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Cite as: [2005] AC 374, [2005] 1 AC 374, [2003] UKPC 79, [2004] 2 WLR 692, 16 BHRC 184

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Khan v. The State (Trinidad and Tobago) [2003] UKPC 79 (20 November 2003)

ADVANCE COPY

Privy Council Appeal No. 28 of 2003

Haroon Khan Appellant

v.

The State Respondent

FROM

THE COURT OF APPEAL OF

TRINIDAD AND TOBAGO

---------------

JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 20th November 2003

------------------

Present at the hearing:-

Lord Bingham of Cornhill

Lord Steyn

Lord Millett

Lord Rodger of Earlsferry

Lord Walker of Gestingthorpe

[Majority judgment delivered by Lord Bingham of Cornhill]

------------------

On 18 May 2000 the appellant, Haroon Khan, was convicted of murder and sentenced to death. His appeal against conviction was dismissed by the Court of Appeal of Trinidad and Tobago on 30 January 2001. He now appeals by special leave of the Board against both conviction and sentence. His appeal against conviction is primarily based, and his appeal against sentence solely based, on constitutional grounds.

An elderly Chinese man named Lau Hing Young lived and operated a beer garden at premises in San Fernando. On 6 October 1998 his premises were robbed and he was injured. He died of his injuries two days later. The prosecution case was that the robbery had been carried out by four assailants: the appellant, Imtiaz Ishmail, Rishi Samaroo and Junior Thwaites. The appellant, Ishmail and Samaroo were charged with murder in a single indictment. Thwaites was not indicted: he was granted immunity and testified for the prosecution.

At trial, each of the defendants resisted admission of statements he was alleged to have made, but following voir dire hearings the statements were ruled to be admissible. After some prosecution evidence had been called, Ishmail and Samaroo were re-arraigned and pleaded not guilty to murder but guilty to manslaughter. The prosecution accepted those pleas. No application was made that the jury should be discharged and a fresh jury empanelled to try the appellant. The trial judge warned the jury in emphatic terms that the pleas of guilty to manslaughter by Ishmail and Samaroo should not affect their minds in any way in relation to the appellant and the trial against him proceeded.

In the course of his summing-up the trial judge directed the jury in these terms:

"Mr Foreman and Members of the Jury, there is one other matter which I wish to draw to your attention and explain very carefully to you. As I told you, I am the judge of the law, I have to point out the law to you. Section 2 of the Criminal Law Amendment Act reads as follows:

'Where a person embarks upon the commission of an arrestable offence, involving violence, and someone is killed in the course or furtherance of that offence, he and all other persons engaged in the course or furtherance of the commission of that arrestable offence are liable to be convicted of murder even if the killing was done without intent to kill or cause grievous bodily harm.'

What the law says, is if a person embarks upon the commission of an arrestable offence, for example, robbery, burglary, a sexual offence, any offence for which he can be arrested that involves violence, that such a person can be convicted of murder even if the killing was done without intent to kill or cause grievous bodily harm. This is the extent of the law. It is known briefly as the murder felony rule which came into force July, 1997, before the commission of this offence. It basically says, where a person goes to commit an arrestable offence if a person is killed, it is not necessary to prove intent. Even if the person can be convicted of murder, even if the killing was done without intent to kill or cause grievous bodily harm, once the person is killed that is the extent of this law."

Although the judge rehearsed the evidence at some length he did not direct the jury on the legal ingredients of the crime of robbery. After a retirement of less than one and a half hours the jury convicted the appellant of murder.

The appeal against conviction

The appellant's main submission under this head was directed to the constitutionality of section 2A of the Criminal Law Act 1979 as inserted by section 2 of the Criminal Law (Amendment) Act 1997 which reads, in full, as follows:

"2. The Criminal Law Act is amended by inserting immediately after section 2 the following new section:

2A.(1) Where a person embarks upon the commission of an arrestable offence involving violence and someone is killed in the course or furtherance of that offence (or any other arrestable offence involving violence), he and all other persons engaged in the course or furtherance of the commission of that arrestable offence (or any other arrestable offence involving violence) are liable to be convicted of murder even if the killing was done without intent to kill or to cause grievous bodily harm.

(2) For the purpose of subsection (1), a killing done in the course or for the purpose of ?

(a) resisting a member of the security forces acting in the execution of his duties or of a person assisting a member so acting;

(b) resisting or avoiding or preventing a lawful arrest; or

(c) effecting or assisting an escape or rescue from legal custody,

shall be treated as a killing in the course or furtherance of an arrestable offence involving violence.

(3) In subsection (2), 'member of the security forces' means a member of ?

(a) the Police Service;

(b) the Prison Service;

(c) the Fire Service;

(d) the Defence Force;

(e) the Supplemental Police established under the Supplemental Police Act."

This section must be read with section 3(1) of the Criminal Law Act:

"3.(1) The powers of summary arrest conferred by the following subsections shall apply to capital offences or offences for which a person (not previously convicted) may under or by virtue of any written law be sentenced to imprisonment for a term of five years, and to attempts to commit any such offence; and in this Act, including any amendment made by the Law Revision (Miscellaneous Amendments) (No 1) Act 1979 in any other written law, 'arrestable offence' means any such offence or attempt."

The insertion of section 2A into the Criminal Law Act by section 2 of the 1997 Act is readily explained. For many years before 1979 the felony murder rule, permitting murder convictions based on what was called constructive malice, had formed part of the criminal law of Trinidad and Tobago. It was a rule which had grown up and developed in England and Wales (it had no counterpart in Scotland) and had been adopted in many countries of the Commonwealth. Its purpose and effect were to penalise those who engaged in serious crimes of violence if death, even unintentionally, resulted. Because the rule exposed to the risk of conviction of murder defendants lacking the intention otherwise necessary to convict of murder the rule was widely perceived to operate unfairly, and it was the subject of strong criticism by (among others) Sir James Stephen (Digest of the Criminal Law, 1st ed, 1877), the Report of the Royal Commission on Capital Punishment (1953) (Cmd. 8932), paras 72-121 and appendix 7, and Professor David Lanham, "Felony Murder – Ancient and Modern" (1983) 7 Crim LJ 90. In 1957, doubtless in response to the Report of the Royal Commission, the rule was abolished in England and Wales.

