IN THE COURT OF APPEAL NARESH BOODRAM AND THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO

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1 REPUBLIC OF TRINIDAD AND TOBAGO IN THE COURT OF APPEAL Civil Appeal No.177 of 2010 CV NARESH BOODRAM Appellant AND THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO Respondent Panel Ivor Archie CJ Alice Yorke-Soo-Hon JA Mark Mohammed JA Appearances Mr. Mark Seepersad for the Appellant Mrs. Pamela Elder S.C, Mr. Wayne Sturge, Mrs. Josefina Baptiste-Mohammed, Mr. Sean Julien instructed by Ms. Christie Modeste for the Respondent Date of Delivery: 8 th March, Page

2 JUDGMENT Delivered by Ivor Archie, C.J. 1. This appeal is of significant and general constitutional importance in light of the current focus on restorative justice and prison reform. The issues facing the court concern the exercise of the power to commute death sentences under the principle established in Pratt and Morgan 1. Since that decision, our courts have routinely commuted the death sentence to one of life imprisonment without the imposition of any tariff [or minimum term to be served]. The appellant has challenged this, arguing that the Court has and should exercise its unfettered discretion to sentence a convicted person to a sentence other than one of life imprisonment in an appropriate case. 2. Although, there was one ground of appeal, at its heart lies two critical issues: firstly, what is the nature of the exercise engaging the Court when being asked to grant relief under Section 14 of the Constitution; and secondly, is the language of that section wide enough to confer options other than life imprisonment. 3. The respondent has urged the Court to follow what was done by the Board in Pratt and Morgan and re-affirmed in Matthews 2. However, for the reasons that follow, we hold that the provisions of section 14 of the Constitution are to be given their ordinary and natural meaning. Courts are free to impose whatever sentence is appropriate in the particular circumstances. Factual Background 4. On 27 November 1996, the appellant was sentenced to death for murder. The State 1 [1994] 2 AC 1 2 [2005] 1 AC 433 did not carry out the execution within the presumptive period established in Pratt and Morgan and was kept on Death Row for a further seven years. He was subsequently 2 Page

3 removed from Death Row pursuant to an interim order made by Bereaux J (as he then was) in a related proceeding. 5. On 3 December 2007, the appellant instituted proceedings under Section 14 of the Constitution and sought two reliefs namely: (i) That the sentence of death be vacated; and (ii) That he be re-sentenced by the High Court to a sentence other than that of death. 6. The appellant s application raised identical issues to several others that were filed by inmates on Death Row who had been awaiting execution at the time of the Privy Council decision in Matthews. The appellant agreed to be bound by the decision of Rajkumar J in the related matter {HCA 1412/2005: Andrew Dottin & Ors v John Rougier, Evelyn Peterson & Ano.} 7. The trial judge made, inter alia, the following Orders: (i) It is declared that all persons who were sentenced to death and awaiting execution as at July who were the subject of the order of the Honourable Justice Benjamin who remain parties to this motion as set out in appendix A annexed hereto are entitled to have their sentences of death commuted to imprisonment for life. (ii) It is further declared that the sentences of death imposed on those applicants who remain parties to this motion as set out in the appendix A annexed hereto who were the subjects of the order of the Honourable Justice Bereaux are commuted to imprisonment for life. 8. For the purposes of this appeal, the analysis will begin with the Court s jurisdiction with regard to sentencing before considering the options that are available to the Court. 3 Page

4 The Court s jurisdiction and discretion The trial judge s findings 9. While the trial judge accepted that the Court had wide powers under Section 14 of the Constitution, he found that there was no evidence of any breach of the right not to be subjected to cruel and unusual punishment (with respect to prison conditions on Death Row) and sought to apply the ruling of the Privy Council in Matthews. He agreed with the proposition that there was no sentencing discretion and further, indicated that even if there were any breach(es) of any such right(s), it would be wholly inappropriate to order a re-sentencing beyond commutation to imprisonment for life (any breach would be remediable by an award of damages). 10. In so doing, after analyzing Pratt v Morgan and after highlighting several passages, he appears to have limited his analysis to the issue of delay. He referred to the cases of Roodal 3 and Matthews and ultimately found that for persons on death row for more than five years the expectation at a re-sentencing hearing, was really commutation of the death sentence to one of life imprisonment. 11. The Court cannot be unduly critical of the judge since the sentences imposed in those cases have been consistently applied in this and other Caribbean jurisdictions but a closer examination of all of the jurisprudence reveals an underlying philosophical wellspring that requires a further and more nuanced examination and exploration, having regard, in particular, to the manner in which the appellant advanced his argument. 12. The appellant s ground of appeal was framed in the following way: the learned judge erred in law in finding that he did not have the jurisdiction to order that the claimant 3 Privy Council Appeal 18/ Page

