The death penalty : Rarest of the rare - The worst of the worst
Paper presented by Justice of Appeal Davidson Baptiste at the 2016 Justice Telford Georges Lecture organised by the Dominica Bar Association
The word "rare" conjures in our minds, something uncommon; something that is remarkably strange or unusual; an extraordinary event; something that does not occur generally. We all have heard the expression" once in a blue moon"; that speaks to the situation where there are two full moons in one month; a rather rare phenomenon. When we speak of the "rarest of the rare" the sphere of the superlative is engaged (rare, rarer, and rarest). Likewise, in the expression "the worst of the worst", the superlative is also engaged (bad, worse, worst). You may be asking, what has that got to do with the death penalty? Undoubtedly, that would constitute a legitimate and proper inquiry.
Society is faced with increased and senseless violence often resulting in death to friend, foe, sibling or stranger and the consequential result of someone being charged with murder. It may happen that the manner of execution of the killing is so gruesome that it shocks the collective conscience of the nation. Society is not only revolted by the manner of execution; but the sheer frequency of killings inevitably evokes and provokes a public outcry and demands for the imposition of the death penalty.
In a sense, one can appreciate the public's concern, given the rising number of killings occurring over the years and the knowledge that the penalty for murder on the statute books is still death. For many years, the imposition of the death penalty was a straight forward exercise. Upon being found guilty of murder, the death penalty was imposed. The death penalty was regarded as mandatory. That is no longer the case.
A judge cannot take into account the prevalence of murder and offences of a similar nature, in deciding to impose the death penalty. The death penalty cannot be justified by the prevalence of murder or other similar offences. As the Privy Council stated in White v The Queen  UKPC 22, (Belize) at paragraph 17, neither of the two principles articulated in Trimmingham v The Queen  UKPC 25 mention prevalence as a relevant factor. We shall consider the important case of Trimmingham a little later.
In Reyes v The Queen  UKPC 11, a case from Belize, the Privy Council noted that under the common law of England the only sentence which could be judicially imposed upon a person convicted of murder was the sentence of death. This simple and undiscriminating rule was introduced into many states now independent but once colonies of the crown.
In Dominica, the common law rule finds statutory expression in section 2 of the Offences against the Person Act, Chapter 10:31, which states that "Any person who is convicted of murder shall suffer the penalty of death". It is a source of concern to many that the death penalty is not being employed. It is not unusual to hear demands to "hang them "or "they must bring back hanging". During the course of this lecture, I intend to examine the state of health of the death penalty so as to assist you in having a better appreciation of the subject matter.
Where do I begin? It is appropriate to begin with the Constitution; the supreme law of the land. Section 5 of the constitution of the Commonwealth of Dominica provides that: "No person shall be subjected to torture or to inhuman or degrading punishment or other treatment." Identical provisions are found in other Caribbean constitutions, example, in section 5 of the Constitutions of St. Lucia and St. Vincent. In the St. Lucia case of R v Hughes  UKPC 12, Peter Hughes was sentenced to death by hanging. Section 178 of the Criminal Code stated:
"Whoever commits murder is liable indictably to suffer death."
Section 1284 provides:
"Unless otherwise expressly provided, a Court may sentence any offender to any less punishment, other than death, than that prescribed."
Section 1291 provides:
"The sentence, to be pronounced upon a person who is convicted of an offence punishable with death, is that he be hanged by the neck until he is dead."
The Privy Council held that the mandatory death penalty was to be regarded as inhuman or degrading punishment or treatment in terms of section 5 of the Constitution of St. Lucia. It accordingly held that section 178 of the Criminal Code of St. Lucia, to the extent that it required the infliction of the death penalty in all cases of murder was inconsistent with section 5 of the Constitution and so void by virtue of section 120 of the Constitution (the Supreme Law clause).
