Boyce & Joseph V R

Download as docx, pdf, or txt
Download as docx, pdf, or txt
You are on page 1of 19

Boyce & Anor v R (Barbados) [2004] UKPC 32 (07 July 2004)

Privy Council Appeal No. 99 of 2002

(1) Lennox Ricardo Boyce and


(2) Jeffrey Joseph Appellants

v.

The Queen Respondent

FROM

THE COURT OF APPEAL OF BARBADOS

[Majority judgment delivered by Lord Hoffmann]

------------------

Summary

1. The issue in these appeals is the constitutionality of the mandatory death penalty in Barbados. The
relevant provisions of the constitution are sections 1, 15(1) and 26. Section 1 says that the constitution
shall be the supreme law of Barbados and that any other law shall "to the extent of the inconsistency, be
void". Section 15(1) says that no person shall be subject to "an inhuman or degrading punishment". But
section 26 says that no existing law "shall be held to be inconsistent with or in contravention of any
provision of sections 12 to 23". The law decreeing the mandatory death penalty was an existing law at
the time when the constitution came into force and therefore, whether or not it is "an inhuman or
degrading punishment", it cannot be held inconsistent with section 15(1). It follows that despite section
1, it remains valid.

2. The language and purpose of section 26 are so clear that whatever may be their Lordships' views about
the morality or efficacy of the death penalty, they are bound as a court of law to give effect to it. As
Lord Bingham of Cornhill said in Reyes v The Queen [2002] 2 AC 235, 246, "The court has no licence
to read its own predilections and moral values into the constitution". And their Lordships do not
understand Mr Starmer QC, who ably represented the appellants, to dispute that if one simply reads the
constitution, there is no basis for holding the mandatory death penalty invalid for lack of consistency
with section 15(1).

3. This is a very important point. It is not suggested that there is any ambiguity about the constitution itself.
It is accepted that it is simply not susceptible to a construction, however enlightened or forward-looking,
which would enable one to say that section 26 was merely a transitional provision which somehow and
at some point in time had become spent. It stands there protecting the validity of existing laws until such
time as Parliament decides to change them.

4. Recognising this difficulty, Mr Starmer's main argument is that a provision in the United Kingdom order
in council which brought the constitution into effect but did not form part of the constitution itself
requires the existing law so far as possible to be modified to conform to section 15(1) and that such
conformity can be achieved by deeming the death penalty to be discretionary.
5. For reasons upon which their Lordships will expand at greater length, they regard this argument as
completely untenable. It is incompatible with the status of the constitution as the supreme law of
Barbados, arbitrary to the point of absurdity in its results and would have been ultra vires the statutory
powers under which the order in council was made. It follows that it must be rejected.

6. The result is that although the existence of the mandatory death penalty will not be consistent with a
current interpretation of section 15(1), it is prevented by section 26 from being unconstitutional. It will
likewise not be consistent with the current interpretation of various human rights treaties to which
Barbados is a party. Their Lordships have anxiously considered whether there is some possible
construction of the constitution which would avoid these results and have concluded that none exists.
Their Lordships naturally respect the views of the minority who see more merit in Mr Starmer's
argument but since their opinion does not deal with the objections which their Lordships regard as
insuperable, they remain unpersuaded. It follows that the decision as to whether to abolish the
mandatory death penalty must be, as the constitution intended it to be, a matter for the Parliament of
Barbados.

The appeals

7. On 2 February 2001 in the Supreme Court of Barbados, Lennox Boyce and Jeffrey Joseph were
convicted of the murder of Marquelle Hippolyte and sentenced to death. On 27 March 2002 the Court of
Appeal of Barbados dismissed their appeals against conviction and sentence. They appeal to Her
Majesty in Council against sentence only. The only ground of appeal is that the judge wrongly thought
that the sentence of death was mandatory.

The mandatory death penalty.

8. Since the island of Barbados was colonised by the English in the seventeenth century, death has been the
mandatory sentence for the crime of murder. That was the common law of England and it became the
law of Barbados. In the nineteenth century it was codified in English statutes dealing with offences
against the person: see section 3 of the Offences Against the Person Act 1828 (9 Geo. 4 c.31) and
section 1 of the Offences Against the Person Act 1861. Each of these statutes was followed a few years
later by a similar statute in Barbados. Section 2 of the Barbados Offences Against the Person Act 1868
provided, as section 1 of the English Act of 1861 had done, "whosoever shall be convicted of murder
shall suffer death as a felon".

9. In the United Kingdom the death penalty was confined by Part II of the Homicide Act 1957 to certain
kinds of murder which the Act designated "capital". The Murder (Abolition of Death Penalty) Act 1965
abolished altogether its imposition for murder and section 1 of the Offences Against the Person Act
1861 was repealed. But no similar legislation was enacted in Barbados and the old law remained in force
when Barbados became independent on 30 November 1966. Since then, section 2 of the 1868 Act has
been replaced by section 2 of the Offences Against the Person Act 1994: "Any person convicted of
murder shall be sentenced to, and suffer, death".

The Constitution.

10. When Barbados became independent, it adopted a written constitution. The Constitution was made by
the representatives of the people of Barbados gathered at a conference in London. It derived formal
legitimacy from an Order in Council made under powers conferred by the Barbados Independence Act
1966, passed by the Parliament of the United Kingdom, the outgoing sovereign power in the Island. But
once the Constitution had come into effect, its British origins became no more than a matter of historical
interest. The Constitution became and remained the supreme law of Barbados because it was accepted
by the people of Barbados as the instrument which they had chosen to regulate their government and
society.

11. Section 1 declared the constitution to be the supreme law of Barbados:

"If any other law is inconsistent with this Constitution, this Constitution shall prevail and
the other law shall, to the extent of the inconsistency, be void."

12. Chapter V established a Parliament (consisting of Her Majesty, a Senate and an House of Assembly)
with power to make laws for the peace, order and good government of Barbados. These included the
power to alter the Constitution, provided that Parliament complied with certain conditions in section 49
which were intended to make constitutional amendments more difficult to pass than ordinary legislation.
No law could amend the constitution unless it expressly said that it was intended to do so (subsection
(6)). Any amendment had, at the least, to be supported by a majority of all members of each House (not
merely a majority of those who voted) and certain specified provisions in the Constitution were so
entrenched as to require an amendment to have the support of not less than two-thirds of the members of
each House: subsection (2).

13. Among the entrenched provisions was Chapter III, headed "Protection of Fundamental Rights and
Freedoms of the Individual". This chapter began (in section 11) with a declaration that "every person in
Barbados is entitled to the fundamental rights and freedoms of the individual" including "life, liberty and
security of the person" and a list of other human rights familiar from international human rights
instruments starting with the Universal Declaration of Human Rights adopted by the General Assembly
of the United Nations in 1948. Section 11 went on to say that the following provisions of Chapter III
were to have effect for "affording protection to those rights and freedoms".

