[2004] UKPC 33

• Jurisdiction: Trinidad & Tobago
• Subject Matter: Mandatory death penalty,Cruel or unusual punishment or treatment,Existing laws,Separation of powers

1. Identification of the Sentence

Trinidad and Tobago, The Judicial Committee of the Privy Council, Matthew v The State [2004] UKPC 33 (07 July

2004); [2004] 3 WLR 812; [2005] 1 AC 433.

2. Abstract

The appellant was convicted for murder and sentenced to the mandatory death penalty in Trinidad and Tobago. The

appellant argued that the death penalty was no longer mandatory but was instead discretionary as it violated the right

to life under section 4 and cruel or inhuman punishment under section 5(2)(b) under the 1976 Constitution. The JCPC

held that the law decreeing the mandatory death penalty was an existing law at the time the Constitution of Trinidad

and Tobago came into force and was saved by section 6(1) of the Constitution. It was therefore not subject to the

provision guaranteeing the right to life nor cruel or inhuman punishment. The JCPC therefore overruled Roodal v.

The State and held that the mandatory death penalty did not violate the constitution of Trinidad and Tobago.

3. Facts

On December 3 of 1999, the appellant was convicted for the murder of a woman and sentenced to death. Under

section 4 of the Offences Against the Person Act, the death penalty was mandatory after a conviction for murder. On

January 12 of 2004, the JCPC granted the appellant leave to appeal against the sentence. The appellant argued that

the judge wrongly thought the sentence was mandatory and that instead, the death sentence had become discretionary

because of a provision in the Interpretation Act, by necessary modification under the Constitution, or in order to

comply with the separation of powers.

The same submissions had been advanced in the previous case of Roodal v. The State where the JCPC held that the

mandatory death penalty was unconstitutional in Trinidad and Tobago. An enlarged tribunal was brought together to

come to a definitive ruling on the mandatory death penalty that could be applied to all the constitutions which had

similar provisions.

Under section 4 of the 1976 Constitution of the Republic of Trinidad and Tobago, all persons have the right to life

and section 5(2)(b) indicated that Parliament was not permitted to authorize or impose cruel and unusual treatment

or punishment. Section 6(1) however stated that nothing contained within sections 4 or 5 of the Constitution could

invalidate an existing law. “Existing laws” were laws that were in place before the independence of Trinidad and

Tobago and the Offences Against the Person Act was a law in place before independence.

The JCPC held that the law decreeing the mandatory death penalty was an existing law at the time the Constitution

of Trinidad and Tobago came into force and was saved by section 6(1) of the Constitution. It was therefore not

subject to the provision guaranteeing the right to life under section 4 or cruel or inhuman punishment under section

5(2)(b). The JCPC therefore overruled Roodal v. The State and held that the mandatory death penalty continued to

be constitutional in Trinidad and Tobago.

4. Decision

The case before the Judicial Committee of the Privy Council (JCPC) concerned whether the mandatory death penalty

was constitutional in Trinidad and Tobago. The five issues before the JCPC were i) whether the mandatory death

penalty was discretionary because it violated sections 4 and 5 of the Trinidad and Tobago Constitution ii) whether

the mandatory death penalty was discretionary because of section 68(2) of the Trinidad and Tobago Interpretation

Act; iii) whether the mandatory death penalty required modification under section 5(1) of the 1976 Constitution of

the Republic of Trinidad and Tobago; iv) whether the mandatory death penalty complied with the principle of the

separation of powers; and v) whether the previous case of Roodal v. The State

1

continued to be good law.

On the first issue of whether the mandatory death penalty under section 4 of the Offences Against the Person Act

was discretionary because it violated sections 4 and 5 of the constitution, the majority of the JCPC held that it did

not. They rejected the argument that the morality or effectiveness of the death penalty were not factors that could

make the mandatory death penalty unconstitutional when it had clearly been provided for under the law. Though

section 4 protected the right to life and section 5(2)(b) prevented Parliament from authorizing or imposing cruel or

unusual punishment or treatment, section 6(1) prevented it from being unconstitutional because it was a law that

existed before independence. Under section 6(1), nothing under sections 4 or 5 could invalidate an existing law. The

matter of abolishing the mandatory death penalty, they held, was a matter for the Parliament of Trinidad and Tobago.