5 be re-sentenced by the High Court and there was no right to individual re-sentencing, or alternatively, that the remedy of re-sentencing was not available to the claimant. 13. The appellant argued that the trial judge conflated the two issues of discretion and jurisdiction. It is his position that the Court has a very wide jurisdiction under Section 14(2) of the Constitution and also has the discretion to fashion any appropriate relief. In effect, his contention is that the words contained in Section 14, which gives the Court power to make such orders, issue such writs and give such directions as it may consider appropriate..., mean exactly what they say and must be taken at face value. Counsel submitted that post Matthews, the exercise engaging the Court is not one of judicial sentencing for murder but one of imposing an appropriate alternative sentence instead of the death sentence as part of the commutation exercise, the starting point being the necessary vacation of the death sentence. They point out that the Board never held that there was no discretion as to the sentence to be imposed by way of commutation and that the sentences eventually imposed were actually an exercise of that discretion. 14. The respondent s Counsel agree that Section 14 of the Constitution is the vehicle for judicial commutation but differ on the issue of discretion. They contend that the appellant has misunderstood the distinction between Presidential powers of commutation as distinct from judicial commutation. Under Section 87(2) and (3) of the Constitution, the President has no restrictions regarding commutation and the aforementioned section is a codification of the prerogative of mercy. They argue that mercy has no place in judicial sentencing and that the Court s discretion was fettered by the Board s ruling in Matthews. Leaving aside for the moment the question whether and why, as a matter of principle, different considerations should apply to judicial as opposed to Presidential commutation, that line of argument precipitates a closer examination of the decision in Matthews and the line of cases leading up to it. 15. There is no disagreement about the fact that Section 14 of the Constitution is the appropriate vehicle by which to effect a judicial commutation; that much was made 5 Page

6 clear in Pratt and Morgan. Before that seminal case, our local Courts were faced with the same issue in the case of Kirkland Paul & Andy Thomas v The Attorney General 4. In that matter, the applicants were found guilty of the murder of a police constable and were sentenced to death on 20 May They filed constitutional motions on 20 December 1985 after having had their death warrants read to them. They alleged several breaches of their rights under Sections 4 and 5 of the Constitution and, in particular, that having been on Death Row for the previous ten (10) years that to execute them, in the particular circumstances, would constitute cruel and unusual punishment. 16. Davis J. in dealing with the matter, did find that the planned execution would amount to cruel and unusual punishment in the particular circumstances and in fashioning an appropriate remedy turned to Section 14 of the Constitution. At page 53 of his judgment, he stated: The jurisdiction is one which is exercisable for the purpose of protecting and enforcing the fundamental rights and freedoms enshrined in the Constitution and the orders which the Court in this mode might make are limited only to those which it considers appropriate to this constitutional purpose To flinch, however, in these cases, from making an order which will have the effect of vacating the death sentences, would be tantamount to offering the applicants no remedy at all. It is clear that the court in that matter found that Section 14 was wide enough to craft a remedy to deal with the constitutional relief being sought and exercised its discretion to vacate the death sentences and order that the applicant s be held at the President s pleasure (a point which will be discussed later - suffice it to say at this juncture that such a sentence inevitably contemplated that the applicants may not have had to spend the rest of their natural lives in prison). 17. In Pratt v Morgan, the Board found that the language of Section 25 of the Jamaican Constitution (the analog of our Section 14) was wide enough to substitute for the sentence of death such order as it considers appropriate [our emphasis]. It was evident here that 4 HCA 6346/ Page