The distinction between felonies and misdemeanours was abolished in England and Wales ten years later, in 1967. In Trinidad and Tobago this distinction was abolished in 1979: section 2(1) of the Criminal Law Act 1979 as substituted by section 2(1)(a) of and Schedule 1 to the Law Revision (Miscellaneous Amendments) (No 1) Act 1979 provided that "All distinctions between felony and misdemeanour are hereby abolished". It was not immediately recognised that abolition of the distinction between felony and misdemeanour had affected the operation of the felony murder rule in Trinidad and Tobago, a rule which this Board had upheld and applied in Gransaul v The Queen (unreported, 9 April 1979) very shortly before the distinction was abolished. In Moses v The State [1997] AC 53, however, a defendant who had been convicted of murder following a conventional direction to the jury in accordance with the felony murder rule succeeded in challenging his conviction. The Board held that the felony murder rule had ceased to apply when the distinction between felony and misdemeanour had been abolished. The Board's judgment in Moses was given on 29 July 1996. Exactly a year later, on 29 July 1997, assent was given to the 1997 Act, inserting section 2A into the Criminal Law Act. The legislative intention was plainly to rectify the oversight which had occurred when the distinction between felonies and misdemeanours had been abolished without preserving, in an appropriately modified form, what had been the felony murder rule. That was what section 2A sought to achieve by its reference to "an arrestable offence involving violence", although it seems that that expression could include some violent offences which would not under the old law have been felonies. Thus the appellant's challenge to the constitutionality of section 2A raises a very important question: whether, consistently with the powers conferred on it by the Constitution of the Republic of Trinidad and Tobago Act 1976 and the Constitution set out in the Schedule to that Act, the Parliament of Trinidad and Tobago could lawfully enact section 2A.

Section 1(1) of the Constitution provides that the Republic of Trinidad and Tobago shall be a sovereign democratic state. By section 2

"This Constitution is the supreme law of Trinidad and Tobago, and any other law that is inconsistent with this Constitution is void to the extent of the inconsistency."

Section 53 empowers Parliament to "make laws for the peace, order and good government of Trinidad and Tobago", language which connotes "the widest law-making powers appropriate to a Sovereign" (Ibralebbe v The Queen [1964] AC 900, 923) and is "apt to authorize the utmost discretion of enactment for the attainment of the objects pointed to" (Riel v The Queen (1885) 10 App Cas 675, 678). The legislative authority of Parliament is, however, constrained, first by section 54 (relating to amendment of the Constitution itself), and secondly by sections 4 and 5, on which the appellant's constitutional challenge is founded. Sections 4 and 5 are found in Chapter 1 of the Constitution, which is entitled "The recognition and protection of fundamental human rights and freedoms". So far as relevant to this appeal, sections 4 and 5 provide:

"4. It is hereby recognised and declared that in Trinidad and Tobago there have existed and shall continue to exist, without discrimination by reason of race, origin, colour, religion or sex, the following fundamental human rights and freedoms, namely –

(a) the right of the individual to life, liberty, security of the person and enjoyment of property and the right not to be deprived thereof except by due process of law;

(b) the right of the individual to equality before the law and the protection of the law; ...

5(1) Except as is otherwise expressly provided in this Chapter and in section 54, no law may abrogate, abridge or infringe or authorise the abrogation, abridgement or infringement of any of the rights and freedoms hereinbefore recognised and declared.

(2) Without prejudice to subsection (1), but subject to this Chapter and to section 54, Parliament may not –

(b) impose or authorise the imposition of cruel and unusual treatment or punishment; ...

(f) deprive a person charged with a criminal offence of the right –

(i) to be presumed innocent until proved guilty according to law, but this shall not invalidate a law by reason only that the law imposes on any such person the burden of proving particular facts; ..."

The appellant's first ground of challenge to the constitutionality of section 2A was founded on the constitutional guarantees of "due process of law" in section 4(a) of the Constitution and the right to "the protection of the law" in section 4(b). In Lewis v Attorney General of Jamaica [2001] 2 AC 50, 85, the Board did not distinguish between the meaning of these expressions, and in arguing this appeal both parties treated them as synonymous. The appellant placed particular reliance on Thomas v Baptiste [2000] 2 AC 1 where a majority of the Board, in a judgment delivered by Lord Millett, said (at page 22):

"The due process clause requires the process to be judicial; but it also requires it to be 'due'. In their Lordships' view 'due process of law' is a compendious expression in which the word 'law' does not refer to any particular law and is not a synonym for common law or statute. Rather it invokes the concept of the rule of law itself and the universally accepted standards of justice observed by civilised nations which observe the rule of law: see the illuminating judgment of Phillips JA in Lassalle v Attorney-General (1971) 18 WIR 379 from which their Lordships have derived much assistance."

The due process guarantee, it was submitted, afforded protection against a law which operated in an arbitrary or disproportionate manner (R v Governor of Brockhill Prison, Ex p Evans (No 2) [2001] 2 AC 19, 38; R v Offen [2001] 1 WLR 253; Winterwerp v The Netherlands (1979) 2 EHRR 387, 403, para 39; Van Droogenbroeck v Belgium (1982) 4 EHRR 443, 461, para 48; Bouamar v Belgium (1987) 11 EHRR 1, 15 para 47; Quinn v France (1995) 21 EHRR 529, 543, para 52). In imposing liability for the grave crime of murder on those who lacked the mens rea ordinarily required to convict of that offence, section 2A operates in a manner so harsh, arbitrary, oppressive and unreasonable as to violate the due process guarantee. Counsel pointed out that the felony murder rule had been criticised for many years before its abolition by distinguished English judges, among them Wightman J (R v Greenwood (1857) 7 Cox CC 404), Blackburn J (R v Franz (1861) 2 F & F 580, 582), Bramwell B (R v Horsey (1862) 3 F & F 287, 288-290) and Stephen J (R v Serné (1887) 16 Cox CC 311, 312). Courts elsewhere had declined to give effect to the rule: People v Aaron (1980) Mich, 299 NW 2d 304; R v Vaillancourt (1987) 47 DLR (4th) 399.