14. Sections 12 to 23 then set out in detail the extent of the protection which the Constitution afforded to the
specified rights and freedoms, together with limitations "designed to ensure that the enjoyment of the
said rights and freedoms by any individual does not prejudice the rights and freedoms of others or the
public interest". The drafting of these sections was strongly influenced by the terms of the European
Convention on Human Rights. So, for example, section 12(1) of the Constitution ("No person shall be
deprived of life intentionally save in execution of the sentence of a court in respect of a criminal offence
under the law of Barbados of which he has been convicted") is obviously derived from Article 2 of the
Convention. Likewise, section 15(1) ("no person shall be subject to torture or to inhuman or degrading
punishment or other treatment") is much the same as Article 3.

15. The European Convention had in fact applied to Barbados while it was a colony. In 1953 the United
Kingdom government made a declaration pursuant to the Convention, extending its application to
Barbados and other colonies. So it was perhaps natural that similar phraseology should be used in
Chapter III of the Constitution. But the effect of having it in the Constitution was of course very
different. The Convention bound the United Kingdom, in respect of its government of Barbados, only as
a matter of international law. But Chapter III of the Constitution was part of the supreme law of
Barbados. The rights which it protected took priority over all other laws.

International law

16. Besides entrenching fundamental rights in its Constitution, the new state of Barbados also acceded to
international human rights treaties. In 1967 it became a member of the Organisation of American States
(OAS). Membership involves adherence to the OAS Charter, which includes an obligation in very
general terms to respect the fundamental rights of the individual. These were elaborated in 1948 by the
American Declaration of the Rights and Duties of Man, similar in its terms to the Universal Declaration.
Article I provides that "Every human being has the right to life, liberty and the security of his person".
The Inter-American Commission on Human Rights, an organ of the OAS, has expressed the view that
all member states are bound by the American Declaration.

17. In 1973 Barbados acceded to the International Covenant on Civil and Political Rights (ICCPR). It has
origins in common with the European Convention, as may be seen from Articles 6(1) and 7:

"6(1) Every human being has the inherent right to life. This right shall be protected by
law. No one shall be arbitrarily deprived of his life.

7. No one shall be subject to torture or to cruel, inhuman or degrading treatment or


punishment."

18. In 1978 the American Convention on Human Rights (ACHR) came into force. Article 4 (Right to Life)
deals with the death penalty in greater detail than the earlier instruments:

"1. Every person has the right to have his life respected. This right shall be protected by
law … No one shall be arbitrarily deprived of his life.

2. In countries that have not abolished the death penalty, it may be imposed only for the
most serious crimes …

6. Every person condemned to death shall have the right to apply for amnesty, pardon or
commutation of sentence, which may be granted in all cases."

19. Barbados ratified the ACHR in 1982. The organ which interprets the treaty is the Inter-American Court
of Human Rights and in 2000 Barbados accepted its compulsory jurisdiction.

20. At the times when Barbados adhered to these treaties, it is unlikely that many people would have
thought that the mandatory death penalty for murder involved a breach of any of their obligations. The
ACHR, for example, expressly contemplated the continued application of the death penalty in those
countries which imposed it for "the most serious crimes". The notion that the objectionable element lay
in it being mandatory for all cases of murder only gained currency as a result of the decisions of the
United States Supreme Court in Woodson v North Carolina (1976) 428 US 280 and Roberts v Louisiana
(1977) 431 US 633.

21. The objection to the mandatory death penalty is that acts which fall within the definition of murder
(particularly when extended by the murder/felony rule) vary widely in moral reprehensibility. The
government of Barbados has always accepted that the execution of everyone convicted of murder would
be unacceptably harsh and undiscriminating – in fact, cruel and inhuman. But the government argues
that the provisions for the application of the death penalty must be considered as a whole and that they
include the power of the Governor-General, on the advice of the Barbados Privy Council, to commute
the death sentence in any case in which it is thought appropriate to do so. The Constitution codifies and
institutionalises the exercise of the royal prerogative of mercy which was exercised on the advice of the
Home Secretary when the death penalty existed in England. The government says that when one takes
these powers into account and examines the operation of the death penalty in practice, it is not rigidly or
arbitrarily applied. It argues that the mandatory sentence enables the law to achieve maximum
deterrence while the power of commutation provides the necessary flexibility and humanity in its
practical application.

22. These arguments have not so far been accepted by the interpretative organs established under the
international treaties to which Barbados is a party. Edwards v The Bahamas (2001) Report No. 48/01 the
Inter-American Commission decided that the mandatory death penalty for murder was inconsistent with
the American Declaration of Human Rights. In Hilaire, Constantine and Benjamin (2002) (Ser.C) No. 94
the Inter-American Court of Human Rights decided that it was inconsistent with the American
Convention on Human Rights. And in Kennedy v Trinidad and Tobago (2002) CCPR/C/67/D/845/1999
the Human Rights Committee of the United Nations decided that it was inconsistent with the ICCPR.

23. The reason for the rejection of arguments similar to those put forward by the government of Barbados
was recently summarised by the Board in Reyes v The Queen [2002] 2 AC 235, 257, an appeal from
Belize:

"The Board is mindful of the constitutional provisions … governing the exercise of


mercy by the Governor General … But it is not a sentencing function and the Advisory
Council is not an independent and impartial court … The administration of justice
involves the determination of what punishment a transgressor deserves, the fixing of the
appropriate sentence for the crime. The grant of mercy involves the determination that a
transgressor need not suffer the punishment he deserves, that the appropriate sentence
may for some reason be remitted. The former is a judicial, the latter an executive,
responsibility. It has been repeatedly held that not only determination of guilt but also
determination of the appropriate measure of punishment are judicial not executive
functions …. The opportunity to seek mercy from a body such as the Advisory Council
cannot cure a constitutional defect in the sentencing process."

24. In Reyes the Board applied this reasoning to the mandatory death penalty under the law of Belize and
held that it was inconsistent with section 7 of the Constitution, which is in terms identical with section
15(1) of the Constitution of Barbados. At the time when the Belize constitution was adopted, few people
thought that the mandatory death penalty was inconsistent with section 7, any more than the people of
Barbados thought that it was inconsistent with section 15(1). But, for reasons to which their Lordships
will return in greater detail in a moment, changes in society and attitudes are capable of bringing about
changes in the practical content of fundamental rights like the protection against cruel and unusual
punishments in both international and domestic law.

25. The government of Barbados is still in dispute with the Inter-American Commission on the point (there
is to be a reference to the Inter-American Court of Human Rights), but their Lordships feel bound to
approach this appeal in the footing that the mandatory death penalty is inconsistent with the international
obligations of Barbados under the various instruments to which reference has been made. This does not
of course have any direct effect upon the domestic law of Barbados. The rights of the people of
Barbados in domestic law derive solely from the Constitution. But international law can have a
significant influence upon the interpretation of the Constitution because of the well established principle
that the courts will so far as possible construe domestic law so as to avoid creating a breach of the State's
international obligations. "So far as possible" means that if the legislation is ambiguous ("in the sense
that it is capable of a meaning which either conforms to or conflicts with the [treaty]": see Lord Bridge
of Harwich in R v Home Secretary, ex parte Brind [1991] 1 AC 696, 747) the court will, other things
being equal, choose the meaning which accords with the obligations imposed by the treaty.

26. This principle is obviously at its strongest when it appears that the domestic law was passed to give
effect to an international obligation or may otherwise be assumed to have been drafted with the treaty in
mind. Its application to laws which existed before the treaty is more difficult to justify as an exercise in
construction but their Lordships are willing to proceed on the hypothesis that the principle requires one
to construe the constitution and other contemporary legislation in the light of treaties which the
government afterwards concluded.