7 the Board, in commuting the death sentences to life imprisonment, was exercising its discretion, inherent in that section to do so, without expressly limiting its consideration to the sentence eventually imposed. This particular detail was glossed over and certainly not critically examined in the cases that followed. 18. This leads us ultimately to the cases of Roodal and Matthews. In Roodal, the Board held that the death penalty for murder should be discretionary. We do not propose to recount the arguments placed before the Board but it is noted that the Board took judicial notice of the decision of Hilaire & Ors v Trinidad and Tobago, a decision of the Inter-American Court of Human Rights. There the court stated: In countries where the death penalty still exists, one of the ways in which the deprivation of life can be arbitrary under Article 4(1) of the Convention is when it is used to punish crimes that do not exhibit characteristics of utmost seriousness, in other words, when the application of this punishment is contrary to the provisions of Article 4(2) of the American Convention. 19. However, Matthews subsequently overruled Roodal and established that the mandatory death sentence was saved by Section 6 of the Constitution. In both cases, the appellants were within the guidelines outlined in Pratt v Morgan [having spent more than five years on death row] and their appeals were against sentence and not commenced by way of constitutional motion. In Matthews, in the dissenting judgment of Lords Bingham, Nicholls, Steyn and Walker, they noted at paragraph 36: Secondly, the State accepts that the mandatory death penalty for murder amounts to cruel and unusual punishment within the meaning of the Constitution the correctness of this conclusion and its applicability to the mandatory death penalty in Trinidad and Tobago are accepted. It may seem surprising that the respondent State should strive to uphold a right to subject its citizens to what it acknowledges to be cruel and unusual treatment or punishment but that is what it seeks to do and what the majority holds that it is entitled to do. 20. The mandatory death sentence is the law in Trinidad and Tobago and it is within the realm of Parliament to change it. However, the courts are charged with upholding the Constitution, which is the supreme law of the land. We must resolve that tension. In effect, we have kept in place a punishment that does violence to Sections 4 (a) and 5 (2)(b) Constitution, have said that the delay in carrying out executions constitutes 7 Page

8 cruel and unusual punishment and yet have failed to fully grapple with the obligation to uphold the rights and freedoms enshrined in our Constitution. Sentencing, whether by way of commutation or otherwise, is first and foremost an exercise of judicial discretion. Once it is accepted that the death sentence must be set aside, there is nothing in the language of Matthews that is inconsistent with the philosophy underpinning Roodal [where the majority remitted the matter for the trial judge to decide as a matter of discretion what sentence to impose]. ` 21. At any rate, Matthews did not place any express fetter on the nature of the appropriate remedy. The majority of their Lordships in Matthews, when referring at paragraph 33 to the absence of a judicial discretion as to sentence were clearly dealing with the function of the trial judge at the time of conviction. It is noteworthy that the minority were also prepared to remit the matter [as in Roodal ] for the High Court to determine what a just and appropriate sentence might be and the observation of Lord Nicholls that an inflexible sentence lacks proportionality [and in our view is therefore inherently arbitrary] is of considerable force especially in light of the express language of the constitution. 22. Section 14(1) and (2) of the Constitution states: (1) For the removal of doubts it is hereby declared that if any person alleges that any of the provisions of this Chapter has been, is being, or is likely to be contravened in relation to him, then without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the High Court for redress by way of originating motion. (2) The High Court shall have original jurisdiction (a) to hear and determine any application made by any person in pursuance of subsection (1); and (b) to determine any question arising in the case of any person which is referred to it in pursuance of subsection (4), and may, subject to subsection (3), make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing, or securing the enforcement of, any of the provisions of this Chapter to the protection of which the person concerned is entitled. 8 Page