In resisting this argument, the respondent relied on the broad legislative discretion accorded by the Constitution to Parliament. It was for Parliament, not the courts, to judge what legislative measures would best serve the interests of the country, and within very broad limits it had authority to define the content of criminal offences. While the felony murder rule had been strongly criticised, it had (in somewhat differing forms) been part of the law of England for centuries and was still the law elsewhere. Section 2A did not make unlawful what had previously been lawful, since it had never been lawful to commit an arrestable offence. Nor was the section discriminatory, since it applied equally to all. It was neither arbitrary, nor capricious, nor novel to attach enhanced penal sanctions to the commission of a crime which had fatal consequences. The due process clause was directed to securing access to the courts, equal treatment, a fair trial and observance of the rules of natural justice: Harrikissoon v Attorney-General of Trinidad and Tobago [1980] AC 265, 269; Ong Ah Chuan v Public Prosecutor [1981] AC 648, 673; Maharaj v Attorney-General of Trinidad and Tobago (No 2) [1979] AC 385, 399; Boodram v Attorney-General of Trinidad and Tobago [1996] AC 842, 854. The respondent also relied on Thomas v Baptiste [2000] 2 AC 1, and in particular the passage on page 22 of Lord Millett's judgment where he said, in a paragraph immediately following that quoted in paragraph 9 above:

"The clause thus gives constitutional protection to the concept of procedural fairness. Their Lordships respectfully adopt the observation of Holmes J. in Frank v Mangum (1915) 237 US 309, 347: 'Whatever disagreement there may be as to the scope of the phrase "due process of law," there can be no doubt that it embraces the fundamental concept of a fair trial, with opportunity to be heard.' Whether alone or in conjunction with section 5(2) their Lordships have no doubt that the clause extends to the appellate process as well as the trial itself. In particular it includes the right of a condemned man to be allowed to complete any appellate or analogous legal process that is capable of resulting in a reduction or commutation of his sentence before the process is rendered nugatory by executive action."

The respondent accepted that a criminal statute might violate the due process guarantee if it were too vague or uncertain to enable the citizen to regulate his conduct (Ahnee v Director of Public Prosecutions [1999] 2 AC 294; Sabapathee v The State [1999] 1 WLR 1836), but section 2A was not vulnerable to that objection.

The Board is mindful that this Constitution, like other constitutions, represents a balance democratically struck to promote certain ends and protect certain rights. The essence of constitutionality lies in strict observance by every organ of the state of the limits set by the Constitution on its own peculiar functions. Thus the legislature and the executive should not exercise powers which properly belong to the judiciary. The judiciary for its part must exercise the powers which the Constitution expressly or impliedly allots to it, and no others. It is plain that under this Constitution Parliament has very broad, although not unfettered, legislative authority. It acted to restore the substance of a rule which had long formed part of the law and which had never been the subject of intentional legislative amendment. While the primary focus of the due process guarantee is on procedural rights, the Board would accept, as de la Bastide CJ put it in his judgment under appeal,

"that a law which altered the substantive criminal law ... might be so unreasonable and oppressive as to be subject to challenge on grounds of unconstitutionality."

The application of sections 4(a) and (b) of the Constitution should not be unduly restricted. But the Chief Justice (with the concurrence of Jones and Warner JJA) considered that

"the 1997 amendment of the Criminal Law Act which in effect re-introduced a rule of common law which had formed part of our jurisprudence (and that of England) for very many years, could not be considered as even remotely approaching the type of enactment that might reasonably attract such a challenge."

That judgment, endorsing the judgment of Parliament, must command respect. In the opinion of the Board, the appellant's challenge on this ground fails.

The appellant contended, secondly, that section 2A infringed the presumption of innocence protected by section 5(2)(f) of the Constitution and so was unconstitutional on that ground also. The common law requires the prosecution to prove the offence of murder: Woolmington v Director of Public Prosecutions [1935] AC 462. Section 2A relieved the prosecution of the need to prove one of the ordinary ingredients of murder, namely the requisite intent. In R v Vaillancourt v The Queen (1987) 47 DLR 399, (4th) 415-417, and again in R v Martineau [1990] 2 SCR 633, 646-647, a majority of the Supreme Court of Canada held such a provision to be contrary to the fundamental principles of justice. Since section 2A was inconsistent with section 5(2)(f) of the Constitution, it was rendered void by section 2.

The respondent contended that section 2A had no effect on the presumption of innocence. In a case where it applied, the facts which the prosecution had to prove to establish guilt were different from those which it had to prove in a case where it did not apply. But the presumption of innocence had full effect in a case where section 2A applied as in one where it did not: unless and until the prosecution discharged the burden of proving to the required standard all the ingredients of the offence as defined the defendant could not properly be convicted. Section 2A gave the prosecution the benefit of no presumption and placed no burden on the defendant. It simply provided that the requisite intention for murder would be established by proving the commission of an arrestable offence involving violence where death resulted.

The presumption of innocence is perhaps the most fundamental principle underlying the administration of the criminal law. It places on the prosecution, fairly and squarely, the duty of proving guilt. But it does not control the ingredients of the offence which the prosecution must prove to establish guilt. Difficult questions can arise where a law provides that, on proof of certain facts, a defendant shall be guilty unless he establishes some ground of exoneration. Depending on the precise statutory context, such a reverse burden may indeed infringe the presumption of innocence. But no such difficulty arises here. Section 2A defines what the prosecution must prove. If it fails to do so, the defendant must be acquitted. In proving the charge the prosecution has the benefit of no presumption and the defendant is subject to no burden. The Canadian decisions relied on appear to be strongly influenced by the terms of the Canadian Charter of Rights and Freedoms, but if the Board is wrong to understand them in that way it would decline to follow them. In its opinion, section 2A does not infringe the presumption of innocence.

Brief notice should be taken of two grounds of appeal against conviction not based on constitutional grounds. The first was directed to the failure of the trial judge to discharge the jury and order a new trial upon the change of plea by the appellant's co-defendants. These changes of plea, it was said, known to the jury, had caused irremediable prejudice to the appellant. Attention was drawn to cases such as R v Fedrick [1990] Crim LR 403 in which a judge's failure to discharge a jury had led to the quashing of a conviction. This argument was advanced in the Court of Appeal, and R v Fedrick was cited. But the Court of Appeal did not accept it:

"This was a case in which the trial Judge might very well have exercised his discretion in favour of ordering a new trial for the appellant, but the fact that he decided not to do so, does not provide a sufficient ground for quashing the appellant's conviction, given the very strong warning which he gave the jury to disregard what had happened in relation to the other two accused."

