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Privy Council tightens noose on death penalty

Published:Sunday | April 10, 2011 | 12:00 AM
In this February 2005 file photo, Dr Stephen Vasciannie (second right), deputy solicitor general, is part of the Government's legal team which appeared before the United Kingdom-based Privy Council in the Caribbean Court of Justice case. Also pictured are (from left): Michael Hylton, solicitor general; Gladys Young; and Simone Mayhew.- File

Barbara Gayle, Staff Reporter

A ruling from the United Kingdom-based Privy Council last year seems set to make it even more difficult for the death penalty to be reimposed in Jamaica.

A five-member panel of the local Court of Appeal sat in December 2009 to consider whether the death penalty should be imposed in the case of a man who shot and killed a couple while they slept.

Peter Dougal's life has been spared, but from the reasons given in the majority decision, hanging is not likely to resume in Jamaica based on a 2010 United Kingdom Privy Council ruling.

The Jamaican courts will now have to abide by the ruling in the case of Trimmingham v The Queen, when the death penalty is an option.

The death penalty should be imposed only in cases which, on the facts of the offence, are "the most extreme and exceptional", "the worst of the worst", or "the rarest of the rare".

other criteria

The Privy Council said further that the second principle is that there must be no reasonable prospect of reform of the offender, and that the object of punishment could not be achieved by any means other than the ultimate sentence of death. It also said that "the character of the offender and any other relevant circumstances are to be taken into account in so far as they may operate in his favour by way of mitigation and are not to weigh in the scales against him. Before it imposes a sentence of death, the court must be properly satisfied that these two criteria have been fulfilled".

A senior lawyer remarked that although the majority of Jamaicans are for the resumption of hanging, which has not taken place since 1988, the Privy Council in the Trimmingham case has in effect "closed the door" to the death penalty, because it is not likely that the murder cases meet the standards set by the Privy Council.

Attorney-at-law Dr Randolph Williams, who represented Dougal, had argued that the death sentence was manifestly excessive and argued that the Privy Council's ruling in the Trimmingham case from St Vincent and the Grenadines was the necessary guidance.

In the Trimmingham case, the appellant held a man at gunpoint and demanded money. The deceased had no money and the appellant threw the deceased into a ditch, then used a cutlass to cut his throat.

'bad case'

Although the Privy Council described the case as "undeniably a bad case", it ruled that the killing fell short of being in the category of the rarest of the rare.

President of the Court of Appeal Seymour Panton found that the murder of the couple - former president of the Jamaica Gasolene Retailers' Association, Lloyd G Campbell, and his fiancée, business-woman Sandra Campbell - "was among the worst of the worst in this country".

However, he said the only reason he would not impose the death penalty was because the Crown did not indicate to Dougal's lawyer that the death penalty was an option being pursed.

The other members of the panel were Justice Howard Cooke, (now retired), Justice Karl Harrison (now retired), Justice Dennis Morrison and Justice Hilary Phillips, disagreed with Justice Panton that the double murder fell within the worst of the worst'.

Justice Harrison said: "There is no doubt that the killings in this case were reprehensible and cold-blooded, for the appellant Dougal to say 'if the lady did just keep quiet she would not be killed', is clearly callous."

He said, based on the authorities of Trimmingham, Pipersburgh and White, it could not be said that the present case falls within the categories of 'worst of the worst' or 'rarest of the rare'. He said our courts were bound by the decisions of the Privy Council and must follow the principles laid down in cases decided by that court.

Justice Morrison said although Justice Panton said that Whyte's case fell within "the worst of the worst, because Whyte violated the sanctity of the house of the deceased, in the dead of the night, and proceeded to deprive them of their constitutional right to life while they were in a helpless mode", he said he had to disagree with Justice Panton.

inappropriate benchmark

Justice Phillips said "the learned president has viewed the violation of the home and the killing of the two victims in their sleep as most egregious and severe.

"However, in light of the dicta in Trimmingham, can these killings be equated with torture or prolonged trauma or humiliation prior to death or sadism? I think not. In fact, the victims were killed with two swift shots."

She pointed out that the incidence of those types of murders may be fairly insignificant in the Caribbean and, perhaps, using those examples as the measure may be inappropriate for the region.

The couple were shot and killed at Campbell's house in Stony Hill, St Andrew, on the early morning of June 5, 2005.

Dougal, 42, construction worker and farmer of Santoy district, Hanover, and Donald Whyte, 43, labourer, of Love Lane, Kingston, were convicted in 2007 of the double murder. The Court of Appeal freed Whyte. Dougal did not appeal against his conviction, but he appealed against his sentence. The appeal against sentence was allowed and Dougal was sentenced to life imprisonment and ordered to serve 45 years before he can be eligible for parole.