Fundamental rights in Barbados


27. If their Lordships were called upon to construe section 15(1) of the Constitution, they would be of
opinion that it was inconsistent with a mandatory death penalty for murder. The reasoning of the Board
in Reyes v The Queen [2002] 2 AC 235, which was in turn heavily influenced by developments in
international human rights law and the jurisprudence of a number of other countries, including states in
the Caribbean, is applicable and compelling. But since this conclusion would almost certainly have
come as a surprise to the framers of the Constitution, it is perhaps worth dwelling for a moment upon
why it is nevertheless the correct interpretation of the subsection.

28. Parts of the Constitution, and in particular the fundamental rights provisions of Chapter III, are
expressed in general and abstract terms which invite the participation of the judiciary in giving them
sufficient flesh to answer concrete questions. The framers of the Constitution would have been aware
that they were invoking concepts of liberty such as free speech, fair trials and freedom from cruel
punishments which went back to the Enlightenment and beyond. And they would have been aware that
sometimes the practical expression of these concepts - what limits on free speech are acceptable, what
counts as a fair trial, what is a cruel punishment - had been different in the past and might again be
different in the future. But whether they entertained these thoughts or not, the terms in which these
provisions of the Constitution are expressed necessarily co-opts future generations of judges to the
enterprise of giving life to the abstract statements of fundamental rights. The judges are the mediators
between the high generalities of the constitutional text and the messy detail of their application to
concrete problems. And the judges, in giving body and substance to fundamental rights, will naturally be
guided by what are thought to be the requirements of a just society in their own time. In so doing, they
are not performing a legislative function. They are not doing work of repair by bringing an obsolete text
up to date. On the contrary, they are applying the language of these provisions of the Constitution
according to their true meaning. The text is a "living instrument" when the terms in which it is
expressed, in their constitutional context, invite and require periodic re-examination of its application to
contemporary life. Section 15(1) is a provision which asks to be construed in this way. The best
interpretation of the section is that the framers would not have intended the judges to sanction
punishments which were widely regarded as cruel and inhuman in their own time merely because they
had not been so regarded in the past.

29. All this is trite constitutional doctrine. But equally trite is the proposition that not all parts of a
constitution allow themselves to be judicially adapted to changes in attitudes and society in the same
way. Some provisions of the Constitution are not expressed in general or abstract terms which invite
judicial participation in giving them practical content. They are concrete and specific. For example,
section 63 of the Constitution says that the executive authority of Barbados shall be vested in Her
Majesty the Queen. It would not be an admissible interpretation for a court to say that this meant that it
should be vested in a Head of State who was appointed or chosen in whatever way best suited the spirit
of the times; that the choice of Her Majesty in 1966 reflected the society of the immediate post-colonial
era and that having an hereditary Head of State who lived in another country was out of keeping with a
modern Caribbean democracy. All these things might be true and yet it would not be for the judges to
give effect to them by purporting to give an updated interpretation to the Constitution. The Constitution
does not confer upon the judges a vague and general power to modernise it. The specific terms of the
designation of Her Majesty as the executive authority make it clear that the power to make a change is
reserved to the people of Barbados, acting in accordance with the procedure for constitutional
amendment. That is the democratic way to bring a Constitution up to date.

The savings provision

30. It follows that if there were no exceptions to the supremacy of the fundamental rights provisions of the
Constitution over all other laws, section 2 of the 1994 Act would be void to the extent that it made the
death penalty mandatory. But section 2 of the 1994 Act is a consolidation of a law which existed in
1966. For existing laws, section 26 of the Constitution contains an important exceptions to the
supremacy of its fundamental rights provisions.

"26(1) Nothing contained in or done under the authority of any written law shall be held
to be inconsistent with or in contravention of any provision of sections 12 to 23 to the
extent that the law in question ?

(a) is a law (in this section referred to as 'an existing law') that was enacted or made
before 30th November 1966 and has continued to be part of the law of Barbados at all
times since that day;

(b) repeals and re-enacts an existing law without alteration; or

(c) alters an existing law and does not thereby render that law inconsistent with any
provision of sections 12 to 23 in a manner in which, or to an extent to which, it was not
previously so inconsistent.

(2) In subsection (1)(c) the reference to altering an existing law includes references to
repealing it and re-enacting it with modifications or making different provisions in lieu
thereof, and to modifying it; and in subsection (1) "written law" includes any instrument
having the force of law and in this subsection and subsection (1) references to the repeal
and re-enactment of an existing law shall be construed accordingly."

31. If one reads section 26 together with section 1, it discloses a clear constitutional policy. Section 1, which
applies to all laws past or future, states the general proposition that the Constitution is the supreme law
and, in consequence, that any law inconsistent with the Constitution is to that extent to be void. Section
26 declares an exception to this general proposition. No existing written law is to be held to be
inconsistent with sections 12 to 23. Existing laws are to be immunised from constitutional challenge on
that ground. If they cannot be held void, it follows that they must be accepted as valid.

32. The wisdom of casting a blanket of immunity from constitutional challenge over the whole corpus of
existing laws might be debatable. Not all of the former British colonies in the Caribbean thought it
necessary to do so. The framers of the Constitution of Barbados (and other constitutions containing
similar provisions) may have adopted them because, as Lord Devlin suggested in DPP v Nasralla [1967]
2 AC 238, 247-248, they thought that the existing laws already embodied the most perfect statement of
fundamental rights and that no inconsistency with sections 12 to 23 was possible. (See also Lord
Diplock in De Freitas v Benny [1976] AC 239, 244). Against this explanation, however, it could be said
that if the framers were fully persuaded on the point, they would not have thought section 26 necessary.
A more likely explanation is, as Lord Hope of Craighead says of a similar provision in the Jamaican
constitution in the judgment of the Board in Lambert Watson v The Queen, that –

"It was a reasonable working assumption, in the interests of legal certainty and to secure
an orderly transfer of legislative authority from the colonial power to the newly
independent democracy."

33. It is however unnecessary to devote too much time to speculating about the thought-processes of the
framers of the Constitution because, whatever may have been their reasons, they made themselves
perfectly clear. Existing laws were not to be held inconsistent with sections 12 to 23 and therefore could
not be void for inconsistency with the Constitution. Nor does the Constitution itself contain any textual
warrant for the existence of a power of modification falling short of a power to hold an offending
provision void.
The Order in Council

34. Mr Starmer claims to find such an intermediate power of modification in section 4(1) of the Barbados
Independence Order 1966 SI No 1455, which brought the Constitution into effect:

"Subject to the provisions of this section, the existing laws shall be construed with such
modifications, adaptations, qualifications and exceptions as may be necessary to bring
them into conformity with the Barbados Independence Act 1966 and this Order."

35. There is no dispute that "this Order" includes the Constitution which was set out in a schedule and
brought into force by section 3. So the appellant says that section 4(1) requires the modification or
adaptation of all existing laws to secure their conformity with sections 12 to 23. Mr Starmer reconciles
this power (or duty) with the immunity conferred by section 26 by saying that to modify is not to hold
inconsistent. All that section 26 prohibits is a judicial declaration that an existing law is entirely
inconsistent with those provisions. If the existing laws can be modified in a way which leaves something
standing, section 26 moults no feather. On the other hand, if there are linguistic or conceptual reasons
why nothing short of the total inconsistency of an existing law will satisfy sections 12 to 23, then the
fundamental rights declared by those sections are defeated and the existing law remains valid.