The Board would not dissent from this conclusion. The decision whether or not to discharge a jury in this situation is discretionary. In exercising his discretion the trial judge will pay close attention to the facts of the particular case, and to representations made on behalf of a surviving defendant if such are made, as they were not in this case. While cases arise in which the judge can only exercise his discretion properly and fairly by discharging the jury, the Court of Appeal was entitled to hold that this case was not one of them. The appellant's remaining complaint was that the judge failed to direct the jury on the legal elements of robbery, the arrestable offence of violence on which the appellant was said to have embarked. This is not a point of substance. It was not in doubt at the trial that a violent robbery of Mr Young's premises had taken place. The issue was whether, as he contended, the appellant was elsewhere at the time. The jury would not have been helped to resolve that issue by instruction on the legal ingredients of robbery.

The appellant's appeal against conviction must be dismissed.

The appeal against sentence

In Roodal v The State [2003] UKPC 78 a majority of the Board accepted the Court of Appeal's conclusion that section 4 of the Offences against the Person Act 1925, in requiring sentence of death to be passed on all defendants convicted of murder, without any consideration of the culpability and circumstances of the individual defendant, violated the prohibition in section 5(2)(b) of the Constitution on the imposition of cruel and unusual treatment or punishment. The majority also held, differing from the Court of Appeal, that section 4 was not saved by section 6 of the Constitution to the extent that it mandatorily required sentence of death to be passed. The Board would refer to, but need not repeat, its judgment in that case.

Both these conclusions apply directly to the present case. For even if, contrary to the unanimous opinion of the Board, it were permissible consistently with section 5(2)(b) of the Constitution to require sentence of death to be passed on all defendants convicted of murder on proof that they had intended to kill or cause serious physical injury to the deceased, it would still infringe the subsection to require that sentence to be passed on all defendants against whom (despite their conviction of murder) such an intention had not been proved. Where the jury convict following a direction under section 2A, it can rarely if ever be known whether they have convicted on the basis of constructive malice or not, unless the jury are routinely asked to explain their verdict, a generally undesirable practice. While it may, consistently with the Constitution, be provided that proof of constructive malice shall be a sufficient ground of conviction, it cannot consistently with section 5(2)(b) be provided that the extreme penalty shall necessarily be passed on all those convicted on that ground, since the personal responsibility of an individual defendant for the fatal violence may be remote and his culpability relatively minor. Such a sentence, mandatorily passed in such circumstances, will be arbitrary and disproportionate. Thus in this case, for the reasons given in Roodal, section 4 of the Offences against the Person Act should be understood as authorising, but not requiring, sentence of death. Where a jury have convicted following a direction under section 2A, sentence of death could rarely if ever represent proportionate punishment.

For these reasons, the appellant's appeal against sentence should be allowed and the sentence of death passed upon him quashed. The case is remitted to the High Court in order that that court may pass an appropriate sentence. It is recommended that the respondent assist the appellant to defray the costs he has incurred.

_______________________

Dissenting judgment delivered by Lord Steyn

The central question is whether section 2 of the Criminal Law (Amendment) Act (No 16 of 1997), which reintroduced a variant of the felony/murder rule in Trinidad and Tobago, is unconstitutional in whole or in part.

The felony/murder rule was based on the English common law. Half a century ago the Royal Commission described it as "illogical, unjust and unnecessary ... a standing reproach to the criminal law of England": Royal Commission on Capital Punishment (1953) (Cmd 8932), para 93. Four years later it was expressly abolished by statute in England: section 1 of the Homicide Act 1957. It survived in Trinidad and Tobago. However, in 1979 the conceptual foundation of the rule, viz the distinction between felony and misdemeanour, was abolished in Trinidad and Tobago: section 2(1)(a) of the Schedule to the Law Reform (Miscellaneous Amendments) Act 1979. Eighteen years later the Privy Council ruled that the abolition of the distinction between felonies and misdemeanour inexorably also resulted in the abolition of the felony/murder rule: Moses v The State [1997] AC 53. Bearing in mind the declaratory theory of law, it means that for 18 years (1979 to 1997) the felony/murder rule did not exist in Trinidad and Tobago. Nobody has tried to ascertain how many accused were convicted, sentenced to death, and hanged during this period on the basis of the defunct felony/murder rule.

In 1997 Parliament legislated to reintroduce in Trinidad and Tobago law the felony/murder rule. The resultant provision is section 2A of Criminal Law Act (No 45 of 1979) as inserted by section 2 of the Criminal Law (Amendment) Act 1997. The marginal note describes it as "Saving for Constructive Malice". It provides as follows:

"(1) Where a person embarks upon the commission of an arrestable offence involving violence and someone is killed in the course or furtherance of that offence (or any other arrestable offence involving violence), he and all other persons engaged in the course or furtherance of the commission of that arrestable offence (or any other arrestable offence involving violence) are, liable to be convicted of murder even if the killing was done without intent to kill or to cause grievous bodily harm.

(2) For the purpose of subsection (1) a killing done in the course or the purpose of –

(a) resisting a member of the security forces acting in the execution of his duties or of a person assisting a member so acting;

(b) resisting or avoiding or preventing a lawful arrest; or

(c) effecting or assisting an escape or rescue from legal custody,

shall be treated as a killing in the course of furtherance of an arrestable offence involving violence."

The new statutory felony/murder rule is linked with the concept of an arrestable offence. Such offences include offences for which a person may under or by virtue of any written law be sentenced to imprisonment for a term of five years: section 3 of the Criminal Law Act (No 45 of 1979). Those offences include robbery, burglary and assault occasioning actual bodily harm. Needless to say, the moral culpability in respect of such offences may vary enormously.

Even without a felony/murder rule the reach of the death penalty for murder in Trinidad and Tobago was exorbitant. Section 4 of the Offences against the Person Act 1925 provides: "Every person convicted of murder shall suffer death as a felon". Before the Privy Council decision in Roodal v The State UKPC 78 perhaps more than half of those convicted of murder were not in any ordinary sense murderers. The principal reason for this state of affairs was the fact that an intent to cause serious bodily injury satisfied the fault element for murder. Until the decision in Roodal all persons convicted of murder had to be sentenced to death. That is no longer the law in Trinidad and Tobago. Instead the imposition of the death sentence is now discretionary.