9 The trial judge accepted the Board s comments in Gairy v AG of Grenada 5 and we accept that Section 14 is wide enough to craft and fashion any appropriate remedy for the contravention of a protected right. 23. To this end, we hold that the Court in exercising its original jurisdiction under Section 14 has the discretion to take into account normal sentencing factors on the vacating of the death sentence. The imposition of a mandatory death sentence is already in and of itself arbitrary and in violation of the Constitution and the Charter of Inter American Human Rights to which this country is a signatory. To be clear, although the expression judicial commutation has been used, the Court, in fashioning a remedy under Section 14, is not engaged in the exercise of the prerogative of mercy. It is, in fact, re-sentencing the Applicant in recognition of the fact that he has already been partly punished by reason of having endured the mental anguish of being on death row for an inordinately long period. The Court must therefore ask itself what additional punishment, if any, would be appropriate in the particular circumstances. 24. There is no logical reason why the sentence of life imprisonment should be imposed carte blanche upon every person who has their sentence commuted. That is inherently arbitrary and potentially disproportionate. The circumstances of each murder are different and a Court properly seised of the relevant facts would be able to substitute the appropriate sentence. 25. Furthermore, to hold otherwise would ignore a rich vein of jurisprudential thought that encompasses the views articulated by Davis, J. who grappled with and expressly rejected the option of life imprisonment over three decades ago in Thomas & Paul when he opted for detention at the President s pleasure. He observed, inter alia, that a life sentence at that time meant, in practice, imprisonment for less than ten years, which he felt was insufficient to reflect the gravity of the crime. Leaving aside for the moment the correctness or otherwise of his view of the practical effect of a life sentence, it is therefore clear that the discussion in this case would not be complete 5 [2002] 1 AC Page

10 without an examination of the practical meaning of the expressions life imprisonment and/or imprisonment for life. 26. However, once we leave the embarkation point, which is the vacation of the death sentence, there is no apparent reason to artificially restrict our consideration to the meaning of life imprisonment or imprisonment for life. Courts must do what they are set up to do, which is to fashion appropriate remedies for the violation of rights. In that regard, the further comments of Lord Nicholls in Matthews are also apposite: A supreme court which fails to do this is not fulfilling its proper role as guardian of the Constitution. It is abdicating its responsibility to ensure that the people of a country, including those least able to protect themselves, have the full measure of protection against the executive which a constitution exists to provide. 27. We are fortified in this conclusion by more recent judicial pronouncements from our apex Court. Arguments in the instant case were heard before delivery of the decision of the Privy Council in Lendore and Others v the Attorney General of Trinidad and Tobago 6. Although that case was concerned with the exercise of the executive power of pardon, the Privy Council did make observations about the power of the court on a motion for constitutional relief by a prisoner in a Pratt and Morgan scenario, to substitute a lesser sentence. Lord Hughes delivering the judgment of the Board noted that the words of section 14 (2) of the Constitution of Trinidad and Tobago were very wide. That section empowered the High court, if on a constitutional motion it finds that execution has become unlawful by reason of unreasonable delay, so to declare and order commutation to an appropriate substitute sentence. At paragraph 36 of the judgment His Lordship said: But if for any reason there has been no pardon at the time when the High Court determines an application under section 14, The Board can see no reason why the court should feel constrained to confine itself to a declaration of unconstitutionality, together with any other relief, and should not proceed to substitute an alternative sentence 6 [2017] UKPC Page

11 Sentencing Options Available 28. The appellant s submission essentially is that the trial judge had three options available to him, namely: life imprisonment, life imprisonment with a tariff and detention at the Court s pleasure. We have already come to the conclusion that the full range of sentencing powers was available to the Court. The discussion that follows is therefore somewhat academic but is useful to illustrate the difficulties imposed by the previous narrow and restricted approach. 29. The appellant argued that life imprisonment operates differently in practice from the law. While in law, it means for the rest of one s natural life 7, Counsel submitted that, in practice, it can be 15 years or even 20 8 years and point to other decisions where the local courts, on re-sentencing hearings have imposed sentences between the ranges of years. 30. The respondent countered that the only available option open to the Court is one of life imprisonment: the Court, it is said, must substitute the next most severe sentence that would mirror the gravity of the offence, i.e. life imprisonment. However, that argument is only tenable if all murders are regarded as equally grave. It requires the Court to approach commutation as a rigid and inflexible exercise, which cannot take into account the peculiarities of the individual applicant s circumstances and shifts responsibility to the Advisory Committee under Section 87 of the Constitution. 31. In our local Courts, there is up to now no definitive exposition of the meaning of life imprisonment. During oral submissions, this court faced the issue frontally and enquired from Counsel what life imprisonment means in this jurisdiction. Unsurpris- 7 R v Foy (1962) 2 All ER 246- life imprisonment means imprisonment for life and prisoners so sentenced who are released from prison during their lifetime are only released on licence, the sentence of life imprisonment remaining on them until they die. 8 Seepersad & Panchoo v The State- Cr. App 68/ Page

