Griffith & Ors v The Queen (Barbados) [2004] UKPC 58 (16 December 2004)

	Privy Council Appeal No. 55 of 2003

Tennyson Winston Griffith and Others	Appellants
	v.
The Queen	Respondent

	FROM

	THE COURT OF APPEAL OF BARBADOS
	---------------

	JUDGMENT OF THE LORDS OF THE JUDICIAL
	COMMITTEE OF THE PRIVY COUNCIL,
	Delivered the 16th December 2004
	------------------

	Present at the hearing:-
			Lord Hoffmann
Lord Millett
Lord Scott of Foscote
Lord Rodger of Earlsferry
Lord Brown of Eaton-under-Heywood
		      [Delivered by Lord Rodger of Earlsferry]
	------------------

1.	At about 8.50 pm on 24 January 1991 police officers who had been alerted by a telephone call went to the car park at Pelican Village, a popular tourist shopping development in the vicinity of the Deep Water Harbour.  There they found the body of Earlyn Garnes (“the deceased”), who had been stabbed to death.  His body was dressed in a bloody short-sleeve shirt and short grey pants.  Subsequent examination showed that he had suffered an incised skin-deep wound to his right shoulder, a deep cut or stab wound to his left buttock and an oblique gaping stab wound to the left side of his chest.  This was the fatal wound.  The knife or similar object had cut the deceased’s sixth rib and had gone on to cut the right border of the deceased’s heart and to enter the cavity of the right ventricle.  There was also damage to the left lobe of the deceased’s liver.  Moderate to great force would have been required to inflict this wound.
2.	When the police came on the scene, the deceased’s car was standing with its engine running some 6 feet from his body.  The headlights were on and the rear doors were open.  A pornographic magazine lay on the back seat of the car and there were two small towels between the two front seats.  A week after the stabbings the caretaker of a sports pavilion in Bridgetown found the deceased’s wallet, containing his driving licence, an identity card and a medical certificate, under one of the seats of the pavilion.

3.	The appellants, Tennyson Griffith, Adrian Stuart, Fabian Harris, Mark Harris, Anthony Mayers, Michael Barnett and Victor St Rose, came to the notice of the police in the course of their investigations.  Police officers interviewed all of the appellants and, according to the officers, they made statements admitting that they had been involved, in different ways, in a plan to rob the deceased, and that the execution of the plan had resulted in the deceased’s death.  Elements in the statements were consistent with the physical evidence relating to the deceased’s body, his clothing and his car.

4.	In May 1992 the appellants stood trial in the High Court for the murder of the deceased.  The main evidence against them comprised their statements to the police.  The admissibility of those statements was challenged unsuccessfully in a voire dire.  On 19 May 1992 the jury convicted the appellants of murder.  As required by section 2 of the Offences against the Person Act 1868 (“the 1868 Act”), Adrian Stuart, Anthony Mayers and Victor St Rose were sentenced to death.  In accordance with section 14 of the Juvenile Offenders Act 1932, the other appellants, being under 18 years of age, were not sentenced to death, but to be detained during Her Majesty’s pleasure.

5.	The basic thrust of the case for the Crown as summarised by the trial judge was that the appellants were party to a plan to rob the deceased and to use such force as was necessary for the successful execution of the plan, that they put the plan into operation and that, in the course and furtherance of the plan, one of the participants stabbed the deceased, who died from the injuries that he received.  In adopting that approach the prosecutor was relying on the felony murder, or constructive malice, rule.

6.	At the trial the defence did not dispute that the rule formed part of the law of Barbados in January 1991, nor was there any dispute about the scope of the rule.  This can be conveniently taken from the opinion of Wrottesley J in R v Jarmain [1946] KB 74, 80:
“We think that the object and scope of this branch of the law is at least this, that he who uses violent measures in the commission of a felony involving personal violence, does so at his own risk and is guilty of murder if those violent measures result even inadvertently in the death of the victim.”

The trial judge gave the jury directions on the application of the rule to the facts of the case.  It is unnecessary to examine those directions since before the Board Mr Starmer QC did not challenge the judge’s exposition of the rule: rather, he challenged the compatibility of the rule itself with the Constitution.

