The Privy Coun­cil has been asked to over­turn the de­ci­sion of the lo­cal Court of Ap­peal to rule that au­to­mat­ic life sen­tences giv­en to mur­der con­victs, who can­not be ex­e­cut­ed due to de­lays in their ap­peals, were un­con­sti­tu­tion­al.

Pre­sent­ing sub­mis­sions be­fore the Unit­ed King­dom-based ap­pel­late court, yes­ter­day morn­ing, at­tor­neys rep­re­sent­ing the State claimed that Chief Jus­tice Ivor Archie and two Ap­peal Court Judges got it wrong in 2018 when they ruled that High Court Judges have the dis­cre­tion to de­cide com­mut­ed sen­tences based on the par­tic­u­lar cir­cum­stances of each case. 

The ap­peal cen­tres around the Privy Coun­cil’s well-known 1994 rul­ing in the Ja­maican case of Pratt and Mor­gan, in which it ruled that the manda­to­ry death penal­ty for mur­der would be cru­el and in­hu­mane pun­ish­ment if it was not be car­ried out with­in five years of con­vic­tion. 

The law­suit was brought by con­vict­ed mur­der­er Naresh Boodram on be­half of 82 pris­on­ers, who like him had their manda­to­ry death penal­ty com­mut­ed to life im­pris­on­ment fol­low­ing the le­gal prece­dent set in al­most three decades ago. 

British Queen’s Coun­sel Howard Stevens, who led the State’s le­gal team, claimed that the Court of Ap­peal did not have the dis­cre­tion to im­pose any sen­tence oth­er than life im­pris­on­ment on the pris­on­ers whose sen­tences were com­mut­ed. 

Stevens claimed that as the death penal­ty was manda­to­ry with­out the is­sue of de­lay, there should al­so be a stan­dard com­mut­ed sen­tence. 

“Par­lia­ment has de­cid­ed that all mur­der­ers de­serve to die re­gard­less of the of­fence they com­mit­ted,” Stevens said. 

He not­ed that pris­on­ers ag­griev­ed by the blan­ket sen­tence had an al­ter­nate rem­e­dy as they could ap­ply to the Mer­cy Com­mit­tee for the Pres­i­dent to use his/her pow­er of par­don un­der the Con­sti­tu­tion. Stevens al­so claimed that based on the griev­ous cir­cum­stances of the dou­ble mur­der Boodram is con­vict­ed of he de­served a life sen­tence. 

In his sub­mis­sions, at­tor­ney Mark Seep­er­sad dis­agreed with the po­si­tion, which he sug­gest­ed lim­it­ed the lo­cal courts’ ju­ris­dic­tion to ad­dress breach­es of cit­i­zens’ con­sti­tu­tion­al rights through Sec­tion 14 of the Con­sti­tu­tion.  Seep­er­sad claimed that when the Privy Coun­cil ap­plied the life sen­tence in the Pratt and Mor­gan case, it nev­er in­tend­ed for it to ap­ply to all sub­se­quent cas­es, which ben­e­fit­ed from the le­gal prece­dent set. 

“If the Privy Coun­cil in­tend­ed to lay down an ex­pressed fet­ter on dis­cre­tion it would have re­quired the clear­est of words,” Seep­er­sad said, as he not­ed that there is no law pre­scrib­ing the life sen­tence. He not­ed that while the life sen­tence was blan­ket­ly ap­plied over the past decades,  Boodram’s case was the first in which the pol­i­cy was chal­lenged.  While Seep­er­sad ac­cept­ed that the life sen­tence could be ap­plied in some heinous cas­es he sug­gest­ed that it should on­ly be done af­ter a Judge con­sid­ers all the unique cir­cum­stances of the case and the of­fend­er. 

“I must ad­mit that there may be some in­stances where the na­ture of the of­fence and the of­fend­er may re­quire that he should be re­moved from so­ci­ety for the rest of his nat­ur­al life,” Seep­er­sad said.  While Boodram is claim­ing that the Court of Ap­peal was cor­rect in the sub­stan­tive as­pects of his case, he has filed a cross-ap­peal seek­ing to over­turn its rul­ing that he and the State should bear their own le­gal costs for the ap­peal de­spite his le­gal vic­to­ry. 

Pre­sent­ing sub­mis­sions on the is­sue, the State’s le­gal team in­di­cat­ed that it would not seek costs from Boodram if it is suc­cess­ful on the ap­peal. It al­so claimed that if Boodram is suc­cess­ful in the cross-ap­peal he should on­ly be paid the le­gal costs for the ap­peal be­fore the Court of Ap­peal and not the Privy Coun­cil as he is be­ing rep­re­sent­ed pro bono in the lat­ter. 

Seep­er­sad is ex­pect­ed to ad­dress the is­sue when he con­tin­ues his sub­mis­sions lat­er to­day.  Boodram was con­vict­ed in No­vem­ber 1996  for the mur­ders of An­tho­ny Greenidge and Stephen Sandy, who were killed and buried in a shal­low grave in a rice field. 

De­liv­er­ing the judge­ment in the case in March 2018, Chief Jus­tice Archie and Ap­pel­late Judges Al­ice Yorke-Soo Hon and Mark Mo­hammed ruled that there was no log­i­cal rea­son for the carte blanche im­po­si­tion of the life sen­tence as they sug­gest­ed the pol­i­cy was in­her­ent­ly ar­bi­trary and po­ten­tial­ly dis­pro­por­tion­ate. w“The cir­cum­stances of each mur­der are dif­fer­ent and a court prop­er­ly seized of the rel­e­vant facts would be able to sub­sti­tute the ap­pro­pri­ate sen­tence,” Archie said.  De­spite the rul­ing in the case, the Court of Ap­peal did not im­me­di­ate­ly re-sen­tence Boodram and the oth­ers to set prison terms as it re­ferred their cas­es to be con­sid­ered by sev­er­al High Court Judges. 

“A re-sen­tenc­ing court must as­cer­tain whether the puni­tive el­e­ment of the sen­tence has been sat­is­fied and al­so whether the ap­pel­lant (Boodram) 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 the ques­tion in the af­fir­ma­tive or neg­a­tive,” Archie said. 

The re-sen­tenc­ing ex­er­cise has been put on hold pend­ing the out­come of the fi­nal ap­peal be­fore the Privy Coun­cil.