Barbados, Caribbean Court of Justice, Jabari Sensimania Nervais and Dwayne Omar Severin v. The Queen [2018]

• Jurisdiction: Barbados
• Subject Matter: Preamble,Protection of the law,Due process,Mandatory death penalty

1. Identification of the Sentence

Barbados, Caribbean Court of Justice, Jabari Sensimania Nervais and Dwayne Omar Severin v. The Queen [2018]

CCJ 19 (AJ).

2. Abstract

The appellants challenged the mandatory death penalty in Barbados after both had been convicted of murder and

sentenced to death. They argued that they had been deprived of the protection of the law, guaranteed under the

Constitution because the section of the law under which they had been sentenced to death violated the Constitution

and was thus void. The law, however, had been a pre-independence law and its inconsistency was thought to be

saved by the Constitution. The Caribbean Court of Justice (CCJ) held that the section was not saved, and that the

mandatory death penalty in Barbados was unconstitutional. The CCJ therefore overruled the decision in Boyce v.

The Queen and ordered that the appellants be resentenced.

3. Facts

The appellants were both convicted of murder and sentenced to death under section 2 of the Offences Against the

Person Act (OAPA). The appellants had been convicted and sentenced separately but each argued that they were not

to have been convicted and that their sentence of the mandatory death penalty was unconstitutional. Section 2 of the

OAPA provided that “any person convicted of murder shall be sentenced to, and suffer, death.”

While the Court of Appeal acknowledged that the mandatory death penalty was inconsistent with and in violation of

international human rights law and was an inhuman and degrading punishment, the OAPA was a pre-independence

piece of legislation and was accordingly saved from challenge by section 26(1). This was the decision of the former

highest court of Barbados, the Judicial Committee of the Privy Council in Boyce and Joseph v. The Queen

1

. The

Court of Appeal felt it was bound by that decision until it was overruled by the Caribbean Court of Justice.

The appellants appealed to the CCJ on the basis that their convictions were unsafe and that the mandatory sentence

of death in Barbados was unconstitutional. The appeals against convictions were heard separately and each was

dismissed. The appeals against their death sentences were heard together.

The CCJ held that section 11 of the Constitution, which included the protection of the law, was separately enforceable

and was not merely a preamble to the rights guaranteed in the Constitution, that the mandatory nature of the death

penalty in section 2 of the OAPA placed it in violation of the right to protection of the law as guaranteed by section

11 (c), that the law could be modified so as to remove the mandatory application of the death penalty, and the majority

held that section 2 of the OAPA violated sections 15 (1), 18(1), and 12(1) of the Constitution. The CCJ ordered that

the appellants be resentenced.

1

Barbados, Judicial Committee of the Privy Council, Boyce and Joseph v The Queen [2004] UKPC 32

4. Decision

The issues before the Caribbean Court of Justice (CCJ) were i) whether section 11 of the Constitution, which included

the protection of the law, was separately enforceable; ii) whether section 2 of the Offences against the Person Act

(OAPA) breached section 11(c) of the Constitution which specifically dealt with the protection of the law; iii)

whether section 2 of the OAPA, which provided for the mandatory death penalty, could be modified to bring it into

conformity with the Constitution; and iv) whether section 2 of the OAPA breached other sections of the Constitution.

On the first issue of the enforceability of section 11 of the Constitution, the CCJ held that section 11 was separately

enforceable and was not merely a preamble to the rights guaranteed in the Constitution. The section stated the rights

to which the people of Barbados were entitled and the limitations which could be imposed. The CCJ held that was

the only place in the Constitution that declared those rights. They therefore said that they could find no justification

for failing to give binding effect to section 11. The CCJ held that the language in the Constitution was clear, section

11 declared the rights and the later sections which outlined the specific rights, sections 12-23, allowed for the

protection of those rights subject to permissible constitutional limitations.

Concerning the second issue of whether section 2 of the OAPA breached section 11(c) of the Constitution which

specifically dealt with the protection of the law, the CCJ held that the mandatory nature of the death penalty in

section 2 of the OAPA placed it in violation of the right to protection of the law as guaranteed by section 11(c). The

CCJ examined the right to protection of the law and found that it was the same as due process which meant

procedural fairness and invoked the concept of the rule of law. Protection of the law was therefore one of the core

elements of the rule of law and gave every person, including convicted murderers, adequate safeguards against

irrationality, unreasonableness, fundamental unfairness or arbitrary exercise of power.

The CCJ found that the mandatory death penalty deprived courts of the opportunity to exercise their judicial

function of giving appropriate sentences based on all the information before them. They held that the right to

protection of the law or due process included the right to a fair trial but that those did not stop at conviction of the

accused. Sentencing and mitigation were also indispensable components of a fair trial and those too were protected

by the Constitution. As such, the principle of a fair trial must be applied to the sentencing stage and includes the right

to appeal or apply for review by a higher court prescribed by law.

On the third issue on whether section 2 of the OAPA, which provided for the mandatory death penalty, could be

modified to bring it into conformity with the Constitution, the majority of the CCJ held the law could be modified

so as to remove the mandatory application of the death penalty. They held that section 26(1) did not prevent the CCJ

from holding anything contained in or done under the authority of any existing law was inconsistent with the human

rights sections of the Constitution. They rejected the earlier Judicial Committee of the Privy Council case of Boyce

and Joseph v. The Queen

2

which had stated that the mandatory death penalty could not be deemed unconstitutional

because it was saved as a pre-independence law by section 26(1). The majority of the CCJ found that, by keeping

this exception to the fundamental rights and freedoms of Barbadians, it diminished the very reason Barbados fought

for its independence. The CCJ rejected the idea that the Constitution guaranteed fundamental rights and freedoms to

2

Barbados, Judicial Committee of the Privy Council, Boyce and Joseph v The Queen [2004] UKPC 3 2

Barbadians, but that because of pre-independence laws which were saved under section 26(1), they could not receive

the full protection of those rights post-independence.

