...continued           

111.            According to the legislation, however, this is subject to one exception. Article 3(2) of the Act specifically exempts from the death penalty female offenders who are convicted of offenses punishable with death, but who are found by a jury to be pregnant:  

3(2)    Where a woman convicted of an offence punishable with death is found in accordance with the provisions of this section to be pregnant, the sentence to be passed on her shall be a sentence of imprisonment with or without hard labour for life instead of sentence of death.

 

(3)     Where a woman convicted of an offence punishable with death alleges that she is pregnant, or where the court before whom a woman is so convicted thinks fit to order, the question whether or not the woman is pregnant shall, before sentence is passed on her, be determined by a jury.

 

(4)      Subject to the provisions of this subsection, the said jury shall be the trial jury, that is to say the jury to whom she was given in charge to be tried for the offence, and the members of the jury need not be re-sworn: 

 

Provided that-

 

(a)      if any member of the trial jury, after the conviction, dies or is discharged by the court as being through illness incapable of continuing to act for any other cause, the inquiry as to whether or not the woman is pregnant shall proceed without him; and

 

(b)     where there is no trial jury, or where a jury have disagreed as to whether the women is or is not pregnant, or have been discharged by the court without giving a verdict on that question, the jury shall be constituted as if to try whether or not she was fit to plead, and shall be sworn in such manner as the court may direct.

 

(5)     The question whether the woman is pregnant or not shall be determined by the jury on such evidence as may be laid before them either on the part of the woman or on the part of the Crown, and the jury shall find that the woman is not pregnant unless it is proved affirmatively to their satisfaction that she is pregnant.

 

(6)     Where in proceedings under this section the jury finds that the woman in question is not pregnant the woman may appeal under the Judicature (Appellate Jurisdiction) Act, to the Court of Appeal and that Court, if satisfied that for any reason the finding should be set aside, shall quash the sentence passed on her and instead thereof pass on her a sentence of imprisonment with or without hard labour for life:

 

          Provided that the operation of the provisions of this subsection shall be deemed to be coincident with the operation of the Judicature (Appellate Jurisdiction) Act. 

            112.            Therefore, the penalty for a female offender who is convicted of a capital or multiple non-capital murder, but who is found by a jury to be pregnant, is a sentence of imprisonment with or without hard labour for life instead of a sentence of death. 

            113.            As indicated in III.A.3.a of this Report, the Petitioners in all four of the cases before the Commission have alleged that the sentencing of the victims to mandatory death penalties violates one or more of Articles 4(1), 4(2), 4(3), 5(1), 5(2), 5(4), 8(1), 8(2), 24 and 25 of the Convention.  In particular, the Petitioners argue that although the death penalty is only imposed in capital or multiple non-capital cases, the distinction between these categories of murders and non-capital murders for which the death penalty is not imposed fails to allow for considerations of the particular circumstances of each offence and offender, including relevant aspects of the character and record of each defendant.  As a consequence, the Petitioners claim that mandatory sentencing for capital and multiple non-capital murders violates the Convention.  The Petitioners also argue that the process for granting amnesty, pardon or commutation of sentence in Jamaica does not provide an adequate opportunity for considering individual circumstances, and in itself is inconsistent with Article 4(6) of the Convention.  

            114.            In addressing the Petitioners' allegations, the Commission will first analyze the compatibility of mandatory death sentences for the crimes of capital and multiple non-capital murder with Articles 4, 5 and 8 of the Convention, in light of the terms of those provisions, their underlying principles, and relevant international and domestic precedents. The Commission will then determine whether the State has violated the Convention rights of the victims in the cases within this Report, because of the manner in which those victims have been sentenced to death.  

   2.     Articles 4, 5 and 8 of the Convention and the Mandatory Death Penalty 

            115.            In light of the allegations raised by the Petitioners, the Commission must first ascertain whether the practice of imposing the death penalty through mandatory sentencing is compatible with Article 4 (right to life), Article 5 (right to humane treatment), and Article 8 (right to a fair trial) of the Convention and the principles underlying those provisions. 