Their Lordships explained that the mandatory nature of the death penalty under section 178 derives from the fact that the death penalty is excluded from section 1284 which gives the court power to impose a lesser punishment than that prescribed in the section dealing with the particular offence. Applying paragraph 2 (1) of Schedule 2 to the Constitution Order which gives the court power to construe existing laws to bring them into conformity with the constitution, their Lordships construed section 1284 as modified so as not to include the words "other than death". The effect was to make section 1284 apply to section 178, just as it applies to other sections that prescribe the punishment for particular offences. With section 1284 applied in this way section 178 was no longer inconsistent with the Constitution. It was therefore open to the court under section 178 either to impose the death sentence or to impose a lesser punishment, depending on the view it took of the case having regard to all the relevant circumstances: para 51.
In passing, I note here that the Court of Appeal in the consolidated appeals of Peter Hughes and Newton Spence had also held that the mandatory death sentence for murder constituted inhuman or degrading punishment or treatment in terms of section 5 of the constitution of St. Lucia and St. Vincent and was inconsistent with section 5 of their respective constitutions.
Right here in Dominica, is the case of Bally Shen Balson v The State,  UKPC 2. Balson was convicted of murder in 1998. The trial judge sentenced him to death, as he was required to do by section 2 of the Offences against the Person Act which provides that "Any person who is convicted of murder shall suffer the penalty of death". The effect of section 2 of that Act is that the sentence of death is mandatory for a conviction for murder. The sentence of death was passed on Balson on the assumption that it was indeed mandatory. The Court of Appeal dismissed his appeal and affirmed his conviction and sentence. On appeal to the Privy Council, Balson submitted that the sentence of death imposed on him was in breach of his rights under section 5 of the Constitution.
In Balson, the Privy Council noted the State's acceptance that the same reasoning in Hughes must be applied to section 2 of the Offences against the Person Act of Dominica. Their Lordships also accepted that position and stated that the reasoning in Hughes must be applied to Balson's case in order that effect may be given to section 5 of the Constitution of Dominica. Their Lordships accordingly held that the imposition of the mandatory death penalty was unconstitutional. The appeal against sentence was allowed on
that ground and the sentence of death set aside. The case was remitted to the High Court to determine the appropriate sentence for the murder of which Balson was convicted.
At paragraph 44 of its advice in Balson, the Board stated:
"At the heart of the conclusion that the mandatory death penalty for all cases of murder is inhuman and degrading is the essential point that the circumstances in which murders are committed vary greatly from case to case. They have no common pattern, nor is there a uniform standard of culpability. In some cases a close examination of the circumstances may show that the accused's culpability is relatively minor and that the imposition of the death sentence would be arbitrary and disproportionate. In others, no doubt, the crime is of a wholly different character. The Constitution of Dominica requires that each case must be examined on its own merits. The culpability of the accused must be assessed by the sentencing judge in the light of his own particular circumstances".
Likewise, in Reyes v The Queen  UKPC 11, the Privy Council stated at paragraph 11, that it has been recognised for very many years that the crime of murder embraces a range of offences of widely varying degrees of criminal culpability. It covers at one extreme the sadistic murder of a child for the purpose of sexual gratification, a terrorist atrocity causing multiple deaths or a contract killing, at the other the mercy – killing of a loved one suffering unbearable pain in a terminal illness or a killing which results from an excessive response to a perceived threat. Their Lordships noted that all killings which satisfy the definition of murder are by no means equally heinous.
If I may briefly recap, in Dominica, hitherto section 2 of the Offences against the Person Act which states that "Any person who is convicted of murder shall suffer the penalty of death", was considered to be mandatory. That position is no longer the case. Section 5 of the Constitution provides against a person being subjected to inhuman or degrading punishment or other treatment. The mandatory death sentence is regarded as inhuman or degrading punishment or treatment in terms of section 5. Therefore section 2 of the Offences against the Person Act of Dominica to the extent that it required the infliction of the death penalty in all cases of murder was inconsistent with section 5 of the Constitution and is accordingly void.