12 ingly, we have been referred to several local cases that expose an inconsistency of approach. 32. Commutation has been described 9 as the executive s substitution in a particular case of a less severe punishment for a more severe one that has already been judicially imposed on the defendant. 33. The respondent referred us to Pratt & Morgan, Guerra v Baptiste 10 and Matthews in support of their contention. In Pratt v Morgan, the English position was explained in the following passage 11 : It is difficult to envisage any circumstances in which in England a condemned man would have been kept in prison for years awaiting execution. But if such a situation had been brought to the attention of the court their Lordships do not doubt that the judges would have stayed the execution to enable the prerogative of mercy to be exercised and the sentence commuted to one of life imprisonment. 34. Therefore in matters that were before the Privy Council, the sentences of death were simply commuted to life imprisonment but that still left up in the air what that would mean in practice. In later cases, post Matthews, the Court of Appeal has imposed sentences of life imprisonment with no tariffs [or minimum period to be served] being applied (Kenrick & Chandrouti London 12 ; Clifford Beckles 13 ). 35. The appellant put forward for consideration the cases of Sangit Chaitlal 14 and Fazal Mohammed 15. In both cases, the parties had their death sentences commuted to imprisonment for the rest of their natural life by the President pursuant to Section 87 of Constitution. Both parties filed constitutional motions arguing that that sentence was 9 Black s Law Dictionary 8 th Edition; see also in this regard Section 87(1)(c) of The Constitution 10 [1995] 1 AC Paragraph C pg Cr App 31&32/ Cr App 52/ HCA 2472/ HCA 2476/ Page

13 not known to the law and that contention was upheld by Myers J. They were subsequently re-sentenced and received 35 years and 32 years respectively but Myers J. did note that in the arguments before him neither side was able to adequately explain the reason why the sentence of natural life was different from a life sentence. 36. The cases of Kirkland Paul (supra) and Thomas v Baptiste 16 are the only cases where the court vacated the sentence of death and ordered that the applicants be detained at the State s pleasure. Of course, these are older cases that pre-date the finding that detention at the state s pleasure is not a lawful sentence. What this brief review does illustrate, however, is the lack of consistency in approach. 37. Other jurisdictions have had to grapple with the same question facing this court. We reference them simply by way of illustration of the variety of approaches that have been adopted. At the end of the day, what is before us is the interpretation and application of section 14 of our constitution. In India, for example, several of their laws deal with provisions relating to life imprisonment. For ease of reference, relevant sections of the Indian Penal Code 1860 (Sections 54,55,57) and Code of Criminal Procedure 1973 (Sections 433, 433A) are reproduced below: 54. Commutation of sentence of death In every case in which sentence of death shall have been passed, [the appropriate Government] may, without the consent of the offender, commute the punishment for any other punishment provided by this Code 55. Commutation of sentence of imprisonment for life In every case in which sentence of [imprisonment] for life shall have been passed, [the appropriate Government] may, without the consent of the offender, commute the punishment for imprisonment of either description for a term not exceeding fourteen years 16 HCA 1373/ Page

14 57. Fractions of terms of punishment In calculating fractions of terms of punishment, [imprisonment] for life shall be reckoned as equivalent to [imprisonment] for twenty years Power to commute sentence. The appropriate Government may, without the consent of the person sentenced, commute- (a) a sentence of death, for any other punishment provided by the Indian Penal Code; (b) a sentence of imprisonment for life, for imprisonment for a term not exceeding fourteen years or for fine ; (c) a sentence of rigorous imprisonment, for simple imprisonment for any term to which that person might have been sentenced, or for fine ; (d) a sentence of simple imprisonment, for fine 433A. Restriction on powers of remission or Commutation in certain cases. Notwithstanding anything contained in section 432, where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by law, or where a sentence of death imposed on a person has been commuted under section 433 into one of imprisonment for life, such person shall not be released from prison unless he had served at least fourteen years of imprisonment 38. Their courts have experienced a similar tension in applying competing statutes. For several years, there was much dissonance in the law as life imprisonment was understood as meaning imprisonment for 14 years or 20 years. The attempts of their Supreme (Apex) Court sought to bring clarity to the law make for interesting reading. 39. In Gopal Vinayak Godse v The State of Maharashtra 17, it was held by the constitutional bench that a sentence of transportation for life or imprisonment for life must, prima facie, be treated as transportation or imprisonment for the whole of the remaining period of the convicted person s natural life. Unless the said sentence is commuted or remitted by the appropriate authority under the relevant provisions of the Indian Penal Code or the Criminal Procedure Code, a prisoner sentenced to life imprisonment SCR (3) Page