36. This is an argument which does not appear to have occurred to anyone until it surfaced as a "fall-back"
argument deployed by counsel in DPP v Mollison [2003] 2 AC 411, 417 and was given the traditional
epithet "ingenious" by Lord Bingham of Cornhill. It was promoted to ratio decidendi by the majority of
the Board in Roodal v The State [2004] 2 WLR 652. But, as their Lordships said at the outset, it is (a)
irrational in its consequences (b) beyond the powers conferred by the Act under which the Order was
made, and (c) inconsistent with its language and purpose. Their Lordships will develop these three
reasons in more detail.

(a) Irrationality

37. The purpose of the proposed power of modification is said to be to bring existing laws into conformity
with the Constitution, including sections 12 to 23. But securing conformity with sections 12 to 23 stops
short at total rejection of an existing law, however non-conforming.

38. Their Lordships find it hard to imagine why the framers of the Constitution should have wished to install
such an arbitrarily incomplete mechanism for securing conformity between existing laws and sections
12 to 23. That all existing laws should have to conform to principles of fundamental rights would have
been understandable. That all existing laws should be exempt is explicable. But that the question should
depend upon the mode of expression or conceptual unity of the particular law defies rational
explanation. It would immunise only those laws which for linguistic or conceptual reasons could not be
brought into conformity by anything which could be described as modification or adaptation.

39. Suppose, for example, that a few years before Independence in 1966 there had been a public outcry
against the number of burglaries. Politicians claimed that the available punishments of imprisonment,
fines and community service were not sufficiently deterrent. So Parliament passed the Burglary Act
1962. It contained a single section: "Anyone convicted of burglary may be sentenced to a whipping of
not more than 10 lashes". (Compare Pinder v The Queen [2003] 1 AC 620.) After the Constitution with
its fundamental rights and freedoms had come into force, the Act would have been inconsistent with
section 15(1). Flogging is nowadays a cruel and unusual punishment. Even though the Act conferred
only a discretion, any exercise of that discretion would be the infliction of a cruel and unusual
punishment. But section 26 would have made it impossible for a court to hold that the Act was void.
And Mr Starmer would probably accept that the conciseness of language and concept in such a law
means that it is incapable of "modification". It is the kind of example he gave to show that even on his
construction of the Order, section 26 could still have some work to do. Such a law is either good or bad.
If section 26 does not allow it to be held bad, it remains good. So the Act would have remained valid.

40. But imagine that in 1964 there had been a Burglary Consolidation Act, which repealed and re-enacted
all the previous laws about burglary including the 1962 Act. Instead, a section of the new Act provided:
"Anyone convicted of burglary may be sentenced to (a) imprisonment (b) a whipping of not more than
10 lashes (c) a fine (d) community service". Mr Starmer's argument is that the consolidation would have
made all the difference. It would now be possible to modify the 1964 Act by deleting "(b) a whipping of
not more than 10 lashes" and leaving everything else. It would be absurd to have to declare the whole of
the law of burglary void just because it provided for one punishment which was excessive. That is just
the kind of thing which a power of modification is intended to prevent. So Mr Starmer says that the
power may be used to excise the punishment of flogging even when there can be no question of any part
of the law being invalidated.

41. Their Lordships do not accept that any legislator in his right mind would intend the application or
disapplication of fundamental human rights to turn upon such a distinction - whether the offending
substantive provision was contained in a single statute or formed part of a larger code. That would really
be to give priority to form over substance.

42. Mr Starmer compared the power of modification in section 4(1) with the rule of construction in section
3(1) of the United Kingdom Human Rights Act 1998, which requires a court "so far as it is possible to
do so" to read and give effect to legislation in a way which is compatible with Convention rights. That
too, he said, stops short of allowing the court to declare legislation void. But there is no comparison
between a principle of construction (whether judge-made, like the principle about international
obligations, or statutory, like section 3(1) of the 1998 Act) and a power of modification. The second
takes on where the first leaves off. The rule of construction is based on the premise that the law is
capable of having a meaning consistent with the international or constitutional norm and requires that it
be given that meaning. The power of modification is based on the premise that the law cannot be given a
meaning consistent with the constitutional norm and therefore, by reason of the supremacy of the
constitutional norm, must be either modified or nullified. It is a broad power which proceeds by way of
adaptation or excision to remove the inconsistency.

43. A rule of construction, like section 3(1) of the 1998 Act is to guide the court in its determination of what
a law means. It is tautologous to say that a rule of construction does not allow the court to declare the
law void. Deciding what a law means is something conceptually different from (and prior to) a decision
about whether it is valid. A power of modification, on the other hand, proceeds from the finding that the
law is partially invalid. It allows the court to say that, read with the Constitution, the law now has an
effect in some respect different from that which it had before the Constitution was adopted.

(b) Ultra vires

44. Quite apart from the eccentric nature of the power or duty, its location in the Order in Council would
itself be remarkable. The Constitution is the supreme law of Barbados and the Constitution discloses a
clear and unqualified immunisation of all existing laws from constitutional challenge under sections 12
to 23. But the appellant claims that this immunisation is substantially counteracted by a provision in the
Imperial subordinate legislation which brought the Constitution into effect but formed no part of the
Constitution itself. Even if this appeared to be the effect of the Order, their Lordships would be reluctant
to hold that it took priority over the manifest scheme of sections 1 and 26 of the Constitution.

45. Furthermore, the Order was made pursuant to the powers conferred upon Her Majesty by section 5 of
the Barbados Independence Act 1966. Subsection (1) confers the power to provide a constitution for
Barbados. Subsection (4) is the only provision under which section 4(1) of the Order could have been
made:

"A Constitution Order may contain such transitional or other incidental or supplementary
provision as appear to Her Majesty to be necessary or expedient."

46. The power of modification for which Mr Starmer contends cannot possibly be described as transitional,
incidental or supplementary. On the contrary, it goes to the very substance of the constitution and largely
destroys the effect of section 26. That section reserves to the Parliament of Barbados the power to decide
whether any existing law should be amended or repealed to conform to sections 12 to 23. The delegates
to the London conference who agreed on the Constitution would have been astonished to find that by
reason of a provision subsequently inserted into the Order in Council, existing laws would survive
inconsistencies with those sections only if they were sufficiently self-contained in language and concept.

47. Mr Starmer emphasised the breadth of the power of modification, which is well attested in the
authorities. It allows the court to remould the old law in any way which is necessary to preserve some
part of its effect consistently with conformity to the constitution. But Mr Starmer seemed to think that
this was a point in his favour. On the contrary, it is very much against him. A broad power of
modification is appropriate when it forms part of the constitutional scheme for ensuring that laws
inconsistent with the Constitution shall "to the extent of the inconsistency, be void". In such a scheme,
there is a continuum of measures which can be taken to produce conformity, in which simply declaring
the whole law to be void is the limiting case. Short of total inconsistency, there can be modification. But
a broad power of modification produces absurdity when the court cannot declare the law void. The more
Mr Starmer emphasised the breadth of the power of modification, the more implausible became his
analogy with a rule of construction such as section 3(1) of the United Kingdom Human Rights Act 1998.