            116.            Article 4 of the American Convention provides as follows: 

     Article 4. Right to Life

 

1.       Every person has the right to have his life respected.  This right shall be protected by law and, in general, from the moment of conception.  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 and pursuant to a final judgment rendered by a competent court and in accordance with a law establishing such punishment, enacted prior to the commission of the crime.  The application of such punishment shall not be extended to crimes to which it does not presently apply.

 

3.       The death penalty shall not be reestablished in states that have abolished it.

 

4.       In no case shall capital punishment be inflicted for political offenses or related common crimes.

 

5.       Capital punishment shall not be imposed upon persons who, at the time the crime was committed, were under 18 years of age or over 70 years of age; nor shall it be applied to pregnant women.

 

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.  Capital punishment shall not be imposed while such a petition is pending decision by the competent authority. 

117.            Article 4 of the Convention thus permits States Parties that have not abolished the death penalty to continue to impose it.  At the same time, the Convention strictly regulates the manner in which the death penalty may be imposed by those States Parties.  This restrictive approach to the implementation of the death penalty mirrors the treatment of the death penalty generally under contemporary international and, as the next section of this Report will indicate, domestic practice. 

118.            Drawing in part upon the past experience of international human rights bodies, several general principles of interpretation can be identified in respect of the death penalty provisions of international human rights instruments in general, and Article 4 of the Convention in particular.  First, the supervisory bodies of international human rights instruments have subjected the death penalty provisions of their governing instruments to a rule of restrictive interpretation.  In its Advisory Opinion on Restrictions to the Death Penalty under Articles 4(1) and 4(4) of the Convention, for example, the Inter-American Court of Human Rights adopted a restrictive approach to Article 4 of the Convention, finding that “the text of the article as a whole reveals a clear tendency to restrict the scope of this penalty both as far as its imposition and its application are concerned”.[37] 

119.            Other international human rights supervisory bodies have similarly afforded a strict interpretation to the death penalty provisions of human rights treaties.  The U.N. Human Rights Committee has held in the context of Article 6 of the ICCPR, which parallels Article 4 of the Convention in many respects,[38] that the law must strictly control and limit the circumstances in which a person may be deprived of his life by the authorities of the state.[39] The Committee has accordingly determined that the imposition of a sentence of death upon conclusion of a trial in which the provisions of the Covenant have not been respected constitutes, if no further appeal against the sentence is possible, a violation of Article 6 of the Covenant.  Its recommended remedies in such cases have included release[40] and commutation of the death sentence.[41] The U.N. Special Rapporteur on Extra-Judicial, Summary or Arbitrary Executions has likewise emphasized that proceedings leading to the imposition of capital punishment must conform to the highest standards of independence, competence, objectivity and impartiality of judges and juries and other strict requirements of due process.[42] This Commission has also closely scrutinized the circumstances of death penalty cases to ensure strict compliance with the requirements of due process and judicial protection.[43]   

120.            It is also generally recognized that the death penalty is a form of punishment that differs in substance as well as in degree in comparison with other means of punishment.  It is the absolute form of punishment that results in the forfeiture of the most valuable of rights, the right to life and, once implemented, is irrevocable and irreparable.  As the United States Supreme Court has observed, “the penalty of death is qualitatively different from a sentence of imprisonment, however long.  Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two.  Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.”[44] In the Commission's view, the fact that the death penalty is an exceptional form of punishment must also be considered in interpreting Article 4 of the American Convention.  

121.            Finally, with respect to the restrictions prescribed in Article 4 of the American Convention in particular, the Inter-American Court has identified three principal limitations explicitly prescribed in Article 4 on the ability of States Parties to the Convention to impose the death penalty: 

Thus, three types of limitations can be seen to be applicable to States Parties which have not abolished the death penalty.  First, the imposition or application of this sanction is subject to certain procedural requirements whose compliance must be strictly observed and reviewed. Second, the application of the death penalty must be limited to the most serious common crimes not related to political offenses.  Finally, certain considerations involving the person of the defendant, which may bar the imposition or application of the death penalty, must be taken into account.[45] [emphasis added] 

122.            The Court’s observations therefore accentuate the significance of strict adherence to and review of due process guarantees in implementing the death penalty in accordance with Article 4 of the Convention.  Moreover, as part of that process, the Court indicates that certain circumstances of individual offenses and individual defendants may bar the imposition or application of the death penalty altogether, and therefore must be taken into account in sentencing an individual to death.  