What is the position then, when a person is found guilty of murder? We move to the Federation of St. Christopher and Nevis and the case of Evanson Mitcham et al v Director of Public Prosecutions, Criminal Appeal Nos. 10, 11 and 12 of 2002. In 2002, a High Court judge (who will remain nameless) sentenced Evanson Mitcham to death by hanging. Mitcham and his two associates were found guilty of the murder of one Vernal Nisbett. The incident occurred in the course of a joint enterprise to rob a lady. Nisbett went to her assistance and was shot dead by Mitcham. The appellants appealed against conviction and sentence. The Court of Appeal dismissed the appeal against conviction but allowed the appeal against sentence.
The importance of Mitcham lies in the procedural guidelines given by the Chief Justice, Byron CJ, with respect to sentencing upon a conviction of murder. The Chief Justice advanced the following as a procedural guide:
"If the prosecution intend to submit that the death penalty is appropriate in the event that the accused is convicted of murder, then notice to that effect should be given no later than the day upon which the offender is convicted. The notice may be given immediately upon conviction in which case it may be given orally. In any event the notice should contain the grounds on which the death penalty is considered appropriate.
Upon conviction by the jury, and the Prosecution having given notice that the death penalty is being sought, the trial judge should, at the time of the allocutus, specify the date of a sentencing hearing which provides reasonable time for preparation.
Where the Prosecution and the trial judge consider that the death sentence is not appropriate, a separate sentencing hearing may be dispensed with if the accused so consents and the offender may be sentenced right away in the normal fashion.
When fixing the date of a sentencing hearing, the trial judge should direct that social welfare and psychiatric reports be prepared in relation to the prisoner.
The burden of proof at the sentencing hearing lies on the prosecution and the standard of proof shall be proof beyond reasonable doubt."
In Pipersburgh & Anor v The Queen  UKPC 11, the Privy Council, in discussing how the vital sentencing hearing in capital cases should be approached, specifically referred to and approved the guidance given by Sir Dennis Byron CJ in terms of the requirement of the trial judge directing that social welfare and psychiatric reports be prepared in relation to the prisoner; as well as on the burden and standard of proof.
In White v The Queen  UKPC 22, (Belize) the Privy Council (at paragraph 22) strongly endorsed the "excellent guidelines" given by Conteh CJ in R v Reyes, (at para 26 of his judgment) to be followed in the prosecution, trial and sentencing of accused persons charged with murder "in order to introduce some measure of consistency and rationality and in keeping with the provisions of the Constitution of Belize". These guidelines are:
"(i) As from the time of committal, the prosecution should give notice as to whether they propose to submit that the death penalty is appropriate.
(ii) The prosecution's notice should contain the grounds on which they submit the death penalty is appropriate. (iii) In the event of the prosecution so indicating, and the trial judge considering that the death penalty may be appropriate, the judge should, at the time of the allocutus, specify the date of the sentence hearing which provides reasonable time for the defence to prepare.
(iv) Trial judge should give directions in relation to the conduct of the sentence hearing, as well as indicating the materials that should be made available, so that the accused may have reasonable materials for the preparation and presentation of his case on sentence.
(v) At the same time the judge should specify a time for the defence to provide notice of any points or evidence it proposes to rely on in relation to the sentence.
(vi) The judge should give reasons for his decision including the statement as to the grounds on which he finds that the death penalty must be imposed in the event that he so conclude. He should also specify the reasons for rejecting any mitigating circumstances."
In Pipersburgh & Anor v The Queen  UKPC 11, the Privy Council also referred to the judgment of Rawlins JA in Moise v The Queen 15 July 2005 in which he discussed the approach to be adopted by a judge when considering whether to impose a death sentence. Rawlins JA referred to a number of previous decisions where the proper approach had been discussed and stated:
"17. The cases mentioned in the foregoing paragraph establish that the first principle by which a sentencing judge is to be guided in these cases is that there is a presumption in favour of an unqualified right to life. The second consideration is that the death penalty should be imposed only in the most exceptional and extreme cases of murder. At the hearing, the convicted person must raise mitigating factors by adducing evidence, unless the mitigating facts are obvious from the evidence given at the trial. The burden to rebut the presumption then shifts to the Crown. The Crown must negative the presence of mitigating circumstances beyond a reasonable doubt. The duty of the sentencing judge is to weigh the mitigating and aggravating circumstances that might be present, in order to determine whether to impose a sentence of death or some lesser sentence.