48. The objection to Mr Starmer's construction is not to the breadth of the power of modification but to the
circumstances in which he submits that the power may be used. The power may be as broad as one
pleases, but its obvious purpose is to save existing laws from being declared wholly void; not to allow
the courts to modify laws which would otherwise be valid. As Lord Hobhouse of Woodborough said in
Browne v The Queen [2000] 1 AC 45, 49 of a statutory proviso inconsistent with the constitution:

"It is the duty of the court to decide what modifications require to be made to the
offending provision in the proviso and to give effect to its modified form, not to strike
down the proviso altogether."

49. Thus the purpose of section 4(1) is to ensure that so far as possible, substance will prevail over form.
The courts are empowered and encouraged not to reject provisions to which there can be no substantive
objection merely because as a matter of language and form they are bound up with provisions
inconsistent with the Constitution. Instead, there is a broad power to remould language and form to sever
the good from the bad. It is unnecessary to discuss the extent of the power; it obviously has substantive
limits; for example when it presents the court with choices which are more appropriately made by the
legislature. But whatever the breadth of the power, it is truly incidental or supplementary to the
Constitution because it is ancillary to the supremacy of the Constitution over other law. Its purpose is to
enable the courts to preserve the effect of existing laws as far as it is possible to do so.

50. Thus in the burglary example mentioned earlier, if there had been no section 26, the 1962 Act would
have been declared void. If there had been a consolidation Act, it would have been modified to excise
the punishment of flogging. Whatever the form of the legislation, the substantial result would have been
the same. Powers to modify and adapt are ways of giving effect to the declaration in section 1 that laws
inconsistent with the Constitution shall to that extent - and only to that extent - be void. But they make
no sense in relation to laws which would otherwise be valid.
(c) Language and purpose

51. Section 4(1) requires any modifications to existing laws to be "necessary to bring them into conformity
with the Barbados Independence Act 1966 and this Order". The part of the Order with which section 2
of the 1994 Act is said not to be in conformity is section 15(1) of the Constitution annexed in the
Schedule. But this submission of lack of conformity requires one temporarily to avert one's eyes from
section 26, which makes it clear that there is no possibility of lack of conformity between existing laws
and section 15(1). If the power of modification is to apply, there must be lack of conformity not just
with one subsection of the Constitution but with the Constitution as a whole. Mr Starmer says that
section 26 does not go so far as to prevent there being lack of conformity with the Constitution. All it
does is to preclude a court from holding that there is an inconsistency between the 1994 Act and section
15(1). Until the moment at which such a non-declaration is made, there is a lack of conformity which
can be addressed by exercise of the power of modification. Mr Starmer contrasts section 26 with what he
calls a "shut-out" clause such as section 3(1) of the 1962 Constitution of Trinidad and Tobago, which
said that the fundamental rights sections should "not apply" in relation to any law in force at the
commencement of the Constitution. That, he says, was altogether different.

52. Their Lordships do not accept these refined linguistic distinctions. Section 26 has the side-note "Saving
of existing law" and section 3(1) of the 1962 Trinidad and Tobago constitution has the side-note "Saving
as to certain laws". Likewise, the 1976 Trinidad and Tobago constitution includes section 6(1) under the
heading "Exceptions for existing laws" and gives it the side note "Savings for existing law". All three
constitutions were intended to have an effect which can be described in various ways, all of which come
to the same thing. In the past the Board has been inclined to regard them as creating an irrebuttable
presumption that the existing laws were in accordance with the fundamental rights protected by the
Constitution: see De Freitas v Benny [1976] AC 239, 244. Another way of putting the matter is to say
that they make existing laws immune from any form of challenge by reference to sections 12 to 23. But
that immunity is complete.

Principles of construction

53. Mr Starmer suggested, and the minority agree, that concerns with rationality, ultra vires and the
language and purpose of the section were a rather pedantic and inhibited approach to constitutional
construction, deserving of condemnation as the tabulated legalism fit for conveyances and charterparties.
He said that if his construction were adopted, effect would be given to the international obligations of
Barbados and the constitution would be treated as a living instrument and not left trapped in a time-
warp.

54. Both the attractive force of international human rights law and the "living instrument" principle have
already been touched upon in their proper places. Their Lordships repeat that they do not intend to put in
doubt the principle that if it is reasonably possible to give domestic law a construction which will accord
with international law obligations, the courts will do so. But the construction of section 4(1) for which
Mr Starmer contends is unreasonable to the point of being perverse. There is no ambiguity about the
matter.

55. As for the "living instrument" principle, it can have no more application to the construction of sections 1
and 26 of the Constitution and section 4(1) of the Order in Council than to the provision that the
executive power shall be vested in Her Majesty. The relevant provisions are completely specific. Section
26 says that (contrary to the general provisions of section 1) certain specifically defined laws ("existing
laws") and their replacements (as defined) shall not be held inconsistent with sections 12 to 23. It
follows that they cannot be void under section 1. And as the Constitution contains no provision apart
from section 1 which affects the validity or requires the amendment of any law, it follows that all
existing laws are to be unaffected by sections 12 to 23. In laying down this rule, the Constitution
employs no general concepts which need or invite being given a contemporary content by the courts.
The protected laws and the extent of their immunity from challenge are stated in the most concrete
terms. It is in any case difficult to address an argument that the law should be updated and not left
trapped in a time-warp when the plain and obvious purpose of section 26 is that the existing laws should
not be judicially updated by reference to sections 12 to 23.

56. There is no supra-constitutional principle by which it is presumed that the provisions of a constitution,
even those concerned with fundamental rights, must be capable of being given an updated effect taking
precedence over all other laws. To make such an assumption is to beg the very question at issue in this
case, which is whether the Constitution left it to Parliament to decide whether existing laws should be
amended to conform to sections 12 to 23. The answer to that question can be found only in the
Constitution itself and not in generalisations about the nature of constitutions or fundamental rights.
Self-evidently it is true that if one chooses to construe the Order as imposing a duty to modify existing
laws to bring them into conformity with sections 12 to 23, one will construe the general concepts used
by those sections according to the living instrument principle in order to decide whether a lack of
conformity exists. But this is a consequence of construing the Order as imposing a duty to modify and
not a reason for adopting that construction.

57. As for the provision upon which the appellant chiefly relies, namely section 4(1) of the Order, it does
not form part of the Constitution at all. Nor does it invoke any concept of liberty, fundamental rights or
the like which requires judicial exposition in its application to concrete facts. It either requires the courts
to modify existing laws to conform to sections 12 to 23 or it does not. Whatever there may be to say in
favour of this proposition (and for the reasons already given, their Lordships think there is very little) it
gains no support from the principle of construction which treats appropriate parts of the Constitution as a
"living instrument". If it imposes such a duty upon the courts now, it did so in 1966. If it did not do so in
1966, there is no principle of construction upon which it can have come to do so now.