15 is bound in law to serve the life term in prison. This was confirmed in the case of State of Madhya Pradesh v Ratan Singh 18 where the Court held that imprisonment for life does not automatically expire at the end of twenty years including remissions because the rules framed under the various jail manuals under the Prisons Act cannot supersede the statutory provisions of the Indian Penal Code. 40. Similarly, in Mohammed Munna v Union of India 19, the Court reiterated that life imprisonment was not equivalent to imprisonment for 14 years or 20 years; it means imprisonment for the rest of one s natural life. The court observed that there was no provision either in the Indian Penal Code or in the Criminal Procedure Code whereby life imprisonment could be treated as either 14 years or 20 years without there being formal remission by the appropriate Government. 41. However, as can be seen in other cases, the courts have imposed either life imprisonment or life imprisonment with a tariff as an alternative to the death penalty. In Subhash Chander v Krishan Lal & Ors 20, five accused persons, including Krishan Lal were put on trial for committing multiple murders. The trial court acquitted one of the accused but convicted the rest of them and sentenced each of them to death. On appeal, the High Court confirmed the conviction of all four accused but commuted their death sentence to life imprisonment. On a consideration of the material facts the Supreme Court felt that the High Court was not justified in commuting the sentence of death of at least one accused, Krishan Lal. Counsel appearing on his behalf implored that instead of the death penalty the Court might order imprisonment of Krishan Lal for the remaining period of his life. The Supreme Court accepted the plea made by counsel and made the following order: 18 (1976) SCC (3) (2005) 7 SCC (2001) 4 SCC Page

16 "However, in the peculiar circumstances of the case, apprehending imminent danger to the life of Subhash Chander and his family in future, taking on record the statement made on behalf of Krishan Lal, we are inclined to hold that for him the imprisonment for life shall be the imprisonment in prison for the rest of his life. He shall not be entitled to any commutation or premature release under Section 401 of the Code of Criminal Procedure, Prisoners Act, Jail Manual or any other statute and the rules made for the purposes of grant of commutation and remissions." 42. In Jayawant Dattatraya Suryarao vs. State of Maharashtra 21, the Court had before it a batch of five analogous cases. There were three appeals on behalf of three of the accused convicted by the trial court; another appeal by the State in regard to the accused who was acquitted by the trial court and a death reference in regard to one of the appellants, Subhashsingh Shobhanathsingh Thakur who was given sentences of death on two counts, one under the provisions of the Terrorist and Disruptive Activities (Prevention) Act (TADA) and the other under section 120-B of the Penal Code. According to the prosecution s case the appellants, along with a number of other coaccused, armed with highly sophisticated weapons had raided J.J.Hospital in Mumbai where the victim, a member of another underworld gang, was admitted for treatment. In the hospital they fired indiscriminately killing not only their target but also two policemen who were on guard duty and injuring several others. The court confirmed the conviction of appellant No.6 but modified the sentence from death penalty to imprisonment for life. 43. We have, however, made note of additional Indian cases which demonstrate that the court, in commuting the sentence of a petitioner, has exercised a discretion, ordering imprisonment for life with a condition for a specified minimum period to be served. The cases of which we speak are: 21 (2001) 10 SCC Page