Concerning the second issue, the JCPC majority held that section 68(2) of the Interpretation Act did not apply to the

mandatory death penalty because had not ever been considered a “fixed penalty” under that section. The mandatory

death penalty was in an altogether different category and so to construe the Interpretation Act in that way would go

against the true spirit, intent and meaning of the Act.

On the third issue concerning the potential modification of mandatory death penalty using section 5(1) of the 1976

Constitution, the JCPC majority held that section 5(1) of the Constitution which gave the courts the power to amend

or modify existing laws to bring them into conformity with the Constitution did not apply in this case. They held

that sections 4 and 5 clearly stated that this was not to be used in the case of existing laws because of the clear

language of the section. The majority held that doing so would be inconsistent with the supremacy of the Constitution,

irrational in its consequences, and contrary to the language and purpose of section 5(1) of the 1976 Constitution.

Concerning the fourth issue whether the mandatory death penalty complied with the principle of the separation of

powers, the JCPC majority held the mandatory death penalty was not subject to the principle. The principle of the

separation of powers was not an overriding principle above the constitution but rather a description of how powers

under the constitution were divided.

On the final issue concerning the JCPC’s previous case of Roodal v. The State

2

which held that the mandatory death

penalty was unconstitutional in Trinidad and Tobago, the JCPC majority held that they were departing from their

1

Trinidad and Tobago, Judicial Committee of the Privy Council, Roodal v. The State [2004] 2 WLR 652

2

Trinidad and Tobago, Judicial Committee of the Privy Council, Roodal v. The State [2004] 2 WLR 652

previous decision and the case of Roodal was overruled. Roodal concerned the same issues that had been raised in

this case and the majority of the JCPC held that on reconsideration, Roodal had been wrongly decided.

Based on the above, the JCPC majority held that the law decreeing the mandatory death penalty was an existing law

at the time the Constitution of Trinidad and Tobago came into force and was saved by section 6(1) of the Constitution.

It was therefore not subject to the provision guaranteeing the right to life under section 4 or cruel or inhuman

punishment under section 5(2)(b). The JCPC therefore overruled Roodal v. The State and held that the mandatory

death penalty continued to be constitutional in Trinidad and Tobago.

4.1 Dissenting judgment of Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Steyn,

and Lord Walker of Gestingthorpe

The dissenting minority held that the majority’s interpretation of the 1976 Constitution of the Republic of Trinidad

and Tobago did not ensure the protection of fundamental human rights and freedoms, degraded the dignity of the

human person, and did not respect the rule of law. They felt that a legalistic and overly literal approach to

interpretation was inappropriate when seeking to give effect to the rights, values, and standards expressed in the

constitution as those evolve over time. They instead held that section 4 of the Offences Against the Person Act be

modified under section 5(1) to bring it into conformity with the Constitution, amending it to indicate that a person

convicted of murder “may” receive the death penalty. They felt the same result could also be achieved by giving

section 68(2) of the Interpretation Act 1962 its literal meaning and deciding that, since the death penalty was a “fixed

penalty”, it was the maximum penalty allowed and so a judge had the option to give a lesser penalty.

The minority made it clear that the death penalty was constitutional but it was the absence of choice that was being

attacked. The State had accepted that the mandatory death penalty for murder amounted to “cruel and inhuman

treatment or punishment” under the Constitution in line with Reyes v. The Queen

3

and the minority felt it was

surprising that the State was seeking to uphold the right to subject its citizens to that treatment and that the majority

allowed them to do so. The minority held that overruling Roodal v. The State

4

put Trinidad and Tobago in breach of

its international obligations under the Universal Declaration of Human Rights, the International Covenant on Civil

and Political Rights, the American Declaration on the Rights and Duties of Man, and the American Convention on

Human Rights, all of which the State was party to when the appellant committed his crime and to the first three when

the appellant was sentenced. The imposition of the mandatory death penalty was then an admission that it breached

its international obligations.