7.	The appellants appealed to the Court of Appeal against their convictions.  For present purposes the important argument in support of the appeal was indeed the contention that the felony murder rule was inconsistent with the Constitution and so was void. On that basis the trial judge had misdirected the jury.  Following their decision in the earlier case of Bradshaw and Roberts v Attorney General of Barbados, [1995] WLR 936, the Court of Appeal (Husbands, Smith and Moe JJA) rejected this argument.  They also rejected all the other submissions on behalf of the appellants and, on 14 July 1995, dismissed the appeals.  On 27 June 1996 the Board advised that the appellants should be granted special leave to appeal.  For reasons which are unsatisfactory, but which do not have any bearing on the Board’s disposal of the appeal, the appeals did not make progress until 2003 and did not come on for hearing until late in 2004.

8.	Two other matters should be mentioned by way of background.  First, a few weeks after the appellants’ trial, in June 1992 Parliament passed the Criminal Law (Arrestable Offences) Act 1992 which abolished the distinction between felonies and misdemeanours and introduced the concept of arrestable offences.  That Act was brought into force on 1 September 1994.  In accordance with the later decision of the Board in Moses v The State [1997] AC 53, the effect of the abolition of the category of felonies would have been to abolish the felony murder rule which depended upon it.  The point is, however, academic since section 3 of the Offences against the Person Act 1994 - 18 (“the 1994 Act”) specifically abolished the felony murder rule with effect from the same date.

9.	It is clear from the terms of section 3 of the 1994 Act that, when Parliament abolished the felony murder rule, it proceeded on the basis that the rule was still in operation at that time.  Taking this into account, Mr Starmer accepted that he could not ask the Board to hold that, whether under the influence of the Constitution or for any other reason, the common law had developed so as to modify or abolish the felony murder rule before 1994. The appeal therefore proceeded on the basis that at all material times the rule applied in its traditional form.

10.	The second point to notice is that in March 2004 the Governor General commuted the death sentences imposed on Stuart, Mayers and St Rose to sentences of life imprisonment.

11.	Section 2 of the 1868 Act, under which the three appellants were sentenced to death in 1992, provided that “Any person who is convicted of murder shall suffer death as a felon”.  Subsequently, that section was repealed and re-enacted in section 2 of the 1994 Act, which provides that “Any person convicted of murder shall be sentenced to, and suffer, death”.

12.	Section 1 of the Constitution of Barbados declares that the Constitution is the supreme law of Barbados and that any other law is to be void to the extent that it is inconsistent with the Constitution.  Sections 12 to 23 of the Constitution set out the fundamental rights and freedoms that it guarantees.  Section 26(1) provides, however:
“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 ....”

Section 2 of the 1868 Act was in force before 30 November 1966 and so was an existing law for the purposes of section 26(1) of the Constitution.  It remained in force in 1991 when the deceased was killed and in 1992 when the appellants were tried.  It follows that nothing contained in section 2 can be held to be inconsistent with any provision of sections 12 to 23 of the Constitution.  Their Lordships refer to the decision of the Board in Boyce v The Queen [2004] UKPC 32; [2004] 3 WLR 786.  In line with that decision Mr Starmer presented these appeals on the footing that, by reason of section 26(1), he could not argue that section 2 of the 1868 Act was unconstitutional because the mandatory death penalty constituted inhuman or degrading punishment in terms of section 15(1).

13.	Section 26(1) applies only to a written law.  Mr Starmer therefore sought to direct his constitutional attack against the common law felony murder rule itself.  His first argument was based on section 11(c) of the Constitution, which provides:
“Whereas every person in Barbados is entitled to the fundamental rights and freedoms of the individual, that is to say, the right, whatever his race, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, to each and all of the following, namely – 
... 
(c)	the protection of the law ...”

The argument was short and straightforward.  The guarantee of the protection of the law, like the due process guarantee in other constitutions, afforded protection against a rule of the common law which operated in an arbitrary or disproportionate manner.  The felony murder rule could be seen to operate in that way since its effect was that defendants were liable to be convicted of murder even though they had no intention of killing, or even of doing grievous bodily harm.  Indeed, a defendant might be convicted of murder even where the victim died due to an inadvertent act which occurred in the course of the felony.  Such a legal rule was inherently arbitrary and so violated the guarantee in section 11(c) of the Constitution – even if one left out of account the death penalty that was attached to the crime of murder.