At the time of the enactment in 1997 of section 2A Parliament would have wrongly assumed that a conviction of murder on the basis of the new felony/murder rule would attract a mandatory sentence of death. Whether Parliament would have enacted the legislation if the sentence in respect of an offence under section 2A only attracted a discretionary death sentence is a matter of speculation. In any event, the purpose of section 2A was not to criminalise a new species of conduct. On the contrary, all types of conduct falling within section 2A were already serious criminal offences subject to life imprisonment or very substantial terms of imprisonment. The purpose of section 2A was to categorise disparate groups of persons, who were not guilty of murder, as murderers and to subject them to a mandatory death sentence. Following the decision of the Privy Council in Roodal the mandatory sentence of death for murders is unconstitutional. Section 4 of the 1925 Act must now be read as providing for a discretionary death sentence. To that extent the harshness of section 2A has been moderated under the 1976 Constitution. From this it follows that the death sentence imposed on the appellant on 18 May 2000 must be quashed. To that extent the appeal against the decision of the Court of Appeal on 30 January 2001 must, in any event, be allowed.

That leaves for consideration the question whether section 2A as modified in accordance with the ruling in Roodal complies with the 1976 Constitution. The critical point is not so much the widening of criminal responsibility for murder but the fact that section 2A empowers a court to impose a discretionary death sentence on new classes of persons whose moral culpability may not be of the most serious character. The immediate importance of the question is that an affirmative answer to it will mean that the trial judge may in his discretion reimpose the death sentence. On the other hand, if the answer is negative the imposition of a death sentence in this case will be beyond the power of the trial judge.

Section 5 of the Constitution provides:

"(1) Except as is otherwise expressly provided in this Chapter and in section 54, no law may abrogate, abridge or infringe or authorise the abrogation, abridgement or infringement of any of the rights and freedoms hereinbefore recognised and declared.

(2) Without prejudice to subsection (1), but subject to this Chapter and to section 54, Parliament may not –

...

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

The precise question is whether section 2A, insofar as it empowers the court in its discretion to impose a death sentence on various classes of persons who fall outside the wide definition of murder, conforms to the Constitution.

Counsel for the State presented an argument that section 2A was protected by the exception contained in section 6. It provides:

"(1) Nothing in section 4 and 5 shall invalidate –

(a) An existing law;

(b) an enactment that repeals and re-enacts an existing law without alteration; or

(c) an enactment that alters an existing law but does not derogate from any fundamental right guaranteed by this Chapter in a manner in which or to an extent to which the existing law did not previously derogate from that right.

(3) In this section –

'Existing law' means a law that had effect as part of the law of Trinidad and Tobago immediately before the commencement of this Constitution and includes any enactment referred to in subsection (1);"

Given that the abolition of the distinction between felonies and misdemeanours ended the existence of the felony/murder rule in 1979, section 2A of the 1997 Act is plainly not an existing law nor is it an enactment that repeals and re-enacts an existing law without alteration. That much is conceded. But counsel argued that section 2A is an enactment within the scope of paragraph (c). That involved the contorted argument that "an existing law" in the opening words of paragraph (c) and "the existing law" towards the end of paragraph (c) refer to different laws i.e. the former referred to the common law and the latter to the 1979 statute. Paragraph (c) cannot cover an enactment which alters a law that existed before the Constitution came into force but has since been abolished. The exception contained in paragraph (c) is plainly inapplicable.

In order to determine whether the extension in 1997 of the death sentence to categories of persons, who are not guilty of murder simpliciter, is a "cruel and inhuman punishment" within the meaning of section 5(2)(b) of the 1976 Constitution it is necessary to consider in the first place what cases may be covered by section 2A.

Much of the argument of counsel for the State was designed to show what a narrow provision section 2A is and that properly construed it could cover only cases of great seriousness. Listening to counsel I was inclined to wonder why Parliament bothered to reintroduce a variant of the discredited, harsh and unjust felony/murder rule. The answer is, of course, that section 2A will cover very many cases which on no reasonable view could be described as of the utmost seriousness. Postulate a young man who commits burglary by entering without weapon a dwelling house which he thought was unoccupied. The elderly occupant suffers a fatal heart attack. (Such a case attracted a term of four years imprisonment in R v Watson (Clarence) [1989] 1 WLR 684.) Alternatively, the occupant jumps from a balcony and sustains a fatal head injury. In both cases there is "an arrestable offence involving violence and someone is killed in the course or furtherance of that offence". Under section 2A the offender may be sentenced to death. Consider a street robbery by an unarmed man which results in the victim sustaining a fatal head injury when he is knocked over on the pavement. Again, the case is covered by section 2A. Another example is a fist fight between young men. A blow to the temple of one participant results in an unforeseen death. This can be charged as the offence of actual bodily injury or the offence of manslaughter. (A "one punch" case with fatal consequences led to a sentence of nine months in R v Gratton [2001] 2 Cr App R(S) 167.) Under section 2A the judge in the exercise of his discretion may impose the death penalty in such a case. Generally section 2A may apply in a wide variety of offences, which do not involve the carrying of weapons, but result in a killing which is accidental and not foreseen. Another example is where A, B and C set out to rob. B and C appreciated that violence might be used but did not know or foresee that A had a knife. A stabbed the victim to death. The unforeseen use of the knife would take the killing outside the scope of the joint enterprise. B and C are guilty of robbery but not murder: R v Powell (Anthony) [1999] 1 AC 1 at 30C-D, per Lord Hutton. Nevertheless, B and C could be found guilty under section 2A and may be sentenced to death. None of the examples I have given are extreme or farfetched: they are the sort of consequences of criminal behaviour which are commonplace in criminal courts.

Section 2A as modified to provide for a discretionary death sentence may result in the imposition of the death sentence in such cases. The very reason for the prosecution relying on section 2A is to secure the imposition of a death sentence. And it would be within the power and discretion of a judge in cases of the type, which I have mentioned, and in cases of even less moral culpability, to impose the death sentence. After all, Parliament has authorised the imposition of the death penalty in cases where there was not even an intent to cause personal injury, let alone serious personal injury. The assumption must be that the courts will give effect to the ordinary meaning of the language of section 2A. In my view it is plain that the operation of section 2A will result in monstrously unjust sentences of death.