58. It must be borne in mind that although this case is concerned with whether the law providing the death
penalty for murder should be modified to conform to section 15(1) of the Constitution - a provision
which could properly be regarded as now having a broader content than would have been generally
thought when it was enacted - the proposed duty of modification requires all "existing laws" to be
modified to conform to sections 12 to 23. In other words, it laid all existing laws open to immediate
challenge for lack of conformity with sections 12 to 23 (so long as the challenge was not so radical as to
leave nothing of the old law behind), whether or not there had been any change in the content of the
provisions of the particular section which is said to produce the need for modification. Such a
construction plainly has nothing to do with the "living instrument" principle.

59. The "living instrument" principle has its reasons, its logic and its limitations. It is not a magic ingredient
which can be stirred into a jurisprudential pot together with "international obligations", "generous
construction" and other such phrases, sprinkled with a cherished aphorism or two and brewed up into a
potion which will make the Constitution mean something which it obviously does not. If that provokes
accusations of literalism, originalism and similar heresies, their Lordships must bear them as best they
can.

Existing punishment

60. The respondent placed reliance upon section 15(2) of the constitution:

"Nothing contained in or done under the authority of any law shall be held to be
inconsistent with or in contravention of this section to the extent that the law in question
authorises the infliction of any punishment or the administration of any treatment that
was lawful in Barbados immediately before 30th November 1966."
61. Their Lordships do not think that this subsection has any relevance. It can have no application to
existing laws because they are the subject-matter of the immunity against challenge conferred by section
26. No further provision is needed to preserve them. What section 15(2) does is to legitimise the
imposition of the death penalty in future legislation: compare Pinder v The Queen [2003] 1 AC 620. But
section 15(2) says nothing about whether it would be inconsistent with section 15(1) for the death
penalty to be mandatory. This was the point decided by the Board in Regina v Hughes [2002] 2 AC 259
and their Lordships do not think it necessary to rehearse the reasoning of Lord Rodger of Earlsferry in
that case.

Stare decisis

62. The conclusion which their Lordships have reached on section 4(1) of the Order in Council is different
from that which was reached in Roodal v The State [2004] 2 WLR 652 by a majority of the Board on the
equivalent provision in the statute which brought into force the constitution of Trinidad and Tobago.
There are differences in the language of the two constitutions and the two modification sections but their
Lordships do not think that they are material. Mr Starmer urged the Board not to depart from the earlier
decision and ordinarily there would be powerful arguments for not doing so. In this appeal, however,
their Lordships sit as the final court of appeal for Barbados. The issue is one of great public importance,
not only so far as it concerns the death penalty but because the effect of the Roodal decision was to lay
open the whole of the pre-independence law of Barbados to challenge for lack of conformity with any of
the provisions of sections 12 to 23. A majority of the Board at the first hearing of this appeal felt some
disquiet at the prospect of having to give a ruling for Barbados which they felt to be wrong simply out of
conformity with the earlier ruling for Trinidad and Tobago. For these reasons, the appeal was directed to
be reargued before an enlarged Board for the specific purpose of deciding whether the Roodal decision
was correct. In these highly exceptional circumstances, their Lordships consider that as they have
reached the conclusion that Roodal was wrongly decided, they should give effect to that conviction in
deciding this appeal. The consequences for the law of Trinidad and Tobago will be considered in the
opinion delivered in Matthew v The State, the appeal from that country which was heard together with
this one.

The Interpretation Act

63. Their Lordships now turn to two alternative arguments advanced by Mr Starmer. The first was that, as a
matter of domestic law and independently of the Constitution, the mandatory death penalty had already
been abolished by section 22(5) and (6) of the Interpretation Act 1966:

"(5) Where an enactment provides a punishment for an offence against the enactment, the
offence shall be punishable by a punishment not exceeding that so provided.

(6) Where at the end of a section of any enactment a fine, penalty or term of
imprisonment is set out, any contravention of that section shall be an offence against the
enactment and shall be punishable by a fine, penalty or term of imprisonment not
exceeding that so set out."

64. Their Lordships consider that this submission is not seriously arguable. The reasons are both technical
and general. The technical objections are that subsection (5) does not apply because murder is not an
offence against the 1994 Act. It is an offence at common law. Nor, for similar reasons, does subsection
(6). Murder is not a "contravention" of section 2 of the 1994 Act and is not therefore deemed to be an
offence against the Act. It is true that for the purposes of certain other sections, murder is treated as an
offence against the Act. But that is no reason why it should be treated as a statutory offence for the
purposes of sections 22(5) and (6), which are specifically concerned with the interpretation of statutory
offences.
65. The more general reason is that an Interpretation Act is intended to provide for the interpretation of
statutes (past and future) and not their amendment. The evident purpose of subsection (5) is to make it
unnecessary for the draftsman each time to use the words "not exceeding" and the purpose of subsection
(6) is to avoid the need for him to say expressly that an act in contravention of a statute shall be an
offence against the statute. Instead of saying "anyone who parks his car in a restricted zone shall commit
an offence against this section and shall be liable on conviction to a fine not exceeding $100" he can
achieve the same effect by saying "anyone who parks his car in a restricted zone shall be liable to a fine
of $100". That is typical of the modest savings in verbiage which an Interpretation Act is intended to
achieve.

66. On the other hand, it is simply not credible that the Interpretation Act managed without anyone noticing
to abolish the mandatory death penalty for murder. As Lord Rodger of Earlsferry said in Regina v
Hughes [2002] 2 AC 259, 272, "if any such radical change in the law had been intended, it is
inconceivable that it would have been enacted in anything other than clear and express words". Mr
Starmer again invoked the tug of international obligations and the "always speaking" principle which is
specifically enacted in section 31(1) of the Interpretation Act:

"Every enactment shall be construed as always speaking and anything expressed in the
present tense shall be applied to the circumstances as they occur, so that effect may be
given to each enactment according to its true spirit, intent and meaning."

67. But this is not legislation which refers to some concept which has to accommodate itself to new
circumstances. If the Interpretation Act abolished the mandatory death penalty, it did so in 1966. If it did
not, it was not because people in those days did not know about the mandatory death penalty. It was
because no one would in the context of the Act have thought of the death penalty as the kind of penalty
to which the Act was referring. And there is no reason why anyone should since have come to a different
view about what the Act meant. As section 31(1) says, the Act must be given effect "according to its true
spirit, intent and meaning".

The separation of powers

68. Finally Mr Starmer submitted that the mandatory death penalty combined with the exercise of the
constitutional power of commutation on the advice of the Barbados Privy Council infringed the principle
of the separation of powers. He said that the law did not contemplate that everyone sentenced to death
would actually be executed. The Privy Council in practice decided whether the convicted murderer
would live or die and was therefore part of the sentencing process. But this was illegitimate, because
sentencing is a judicial function and the Privy Council is not part of the judiciary.

69. Their Lordships have already noted that in Reyes v The Queen [2002] 2 AC 235 the executive nature of
the exercise of the power of commutation was a reason why it was not regarded as justifying a
mandatory death penalty in Belize. In Barbados, on the other hand, the mandatory death penalty is, as
their Lordships have decided, preserved by section 26 of the Constitution. And the exercise of the power
of commutation in death sentence cases is expressly codified in section 78. Both mandatory sentence
and executive clemency are in accordance with the Constitution.