14.	As Mr Starmer recognised, this argument faces the formidable obstacle that essentially the same argument was rejected by a majority of the Board in Khan v State of Trinidad and Tobago [2003] UKPC 79; [2004] 2 WLR 692.  The felony murder rule formed part of the common law of Trinidad and Tobago.  In 1979 a law was passed abolishing the distinction between felonies and misdemeanours.  In July 1996, in Moses v The State, the Board held that, by enacting this statute, the legislature had, by a sidewind, abolished the felony murder rule, which depended on the existence of felonies.  Exactly a year after that decision the Parliament of Trinidad and Tobago passed an Act which introduced a statutory version of the rule.  That new statute, which was not protected by the existing laws provision in the constitution, had the effect of bringing within the scope of the mandatory death penalty defendants who would not have been exposed to it after the common law felony murder rule was abolished.  The appellant was convicted of murder on the basis of the new statutory rule and was sentenced to death in accordance with the mandatory requirement in section 4 of the Trinidad and Tobago Offences against the Person Act.  He appealed against his conviction, on the ground that the statutory felony murder rule was unconstitutional, and against the mandatory death sentence, on the ground that it constituted a cruel and unusual punishment and so violated the guarantee in section 5(2)(b) of the constitution.

15.	Khan’s appeal was heard immediately after another appeal from Trinidad and Tobago, Roodal v State of Trinidad and Tobago [2003] UKPC 78; [2004] 2 WLR 652.  In that case the Board held, by a majority, that, in so far as it was mandatory, the death penalty did indeed violate section 5(2)(b) of the constitution.  The Board therefore held that section 4 of the Offences against the Person Act should be understood as authorising, but not requiring, the imposition of the death penalty.  The decision in Roodal, that the death penalty was not protected from challenge by the existing laws provision in the constitution, was subsequently overruled in Matthew v State of Trinidad and Tobago [2004] UKPC 33; [2004] 3 WLR 812, but in the meantime the Board had applied it to Khan’s appeal against sentence and had quashed the mandatory death sentence passed on him.

16.	Khan’s appeal against conviction raised a distinct issue, however.  His counsel argued that the statutory felony murder rule was inconsistent with his constitutional rights to “due process of law” and to “the protection of the law”.  More particularly, counsel argued that the statutory rule operated in an arbitrary and disproportionate manner.  This was essentially the same argument as Mr Starmer’s first argument in this case.  In Khan the Board rejected the argument.  Lord Bingham of Cornhill referred, at p 699, para 11, inter alia to the words of de la Bastide CJ in the Court of Appeal:
“the 1997 amendment of the Criminal Law Act which in effect reintroduced a rule of common law which had formed part of our jurisprudence (and that of England) for very many years, could not be considered as even remotely approaching the type of enactment that might reasonably attract such a challenge.”

Lord Bingham commented, at para 11, that that judgment, endorsing the judgment of Parliament, must command respect.  In Barbados, of course, so far from re-enacting the felony murder rule, Parliament has abolished it.  The point still remains, however, that, when it operated, the rule was at least as well defined as most other common law rules.  As explained in R v Jarmain, it embodied a policy that people who embark upon the commission of a felony involving personal violence do so at their own risk.  The rule formed part of the developed law of England for centuries until it was abolished in 1957 and it was also found in the common law of many other countries.  Moreover, for policy reasons, the Parliament of Trinidad and Tobago reintroduced it in 1997.  In these circumstances, whatever criticisms may be made of the rule, it cannot be said to violate the constitutional guarantee of the protection of the law.  This ground of appeal must accordingly fail.

17.	Mr Starmer’s second argument involved considering the common law felony murder rule, not in isolation, but in conjunction with the mandatory death penalty in section 2 of the 1868 Act.  Even if successful, this argument could not avail the four appellants to whom section 2 did not apply and who were detained during Her Majesty’s pleasure in terms of section 14 of the Juvenile Offenders Act 1932.  This underscores Mr Knox’s point that the argument would at best constitute a ground for setting aside the death sentences, not the convictions.