It is a mandatory requirement in murder cases for a judge to take into account the personal and individual circumstances of the convicted person. The judge must also take into account the nature and gravity of the offence; the character and record of the convicted person; the factors that might have influenced the conduct that caused the murder; the design and execution of the offence, and the possibility of reform and social re-adaptation of the convicted person. The death sentence should only be imposed in those exceptional cases where there is no reasonable prospect of reform and the object of punishment would not be achieved by any other means. The sentencing judge is fixed with a very onerous duty to pay due regard to all of these factors.
In summary, the sentencing judge is required to consider, fully, two fundamental factors. On the one hand, the judge must consider the facts and circumstances that surround the commission of the offence. On the other hand, the judge must consider the character and record of the convicted person. The judge may accord greater importance to the circumstances, which relate to the commission of the offence. However, the relative importance of these two factors may vary according to the overall circumstances of each case."
We are still left with the question as to under what circumstances would the death penalty be appropriate. Trimmingham v The Queen  UKPC 25, an appeal from St. Vincent is very important. You will recall that I commenced this lecture with some comments on the "rarest of the rare" and "the worst of the worst". The case of Trimmingham essentially takes us into the heart of the matter. Lord Carswell, in giving the advice of the Privy Council summarised the two cardinal rules to be observed in deciding whether the death penalty should be imposed. At paragraph 20, His Lordship stated that judges in the Caribbean courts have in the past few years set out the approach which a sentencing judge should follow in cases where the imposition of the death sentence is discretionary. This approach can be regarded as established law. At paragraph 21, His Lordship stated that the approach can be expressed in two basic principles:
"The first has been expressed in several different formulations, but they all carry the same message, that the death penalty should be imposed only in cases which on the facts of the offence are the most extreme and exceptional, "the worst of the worst" or "the rarest of the rare". In considering whether a particular case falls into that category, the judge should of course compare it with other murder cases and not with ordinary civilised behaviour. The second principle is that there must be no reasonable prospect of reform of the offender and that the object of punishment could not be achieved by any means other than the ultimate sentence of death. The character of the offender and any other relevant circumstances are to be taken into account in so far as they may operate in his favour by way of mitigation and are not to weigh in the scales against him. Before it imposes a sentence of death the court must be properly satisfied that these two criteria have been fulfilled."
Before the Privy Council, Trimmingham's counsel readily accepted that his crime was a brutal and disgusting murder, involving the cold-blooded killing of an elderly man in the course of a robbery. He contended, however, that it fell short of being in the category of the rarest of the rare. He submitted that the killing did not appear to have been planned or premeditated and although the manner of the killing was gruesome and violent, there was no torture of the deceased nor prolonged trauma or humiliation of him prior to death.
Interestingly, the Privy Council accepted the correctness of this contention. Their Lordships stated:
"It was undeniably a bad case, even a very bad case, of murder committed for gain. But in their judgment it falls short of being among the worst of the worst, such as to call for the ultimate penalty of capital punishment. The appellant behaved in a revolting fashion, but this case is not comparable with the worst cases of sadistic killings. Their Lordships would also point out that the object of keeping the appellant out of society entirely, which the judge considered necessary, can be achieved without executing him."
The sentence of death by hanging was set aside and a sentence of life imprisonment substituted.
