BRIDGETOWN, Barbados, Wednesday June 27, 2018 – The High Court in Barbados can no longer impose mandatory death sentences on convicted murderers.
This morning, the Caribbean Court of Justice (CCJ), the island’s highest court, struck down the mandatory death penalty on the grounds that it is unconstitutional.
The judgments, the last which Sir Dennis Byron will deliver as CCJ President as he will demit office next Tuesday, were delivered in a pair of unrelated death penalty cases from Barbados – filed by lawyers for Jabari Sensimania Nervais and Dwayne Omar Severin – that were consolidated because both appeals challenged the murder convictions of each of the men and the constitutionality of the mandatory death sentence for murder in Barbados.
Although dismissing the appeals against their convictions, the CCJ ordered that the appellants be expeditiously taken before the local Supreme Court for resentencing.
Before examining the issues raised by the appeal, the CCJ considered the state of the mandatory death penalty in Barbados for murder and found that it was indisputable that the country had acknowledged that it had an obligation to remove such mandatory sentence under Section 2 of the Offences against the Person Act.
Barbados had also given undertakings to the CCJ and the Inter American Court of Human Rights to rectify the mandatory sentence.
The CCJ held that Section 11 of the Constitution, which gives the right to protection of the law, was enforceable, and that the mandatory death penalty breached that right as it deprived a court of the opportunity to exercise the quintessential judicial function of tailoring the punishment to fit the crime.
However, Justice Winston Anderson disagreed with the majority’s view and contended that the appeals should be allowed on the basis that the judicial monopoly on the power to sentence, which is protected by the separation of powers principle, is consistent with “ensuring respect for, and adherence to, the ongoing evolution in the protection of human rights”.
Nervais was convicted of the murder of Jason Barton and the mandatory sentence of death by hanging was imposed on him. Barton was selling from a booth when an alarm was raised that caused him and the people gathered around to run away. Gunshots were fired by a group of men and Barton was struck by a bullet and died. Nervais was later arrested and charged with Barton’s murder after he made oral statements and a written confession to a police officer.
The Court of Appeal in Barbados dismissed his appeal against conviction and affirmed his sentence. Nervais raised a number of grounds of appeal before the CCJ, including addressing the trial judge’s alleged misstep in telling the jury that a witness’ evidence corroborated the disputed written statement.
As his second ground of appeal, Nervais contended that the learned trial judge usurped the fact-finding function of the jury because she determined a fact that was in issue, which undermined his alibi. However, in these and three other grounds raised by Nervais, the Court was satisfied that the judge did not usurp the function of the jury, there was no error or misdirection, and the necessary procedures were followed by the police.
In the other case, Severin was convicted before a judge and jury for the murder of Virgil Barton. The prosecution relied heavily on the evidence of Barton’s nephew, Judd Barton, who testified that he saw two men shoot at the deceased. The decased’s nephew managed to escape, but not before recognizing one of the shooters whom he had seen on two previous occasions.
While investigating the nephew’s suspicions, police conducted a search of Severin’s residence and found a Taurus semi-automatic gun along with 31 9-mm rounds of ammunition in his bedroom. Forensic testing confirmed that three of 14 cartridges retrieved from the murder scene were fired from that gun.
In his appeal to the CCJ, Severin challenged the reliability of Barton’s evidence, the fairness of the informal identification parade, and the instructions given by the judge to the jury at the trial.
After considering Barton’s evidence, the CCJ expressed its satisfaction that the shooter’s features would have been “fresh” in his mind. The court determined that the judge placed a balanced case before the jury, although there was the view that the judge could have been clearer in his lengthy instructions to them.