4.2 Dissenting judgment of Lord Nicholls of Birkenhead

Though already part of the dissenting minority, Lord Nicholls wrote an additional judgment because of what he saw

as the exceptional constitutional importance of these appeals. He noted that times had changed and human rights

values set higher standards today. Lord Nicholls considered therefore that a death sentence which lacked

3

Belize, Judicial Committee of the Privy Council, Reyes v. The Queen [2002] UKP C 11; [2002] 2 A.C. 235

4

Trinidad and Tobago, Judicial Committee of the Privy Council, Roodal v. The State [2004] 2 WLR 652

proportionality lacked humanity. This case, along with Boyce and Joseph v. The Queen

5

from Barbados and Watson

v. The Queen

6

from Jamaica all came from countries with human rights values at the very forefront of their

constitutions. Cruel and inhuman punishment were all prohibited but despite that, each of the States were attempting

to use their provisions which saved existing law to deprive citizens of the rising standards set by human rights values.

He held that the constitution should therefore not just be read literally but rather interpreted as an evolving statement

of a country’s supreme law. A country could reject fundamental human rights as Barbados did when it amended its

constitution in 2002 to reject decisions of the JCPC

7

, but the rejection had to be explicit, not merely a misapplication

of the provisions which saved existing laws.

5. Jurisprudence

 Belize, Judicial Committee of the Privy Council, Reyes v. The Queen [2002] UKPC 11; [2002] 2 A.C.

235

 Trinidad and Tobago, Judicial Committee of the Privy Council, Roodal v. The State [2004] 2 WLR 652

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

 United Nations, Human Rights Committee, Kennedy v. Trinidad and Tobago (2002)

CCPR/C/67/D/845/1999

 Inter-American Commission on Human Rights, Edwards v. The Bahamas (2001) Report No. 48/01

 Jamaica, Judicial Committee of the Privy Council, Pratt and Morgan v Attorney-General for Jamaica

[1994] 2 A.C. 1

 The Bahamas, Judicial Committee of the Privy Council, Fisher v. Minister of Public Safety and

Immigration [1998] A.C. 673

 The Bahamas, Judicial Committee of the Privy Council, Minister of Home Affairs v. Fisher [1980] A.C.

319

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

 Trinidad and Tobago, Judicial Committee of the Privy Council, Maharaj v. Attorney-General of Trinidad

and Tobago (No 2) [1979] A.C. 385

 Canada, Judicial Committee of the Privy Council, Edwards v. Attorney-General for Canada [1930] AC

124

 Canada, Supreme Court, Hunter v. Southam Inc [1984] 2 SCR 145

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

v. Whiteman [1991] 2 A.C. 240

 The Gambia, Judicial Committee of the Privy Council, Attorney-General of The Gambia v. Mamodou

Jobe [1984] A.C. 689

 Belize, Judicial Committee of the Privy Council, Vasquez v. The Queen [1994] 1 WLR 1304

 St. Lucia, Judicial Committee of the Privy Council, R v. Hughes [2002] UKPC 12; [2002] 2 A.C. 259

5

Barbados, The Judicial Committee of the Privy Council, Boyce & Anor v The Queen [2004] UKP C 32

6

Jamaica, Judicial Committee of the Privy Council, Lambert Watson v. The Queen [2004] UKPC 34

7

1) Jamaica, Judicial Committee of the Privy Council, Pratt and Morgan v Attorney -General for Jamaica [1994] 2 A.C. 1; 2) Jamaica,

Judicial Committee of the Privy Council, Lewis v. Attorney-General of Ja maica [2000] UKPC 35; and 3) Belize, Judicial Committee of

the Privy Council, Reyes v. The Queen [2002] UKPC 11; [2002] 2 A.C. 235; and 3)