         123.            It is in light of the foregoing interpretive rules and principles that the Commission must determine whether the practice of imposing the death penalty through mandatory sentencing is compatible with the terms of Articles 4, 5 and 8 of the Convention and the principles underlying those provisions.  

124.            The Commission recognizes that the State, like many other jurisdictions that have retained capital punishment, has created a distinction in its criminal law between capital and non-capital murder.  By doing so, the State has limited punishment by the death penalty to more narrowly defined categories of crimes than murder simpliciter.  In the Commission's view, this development is consistent with the reductive interpretation of Article 4 of the Convention enunciated by the Inter-American Court, and the Commission commends the State for taking this initiative.  

125.            Notwithstanding the prescribed distinction between capital and non-capital murder, it remains the case in Jamaica that the death penalty is imposed in capital and multiple non-capital cases through mandatory sentencing.  In the Commission’s view, three aspects of imposing mandatory death penalties are problematic in the context of a proper interpretation and application of the Convention, even when applied to limited categories of murder.  First, it is well-recognized that the crime of murder, even when defined through categories akin to "capital" and "non-capital" murder, can be perpetrated in the context of a wide variety of mitigating and aggravating circumstances, with varying degrees of gravity and culpability.[46] This conclusion is illustrated by, for example, the broad definition of certain categories of capital murder under Jamaican law, such as murder committed by a person in the course or furtherance of a robbery.[47] Notwithstanding the breadth of circumstances that might fall within these legal definitions, however, the mandatory death penalty seeks to impose capital punishment in all cases of capital and multiple non-capital murders, without distinction, save that provided in respect of pregnant offenders.  It subjects an individual who, for example, commits a capital murder in a impulsive act of passion or anger, to the equivalent and exceptional punishment as an individual who executes a capital murder after careful planning and premeditation.  

126.            Indeed, by its very nature, mandatory sentencing precludes consideration of whether the death penalty is an appropriate or permissible form of punishment in the circumstances of a particular offender or offense.  Moreover, by reason of its compulsory and automatic application, a mandatory sentence cannot be the subject of an effective review by a higher court.  Once a mandatory sentence is imposed, all that remains for a higher court to review is whether the defendant was properly convicted of an offense for which the death sentence is the prescribed punishment.  

127.            In the Commission’s view, these aspects of mandatory death sentences cannot be reconciled with Article 4 of the Convention in several respects.  As noted above, the mandatory death penalty in Jamaica imposes the death penalty on all individuals convicted of capital or multiple non-capital murders, despite the fact that such crimes can be committed with varying degrees of gravity and culpability.  Moreover, in the case of Article 2 of Jamaica's Offences Against the Person Act, the law presumes that the murder of certain individuals, for example judges or witnesses, will, by virtue of the person's employment, position or status alone warrant the imposition of the death penalty in all cases.  While the status of an individual may be a significant aggravating factor in determining whether the death penalty is an appropriate punishment, Jamaican law permits no account to be taken of the circumstances in which a particular murder may be committed or the degree of culpability of the offender.  It also allows for no comparison with murders involving individuals not falling within the prescribed categories, for example children, but which may in their circumstances be considered equally or more grave or culpable.  Not only does this practice fail to reflect the exceptional nature of the death penalty as a form of punishment, but, in the view of the Commission, it results in the arbitrary deprivation of life, contrary to Article 4(1) of the Convention.  

128.            More particularly, imposing a mandatory death penalty for all crimes of capital or multiple non-capital murders prohibits a reasoned consideration of each individual case to determine the propriety of the punishment in the circumstances.  By its nature, then, this process eliminates a reasoned basis for sentencing a particular individual to death, and fails to allow for rational and proportionate connections between individual offenders, their offenses, and the punishment imposed on them.  Implementing the death penalty in this manner therefore results in the arbitrary deprivation of life, within the ordinary meaning of that term and in the context of the object and purpose of Article 4(1) of the Convention. 

