Earl Moxam, Senior Gleaner WriterThe Government is likely to further amend the Offences Against the Person Act to nullify the effect of a recent ruling by the United Kingdom-based Privy Council affecting the categorisation of capital murder and non-capital murder.
The ruling has baffled the Government and, according to David Coore, senior legal adviser to the Attorney-General, gives further indication of the Privy Council's determination to frustrate Jamaica's right, under law, to carry out the death penalty in appropriate circumstances.
The Privy Council, in the case, Evon Smith v The Queen, in a judgement delivered on November 14, ruled that, since the appellant, Smith, had shown only one criminal purpose in committing the crime murder he should not be convicted of capital murder. If, on the other hand, he had killed his victim, while in the process of committing another offence, the court argued, he would have been eligible for a conviction of capital murder.
The court grounded its majority decision in its interpretation of section 2(1)(d)(ii) of the Offences Against the Person Act, as substituted by section two of the Offences Against the Person (Amendment) Act 1992. The statute defines capital murder as any murder committed in furtherance of a robbery; burglary or housebreaking; arson in relation to a dwelling house; or any sexual offence.
In the present case, Smith was charged with murdering Yvette Williamson, in July 2000. He did so by breaking into her house in Manchester through a window and chopping her several times with a machete while she laid in bed.
On the face of it, the circumstances of Ms. Williamson's killing might appear to have satisfied the conditions laid out in the statute for capital murder: It was murder committed after the appellant broke into the victim's house at night, and the prosecution argued that he had two criminal purposes burglary and murder.
Mr. Smith's lawyer, Mr. Fitzgibbons, argued, however, that Smith committed "a burglary in the course of a murder, not a murder in the course of a burglary". His client's only purpose, according to Mr. Fitzgibbons, was to kill, and this was not in keeping with what the statute defined as capital murder.
majority judgement
In the majority judgement, delivered by Lord Hope of Craighead, it was acknowledged that the protection afforded by the statute "does extend to those who are at risk of being killed by intruders who have broken into their homes for the purpose of stealing from them".
On the other hand, he argued, it did not follow that every murder committed within a victim's own home was capital murder, "nor does it follow that a capital murder is committed by every person who kills after breaking into the victim's dwelling house".
Lord Hope contended that Parliament, by wording the statute as it did, required more than the act of breaking into the dwelling house with the sole purpose of committing murder. "They require a duality of purpose, which is absent from this case," he asserted.
He said that if Parliament had intended otherwise, it should have spelt out its intentions "with absolute clarity", particularly in such an important area where the right to life is at stake.
some solace
The Government, in the meantime, is finding some solace in the dissenting judgement of Lord Hoffman, who, along with Lord Hutton, took strong issue with the majority's interpretation of the statute.
The purpose of the relevant section of the statute, Lord Hoffman argued, was to "protect citizens from being murdered in their own homes by intruders who break in at night and to deter offenders from committing such murders".
He said that the Jamaican parliament "could not have intended that an intruder who broke into a house, which he believed to be unoccupied, for the purpose of stealing... and then, coming upon the occupier, killed him or her, should be guilty of capital murder, but that a person who broke into a house with the express intention of killing the occupant and did so should not be guilty of capital murder".
Furthermore, Lord Hoffman argued, it was difficult to see why the legislature would think that "the intruder who breaks in with the express purpose of killing the occupier should be regarded as less heinous and should be punished with less severity".
David Coore, a former Attorney-General, agrees with Lord Hoffman's reasoning. "Looking at it quite objectively, the minority position is much more reasonable, logical and in keeping with what was clearly intended by the legislature," he said.
controversial judgements
Evon Smith is only the latest in a string of cases stretching back to 1993, in which the Privy Council has given controversial judgements affecting capital murder and the death penalty. The most famous of these was the 1993 Pratt and Morgan ruling. Here the U.K.-based court ruled that keeping a prisoner on death row for more that five years constituted cruel and inhuman punishment and therefore anyone in that situation should, henceforth, be removed from death row and given a life sentence.
In the Neville Lewis case, the Privy Council held that the Governor-General should state his reasons in writing for not exercising the prerogative of mercy in favour of persons condemned to be executed. That decision, government lawyers argued, would serve to open the Governor-General's reasoning to another round of appeals, contrary to the spirit of prerogative powers.
Then, earlier this year, in Watson v The Queen (the Lambert Watson case), the Privy Council effectively outlawed the mandatory imposition of the death penalty in Jamaica.
determination to abolish death penalty
Coore sees these earlier cases and the latest ruling as evidence of the Privy Council's determination to effectively abolish the death penalty in Jamaica. By and large, he said, Privy Council judges "are now on a campaign to prevent capital punishment actually taking place in any jurisdiction over which they have power and control and they will go to any length as long as they can find some legal peg on which to hang it to prevent capital punishment being implemented".
Accordingly, he said, the Jamaican Government would have to amend the law "to make it abundantly clear that that kind of bogus interpretation is not going be permitted to stand".
Delroy Chuck, Opposition Spokesman on Justice, does not share the view, however, that the majority's interpretation is a "bogus" one.
While conceding that there were powerful arguments on both sides, Mr. Chuck, said that it would be wrong to impute motives to the majority, in keeping with the anti-death penalty sentiments of the judges.
It was, he said, an honest disagreement "on a fine judicial point", and one for which the majority position could not be faulted. Ultimately, Mr. Chuck said, he agreed with the view that Evon Smith's actions should not fall within the category of capital murder.
"This was clearly a crime of passion, and in amending the legislation, Parliament made it clear that the people it was really targeting for the death penalty were the robbers, the burglars, the housebreakers, the people who choose to kill the police and judges," he said.
Attorney-at-law Bert Samuels, who strongly opposes the death penalty (while expressing equally strong anti-colonial sentiments), supports the court's ruling, saying it was the correct decision, "based on the reasoning of the majority".
He concedes, however, that the law lords might have been motivated, in part, by their own moral position against executions. "The Privy Council's feeling is that when you are contemplating a matter of life and death, you must err on the side of life and where there are two possible interpretations, you take the one that favours the person not being hanged," he said in an interview with The Sunday Gleaner.
Parliament, if it wants to make its intentions clear on the matter, should go ahead and amend the legislation accordingly rather than blame the Privy Council for the Evon Smith decision, said Samuels.
Delroy Chuck is recommending that, rather than amend the law simply in response to the Evon Smith ruling, Parliament should remove the statutory differentiation between capital and non-capital murder, leaving it up to the court to determine which offences should attract the stronger of the two sanctions. This, he suggested, would be determined "taking in mind the seriousness of the offence or whether it was committed in pursuance of some other criminal activity".
This, according to the Opposition spokesman, would be in keeping with the Lambert Watson judgement against the mandatory death penalty.
