Monday, December 1, 2014

The Death Penalty, Death Penalty Appeals and the London-based Privy Council in The Bahamas

Sean McWeeney
Sean McWeeney, QC

Death Penalty 'Unlikely' Without Legal Challenges

Tribune 242 Staff Reporter
Nassau, The Bahamas

CONSTITUTIONAL Commission Chairman Sean McWeeney said recent comments about the end of hanging by Court of Appeal justices reflects opposition the London-based Privy Council has to the death penalty.

It reflects, he said, the unlikelihood that the death penalty will be carried out unless substantial changes are made to the legal and judicial system of this country.

Court of Appeal Justices on Wednesday suggested that “hanging is over” as they quashed the death sentence of Anthony Clarke Sr, who was convicted last year of killing his friend Aleus Tilus as part of a contract killing in 2011.

The justices’ statements raised concern among some yesterday who wondered if it set a new precedent for the court as it relates to dealing with death penalty appeals.

When contacted for comment yesterday, Mr McWeeney, a Queen’s Counsel, explained: “The statement (by the justices) was made off the cuff and emerged during the course of give-and-take with counsel. This was not some formal, deeply considered pronouncement. They were correctly characterising the current state of play given the position of the Privy Council.

“Their statements are not fundamentally different from what we in the Constitutional Commission have been saying based on jurisprudence coming out of the Privy Council. There is essentially a philosophical objective guiding this jurisprudence. The Privy Council is philosophically opposed to the death penalty and have curtailed the law to achieve objectives in line with its beliefs. They’ve put a series of obstacles in the way to impede and quite frankly prevent the death penalty from being meted out.”

The mandatory death sentence was changed in 2006 after the Privy Council ruled it was unconstitutional.

In 2011, after a ruling from the Privy Council, the Ingraham administration amended the death penalty law to specify the “worst of the worst” murders which would warrant execution.

A person who kills a police or defence force officer, member of the Departments of Customs or Immigration, judiciary or prison services would be eligible for a death sentence. A person would also be eligible for death once convicted of murdering someone during a rape, robbery, kidnapping or act of terrorism.

In Wednesday’s case, the Court of Appeal suggested there was never going to be a “worst of the worst” case.

“I sympathise with you because there’s never going to be a worst of the worst, because you’re never going to reach that threshold given that there will always be a worse case to follow,” said Court of Appeal President Justice Anita Allen.  

On this issue, Mr McWeeney said: “It’s quite clear (the Privy Council) has been very disingenuous characterising what is the worst of the worst.

“It all points to the fact that the Privy Council has demonstrated consistently that it will not hesitate to find some pretext, some reason, however legally spurious, to achieve their philosophical objective. Against that, Caribbean countries with similar constitutional systems as ours have been looking for ways to overcome this resistance. One thought was to replace the Privy Council with the Caribbean Court of Justice. However, nothing in that system exists to give cause for optimism that their position would be any different from the Privy Council. There have been judgments from that court to lead one to believe their position would be no different. So it’s not going to happen just because you get rid of the Privy Council and put in place the Caribbean Court of Justice.

“That leaves only one possibility and that is to think in terms of amending the Constitution in a way that would tie the hands of the Privy Council,” he added. “Remove the very large discretion the Privy Council has in terms of deciding the circumstances which constitutes ‘worst of the worst’. A solution is to (put in the Constitution) the criteria that would have to be applied on a mandatory basis by the Privy Council, which would define what is the worst of the worst cases. Of course, this could only take place after holding a referendum.”

Mr McWeeney said a draft has been created to amend the Constitution in order to define which crimes must be punishable by death.

“That draft is not something that they are dealing with right now because the focus is on gender equality,” he said, referring to next year’s expected constitutional referendum. “Political parties would have to decide where they want that issue to stand in the queue. It’s certainly not in the cards for this round (of proposed constitutional amendments).”

November 28, 2014