Section 2A authorises the imposition of the death sentence on a mechanical and generic basis without reference to the true culpability of the offender. In many cases the death sentence would be wholly disproportionate to the crime. Section 2A is bound to operate in an arbitrary manner. The majority is, of course, not unaware of this reality. They observe (para 18):

"Where a jury have convicted following a direction under section 2A, sentence of death could rarely if ever represent proportionate punishment."

The disproportionate infliction of a discretionary death sentence deserves to be described as arbitrary and oppressive. Having reach this point I differ from the majority about the consequences of this conclusion.

The question is whether the extension of the death sentence, albeit that it is discretionary, to cases falling within section 2A is constitutional. How should this task be approached? In Hunter v Southam Inc [1984] 2 SCR 145 Chief Justice Dickson of the Canadian Supreme Court explained (at 156):

"The task of expounding a constitution is crucially different from that of construing a statute. A statute defines present rights and obligations. It is easily enacted and as easily repealed. A constitution, by contrast, is drafted with an eye to the future. Its function is to provide a continuing framework for the legitimate exercise of governmental power and, when joined by a Bill or Charter or rights, for the unremitting protection of individual rights and liberties. Once enacted, its provisions cannot easily be repealed or amended. It must, therefore, be capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers. The judiciary is the guardian of the constitution and must, in interpreting its provisions, bear these considerations in mind."

In the Privy Council in Edwards v Attorney General for Canada [1930] AC 124, at 136, Lord Sankey LC expressed the same idea by saying that a Constitution should be approached as "a living tree capable of growth and expansion within its natural limits". This approach enabled the Privy Council to decide that the word "persons" in section 24 of the British North America Act 1867 includes women and that they were thus eligible to become senators. That was so even if the framers did not have in mind that women should be qualified to be senators. A dynamic interpretation of a bill of rights in a Constitution is to be preferred to a historical one. One must therefore interpret the words "cruel and unusual punishment" in the light of the values and norms of today.

It is of importance that the Privy Council in Roodal held that the mandatory death sentence for murder is a cruel and unusual punishment. A major part of the reasoning was based on the fact that "it mechanically and generically imposes the death penalty for all persons found guilty of murder": para 7 citing Hilaire, Constance and Benjamin et al Trinidad and Tobago (unreported) 2 June 2002, Inter-American Court of Human Rights. True it is that under section 2A as modified the imposition of the death sentence is discretionary. On the other hand, the classes of persons potentially subject to the new section 2A is immensely wide and will include persons who on no reasonable view should be subject to the risk of being sentenced to death. In these circumstances I have no doubt that the discretionary death penalty under section 2A is a cruel and unusual punishment under the Constitution.

The Chief Justice observed:

"It is conceivable that a law which altered the substantive criminal law in this way [i.e. by widening the scope of a particular criminal offence] might be so unreasonable and oppressive as to be subject to challenge on grounds of unconstitutionality, but the 1997 amendment of the Criminal Law Act which in effect re-introduced a rule of common law which had formed part of our jurisprudence (and that of England) for very many years, could not be considered as even remotely approaching the type of enactment that might reasonably attract such a challenge. We have dealt with this ground separately not because it has any more merit than others not so dealt with, but because of its novelty and constitutional flavour."

In my opinion the words "so unreasonable and oppressive" are applicable to section 2A. It is well established that the felony/murder rule was disproportionate and arbitrary in its application. There may be an inkling of the view of the Privy Council in Moses v The State [1997] AC 53, about the reintroduction of a variant of the felony/murder rule. Addressing an argument of the prosecution Lord Mustill referred to the felony murder rule as "a notion of criminal responsibility regarded for centuries as indefensible": at 65E. He continued (at 65F):

"Nor is the argument improved by imagining a kind of 'quasi-felony/murder rule,' whereby a conviction for murder might result from the occurrence of death in the course of a crime which would have been a felony if the legal concept of a felony had retained any meaning. This notion is surely fanciful. It would perpetuate, without any statutory warrant and for one sole purpose, a classification already receding into the mists of history - a classification which moreover never had any basis in reason or practicality, and which of course could not be operated at all in relation to new crimes created after the idea of a felony ceased to have any meaning."

Disagreeing with the conclusion of the Chief Justice, I would point out that in modern times there has been virtually unanimous condemnation of this harsh rule: Professor David Lanham, "Felony Murder - Ancient and Modern" (1983) 7 Crim LJ 90. The only reason why it could not be challenged under the 1976 Constitution before the abolition in 1979 of the distinction between felonies and murders was that it qualified as an "existing law" within the meaning of section 6 of the 1976 Constitution and was thus immune from challenge. That shield does not now apply to the new variant of the felony/murder rule which was enacted in 1997. It must be judged on its merits under the 1976 Constitution in accordance with what Lord Millett in his seminal judgment in Thomas v Baptiste [2000] 2 AC 1 at 22B-C, in the context of the "due process of law" provision in section 4(a) in the Constitution, described as "the universally accepted standards of justice observed by civilized nations which observe the rule of law". Section 2A unquestionably fails this test.

It is furthermore well established that, so far as possible, the Constitution should be read and interpreted so as to conform to the international obligations of Trinidad and Tobago: Lewis v Attorney General of Jamaica [2001] 2 AC 50, at 78F; Matadeen v Pointu [1999] 1 AC 98, at 114G-H. Trinidad and Tobago ratified the American Convention on Human Rights (1969) on 28 May 1991. It denounced the Convention on 26 May 1998. The denunciation took effect on 26 May 1999. At the time of the murder, namely on 5 October 1998, Trinidad and Tobago was therefore a party to the American Convention on Human Rights. It is accepted by the State that the law in force at the time of the commission of the offence is determinative. It is therefore relevant to the present case.

Article 4 of the American Convention provides as follows:

"1. Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life.