129.            Accepted principles of treaty interpretation suggest that sentencing individuals to the death penalty through mandatory sentencing and absent consideration of the individual circumstances of each offender and offense leads to the arbitrary deprivation of life within the meaning of Article 4(1) of the Convention.  Article 31(1) of the Vienna Convention on the Law of Treaties provides that a treaty shall be interpreted “in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose.” In this regard, the ordinary meaning of the term “arbitrary” connotes an action or decision that is based on random or convenient selection or choice rather than on reason or nature.[48] The U.N. Human Rights Committee suggested a similar meaning for the term "arbitrary" in the context of Article 6(1) of the ICCPR, in the case of Kindler v. Canada.[49] In that case, the victim, a citizen of the United States, was ordered extradited from Canada to face a possible death sentence in the State of Pennsylvania for a murder conviction.  The Committee ultimately found that Canada did not violate the victim’s right under Article 6(1) of the ICCPR not to be arbitrarily deprived of his life, by extraditing him to the United States without first seeking assurances from the U.S. Government that the death penalty would not be imposed.  In so concluding, the Committee suggested that Canada’s decision not to refuse extradition or to seek assurances, in order not to be considered arbitrary, must be shown to have been based upon a reasoned consideration of the circumstances of Mr. Kindler’s case: 

While States must be mindful of the possibilities for the protection of life when exercising their discretion in the application of extradition treaties, the Committee does not find that the terms of article 6 of the Covenant necessarily require Canada to refuse to extradite or to seek assurances.  The Committee notes that the extradition of Mr. Kindler would have violated Canada’s obligations under article 6 of the Covenant, if the decision to extradite without assurances would have been taken arbitrarily or summarily.  The evidence before the Committee reveals, however, that the Minister of Justice reached a decision after hearing argument in favor of seeking assurances.  The Committee further takes note of the reasons given by Canada not to seek assurances in Mr. Kindler’s case, in particular, the absence of exceptional circumstances, the availability of due process, and the importance of not providing a safe haven for those accused of or found guilty of murder.[50] 

130.            The Committee has therefore suggested that an arbitrary decision includes one that is taken in the absence of a reasoned consideration of the circumstances of the case in respect of which the decision is made.  In this respect, the mandatory death penalty can be regarded as arbitrary within the ordinary meaning of that term and in the context of the Convention as a human rights instrument.  In Jamaica, for example, the decision to impose the death penalty on a person for the crime of capital or multiple non-capital murder through a mandatory sentence is not based upon a reasoned consideration of a particular defendant’s case or upon objective standards that guide courts in identifying circumstances in which the death penalty may or may not be an appropriate punishment. Rather, the penalty flows automatically once the elements of the offenses of capital or multiple non-capital murders have been established.  The death penalty is also imposed regardless of the relative degree of gravity of the offense or culpability of the offender.  

131.            The mandatory death penalty cannot be reconciled with Article 4 of the Convention in another significant respect.  As noted previously, the Inter-American Court has emphasized several restrictions upon the implementation of the death penalty that flow directly from the terms of Article 4 of the Convention.  These include considerations relating to the nature of a particular offense, for example whether it can be considered a political or related common offense, as well as to factors concerning the circumstances of an individual offender, for example the offender's age at the time he or she committed the crime for which the death penalty may be imposed.  In this manner, Article 4 of the Convention itself presumes that before capital punishment may be lawfully imposed, there must be an opportunity to consider certain of the individual circumstances of an offender or an offense.  By its very nature, however, mandatory sentencing imposes the death penalty for all crimes of murder and thereby precludes consideration of these or any other circumstances of a particular offender or offense in sentencing the individual to death.  In Jamaica, this is subject to the exception in Article 3(2) to 3(6) of the Offences Against the Person Act, whereby a mechanism is prescribed for exempting pregnant offenders who are convicted of capital or multiple non-capital murders from sentences of death. 

132.            Similarly, by reason of its compulsory nature, a mandatory death sentence precludes any effective review by a higher court as to the propriety of a sentence of death in the circumstances of a particular case.  As indicated previously, once a mandatory sentence is imposed, all that remains for a higher court to review is whether the defendant was properly found guilty of a crime for which the sentence was mandated.  There is no opportunity for a reviewing tribunal to consider whether the death penalty was an appropriate punishment in the circumstances of the particular offense or offender.  This consequence cannot be reconciled with the fundamental principles of due process under Articles 4 and 8 of the Convention that govern the imposition of the death penalty, which, as the Inter-American Court has recognized, include strict observance and review of the procedural requirements governing the imposition or application of the death penalty.  The absence of effective review further illustrates the arbitrary nature of implementing the death penalty through mandatory sentencing, and leads the Commission to conclude that this practice cannot be reconciled with the terms of Article 4 of the Convention and its underlying principles.  