70. It follows that neither can be rejected on the ground that it infringes the principle of the separation of
powers. Although Mr Blake QC submitted that it was a principle which overrode even the terms of the
Constitution itself, their Lordships regard this as an extravagant proposition. To say that a constitution is
based upon the principle of the separation of powers is a pithy description of how the constitution works.
But different constitutions apply this principle in their own ways and a court can concern itself only with
the actual constitution and not with what it thinks might have been an ideal one. All that matters is
whether the mandatory death penalty and executive clemency are in accordance with the Constitution of
Barbados. In their Lordships' opinion, they are.

71. Their Lordships will therefore humbly advise Her Majesty that the appeal ought to be dismissed.

______________

Dissenting judgment by Lord Bingham of Cornhill,

Lord Nicholls of Birkenhead, Lord Steyn and

Lord Walker of Gestingthorpe

72. As in Matthew v The State [2004] UKPC 33, heard before but in conjunction with the present appeals,
we have the misfortune to dissent from the conclusions and reasoning of a majority of the Board. Our
reasons for dissenting are, to a very considerable extent, the same as those which led us to dissent in
Matthew. We hope it will not be thought discourteous to the people or government of Barbados, or to
counsel who ably argued this appeal, if we refer by reference rather than repetition to such of our
reasoning in that case as we consider applicable in this.

73. The appellants do not in this appeal contend that it is contrary to the Constitution of Barbados for judges
to pass sentence of death on those convicted of murder if, having considered all relevant circumstances
pertaining to the offence and the offender, they consider such sentence to be just. The appellants'
challenge relates not to imposition of the death penalty but solely to mandatory imposition of the death
penalty, that is, the requirement that judges must impose the death penalty in all cases of murder,
irrespective of any considerations pertaining to the offence or the offender which may serve to mitigate
the seriousness of the crime to some degree.

74. One distinction between the present case and Matthew should be noted at the outset. In that case the
State acknowledged that the mandatory death sentence in Trinidad and Tobago is a cruel and unusual
treatment or punishment and so, subject to any applicable savings clause, contrary to the Constitution. In
the present case, Barbados does not acknowledge that the mandatory death penalty is "inhuman or
degrading punishment or other treatment" within the meaning of section 15(1) of the Constitution of
Barbados. In Reyes v The Queen [2002] UKPC 11, [2002] 2 AC 235, however, an appeal decided after
the Court of Appeal reserved judgment in the present case, the Board unanimously held the mandatory
death penalty to be "inhuman or degrading punishment or other treatment." It was not suggested in
argument that that decision was wrong, and no plausible reason was given why the ratio of that decision
(although decided by the Board as the final court of appeal of Belize) was inapplicable to Barbados. The
Board has unanimously reached the same conclusion in Lambert Watson v The Queen (The Attorney
General intervening) [2004] UKPC 34, an appeal heard with the present appeals. It is in our opinion
clear that the mandatory death penalty as imposed in Barbados amounts, as in other jurisdictions, to
inhuman or degrading punishment or other treatment for all the reasons given in Reyes.

75. In Matthew, attention was drawn to similarities and differences between the 1962 and 1976
Constitutions of Trinidad and Tobago. No such question arises here, since Barbados has had one
Constitution only, the Constitution contained in the Barbados Independence Order 1966 (S1 1966/1455)
and the 1966 Constitution scheduled to that Order. In the preamble to the Constitution the people of
Barbados proclaimed their belief in the dignity of the human person, their unshakeable faith in
fundamental human rights and freedoms and their belief in the rule of law. Section 1 provided that the
Constitution was to be the supreme law of Barbados and that, subject to the provisions of the
Constitution, if any other law was inconsistent with the Constitution, the Constitution should prevail and
the other law should, to the extent of the inconsistency, be void.
76. Chapter III of the Constitution, devoted to protection of the fundamental rights and freedoms of the
individual, was based on a model which had been adopted in Nigeria and was directly inspired by the
European Convention on Human Rights. In this respect it differed from the Canadian model earlier
followed in Trinidad and Tobago, where the influence of the European Convention (although present)
was more indirect, and broadly followed the model adopted in Jamaica. The protection from inhuman
treatment was expressed in section 15:

"(1) No person shall be subjected to torture or to inhuman or degrading punishment or


other treatment.

(2) Nothing contained in or done under the authority of any law shall be held to be
inconsistent with or in contravention of this section to the extent that the law in question
authorises the infliction of any punishment or the administration of any treatment that
was lawful in Barbados immediately before 30th November 1966."

It would seem that subsection (2) was prompted by recognition that some penal practices of the former
colonial government, in particular corporal punishment, were likely to be thought to offend the
prohibition in subsection (1). It is, however, clear that section 15(2) does not protect the mandatory
aspect of the death penalty: R v Hughes [2002] UKPC 12, [2002] 2 AC 259, paragraphs 47-48.

77. Section 24 of the Constitution (comparable with section 14 of the 1976 Constitution of Trinidad and
Tobago) gave the High Court power to enforce the human rights provisions of the Constitution. Section
26 (comparable with section 6 of the 1976 Constitution of Trinidad and Tobago) gave the High Court
power to enforce the human rights provisions of the Constitution. Section 26 (comparable with section 6
of the 1976 Constitution of Trinidad and Tobago) read as follows:

"26.(1) Nothing contained in or done under the authority of any written law shall be held
to be inconsistent with or in contravention of any provision of sections 12 to 23 to the
extent that the law in question -

(a) is a law (in this section referred to as 'an existing law') that was enacted or
made before 30th November 1966 and has continued to be part of the law of
Barbados at all times since that day;

(b) repeals and re-enacts an existing law without alteration; or

(c) alters an existing law and does not thereby render that law inconsistent with
any provision of sections 12 to 23 in a manner in which, or to an extent to which,
it was not previously so inconsistent.

(2) In subsection (1) (c) the reference to altering an existing law includes
references to repealing it and re-enacting it with modifications or making different
provisions in lieu thereof, and to modifying it; and in subsection (1) 'written law'
includes any instrument having the force of law and in this subsection and
subsection (1) references to the repeal and re-enactment of an existing law shall
be construed accordingly."

Reference must lastly be made to section 4(1) and (6) of the Barbados Independence Order
(corresponding to section 5 of the Trinidad and Tobago Act):
"4.(1) Subject to the provisions of this section, the existing laws shall be construed with
such modifications, adaptations, qualifications and exceptions as may be necessary to
bring them into conformity with the Barbados Independence Act 1966 and this Order …

(6) In this section 'existing law' means any law having effect as part of the law of
Barbados immediately before the appointed day (including any law made before the
appointed day and coming into operation on or after that day)."

78. The majority conclude that since section 26(1) precludes the holding of anything contained in or done
under the authority of any existing law to be inconsistent with the human rights sections of the
Constitution, section 1 of the Constitution is, in relation to those sections, effectively ousted and the
occasion for exercising the power to modify can, accordingly, never arise. This is no doubt a possible
reading of these provisions. But it is not the only possible reading. Nor, in our opinion, is it the
preferable reading. It puts a narrow and over-literal construction on the words used, gives little or no
weight to the principles which should guide the approach to interpretation of constitutional provisions,
gives little or no weight to the human rights guarantees which the people of Barbados intended to embed
in their Constitution and puts Barbados in flagrant breach of its international obligations. We make
general reference to paragraphs 42-46 and 50-55 of our dissenting opinion in Matthew.