Concerning the final issue as to whether section 2 of the OAPA violated sections 15 (1), 18(1), or 12(1) of the

Constitution, the majority of the CCJ held that it violated all three sections. For section 12(1), the CCJ found that the

mandatory death penalty breached the right to not be deprived of life save in execution of the sentence of a court in

respect of a criminal offence, as it reduced the Court’s sentencing role and therefore breached the doctrine of the

separation of powers. The CCJ also found that the right to a fair trial as guaranteed by section 18(1) and the right not

to be subjected to inhuman or degrading treatment as guaranteed by section 15(1) were also breached.

Based on the above, the CCJ held that section 11 was separately enforceable and was not merely a preamble to the

rights guaranteed in the Constitution, that the mandatory nature of death penalty in section 2 of the OAPA placed it

in violation of the right to protection of the law as guaranteed by section 11 (c), the law could be modified so as to

remove the mandatory application of the death penalty, and the majority held that section 2 of the OAPA violated

sections 15 (1), 18(1), and 12(1) of the Constitution. They ordered that the appellants be resentenced.

5. Concurring Judgment of The Honourable Mr. Justice Anderson

In a concurring judgment, Justice Anderson agreed that the mandatory death penalty could not properly be imposed

on the appellants. However, he disagreed with the majority’s position that section 11 of the Constitution was

independently enforceable. He also disagreed with the manner in which section 2 of the OAPA could be modified.

Justice Anderson would have allowed the appeal on the basis that the power to sentence was an exclusively judicial

and section 2 of the OAPA violated the separation of powers doctrine. He considered this approach to be more

consistent with facilitating respect for, and adherence to, the ongoing evolution in the protection of human rights

regarding permissible sentences.

6 Jurisprudence

 Barbados, Court of Appeal, Nervais v The Queen BB 2017 CA 9

 Barbados, Judicial Committee of the Privy Council, Boyce and Joseph v The Queen [2004] UKPC 32

 Barbados, Caribbean Court of Justice, Attorney General and Others v Joseph and Boyce [2006] CCJ 3

(AJ)

 Jamaica, Judicial Committee of the Privy Council, Director of Public Prosecutions v Nasralla [1967] 2

AC 238

 Trinidad and Tobago, Judicial Committee of the Privy Council, de Freitas v Benny [1976] AC 239

 Jamaica, Judicial Committee of the Privy Council, Watson v The Queen (Attorney General for Jamaica

intervening) [2005] 1 AC 472 [46]

 IACtHR, Boyce et al. v Barbados, Judgment of November 20, 2007 (Preliminary Objection, Merits,

Reparations and Costs)

 IACtHR, Dacosta Cadogan v Barbados, Judgment of September 24, 2009 (Preliminary Objections,

Merits, Reparations, and Costs)

 The Bahamas, Judicial Committee of the Privy Council, Newbold v Commissioner of Police & Ors (2014)

84 WIR 8

 Jamaica, Judicial Committee of the Privy Council, Campbell-Rodriques v A-G [2007] UKPC 65, [2008]

4 LRC 526

 Malta, Judicial Committee of the Privy Council, Olivier v Buttigieg [1966] 2 All ER 459

 Mauritius, Judicial Committee of the Privy Council, Société United Docks v Government of Mauritius

[1985] AC 585

 Belize, Caribbean Court of Justice, Lucas v The Attorney General of Belize [2015] CCJ 6 (AJ)

 Belize, Caribbean Court of Justice, Maya Leaders Alliance et al. v The Attorney General of Belize [2015]

CCJ 15 (AJ)

 Singapore, Judicial Committee of the Privy Council, Ong Ah Chuan v Public Prosecutor [1981] AC 648

 St. Vincent and the Grenadines, Eastern Caribbean Court, Spence and Hughes v. The Queen, Crim. App.

Nos. 20 of 1998 and 14 of 1997, judgment rendered Apr. 2, 2001

 India, Supreme Court, Mithu v State of Punjab, Criminal Appeal No. 745 of 1980

 Kenya, Supreme Court, Francis Karioko Muruatetu & Wilson Thirimbu Mwangi v Republic [Writ

Petition No.15 of 2015]

 Belize, Caribbean Court of Justice, Zuniga and others v Attorney General of Belize [2014] CCJ 2 (AJ)

 The Bahamas, Judicial Committee of the Privy Council, Bowe and another v R [2006] UKPC 10

 Trinidad and Tobago, Judicial Committee of the Privy Council, Matthew v The State of Trinidad and

Tobago [2005] 1 AC 433

 Belize, Court of Appeal, San Jose Farmers’ Co-operative Society Ltd v Attorney General (1991) 43 WIR

63

 Jamaica, Judicial Committee of the Privy Council, Pratt and Morgan [1993] UKPC 1

 Belize, Caribbean Court of Justice, Bar Association v. The Attorney General of Belize [2017] CCJ 4 (AJ)

 Trinidad and Tobago, Judicial Committee of the Privy Council, Abbott v Attorney General of Trinidad

and Tobago [1979] 1 WLR 1342

 The Bahamas, Judicial Committee of the Privy Council, Jones v Attorney General of the Commonwealth

of the Bahamas [1995] 1 WLR 891

 Rhodesia and Nyasaland, Judicial Committee of the Privy Council, Runyowa v The Queen [1967] 1 AC

26

 Jamaica, Judicial Committee of the Privy Council, Hinds v The Queen [1976] 1 All ER 353

7. Key words

 Preamble

 Protection of the law

 Due process

 Mandatory death penalty