133.            The Commission is also of the view that imposing the death penalty through mandatory sentencing is not consistent with the terms of Article 5 of the Convention or its underlying principles.  Article 5 of the Convention provides as follows: 

Article 5 – Right to Humane Treatment

 

1.       Every person has the right to have his physical, mental, and moral integrity respected.

 

2.       No one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment.  All persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person. 

 

3.       Punishment shall not be extended to any person other than the criminal.

 

4.       Accused persons shall, save in exceptional circumstances, be segregated from convicted persons, and shall be subject to separate treatment appropriate to their status as unconvicted persons.

 

5.       Minors while subject to criminal proceedings shall be separated from adults and brought before specialized tribunals, as speedily as possible, so that they may be treated in accordance with their status as minors.

 

6.       Punishments consisting of deprivation of liberty shall have as an essential aim the reform and social readaptation of the prisoners. 

134.            Among the fundamental principles upon which the American Convention is grounded is the recognition that the rights and freedoms protected thereunder are derived from the attributes of the human personality.[51] From this principle flows the basic requirement underlying the Convention as a whole, and Article 5 in particular, that persons be treated with individual dignity and respect.  Accordingly, Article 5(1) guarantees to each person the right to have his or her physical, mental, and moral integrity respected, and Article 5(2) requires all persons deprived of their liberty to be treated with respect for the inherent dignity of the human person.  These guarantees presuppose that persons protected under the Convention will be regarded and treated as individual human beings, particularly in circumstances in which a State Party proposes to limit or restrict the most basic of the rights and freedoms of an individual, such as the right to liberty.  In the Commission's view, consideration of respect for the inherent dignity and value of individuals is especially crucial when determining whether a person should be deprived of his or her right to life.  

135.            The mandatory imposition of the death penalty, however, has both the intent and the effect of depriving a person of their right to life based solely upon the category of crime for which the offender is found guilty, without regard for the offender’s personal circumstances or the circumstances of the particular offense.  The Commission cannot reconcile the essential respect for the dignity of the individual that underlies Article 5(1) and 5(2) of the Convention, with a system that deprives an individual of the most fundamental of rights without considering whether this exceptional form of punishment is appropriate in the circumstances of the individual’s case. 

136.            Finally, the Commission considers that mandatory death sentences cannot be reconciled with an offender’s right to due process, as provided for in Article 8 of the Convention.  It is well-established that proceedings leading to the imposition of capital punishment must conform to the highest standards of due process.  The due process standards governing accusations of a criminal nature against an individual are prescribed in Article 8(1) and 8(2) of the Convention, and include the right to a hearing before a competent, independent and impartial tribunal, the right of the accused to defend himself or herself, personally or by counsel, and the right to appeal the judgment to a higher court. In addition, as noted previously, Article 4 of the Convention provides that the death penalty should be imposed only for the most serious offenses, and contemplates that certain factors attributable to a particular offender or offense may bar the imposition of the death penalty altogether in the circumstances of a particular case. 

137.            In the Commission’s view, therefore, the due process guarantees under Article 8 of the Convention, when read in conjunction with the requirements of Article 4 of the Convention, presuppose as part of an individual’s defense to a capital charge an opportunity to make submissions and present evidence as to whether a death sentence may not be a permissible or appropriate punishment in the circumstances of his or her case.  This may be on the basis, for example, that the crime for which they have been convicted should be considered a political or related common crime within the meaning of the Convention.  The due process guarantees should also be interpreted to include a right of effective review or appeal from a determination that the death penalty is an appropriate sentence in a given case.  