2. In countries that have not abolished the death penalty, it may be imposed only for the most serious crimes and pursuant to a final judgment rendered by a competent court and in accordance with a law establishing such punishment, enacted prior to the commission of the crime. The application of such punishment shall not be extended to crimes to which it does not presently apply." [Emphasis added]

In its Advisory Opinion OC - 3/83 on Restrictions to the Death Penalty the Inter-American Court of Human Rights observed:

"54. The Convention imposes another set of restrictions that apply to the different types of crimes punishable by the death penalty. Thus, while the death penalty may be imposed only for the most serious crimes [Art. 4(2)], its application to political offences or related common crimes is prohibited in absolute terms. [Art. 4(4).] The fact that the Convention limits the imposition of the death penalty to the most serious of common crimes not related to political offences indicates that it was designed to be applied in truly exceptional circumstances only. Moreover, viewed in relation to the condemned individual, the Convention prohibits the imposition of the death penalty on those who, at the time the crime was committed, were under 18 or over 70 years of age; it may also not be applied to pregnant women. [Art. 4(5).]

55. Thus three types of limitations can be seen to be applicable to States Parties which have not abolished the death penalty. First, the imposition or application of this sanction is subject to certain procedural requirements whose compliance must be strictly observed and reviewed. Second, the application of the death penalty must be limited to the most serious common crimes not related to political offences. Finally, certain considerations involving the person of the defendant, which may bar the imposition or application of the death penalty, must be taken into account.

56. The tendency to restrict the application of the death penalty, which is reflected in Article 4 of the Convention, is even clearer and more apparent when viewed in yet another light. Thus, under Article 4(2), in fine, 'the application of such punishment shall not be extended to crimes to which it does not presently apply'. Article 4(3) declares, moreover, that 'the death penalty shall not be re-established in states that have abolished it'. Here it is no longer a question of imposing strict conditions on the exceptional application or execution of the death penalty, but rather of establishing a cut off as far as the penalty is concerned and doing so by means of a progressive and irreversible process applicable to countries which have not decided to abolish the death penalty altogether as well as to those countries which have done so. Although in the one case the Convention does not abolish the death penalty, it does forbid extending its application and imposition to crimes for which it did not previously apply. In this manner any expansion of the list of offences subject to the death penalty has been prevented. In the second case, the reestablishment of the death penalty for any type of offence whatsoever is absolutely prohibited with the result that a decision by a State Party to the Convention to abolish the death penalty, whenever made, becomes, ipso jure, a final and irrevocable decision.

...

59. It follows that, in interpreting the last sentence of Article 4(2) 'in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose' [Vienna Convention, Art. 31(1)], there cannot be the slightest doubt that Article 4(2) contains an absolute prohibition that no State Party may apply the death penalty to crimes for which it was not provided previously under the domestic law of that State. No provision of the Convention can be relied upon to give a different meaning to the very clear text of Article 4(2), in fine. The only way to achieve a different result would be by means of a timely reservation designed to exclude in some fashion the application of the aforementioned provision in relation to the State making the reservation. Such a reservation, of course, would have to be compatible with the object and purpose of the treaty." [Emphasis added]

Article 4(1) and (2) of the Convention and the Advisory Opinion spell out norms, which as a matter of interpretation, inform the meaning of "cruel and unusual punishment" in the Constitution. It was the backcloth against which Parliament purported to enact section 2A in 1997 while the Convention still bound Trinidad and Tobago.

Moreover, in Roodal's case, at para 30, the Privy Council noted that Trinidad and Tobago is to this day a member of the Organisation of American States and commented on the status of the American Declaration of the Rights and Duties of Man (1948):

"Initially, [the Declaration] was not viewed as creating legal duties. On the other hand, before Trinidad and Tobago ratified the American Convention on Human Rights in 1991 the organs created by the Convention had commenced to give normative effect to the Declaration: see Resolution No. 3/87, Roach and Pinkerton v United States, by the Inter-American Commission on Human Rights, 22 September 1987; Advisory Opinion by the Inter-American Court of Human Rights, OC 10/89, dated 14 July 1989, given at the request of the Government of Colombia; Oppenheim's International Law 9th ed., 1992, 1027-1029; Schabas, [The Abolition of the Death Penalty in International Law 3rd ed (2002) 315]. That was the basis on which Trinidad and Tobago became members of the Organization of American States. Trinidad and Tobago is subject to the petition procedure before the Commission for violations of the American Declaration. The American Declaration is applicable to Trinidad and Tobago: the Inter-American Commission on Human Rights Report No. 48/01 in cases numbers 12.067 (Edwards), 12.068 (Hall), and 12.086 (Schroeter and Bowley) against The Bahamas dated 4 April 2001. The Declaration contains a guarantee in article XXVI against cruel, infamous or unusual punishment."

While the Declaration is less explicit than the Convention, and the decisions on it are few, it is the view of the Inter-American Commission on Human Rights that the death penalty may only be imposed in accordance with pre-existing laws. Article 1 (Right To Life) of the Declaration is interpreted as allowing a member state to impose capital punishment if it is prescribed by pre-existing law for crimes of exceptional gravity: Andrews v United States (Case No. 11.139), Precautionary Measures Decision of 28 July 1992, para 177; see also Harris and Livingstone, Inter-American System of Human Rights, 1998, 225.

This is also relevant background to the question of the interpretation of the guarantee against cruel and unusual punishment.

For all these reasons I would hold that it was unconstitutional to extend the potential reach of the death sentence in 1997 by enacting section 2A.

It does not follow that section 2A as a whole is unconstitutional. Section 2 of the 1976 Constitution provides that any law which is inconsistent with the Constitution is void to the extent of such inconsistency. Creating different degrees of homicide, or even widening the ambit of the crime of murder, may well be within the competence of Parliament. What the Constitution forbids is the introduction of new forms of cruel and unusual punishment. The death sentence, albeit discretionary, applied to the disparate categories of offence under section 2A, is a cruel and unusual punishment. That is the vice of the section. To the extent that it authorises the imposition of the death sentence section 2A is unconstitutional.

Given this conclusion the other constitutional and legal arguments of counsel for the appellant fall away.

Counsel advanced an argument that there was a material non direction by the trial judge in relation to section 2A of the Criminal Law Act. In context the complaint turned out to be without substance.

Counsel also relied on the fact that the judge allowed the trial to continue after the appellant's two co-defendants in a joint enterprise case pleaded guilty in the middle of the trial. He submitted that it amounted to a material irregularity. Having been taken meticulously through the history as revealed by the transcripts, I am satisfied that the way in which the judge exercised his discretion cannot be faulted.