You may be interested in knowing the facts of Trimmingham. On 8 January 2003 Trimmingham and a friend went to land at Carriere in St. Vincent, where the victim, a man of 68 years, kept his goats. Trimmingham was carrying a firearm. He resolved to rob the deceased. When the deceased drew near, the appellant told his friend to hide. When the friend looked out he saw that Trimmingham had the deceased on the ground and had held him up with the gun. Trimmingham demanded money, but the deceased said that he had given it away to his daughter and told Trimmingham that he could take his goats if he left him alone. He then took the deceased some little distance away and struck him in the stomach, causing him to fall on the bank of a "contour" or rain water ditch. He threw the deceased down into the contour and cut his throat with a cutlass which he had taken from the deceased, then cut off his head with the same implement. He removed the trousers from the body and wrapped the head in them. He handled the penis of the deceased and made a ribald remark about it. He positioned the body in the contour and slit the belly, explaining to his friend that he did so to stop the body from swelling. He covered up the body and stuffed the trousers containing the head into a hole under a plant in a nearby banana field. These are the cold brutal facts of Trimmingham. The learned judge had sentenced him to death by hanging. The Court of Appeal had affirmed the sentence.
In the Court of Appeal, Barrow JA had stated that the murder fell into the category of particularly reprehensible killings, because it was committed in furtherance of a robbery. The murder that the appellant committed was heinous because it was cold blooded and inhuman. It is the criminal culpability, the degree of moral guilt, present in this specific murder that made it appropriate to consider it as one of the 'rarest of rare' cases in which the death penalty may be appropriate. There were no mitigating factors in the motive and circumstances that led to the murder. As I indicated earlier, the Privy Council allowed the appeal against the sentence of death by hanging.
You might be considering if Trimmingham was not the "worst of the worst" or the "rarest of the rare" what is? In that regard you are not alone. In the Bahamian case of Maxo Tido v The Queen,  UKPC 16, Lord Kerr recognised the difficulties. His Lordship stated at paragraph 36:
"Epithets such as "the worst of the worst" and "the rarest of the rare" can give rise to conceptual difficulties as to which cases will qualify. Murder is always a heinous crime. But it is clear that a death sentence – the ultimate and final sentence – must be reserved for the wholly exceptional category of cases within this most serious class of offence. Whatever "the worst of the worst" and "the rarest of the rare" may mean, the Board is satisfied that this case does not come within that wholly exceptional category. This was a dreadful crime. A young life was extinguished in brutal circumstances but it is not a case that can be placed alongside the most horrific of murders of which, sadly, human beings are capable. There is no warrant for believing that it was planned, nor is there unmistakable evidence that it was accompanied by unusual violence, beyond that required to effect Miss Conover's killing. There certainly appears to have been sexual contact (spermatozoa having been found on a vaginal swab) but there is no clear indication that she was the victim of rape. This was, in short, an appalling murder but not one which warrants the most condign punishment of death."
Again, you might be interested in the facts of Tido. Tido was convicted of the murder of a 16 year old girl. The girl and her family had attended a political rally and they returned home at 12.15 a.m. Her mother went to bed shortly after, leaving her daughter reading a manifesto in the dining room. The following day when the mother woke up at 7 .15 a.m. she realised that her daughter was missing. The mother checked the telephone and realised that a call had been received at 1.20 a.m. and another at 1.45 a.m.
The prosecution's case was that at about 1.20 a.m. the appellant telephoned the girl and that, after that telephone call, she had left her family home and had gone to meet him. Her body was found later that day between 12.30pm and 1pm in a quarry pit next to a road. She had suffered severe head injuries. Evidence was given that these could have been caused by her being struck by a hard object such as a rock or that they could have been the result of a car being driven over her head. Her body had been set on fire, and when it was discovered it was found to have been partially burnt.
At paragraph 7 of its advice in Lockhart v The Queen (Bahamas)  UKPC 33, the Privy Council stated:
"In Maxo Tido v The Queen  UKPC 16 the Board acknowledged that difficulties can arise in deciding which cases warrant the soubriquet, "the worst of the worst" or "the rarest of the rare". It is quite clear, however, that only the most exceptional will qualify. Attempting to define which will come within this egregious category is not easy and one must guard against the risks that attend over-prescription in a field that defies precise classification."