18.	Again, Mr Starmer started from the point that the felony murder rule meant that defendants who had merely intended to use personal violence to rob their victim, but had not intended to kill or even to inflict grievous bodily harm, were to be convicted of murder.  In that event section 2 of the 1868 Act required that they be sentenced to death.  The imposition of the mandatory death penalty on defendants convicted on this basis was inhuman and degrading.  Of course, section 26(1) of the Constitution meant that section 2 of the 1868 Act could not be regarded as inconsistent with section 15(1) of the Constitution.  Nevertheless, section 15(1) could be used to attack the common law felony murder rule which had the effect of bringing someone convicted on this basis within the scope of the mandatory death penalty in section 2 and so within the scope of the inhuman or degrading penalty.  A rule which had that effect was inconsistent with section 15(1).

19.	Their Lordships are unable to accept that argument.  What section 26(1) of the Constitution saves from challenge by reference to section 15(1) is section 2 of the 1868 Act.  That section does not simply prescribe the mandatory death penalty, but prescribes it for “any person who is convicted of murder”.  The Act does not supply a definition of “murder” in that section:  rather, section 2 presupposes the existence of the common law crime of murder and prescribes the penalty for those convicted of it.  The constituent elements of that crime for the purposes of section 2 are defined by the common law as it applies at the relevant time.  They may accordingly change and, to that extent, the definition of “murder” in section 2 is ambulatory.  So, for example, when Parliament altered the common law by abolishing the felony murder rule with effect from September 1994, this meant that the scope of the crime of “murder” for which section 2 of the 1994 Act prescribed the mandatory death penalty was narrower than it had been under the 1868 Act.  Back in 1966 when Barbados became independent, however, murder included felony murder and so, at that time, section 2 of the 1868 Act prescribed the mandatory death penalty for persons convicted of “murder” on the basis of the rule.  This was still the position when the deceased was killed in 1991 and when the appellants were convicted of murder in 1992.  It follows that the imposition of the mandatory death penalty on the three appellants in terms of section 2 cannot be held to be inconsistent with, or in contravention of, section 15(1) of the Constitution.

20.	In advancing his argument Mr Starmer sought to rely on a passage in the majority opinion in Khan v  State of Trinidad and Tobago.  Before turning to that passage, their Lordships remind themselves that the situation under consideration in Khan was significantly different from that in the present case.  As they have already pointed out, Khan concerned a new statutory rule which had the effect of bringing within the scope of the death penalty a class of persons who had previously not been exposed to it.  Here, by contrast, the Board is dealing with the felony murder rule which always formed part of the common law of Barbados until it was abolished in 1994. So defendants, such as the appellants, who were convicted on that basis were always liable to the death penalty.

21.	In para 17 of his opinion in Khan v State of Trinidad and Tobago Lord Bingham observed that in Roodal v State of Trinidad and Tobago a majority of the Board had accepted that section 4 of the Offences against the Person Act violated the constitutional prohibition on the imposition of cruel and unusual treatment or punishment in requiring the imposition of the death penalty on all defendants convicted of murder “without any consideration of the culpability and circumstances of the individual defendant”.  The majority had also held that section 4 was not saved by the existing laws section of the constitution.  Lord Bingham went on, at para 18, to say:
“Both these conclusions apply directly to the present case.  For even if, contrary to the unanimous opinion of the Board, it were permissible consistently with section 5(2)(b) of the Constitution to require sentence of death to be passed on all defendants convicted of murder on proof that they had intended to kill or cause serious physical injury to the deceased, it would still infringe the subsection to require that sentence to be passed on all defendants against whom (despite their conviction of murder) such an intention had not been proved.  Where the jury convict following a direction under section 2A, it can rarely if ever be known whether they have convicted on the basis of constructive malice or not, unless the jury are routinely asked to explain their verdict, a generally undesirable practice. While it may, consistently with the Constitution, be provided that proof of constructive malice shall be a sufficient ground of conviction, it cannot consistently with section 5(2)(b) be provided that the extreme penalty shall necessarily be passed on all those convicted on that ground, since the personal responsibility of an individual defendant for the fatal violence may be remote and his culpability relatively minor.  Such a sentence, mandatorily passed in such circumstances, will be arbitrary and disproportionate.  Thus in this case, for the reasons given in Roodal, section 4 of the Offences against the Person Act should be understood as authorising, but not requiring, sentence of death.  Where a jury have convicted following a direction under section 2A, sentence of death could rarely if ever represent proportionate punishment.”