79. Section 26(1) of the Constitution prohibits a court from holding any provision of an existing law to be
inconsistent with sections 12 to 23 of the Constitution. Were it free to do so, the consequence would
necessarily be, under section 1 of the Constitution, that the provision would be void. Thus if it were to
be contended, for example, that imposition of the death penalty under an existing law in any case (even
if discretionary) was inconsistent with section 12 or 15 of the Constitution, the court could not accede to
that contention. To do so would be to avoid the existing law, which cannot be done. But that is not what
the appellants seek, nor what (in our opinion) they are entitled to seek. They seek not the avoidance or
abrogation of an existing law but its construction with such modifications, adaptations, qualifications
and exceptions as may be necessary to bring it into conformity with the Constitution. To modify section
2 of the Offences Against the Person Act 1994 so that it reads "Any person convicted of murder may be
sentenced to, and suffer, death" is not to emasculate, avoid or render nugatory that section. It does not
preclude imposition of the death penalty in cases where a judge, seised of all the facts, considers such
penalty to be just and appropriate. But it is to preclude the infliction of what is now recognised to be
inhuman or degrading punishment or other treatment. It is of course clear, as the authorities cited in
paragraphs 50-53 of our opinion in Matthew show, that there are limits to the power of modification, but
the modification we favour falls well within these limits and is one which has been made on previous
occasions.

80. The construction of these provisions which we favour is in our opinion fortified by the recognition, in
section 26(2) of the Constitution, that an existing law may have been modified, which can only refer to
exercise of the duty under section 4 of the Order. There is also a clear contrast in the drafting of the
human rights provisions of the Constitution between "shall not apply" (as in section 23(3) and (5)) and
"Nothing ... shall be held to be inconsistent with or in contravention of ..." (as in section 23(4) and (6)).
The former provision precludes any review of conformity and hence any exercise of the power to
modify; the latter does not. Unless the effect of these alternative formulae leads to a difference of
meaning, the draftsman would not have used different expressions. It is a cardinal rule of drafting to use
the same expression to mean the same thing and different expressions to mean different things.

81. Since we consider the relevant provisions of the Order and the Constitution to be capable of more than
one meaning, we think it appropriate to have regard to the international obligations which Barbados has
undertaken.
(1) When Barbados became independent, the European Convention on Human Rights ceased
(after thirteen years) to apply to it. But it very promptly became a member of the United Nations,
and so bound by the Universal Declaration of Human Rights. On 5 January 1973 it acceded to
the International Covenant on Civil and Political Rights and (on the same date) to the Optional
Protocol, from neither of which has it withdrawn.

(2) Barbados became a member of the Organisation of American States, and so bound by the
American Declaration of the Rights and Duties of Man in November 1967. In June 1978 it
signed and in November 1978 it ratified the American Convention on Human Rights, and in June
2000 it accepted the compulsory jurisdiction of the Inter-American Court of Human Rights. It
has not withdrawn from these obligations.

(3) As recorded in paragraph 58 of our opinion in Matthew, the jurisprudence of the Human
Rights Committee, the Inter-American Commission and the Inter-American Court has been
wholly consistent in holding the mandatory death penalty to be inconsistent with the prohibition
of cruel, inhuman or degrading treatment or punishment. Nothing turns on minor differences of
wording between one instrument or another. The appellants submitted that "No international
human rights tribunal anywhere in the world has ever found a mandatory death penalty regime
compatible with international human rights norms," and this assertion has not been contradicted.
It is true that no application against Barbados has, to our knowledge, been made to any of these
bodies, perhaps because the execution of those condemned to death has, as we understand, been
exceptional. But no convincing reason has been given why punishment or treatment which is
inhuman, degrading or unusual elsewhere should not have that character in Barbados.

(4) In written submissions to the Inter-American Commission on Human Rights for a hearing in
October 2003, the State of Barbados insisted, we do not doubt sincerely, on its respect for human
rights and international obligations. It described itself (page 7) as "unique amongst
Commonwealth Caribbean countries in its acceptance and promotion of Inter-American human
rights obligations." It continued (page 8):

"Barbados recognises and values the binding international legal obligations it has
accepted under international and regional treaties, including those of the Inter-American
system. It affirms its obligations to uphold its representative democratic system as well as
to respect the fundamental rights of the individual."

At page 14 it stated:

"Barbados seeks to uphold all of the international legal obligations it has accepted under
the Inter-American system. However in doing so, it must balance its obligations to
uphold democratic constitutional processes, on the one hand, and its obligations related to
certain human rights instruments on the other."

The context of these submissions was an amendment recently made to the Constitution of Barbados to
give express constitutional protection to the mandatory death penalty. The Commission has sought an
advisory opinion from the Inter-American Court, and to that extent the matter remains open. But the
Commission, in a note of 17 March 2004 to the Government of Barbados, has made clear its opinion:

"The Commission has considered the oral arguments made on behalf of Your
Excellency's government during the hearing held on October 20, 2003, and has reviewed
the written submissions provided by your government in support of those arguments.
After considering the matter during its 119th Regular Period of Sessions, the Commission
has remained of the view that the mandatory imposition of the death penalty is
incompatible with the protections enshrined under the Inter-American human rights
instruments, for the reasons set out in its numerous decisions adopted on this issue. In
reaching this conclusion, the Commission has noted the submissions of Your
Excellency's government concerning the existence under Barbadian law of exceptions,
defenses and other circumstances that prevent the imposition of capital punishment,
statutory exceptions that allow the avoidance of capital punishment, and the availability
of the mercy prerogative of the Privy Council to individuals who have been sentenced to
death. It is apparent from the numerous decisions of the Commission on this matter,
however, as well as from the judgment of the Inter-American Court in the Case of
Hilaire, Constantine and Benjamin et al, that the existence of such provisions and
procedures does not alleviate the requirement that the death penalty only be imposed after
a judicial hearing where the sentence is not mandated in advance and where all mitigating
factors may be presented and taken into account by the judicial authority in determining
whether death is the appropriate punishment.

Accordingly, the Commission maintains the observations contained in its note of January
21, 2003, as well as its recommendation pursuant to Article 18(b) of the Commission's
Statute that Your Excellency's government reconsider its amendment to the Constitution
of Barbados relating to the mandatory death penalty in light of the protections, standards
and jurisprudence of the Inter-American human rights system."

While the matter now rests with the Inter-American Court, which alone can authoritatively interpret the
Convention, we think it most unlikely that the Court will reach a decision different in any significant
way from its earlier decisions.

(5) If, as we conclude, an interpretation of the Constitution is open to the Board which will be
consistent with the international obligations of Barbados and not inconsistent with them, such
interpretation should be adopted.

82. Performing the duty imposed on the courts by section 4 of the Independence Order, we would modify
section 2 of the Offences Against the Person Act 1994 by substituting "may" for "shall". We would
accordingly allow these appeals and remit the cases to the Supreme Court in order that that court, having
heard any relevant submissions and evidence, may impose a just and appropriate sentence in each case.

BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII


URL: http://www.bailii.org/uk/cases/UKPC/2004/32.html

You might also like