In Lochkhart v The Queen  UKPC 33, Lord Kerr stated at para 9:
"The second principle in Trimmingham, (that there must be no reasonable prospect of reform of the offender and that the object of punishment could not be achieved by any means other than the ultimate sentence of death) has, obviously, two aspects. These do not bear any clearly evident connection with each other. Indeed, the second aspect, that the ultimate sentence of death is required in order to satisfy the requirements of due punishment, might be thought to be rather more comfortably accommodated with the question whether the offence is one which can properly be regarded as the worst of the worst.
At paragraph 10 Lord Kerr noted that Lord Carswell made it clear in Trimmingham that the formulation that emerge from his formulation of the two principles must be fulfilled to the satisfaction of the sentencing court before the death penalty can be imposed. Lord Kerr observed that in relation to the first aspect of the second principle, the court therefore requires to be satisfied of a negative proposition – that there is no reasonable prospect of reform. His Lordship opined that if and how a sentencer can reach that point of conviction will depend on the circumstances of the case. His Lordship went on to say that as the Board observed in Maxo Tido, a sentencing court, contemplating the imposition of the death penalty, would need to have professional advice as to whether the possibility of reform does not exist.
At paragraph 12, the Privy Council went on to discuss psychiatry. Lord Kerr noted that psychiatry is defined as "the branch of medicine concerned with the causes, diagnosis, treatment, and prevention of mental illness". Lord Kerr observed that the mental illnesses or disorders that psychiatry is designed to diagnose and treat include various affective, behavioural, cognitive and perceptual abnormalities. Lord Kerr opined that psychiatry is pre-eminently the discipline that is best suited – in the first investigation at least – to address the question whether an individual is incapable of reform and whether, if capable, there is a reasonable prospect that he might avail of it. Lord Kerr said that it was, no doubt, for this reason that Sir Dennis Byron CJ, delivering judgment in the Eastern Caribbean Court of Appeal in Mitcham v Director of Public Prosecutions, 3 November 2003 said that when fixing the date of a sentencing hearing, "the trial judge should direct that social welfare and psychiatric reports be prepared in relation to the prisoner". In Pipersburgh and Robateau v The Queen  UKPC 11 the Board approved that enjoinder and said that "it is the need to consider the personal and individual circumstances of the convicted person and, in particular, the possibility of his reform and social re-adaptation which makes the social inquiry and psychiatric reports necessary for all such sentence hearings."
The Board therefore concluded at paragraph 13 of Lockhart that in every case in which the death penalty is being considered, the report of a consultant psychiatrist is needed before the question whether the reasonable possibility of reform can be properly addressed. In some cases something more will be required. In White v The Queen  UKPC 22 at para 27 the Board adverted to the possibility that a report from a psychologist might also be necessary. Sir John Dyson said: "In some cases where the possibility of mental disability exists, a psychological report should be obtained as well."
At paragraph 13 in Lockhart, Lord Kerr also addressed the topic of psychology. He noted that psychology involved, among other things, the study of cognition, emotion, motivation, brain functioning, personality, behaviour, and interpersonal relationships. His Lordship stated that many of these character traits can be assessed by the administration of psychometric tests and many may bear on the question whether an individual is capable of, and is likely to attempt to achieve, reform. His Lordship concluded that "where, therefore, a sentencing court considers that it is impossible to decide whether the first aspect of the second principle in Trimmingham can be fulfilled without the assistance of a clinical psychologist, a report from such an expert will be indispensable to the proper consideration of that question".
As the Board stated in Lockhart, if the murder cannot be characterised as the worst of the worst, the first aspect of the second principle - whether there is a reasonable prospect of reform - does not arise. It is only where the killing is to be regarded as occupying a place in the worst category of murder that the question of the possibility of reform need be addressed.
There may be cases where an offender's previous offending is so bad and the previous offences are so similar to the index offence that they are relevant to its gravity. An example might be where the index offence is the latest in a series of sadistic murders. There may be cases where an offender's previous offending is so persistent and his previous offences so grave that they may properly lead the sentencing judge to conclude that there is no reasonable prospect of reform and that the object of punishment can only be achieved by means of the death penalty. But no judge should reach such a conclusion without the benefit of appropriate reports: per Sir John Dyson, para 14 of White v The Queen.
