PENALTY

At the end of this unprecedented period of judicial activism, only three
countries were left with a mandatory death penalty: Barbados, Guyana
(which had abolished appeals to the Privy Council and was thus not
bound by any of these developments 25 ) and Trinidad and Tobago. Barbados
and Trinidad and Tobago were able to retain the death penalty
because of the general savings clause, 26 since neither country had made
changes to the substantive law. In Guyana, statute has since restricted
the death penalty to certain categories of murder and eliminated its
mandatory aspect. 27 Thus, while the death penalty still exists across the
entire Commonwealth Caribbean, only Barbados and Trinidad and
Tobago apply it automatically to every conviction for murder.
APPLICATION OF THE DEATH PENALTY
There have been only a few scholarly analyses of the application
of the death penalty in the Caribbean, but even the most cursory
examination of decided cases suggests the existence of bias at several
stages, produced by factors such as economic status, social class
and mental capacity. These biases routinely affect the fairness of trials
(and by extension, the safety of convictions), because they inevitably
involve or lead to breaches of due process, liberty rights and evidential
safeguards. In Trinidad and Tobago in particular, a number of
recent studies have revealed fundamental deficiencies in the criminal
justice system. These studies have been replicated to a lesser extent
in other locations, and considering them along with the case law, it
can be credibly argued that there are many concerns with regard to
the equitable application of the death penalty in the Commonwealth
Caribbean. Specific issues are considered below.
Mental capacity
In common law, the test for insanity is whether, at the time of the
act in question, the defendant was labouring under such a defect
of reason, due to a disease of the mind, as either not to know the
25 This was effected in stages in 1970 by the Guyana Republic Act 1970-9, s 8 and Judicial Committee
(Termination of Appeals) Act 1970-14, and then in 1973 by the Constitution (Amendment)
Act 1973-19, s 4.
26 Boyce v. the Queen [2004] UKPC 32 (PC, Barbados); Matthew v. the State [2004] UKPC 33
(PC, T&T).
27 Criminal Law Offences (Amendment) Act 2010, Act 21-2010 [Guy].
nature and quality of his act or, if he did know this, not to know that
he was doing wrong. 28 From the time of its formulation in the mid-
19th century, this test was heavily criticised, 29 yet it has endured
in spite of complications regarding what constitutes a disease of
the mind and the potential injustice created by the requirement to
prove lack of knowledge of the quality of the act. A cursory check
of reported cases suggests that this test seems to be too technical
for judges to explain adequately or for jurors to evaluate sensibly,
with the result that many convictions are overturned on the basis
of incorrect directions. 30 Aside from its technicalities, another problem
with the legal test seems to be the archaic understanding of
mental illness, and its divergence from what may actually constitute
a mental incapacity. This creates doubt as to whether directions
in any case are properly understood and acted upon, in addition
to the doubts as to whether the law adequately treats those with
mental illnesses.
A case that well illustrates these difficulties is Stephen Robinson a/c
Psycho v. the State. 31 The appellant, a destitute and homeless person,
was convicted of the January 2002 murder of a security guard and
sentenced to death in 2009. Medical evidence established that he
had been diagnosed with schizophrenia since 1984. In the opinion
of both examining psychiatrists, he had been suffering from an
episode when the murder occurred, based not only on this history
but also on his attire and unusual behaviour at the time in question.
There was no competing evidence to contradict the medical
evidence, but the jury rejected it, presumably on the belief that he
was experiencing a lucid interval. Thus, the opinion of two experts
(one with considerable experience) was discarded in favour of pure
speculation. This is difficult to justify, and it underlines the flaws of
the outdated insanity test, which are exacerbated by the rules of
criminal procedure under which a determination of insanity is a
question of fact for the jury.
28 (1843) 10 Cl & Fin 200.
29 John Cyril Smith and Brian Hogan, Criminal Law, 7th ed. (London, Butterworths, 1992), p.
207.
30 Amnesty International, Caribbean: Death Penalty in the English-Speaking Caribbean: A Human
Rights Issue (AMR 05/001/2012, 30 November 2012), available from www.amnesty.org/en/
library/info/AMR05/001/2012/en.
31 CATT Crim 12/2009, decision dated 29 July 2010, available from www.ttlawcourts.org.
136 137