Legal News & Views by Dionne Jackson Miller

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Ernest Lockhart v The Queen (Privy Council)

Ernest Lockhart v The Queen (Privy Council)

Main Issue: guidance in imposing the death penalty

Quote: “The Board has therefore concluded that in every case in which the death penalty is being considered, the report of a consultant psychiatrist is needed…”

From the Court of Appeal of the Commonwealth of the Bahamas

[2011] UKPC 33

Privy Council Appeal No 0050 of 2010

Judgement delivered by Lord Kerr

Facts:

CS was killed by a single gunshot wound to the back. The appellant was convicted of his murder. Evidence was led that the appellant had threatened the deceased twice before his death. Lockhart had been sentenced as a teenager for housebreaking and theft, and later in 1994 sentenced to three months in prison for causing damage to property. In 1996 he was fined  $3,000.00 for  possession of dangerous drugs. Before the murder conviction he had no convictions for violent offences.

Imposition of the Death Penalty

The Privy Council pointed to the two principles set out in Trimmingham v The Queen [2009] UKPC 25 as to whether the death penalty should be imposed, that is:

  1. that 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’ and
  2. 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. “

Lord Kerr noted that in Maxo Tido v The Queen [2011] UKPC 16 the Board acknowledged that difficulties can arise in deciding which cases should be categorised as  “the worst of the worst” or “the rarest of the rare”.  He said:

“It  is quite clear, however, that only the most exceptional will qualify.”

He recommended that guidance be derived from the provisions of the Criminal Justice Act 2003 which in England and Wales specify the types of murder which call for the imposition of a whole life tariff.  Schedule 21 to the 2003 Act provides in para 4 that:

(a)         the court considers that  the seriousness of the offence (or the combination of the offence and one or more offences associated with it) is exceptionally high, and

(b)         the offender was aged 21 or over when he committed the offence, the appropriate starting point is a whole life order.

(2)     Cases that would normally fall within sub-paragraph (1) (a) include—

(a)     the murder of two or more persons, where each murder involves any of the following—

(i)     a substantial degree of premeditation or planning,

(ii)     the abduction of the victim, or

(iii)     sexual or sadistic conduct,

(b)     the murder of a child if involving the abduction of the child or  sexual or sadistic motivation,

(c)     a murder done for the purpose of advancing a political, religious, racial or ideological cause, or

(d)     a murder by an offender previously convicted of murder.”

Lord Kerr said that it was not being suggested that this be used as a checklist or template as many other factors may have to be taken into account but stated that :

“ considerations that underlie the classification of a particular case within the category may serve as a general guide or indication of when the most severe form of punishment is justified.”

Applying the two limbs of Trimmingham

As stated, the two limbs are:

  1. that 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’ and
  2. 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. “

The Privy Council said that for the court to be satisfied that there is no reasonable prospect of reform  will depend on the particular circumstances of the case, and referred to the judgment in  Maxo Tido, where it was said that a sentencing court, contemplating the possible imposition of the death penalty, would need to have professional advice as to whether the possibility of reform does not exist.

As a result, Lord Kerr stated that:

“The Board has therefore concluded that in every case in which the death penalty is being considered, the report of a consultant psychiatrist is needed before the question whether the reasonable possibility of reform can be properly addressed.  In some cases something more will be required.  In White v The Queen [2010] UKPC 22 at para 27 the Board adverted to the  possibility that a report from a clinical psychologist might also be necessary.”

 

Impact of Circumstances of the Killing and Circumstances of the Killer

Lord Kerr gave further guidance stating as follows:

“The circumstances in which a person has been done to death and the impact that his killing has had on his family, friends and community are, at least potentially, highly relevant to the question whether the murder comes  within the wholly exceptional category of the worst of the worst crimes.  But the quest for that elusive concept is not necessarily assisted by pitting the circumstances of the killing against the personal circumstances of the killer.”

Approach to applying the two limbs of Trimmingham

“It seems to the Board that the application of the first principle and the first aspect of the second principle in Trimmingham should normally be both disjunctive and sequential.  The question whether a particular murder can be described as the “worst of  the worst” must be addressed first.  Of course, the personal circumstances of the killer may affect the judgment of whether the murder is to be characterised as “the worst of the worst” but, if they have any part to play in that, it must be secondary to an assessment of the nature of the crime and the surrounding circumstances, rather than any personal mitigating attributes that the offender may have. 

“ If the murder cannot be characterised as the worst of the worst, the first aspect of the second principle, whether there is  a reasonable prospect of reform, does not arise.  It is only where the killing is to be regarded as occupying a place in the worst category of murder that the question of the possibility of reform need be addressed. “

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This entry was posted on February 13, 2012 by in Case Summaries.
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