Mr Starmer submitted that, in this passage, Lord Bingham had in effect proceeded on the basis that it was the felony murder rule, when taken in conjunction with the mandatory death penalty, which violated section 5(2)(b).

22.	Their Lordships do not interpret the passage in that way.  The starting point of the Board’s decisions in Roodal and Khan was the decision of the Board in Reyes v The Queen [2002] UKPC 11; [2002] 2 AC 235 that the mandatory sentence of death is an inhuman or degrading punishment precisely because it applies in all cases where a defendant is convicted of murder, irrespective of the circumstances and the culpability of the defendant.  That is also the starting point of this particular passage in Lord Bingham’s opinion. He goes on, however, to illustrate the point by supposing an entirely hypothetical world in which, contrary to that starting point, it would be consistent with section 5(2)(b) to impose the death sentence on all defendants who had intended to kill or cause serious physical injury.  Even in that hypothetical world, it would be contrary to section 5(2)(b) to go further and impose the death sentence on those who did not have that intention.  Lord Bingham is recognising that felony murder is a strong example of a situation where the imposition of the death penalty would be arbitrary and disproportionate because the defendant’s personal responsibility might be remote and his culpability relatively minor.  Nor could the jury’s view of these matters be gauged from their verdict.  Mercy killing might be an equally strong example involving an intentional act.  These examples simply serve to show, however, that the circumstances in which murders are committed vary considerably and that the culpability of defendants varies accordingly.  That is indeed why the mandatory death penalty for all cases of murder is regarded as being in itself inhuman or degrading and why the Board – applying Roodal v State of Trinidad and Tobago – held that it was inconsistent with the constitution.

23.	For these reasons this ground of appeal also falls to be rejected.  It follows that their Lordships must humbly advise Her Majesty that the appellants’ appeals against conviction should be dismissed.

24.	Finally, their Lordships turn to the appeals against sentence by Tennyson Griffith, Fabian Harris, Mark Harris and Michael Barnett.  They were sentenced to be detained during Her Majesty’s pleasure.  In the light of the decisions of the House of Lords in R v Secretary of State for the Home Department ex parte Venables and Thompson [1998] AC 407 and of the Board in Browne v The Queen [2000] 1 AC 45 and DPP v Mollison [2003] UKPC 6; [2003] 2 AC 411, Mr Knox accepted on behalf of the Crown that the sentence imposed on each of these appellants was an indeterminate sentence of detention, the length of which fell to be determined by the executive.  He further accepted that such a sentence violated the general constitutional principle of the separation of powers which is embedded in the structure of the Constitution: Hinds v The Queen [1977] AC 195, 213C–D and DPP v Mollison [2003] 2 AC 411, 424, para 13.  As in Browne v The Queen, what is required to remedy that violation is that the determination of the length of the appellants’ sentences should be in the hands of the court, rather than of the executive.  In the application of section 4(1) of the Barbados Independence Order 1966 their Lordships accordingly construe section 14 of the Juvenile Offenders Act as providing that the court shall sentence the offender to be detained until the court directs his release.

25.	Their Lordships will humbly advise Her Majesty that the appeals against sentence of Tennyson Griffith, Fabian Harris, Mark Harris and Michael Barnett should be allowed and that their cases should be remitted to the High Court for the court to sentence the appellants to be detained until it directs their release.  Their Lordships are content to leave it to the judges and officials in Barbados to devise a system for operating such sentences that suits local conditions.  Obviously, however, a sentence of this kind requires that the court review the question of the detainee’s release at appropriate intervals.  Up until now, in the case of these appellants there has been no such review by the court.  In considering whether to direct their release the court will take into account the fact that they have already been detained in terms of their sentences since 19 May 1992, a period of over 12 years.

1.