17 i. Shri Bhagwan vs. State of Rajasthan 22, the appellant, who was 20 years old at the time of commission of the offence, had come to the Supreme Court, condemned to death by the trial court and the High Court. According to the prosecution, he had killed five members of a family by mercilessly battering them to death. The manner of killing was brutal and the circumstances of the crime exhibited crass ingratitude on the appellant's part. The motive was theft of gold ornaments and other articles belonging to the victim s family. In this case, K. G. Balakrishnan, J. (as the Honourable Chief Justice at that time) wrote the judgment for the Court and commuted the death sentence awarded to the appellant to imprisonment for life subject to the direction that he would not be released from the prison until he had served out at least 20 years of imprisonment including the period already undergone by him. ii. Prakash Dhawal Khairnar (Patil) vs. State of Maharashtra 23, the condemned appellant had committed the murder of his own brother, their mother and four members of his brother's family because the deceased brother was not partitioning the property that the appellant claimed to be joint family property. In the totality of circumstances the Supreme Court set aside the death sentence awarded to the appellant but directed that for the murders committed by him, he would suffer imprisonment for life and further that he would not be released from prison until he had served out at least 20 years of imprisonment including the period already undergone by him. iii. Ram Anup Singh & others v State of Bihar 24, a father and his two sons were before the Supreme Court. They had killed the father's brother, the brother's wife, his daughter and his son-in-law. On conviction for the murders the father was sentenced to life imprisonment but the two sons were given the 22 (2001) 6 SCC (2002) 2 SCC (2002) 6 SCC Page

18 death penalty. The Supreme Court set aside the death sentence and instead sentenced them to suffer rigorous imprisonment for life with the condition that they would not be released before completing an actual term of 20 years including the period of imprisonment already undergone by them. 44. The numerous and varied cases that we have examined, provide a clear indication that simply resorting to the imposition of life imprisonment brings neither clarity, proportionality nor certainty to the exercise of fashioning an appropriate remedy under section 14 of the constitution. The Court must be specific in articulating the punishment it intends to impose, and if it wishes to leave open the possibility of some flexibility after further consideration at a later stage, should say so. For the reasons that are articulated in the paragraphs that follow next, we are fortified in our conclusion that the Court has a discretion to order either life imprisonment with a tariff, a specific term of years or to be detained at the Court s pleasure [with review at specified intervals]. The International Standard 45. There is a global trend towards the abolition of the death penalty and the United Nations has indicated that the death penalty has no place in the 21 st century 25. Trinidad and Tobago s legislative regime has not followed that trend. The death penalty is still constitutional in our jurisdiction, although, it may be said that the Pratt and Morgan decision ushered in a new era of giving deference to international norms. The European Court of Human Rights in several of its decisions, has also highlighted that it is doubtful whether deterrence can be achieved by life imprisonment. In fact, the court has outlined that there must be a real and tangible prospect of release for prisoners sentenced to indeterminate sentences such as life imprisonment. It is for that reason, 25 The United Nations Secretary General, Antonio Guterres, on 10 October 2017 said that the death penalty does little to deter crimes or serve victims. 18 Page

19 in part, that this judgment began with a nod to the growing acceptance of the concept of restorative justice in this jurisdiction. 46. Article 3 of the European Convention on Human Rights (ECHR), prohibits torture and inhuman or degrading treatment or punishment. The European Court of Human Rights (ECtHR) in the case of Vinter and Others v The United Kingdom, 26 emphasised that if it is to comply with the prohibition of cruel and inhuman punishment, life imprisonment must be accompanied by a possibility for release and regular review. The court outlined three reasons for finding whole life sentences inconsistent with the European Convention on Human Rights 27 : a. Detention is only justifiable if it is based on penological ground (punishment, deterrence, public protection and rehabilitation). The balance between the justification is not static, but shifting, and it may not be so after a lengthy period into the service of the sentence. Accordingly, a review of the justification for continued detention, is necessary. b. If a prisoner is incarcerated without any prospect of release and without the possibility of having his life sentence reviewed, there is a risk that he can never atone for his offence: whatever the prisoner does in prison, however exceptional his progress towards rehabilitation, his punishment remains fixed and unreviewable. c. It would be incompatible with the provision on human dignity to deny a person of his freedom without at least providing him with the chance to someday regain that freedom. 47. The decisions of the ECtHR reflect a penal philosophy that aims towards rehabilitation of the offender. This rehabilitative approach is clearly expressed in Rule 6 of the European Prison Rules, which provides that all detention shall be managed so as to facilitate the reintegration into free society of persons who have been deprived of 26 Applications nos /09, 130/10 and 3896/10 27 Ibid, paras Page