138.            The mandatory imposition of the death sentence is inherently antithetical to these prerequisites.  By its nature, it precludes any opportunity on the part of the offender to make representations or present evidence as to whether the death penalty is a permissible or appropriate form of punishment, based upon the considerations in Article 4 of the Convention or otherwise.  Again, this is subject to the exception under Article 3(2) to 3(6) of Jamaica's Offences Against the Person Act applicable to pregnant offenders. Also, as noted previously, mandatory sentencing precludes any effective review by a higher court of a decision to sentence an individual to death.  These violations of Article 8 of the Convention in turn compound the arbitrary nature of any deprivation of life perpetrated pursuant to mandatory sentences, contrary to Article 4(1) of the Convention. 

139.            Contrary to the current practice in Jamaica, the Commission considers that imposing the death penalty in a manner which conforms with Articles 4, 5 and 8 of the Convention requires an effective mechanism by which a defendant may present representations and evidence to the sentencing court as to whether the death penalty is a permissible or appropriate form of punishment in the circumstances of their case.  In the Commission’s view, this includes, but is not limited to, representations and evidence as to whether any of the factors incorporated in Article 4 of the Convention may prohibit the imposition of the death penalty. 

140.            In this regard, as the following discussion of international and domestic jurisdictions will indicate, a principle of law has developed common to those democratic jurisdictions that have retained the death penalty, according to which the death penalty should only be implemented through “individualized” sentencing.  Through this mechanism, the defendant is entitled to present submissions and evidence in respect of all potentially mitigating circumstances relating to his or her person or offense, and the court imposing sentence is afforded discretion to consider these factors in determining whether the death penalty is a permissible or appropriate punishment.  

141.            Mitigating factors may relate to the gravity of the particular offense or the degree of culpability of the particular offender, and may include such factors as the offender’s character and record, subjective factors that might have motivated his or her conduct, the design and manner of execution of the particular offense, and the possibility of reform and social readaptation of the offender.  Consistent with the foregoing discussion, the Commission considers that the high standards of due process and humane treatment under Articles 4, 5 and 8 of the Convention governing the lawful imposition of the death penalty should also be interpreted to require individualized sentencing in death penalty cases.[52] In the Commission’s view, this is consistent with the restrictive interpretation to be afforded to Article 4 of the Convention, and in particular the Inter-American Court’s view that Article 4 of the Convention should be interpreted “as imposing restrictions designed to delimit strictly the scope and application of the death penalty, in order to reduce the application of the penalty to bring about its gradual disappearance.”[53]  

142.            As the Commission noted previously, Jamaica has already considered it appropriate to prescribe in its legislation a mechanism by which a jury may determine whether an individual female offender should be spared the death penalty because she is pregnant.  The Commission therefore considers that the foundation already exists under Jamaican law to extend this mechanism, or to develop a comparable mechanism, to permit a jury to consider other potentially mitigating factors pertaining to an offender in determining whether the death penalty should be imposed in the circumstances of the offender's case.  

143.            In light of the foregoing analysis, the Commission considers that imposing the death penalty through mandatory sentencing, as Jamaica has done in respect of crimes of capital and multiple non-capital murders, is not consistent with the terms of Article 4(1), 5(1), 5(2), 8(1) and 8(2) of the Convention and the principles underlying those Articles.  

3.         Individualized Sentencing in Other International and Domestic Jurisdictions 

144.            The experience of other international human rights authorities, as well as the high courts of various common law jurisdictions that have, at least until recently, retained the death penalty, substantiates and reinforces an interpretation of Articles 4, 5, and 8 of the Convention that prohibits mandatory death sentences.  Based upon a study of these various international and domestic jurisdictions, it is the Commission’s view that a common precept has developed whereby the exercise of guided discretion by sentencing authorities to consider potentially mitigating circumstances of individual offenders and offenses is considered to be a condition sine qua non to the imposition of capital punishment in accordance with international human rights standards.  Mitigating circumstances requiring consideration have been determined to include the character and record of the offender, the subjective factors that might have influenced the offender’s conduct, the design and manner of execution of the particular offense, and the possibility of reform and social readaptation of the offender.  

