The Judicial Committee of the Privy Council Decisions

Boodram and Others v. Cipriani Baptiste and Others (Trinidad and Tobago) [1999] UKPC 30 (26th May, 1999)

and Others Petitioners

v.

Cipriani Baptiste (Commissioner of Prisons) and Others Respondents

FROM

JUDICIAL COMMITTEE OF THE PRIVY COUNCIL

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Present at the hearing:-

Lord Slynn of Hadley

[Delivered by Lord Slynn of Hadley]

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The petitioners have been convicted of murder and sentenced to death by hanging.

 

1. On their behalf Mr. Fitzgerald Q.C. has submitted that hanging constitutes cruel and unusual punishment and is, therefore, contrary to the Bill of Rights 1688 and to the common law. He has produced disturbing evidence to suggest that there have been cases in which persons who have been hanged have suffered considerably in the course of the process.

 

2. In support of his contention, he has referred to the statement in Ng v. Canada (unreported), 5th November 1993; U.N. doc. CCPR/C/49/D/469/1991 of the United Nations Human Rights Committee) reaffirming its earlier view that capital punishment "must be carried out in such a way as to cause the least possible physical and mental suffering". He relies on a number of statements in which the view has been expressed that hanging is a cruel and inhuman penal treatment (see e.g. the strong dissenting judgment of four judges in Campbell v. Wood (1994) 18 F. 3d 662 of the United States Court of Appeals 9th Circuit (1994)). He has told us that the Attorney Generals of the CARICOM countries (including the Attorney General of Trinidad and Tobago) have issued a statement relating inter alia to the death penalty which includes the following:-

"Additional measures which the Heads of Government may contemplate are – providing for modes of execution other than hanging."

 

3. He deduces from this that the Attorney Generals are troubled as to whether hanging is an acceptable method of execution.

 

4. It has not been contended for the purposes of this case that the imposition of the death penalty is in itself unlawful. The question for their Lordships’ Board is whether hanging today in Trinidad is or is not a lawful method of execution.

 

5. The Constitution of Trinidad and Tobago recognises that certain rights are enjoyed by citizens of Trinidad and Tobago including a right not to be deprived of life except by due process of law. Section 5(2) of the Constitution expressly provides:-

"Parliament may not …

 

(b) impose or authorise the imposition of cruel and unusual treatment or punishment …"

 

6. Section 6(1) of the Constitution provides "Nothing in sections 4 and 5 shall invalidate – (a) an existing law …". An existing law is defined to mean a law that had effect as part of the law of Trinidad and Tobago immediately before the commencement of the Constitution.

 

7. Mr. Fitzgerald’s overriding submission is that the Bill of Rights is such an existing law. The provision in the Bill that no cruel and unusual punishment should be inflicted therefore in itself prevents hanging being adopted as the method of execution for the reasons which he has put forward and nothing in the Constitution invalidates that existing law.

 

8. It is to be remembered, however, that the Bill of Rights does not stand alone and it is accepted that, even though the Bill is a constitutional document creating fundamental rights, the Bill may be cut down by clear subsequent legislative provisions.

 

9. Section 4 of the Offences Against the Person Act (Chapter 11:08) of Trinidad and Tobago provides that "Every person convicted of murder shall suffer death" and the Criminal Procedure Act (Chapter 12:02) in section 57 provides:-

"(1) Every warrant for the execution of any prisoner under sentence of death shall be under the hand and Seal of the President, and shall be directed to the Marshal, and shall be carried into execution by such Marshal or his assistant at such time and place as mentioned in the warrant; and the warrant shall be in the form set out as Form A in the Second Schedule ..."

 

10. Form A expressly recites that the person involved has been sentenced to be: "hanged by the neck until he be dead". The President of the Republic in signing the warrant authorises the execution in that manner.

 

11. It seems to their Lordships that these statutory provisions quite clearly must be read with the Bill of Rights, and that in Trinidad and Tobago they authorise hanging, not only as a method but as the only method of execution which may be ordered by the Court and the only method which may be carried out subsequent to the President’s Order. That means that the Bill of Rights in itself is not a basis upon which the petitioners can put their case since it is to be read with subsequent legislation; the rules of the common law must be read also subject to those statutory provisions.

 

12. It has been further suggested in this case that it has not been shown that hanging is carried out in the way which is the least painful for the person being hanged; on the other hand, apart from factors which are inherent in any form of execution by these means, there has been nothing to show on the evidence that in Trinidad and Tobago the procedure is not properly carried out.

 

13. Another argument is put forward that there is outstanding a Petition to the Inter-American Commission on Human Rights on behalf of a number of other prisoners that the death penalty in itself is unlawful. These petitioners have, however, already made two applications to the Inter-American Commission, each of which has been refused. It seems to their Lordships that it would not be right to order that the outcome of these present proceedings should await the further decision of that Commission.

 

14. For these reasons given very briefly their Lordships will refuse leave.

 

15. SIR GODFRAY: My Lords, may the stay which Your Lordships ordered on 17th May be lifted?

 

16. LORD SLYNN OF HADLEY: That follows, does it not?

 

MR. FITZGERALD: My Lord.

 

17. LORD SLYNN OF HADLEY: Thank you both very much.