20 their liberty. The prospect of release is inextricably linked to rehabilitation of the prisoner, which ultimately means that rehabilitative programmes through which offenders can improve themselves, ought to be available. The overarching requirement for compatibility with article 3 is that the sentence must be reviewable, this presents a prospect of release. A life sentence or extremely long sentence, does not in itself, contravene article 3. Rather, there must be some review mechanism available at the local or domestic level. This was the reasoning of the court in the case of Kafkaris v Cyprus, 28 wherein the majority held that a life sentence was not in itself prohibited by or incompatible with article 3 but that the imposition of an irreducible life sentence may raise an issue under article 3. In that regard, the Court took the view that: where national law affords the possibility of review of a life sentence with a view to its commutation, remission, termination or the conditional release of the prisoner, this will be sufficient to satisfy article The ECtHR jurisprudence proceeds on the assumption that a prolonged detention will be arbitrary if the punitive element of the sentence has been served and the offender no longer poses a risk to society. This jurisprudence has been adopted by the courts of Antigua and Barbuda. In the cases of The Queen v Lorriston Cornwall 29 and The Queen v Mellanson Harris 30, the courts of Antigua and Barbuda, have indicated that on a re-sentencing exercise, in considering whether to order a sentence of life imprisonment or a lesser fixed term, in the absence of any statutory scheme, the court ought to be guided by common law principles or aims of punishment including retribution, deterrence, prevention, rehabilitation as well as restoration. 49. The judgments in the two cases considered authorities whereby the courts have said that life imprisonment cases should be reserved for the offences of the utmost gravity (there was a clear endorsement of the ECtHR position on the point). Where a case falls, that is, on the scale of bad cases, worse cases, and cases which are the worst of 28 [2008] ECHR Case No. 50 of Case No. 62 of Page

21 worst, will be left up to the individual court's own sense. Antigua and Barbuda has legislative provision for providing an available scheme for early release for offenders serving life imprisonment or extended sentences for certain offences. The provision is contained in the Offences Against the Person Act, Cap. 300 as amended by the Offences Against the Person (Amendment) Act. No. 13 of Section 3B makes provision for review by a court after 30 years where the sentence is for life; and 20 years in the case of a lesser term. The Judge found that the reviewable period provided by the legislation demonstrates that when an offender commits an offence of extreme violence it may be necessary to impose a sentence designed not only to punish him but also adequate to allow for a period within which the prisoner may be rehabilitated and also assessed for the degree of danger to the public. Where the punitive portion may be satisfied, the prisoner may yet be detained where it is determined that he is not yet rehabilitated or that he continues to be a danger to the public. The court has also indicated that, when a resentencing court is exercising its discretion, in fixing a relevant sentence it ought to give consideration as to what parts of the actual sentence satisfies punitive or retributive element. It would mean that a later reviewing court should only delay release on matters such as deterrence, rehabilitation and other public interests. 50. We are cognisant of the fact that unlike our jurisdiction, Antigua and Barbuda and many of the European contracting states, have legislation that provides for a review mechanism. Additionally, the decisions of the ECtHR are not binding on us, because we are not a contracting party to the ECHR, as the Privy Council acknowledged in the case of Lendore. But we do accept that they are of persuasive authority. In this regard, we find that in keeping with international norms, as a State which takes its international obligations seriously and the fundamental rights of our citizens, equally seriously, it is incumbent on this court when called upon to commute a sentence, to impose a sentence that is in accordance with the common law principles or aims of punishment. 21 Page

22 51. The appellant has been incarcerated for 21 years (convicted on 27 November, 1996) for the murders of Anthony Curtis Greenidge (called Tooks) and Stephen Sandy (called Bull). In 1997 the appellant had appealed his conviction, Sharma JA delivering the decision 31 of the court found that there was no doubt that the murders were indicative of highly hardened criminals. The two victims were brutally murdered, and their bodies savagely mutilated and buried in a shallow grave in a rice field. A resentencing court must ascertain whether the punitive element of the sentence has been satisfied and also, whether the appellant has been rehabilitated and is safe for reintegration into society. To ascertain the latter, the court has to be provided with evidence that would answer that question either in the affirmative or negative. This court does not have the requisite information to make such a finding. Accordingly, we would remit this matter to the High Court for such consideration. I. Archie, Chief Justice I agree A. Yorke Soo-Hon, JA I also agree M. Mohammed, JA 31 Naresh Boodram and Ramiah (Joey) v The State (1997) 55 WIR 22 Page