The conviction of the appellant under section 2A is unaffected. The appeal must, however, be allowed, the death sentence quashed and the matter remitted for the trial judge to impose such a sentence (other than the death sentence) as may be appropriate.

_______________________

Dissenting judgment delivered by Lord Millett

I am unable to agree with the opinion of the majority, but my reasons for reaching a different conclusion are not the same as those of Lord Steyn, and are reached on narrower grounds. I consider that section 2(A) of the Criminal Law Act, which was inserted by section 2 of the Criminal Law (Amendment) Act 1979 and had the effect of reintroducing the felony-murder rule, is unconstitutional. I would have held it to be unconstitutional even if the views of the dissenting members of the Board in Roodal v The State had prevailed and the mandatory death penalty were immune from constitutional challenge. I take the view that section 2A is unconstitutional because, and only because, it enlarges the class of persons who are liable to the death penalty and is not saved from constitutional challenge by any provision of the Constitution.

I take as my starting point the fact that the death penalty is itself cruel and unusual punishment which is prohibited by section 5(2)(b) of the Constitution. (I shall explain why I say this in a moment.) It does not, of course, follow that it is unconstitutional. It is not, for two reasons. First, because section 4(a) of the Constitution clearly contemplates that persons may suffer death by due process of law; and secondly because to the extent that the death penalty is authorised by "an existing law" it is made immune from constitutional challenge by section 6(1) of the Constitution itself.

In this context it is worthy of note that in Reyes v The Queen [2002] 2 AC 235 Lord Bingham of Cornhill, speaking of the constitution of Belize (which in all material respects is in broadly similar terms to that of Trinidad and Tobago) said at p 247:

"The Constitution of Belize plainly sanctions the death penalty. The questions whether the passing and implementation of sentence of death are themselves inhuman and degrading are questions which do not and cannot, under this Constitution, arise. Being bound to accept that the death penalty is not in itself inhuman and degrading, [counsel for the appellant] accordingly directs his argument to the mandatory nature of the penalty" (my emphasis).

The words which I have emphasised would, with respect, be more accurately expressed by saying "being bound to accept that the death penalty is immune from constitutional challenge on the ground that it is inhuman and degrading".

It follows that, if Trinidad and Tobago were to abolish the death penalty altogether and were afterwards to reintroduce it by an ordinary Act of Parliament without a constitutional amendment, the later statute could be challenged under section 5(2)(b) and would not be saved by section 6(1) because it would not be an existing law.

That leaves section 4(a) of the Constitution. This is not the same (though to much the same effect) as Article 2.1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd 8969), but the context is crucially different. The European Convention contains no saving for existing laws or punishments. Article 2.1, which envisages that a person may be sentenced to death by a court of competent jurisdiction, is prima facie inconsistent with Article 3, which prohibits inhuman or degrading treatment or punishment. The only way in which the two Articles can be reconciled is by accepting that, for the purposes of the Convention, the death penalty is not to be regarded as constituting inhuman or degrading treatment or punishment. This is an appropriate reading of a Convention to which many Contracting States were invited to subscribe at a time when many of them wished to retain the death penalty and could not have ratified the Convention without a derogation.

By contrast the Constitution of Trinidad and Tobago does contain a saving provision for existing laws. The existence of section 6(1) makes it unnecessary to read down the effect of Article 5(2)(b). But for section 6(1) the death penalty would be liable to attack on the ground that it constitutes cruel and unusual punishment. Its presence saves the death penalty from challenge for the time being and is sufficient to explain the qualification in the concluding words of section 4(a).

Thus both Convention and Constitution leave it to the national Parliament to decide whether to abolish capital punishment, but in the meantime they approach the death penalty from opposite directions. Article 2.1 of the European Convention is framed on the basis that the death penalty is not in itself to be regarded as inhuman or degrading, while Article 4(a) of the Constitution of Trinidad and Tobago is framed on the basis that the death penalty is cruel and unusual but is immune from challenge on this ground so long as it is authorised by an existing law.

Article 4a guarantees the right of the individual to life and prohibits the state from depriving him of his life "except by due process of law". I take the word "law" here to mean a law which is compatible with the Constitution. The Constitution is the supreme law of Trinidad and Tobago, and a crucial aspect of the rule of law in that jurisdiction.

In my opinion the protection of the right to life contained in section 4(a) is qualified only so long as and to the extent that the death penalty remains constitutional, that is to say so long as it is preserved from challenge by Article 6.1. If Trinidad and Tobago were to abolish the death penalty altogether, and were afterwards to pass an ordinary Act of Parliament to reintroduce it, the later statute could be challenged under section 5(2)(b) and would not be saved by section 4(a) because it would not be constitutional. The complete abolition of the death penalty would empty the qualification in section 4(a) of all content, since it would no longer be possible (without a constitutional amendment) to deprive a person of life by due process of law.

Trinidad and Tobago has not abolished the death penalty. But by the inadvertent abolition of the felony-murder rule in 1979 it narrowed the scope of the offence of murder and correspondingly reduced the class of persons who were liable to be sentenced to death (whether as a matter of discretion or not). This had the effect of reducing the scope of the qualifying words at the end of section 4(a).

Section 2 of the 1997 Act, however, reintroduced the felony-murder rule and thereby enlarged the scope of the offence of murder. This was well within the competence of Parliament, but for one thing. By enlarging the offence of murder without amending section 4 of the Offences against the Persons Act 1925, which makes persons convicted of murder liable to sentence of death, it exposed persons to the risk of being sentenced to death who would not have been exposed to such a risk under the law in force immediately before the enactment of the 1997 Act. The 1997 Act is not "an existing law" and is not made immune from challenge under section 5(2)(b) by section 6(1). To the extent that it has the effect I have mentioned it exposes offenders to cruel and inhuman punishment contrary to section 5(2)(b) of the Constitution and deprives them of life by a law which is open to challenge on constitutional grounds and outside the qualifying words in section 4(a).

On these narrow grounds I would allow the appeal against sentence, though not against conviction. I would modify section 4 of the 1925 Act by excluding conviction of murder under the provisions of section 2A of Criminal Law Act from the death penalty and substituting a sentence of life imprisonment in such a case.