I move now to a different aspect of the discussion; the passage of time. In that regard, Pratt & Morgan v The Attorney General for Jamaica  2 AC 1,  UKPC 1 is instructive. It provides an interesting dimension as to the effect of the length of time spent on death row and the constitutionality of the execution of the death penalty. Prat and Morgan were convicted of murder and sentenced to death in January 1979 and were kept on death row. On three occasions the death warrant was read to them and they were removed to the condemned cells immediately adjacent to the gallows. The last occasion was in February 1991 for execution on 7 th March: a stay was granted on 6 th March. The Privy Council held that when a defendant has been in custody under sentence of death for more than five years without any question of abuse of process or frivolous resort to time wasting procedures, no death sentence can constitutionally be imposed upon him.
The Privy Council noted that the total period of delay was 14 years since the murder convictions. That was clearly unacceptable and executing the prisoner now after holding them in custody in an agony of suspense for so many years would infringe section 17 (1) of the Constitution of Jamaica, as it would amount to inhuman punishment within the meaning of that section. Their appeal against sentence was allowed.
At paragraph 73, the Privy Council opined that it was incumbent upon a State desirous of retaining capital punishment to ensure that execution follows as swiftly as practicable after sentence, allowing a reasonable time for appeal and consideration of reprieve. Their Lordships noted that it is part of human condition that a condemned man will take every opportunity to save his life through use of the appellate procedure. If the appellate procedure enables the prisoner to prolong the appellate hearings over a period of years, the fault is to be attributed to the appellate system that permits such delay and not to the prisoner who takes advantage of it. Appellate procedures that echo down the years are not compatible with capital punishment.
Likewise in Paragraph 19 of White v The Queen the Privy Council noted that more than six years have passed since the death penalty was imposed on the appellant. The Privy Council stated that such a delay in carrying out an execution would itself constitute "inhuman or degrading punishment or other treatment" contrary to section 7 of the Constitution of Belize and would be a further reason for substituting a sentence of life imprisonment.
In conclusion the imposition of a mandatory death sentence is contrary to section 5 of the Constitution of the Commonwealth of Dominica. The death sentence is thus discretionary. The conditions for the imposition of the death penalty are extremely stringent. Two cardinal principles are in play and must be satisfied. The first is that the killing must fall into the category of "the worst of the worst" or "the rarest of the rare." The second basic principle is that there must be no reasonable prospect of reform of the offender and that the object of punishment cannot be achieved by any means other than the death penalty. If the murder does not satisfy the first principle, the death penalty cannot be imposed; accordingly, there is no need to consider the second principle.
We have noted the conceptual difficulties inherent in the first principle – the categorisation of a murder as "the worst of the worst". Assuming the "worst of the worst" is overcome, the second principle in Trimmingham has to be satisfied. In that regard, the role played by psychiatrists and psychologists is indispensable. A sentencing court would require professional advice as to whether the possibility of reform does not exist. The importance of obtaining the relevant reports in capital cases have been emphasised on numerous occasions.
Further assuming that both principles in Trimmingham are satisfied, the State has to ensure that the time limit of five years established in Pratt v Morgan for the carrying out of the death penalty is satisfied.
In Mitchel Joseph v The Queen an appeal from St. Lucia in which judgment was delivered in July 2013, the Court of Appeal, summed up the position this way:
"Thus far, the death penalty seems unable to survive the stranglehold imposed upon it by the first principle in Trimmingham – the worst of the worst. Undoubtedly, Trimmingham has severely injured the death penalty. It thus lies in a state of comatose on its death bed, induced by the deathblow of the "worst of the worst".
However, the dying state of the death penalty essentially represents the living power of the Constitution, the Supreme law of the land. That, to my mind, sounds like the best of the best.
D K Baptiste