXVI of the Declaration, with a system that deprives an individual of the most fundamental of rights without considering whether this exceptional form of punishment is appropriate in the circumstances of the individual’s case.
178. The Commission further concludes that the State, by sentencing the condemned men to mandatory death penalties absent consideration of their individual circumstances, has failed to respect their rights to humane treatment pursuant to Article XXV and XXVI of the Declaration, and has subjected them to cruel, inhuman, or degrading punishment or treatment in violation of those Articles. The State sentenced the condemned men to death solely because they were convicted of a predetermined category of crime. Accordingly, the process to which they have been subjected, would deprive them of their most fundamental rights, their rights to life, without consideration of their personal circumstances and their offenses. Treating [the petitioners] in this manner abrogates the fundamental respect for humanity that underlies the rights protected under the Declaration, and Articles XXV and XXVI in particular.”
“The experience of other international human rights authorities, as well as the high courts of various common law jurisdictions that have, at least until recently, retained the death penalty, substantiates and reinforces an interpretation of Articles 4, 5, and 8 of the Convention that prohibits mandatory death sentences. Based upon a study of these various international and domestic jurisdictions, it is the Commission’s view that a common precept has developed whereby the exercise of guided discretion by sentencing authorities to consider potentially mitigating circumstances of individual offenders and offenses is considered to be a condition sine qua non to the rational, humane and fair imposition of capital punishment. Mitigating circumstances requiring consideration have been determined to include the character and record of the offender, the subjective factors that might have influenced the offender’s conduct, the design and manner of execution of the particular offense, and the possibility of reform and social readaptation of the offender.”
The Commission’s decision in Baptiste v Grenada (Report No. 38/00, 13 April 2000) was to similar effect: see particularly para.90. In Thompson v Saint Vincent and the Grenadines (2000) UNDOC/CCPR/C/70/D/906/1998 the Human Rights Committee established under the International Covenant considered the mandatory death penalty imposed on the applicant under the law of Saint Vincent. The Committee’s decision was based on article 6 (the right to life) of the International Covenant, but article 7 (relating to cruel, inhuman or degrading treatment or punishment) was also considered. In paras. 8.2 and 8.3 the Committee said:
“8.2 Counsel has claimed that the mandatory nature of the death sentence and its application in the author’s case, constitutes a violation of articles 6(1), 7 and 26 of the Covenant. The State party has replied that the death sentence is only mandatory for murder, which is the most serious crime under the law, and that this in itself means that it is a proportionate sentence. The Committee notes that the mandatory imposition of the death penalty under the laws of the State party is based solely upon the category of crime for which the offender is found guilty, without regard to the defendant’s personal circumstances or the circumstances of the particular offense. The death penalty is mandatory in all cases of ‘murder’ (intentional acts of violence resulting in the death of a person). The Committee considers that such a system of mandatory capital punishment would deprive the author of the most fundamental of rights, the right to life, without considering whether this exceptional form of punishment is appropriate in the circumstances of his or her case. The existence of a right to seek pardon or commutation, as required by article 6, paragraph 4, of the Covenant, does not secure adequate protection to the right to life, as these discretionary measures by the executive are subject to a wide range of other considerations compared to appropriate judicial review of all aspects of a criminal case. The Committee finds that the carrying out of the death penalty in the author’s case would constitute an arbitrary deprivation of his life in violation of article 6, paragraph 1, of the Covenant.
8.3 The Committee is of the opinion that counsel’s arguments related to the mandatory nature of the death penalty, based on articles 6(2), 7, 14(5) and 26 of the Covenant do not raise issues that would be separate from the above finding of a violation of article 6(1).”
“Article 3 cannot be interpreted as generally prohibiting the death penalty. That does not mean however that circumstances relating to a death sentence can never give rise to an issue under Article 3. The manner in which it is imposed or executed, the personal circumstances of the condemned person and a disproportionality to the gravity of the crime committed, as well as the conditions of detention awaiting execution, are examples of factors capable of bringing the treatment or punishment received by the condemned person within the proscription under Article 3. Present-day attitudes in the Contracting States to capital punishment are relevant for the assessment whether the acceptable threshold of suffering or degradation has been exceeded.”
Whether it would ever be possible to draft a provision for a mandatory death sentence which was sufficiently discriminating to obviate any inhumanity in its operation is not a question which the Board is called upon to decide.“Subject to the provisions of this Part, the existing laws shall notwithstanding the revocation of the Letters Patent and the Constitution Ordinance continue in force on and after Independence Day and shall then have effect as if they had been made in pursuance of this Constitution but they shall be construed with such modifications adaptations qualifications and exceptions as may be necessary to bring them into conformity with this Constitution.”
“We have not been addressed on the history of legislative enactments and judicial pronouncements in Belize and the Commonwealth Caribbean generally and will venture no observations. In the absence of a body of material supporting the proposition, the approach of Stewart J cannot automatically be transferred to the context of Belize.”
“In this case, however, it is the Constitution itself which vests in the Council the jurisdiction to advise commutation of the penalty. The power has not been vested by an ordinarily enacted law, itself open to review on grounds of constitutional invalidity. It is artificial to attempt to view the mandatory sentence which the courts must impose separate and apart from the constitutional provisions for its review enshrined in section 54 of the Constitution.
This process can supply the necessary flexibility. The character and record of the offender and the circumstances of the particular offence are open to consideration by the Council. Viewed in its entirety the procedure appears to conform with the standards of civilised society and not to be inhumane and degrading.”
Conclusion