 Trinidad and Tobago, Judicial Committee of the Privy Council, Thornhill v. Attorney-General of Trinidad

and Tobago [1981] A.C. 61

 Jamaica, Judicial Committee of the Privy Council, DPP v Nasralla [1967] 2 A.C. 238

 Jamaica, Judicial Committee of the Privy Council, Lambert Watson v. The Queen [2004] UKPC 34

 United Kingdom, House of Lords, Pepper v. Hart [1993] A.C. 593

 Federation of Malaya, Judicial Committee of the Privy Council, Kanda v. Government of the Federation

of Malaya [1962] A.C. 322

 Trinidad and Tobago, Court of Appeal, Beckles v. Dellamore (1965) 9 WIR 299

 West Indies Associated States, Court of Appeal, Charles v. Phillips and Sealey (1967) 10 WIR 423

 West Indies Associated States, Court of Appeal, Herbert v. Phillips and Sealey (1967) 10 WIR 435

 St. Christopher, Nevis and Anguilla, Judicial Committee of the Privy Council, Attorney-General of St.

Christopher, Nevis and Anguilla v. Reynolds [1980] A.C. 637

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

63

 St. Kitts and Nevis, Judicial Committee of the Privy Council, Browne v. The Queen [2000] 1 A.C 45

 Jamaica, Judicial Committee of the Privy Council, DPP v. Mollison [2003] UKPC 6; [2003] 2 A.C. 411

 Gibraltar, Judicial Committee of the Privy Council, Rojas v Berllaque [2003] UKPC 76; [2004] 1 WLR

201

 St. Kitts and Nevis, Judicial Committee of the Privy Council, Fox v. The Queen [2002] UKPC 13; [2002]

2 A.C. 284

 European Communities, Court of Justice, Marleasing SA v. La Comercial Internacional de

Alimentación SA (Case C – 106/89) [1990] 1 ECR I-4135

 United Kingdom, House of Lords, Bellinger v. Bellinger [2003] UKHL 21; [2003] 2 A.C. 467

 Mauritius, Judicial Committee of the Privy Council, Matadeen v. Pointu [1999] 1 A.C. 98

 Trinidad v Tobago, Judicial Committee of the Privy Council, Thomas v Baptiste [1999] UKPC 13

 Jamaica, Judicial Committee of the Privy Council, Lewis v. Attorney-General of Jamaica [2000] UKPC

35

 Inter-American Court of Human Rights, Advisory Opinion OC-2/82 of 24 September 1982 (Ser. A) No

2 (1982)

 European Court of Human Rights, Öcalan v. Turkey (2003) 37 EHRR 238, paras 193-194

 United Nations, Human Rights Committee, Thompson v. St. Vincent and the Grenadines

(Communication No 806/1998)

 Inter-American Commission on Human Rights, Resolution 23/81 (case 2141, Unites States, 6 March

1981)

 Inter-American Commission on Human Rights, McKenzie and Others v. Jamaica (Report No 41/00, 13

April 2000)

 Inter-American Commission on Human Rights, Baptiste v. Grenada (Report No 38/00, 13 April 2000)

 Inter-American Commission on Human Rights, Edwards and Others v. The Bahamas (Report No 48/01,

4 April 2001)

 Inter-American Commission on Human Rights, Sewell v. Jamaica (Report No 76/02, 27 December

2002)

 Inter-American Court of Human Rights, Hilaire, Constantine and Benjamin (2002) (21 June 2002, Ser.C)

No. 94

 Jamaica, Judicial Committee of the Privy Council, Hinds v. The Queen [1977] A.C. 195

 United Kingdom, House of Lords, R (Anderson) v. Secretary of State for the Home Department [2002]

UKHL 46; [2003] 1 A.C. 837

 Trinidad and Tobago, Judicial Committee of the Privy Council, Khan v. The State [2003] UKPC 79;

[2004] 2 WLR 692

 Singapore, Judicial Committee of the Privy Council, Ong Ah Chuan v. Public Prosecutor [1981] A.C.

648

6. Key words

 Mandatory death penalty

 Cruel or unusual punishment or treatment

 Existing laws

 Separation of powers