145.            In the case of Lubuto v. Zambia,[54] for example, the victim had received a mandatory sentence of death for armed robbery.  The U.N. Human Rights Committee did not address the question of whether mandatory death penalties per se contravened the International Covenant on Civil and Political Rights (“ICCPR”).  The Committee found, however, that the absence of discretion on the part of a sentencing authority to consider the particular circumstances of an offense in determining whether the death penalty is an appropriate punishment may, in certain circumstances, contravene internationally-prescribed conditions for implementing capital punishment.  In this case, the Committee found that the absence of discretion contravened the requirement under Article 6(2) of the ICCPR[55] that the death penalty be imposed “only for the most serious crimes”.  The Committee concluded: 

Considering that in this case use of firearms did not produce the death or wounding of any person and that the court could not under the law take these elements into account in imposing sentence, the Committee is of the view that the mandatory imposition of the death sentence under these circumstances violates article 6, paragraph 2 of the Covenant. 

146.            The U.N. Special Rapporteur on Extra-Judicial, Summary or Arbitrary Executions has suggested more generally that the due process standards applicable in death penalty proceedings require, inter alia, that all mitigating factors be taken into account in imposing sentence: 

Proceedings leading to the imposition of capital punishment must conform to the highest standards of independence, competence, objectivity and impartiality of judges and juries.  All defendants in capital cases must benefit from the full guarantees for an adequate defense at all stages of the proceedings, including adequate provision for State-funded legal aid by competent defense lawyers.  Defendants must be presumed innocent until their guilt has been proven without leaving any room for reasonable doubt, in application of the highest standards for the gathering and assessment of evidence.  All mitigating factors must be taken into account.  A procedure must be guaranteed in which both factual and legal aspects of the case may be reviewed by a higher tribunal composed of judges other than those who dealt with the case at the first instance.  In addition, the defendant’s right to seek pardon, commutation of sentence or clemency must be guaranteed.[56] [emphasis added] 

147.            The highest courts of various common law jurisdictions in which the death penalty has, at least until recently, been retained have similarly concluded that the rational, humane and fair imposition of the death penalty requires discretion on the part of courts to examine the mitigating circumstances of individual offenders and offenses in sentencing individuals to death.  The United States Supreme Court in the case of Woodson v. State of North Carolina[57] found a mandatory death sentence for first degree murder under the law of North Carolina to violate the Eighth[58] and Fourteenth[59] Amendments to the U.S. Constitution.  North Carolina, like Jamaica, had established distinctions between capital, or first degree, and non-capital, or second degree, murder, and subjected only the former category of murder to the death penalty.[60] The Court nevertheless found North Carolina's law to be unconstitutional.  Among the grounds for the Court’s decision was a finding that the mandatory death penalty did not satisfy a basic constitutional requirement that the process for imposing a sentence of death be rational by incorporating “objective standards” that guide and regularize the process and make it amenable to judicial review.[61] The Court also found that the mandatory death penalty failed to allow the particularized consideration of relevant aspects of the character and record of each convicted defendant before the imposing upon him of a sentence of death, and was therefore inconsistent with the fundamental respect for humanity underlying the prohibition of cruel and unusual punishment under the Eighth Amendment.  In respect of the latter ground, the Court made the following compelling observations: 

In Furman, members of the Court acknowledged what cannot be fairly denied–that death is a punishment different from all other sanctions in kind rather than degree.  See 408 US, at 286-291, 33 L Ed 2d 346, 92 S Ct 2726 (Brennan J. concurring); id., at 306, 33 L Ed 2d 346, 92 S Ct 2726 (Stewart, J., concurring).  A process that accords no significance to relevant facets of the character and record of the individual offender or the circumstances of the particular offense excludes from consideration in fixing the ultimate punishment of death the possibility of compassionate or mitigating factors stemming from the diverse frailties of humankind.  It treats all persons convicted of a designated offense not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death.  

This Court has previously recognized that “[f]or the determination of sentences, justice generally requires consideration of more than the particular acts by which the crime was committed and that there be taken into account the circumstances of the offense together with the character and propensities of the offender.” Pennsylvania ex rel. Sullivan v. Ashe, 302 US 51, 55, 82 L Ed43, 58 S Ct 59 (1937).  Consideration of both the offender and the offense in order to arrive at a just and appropriate sentence has been viewed as a progressive and humanizing development.  See Williams v. New York, 337 US, at 247-249, 93 L Ed 1337, 69 S Ct 1079; Furman v. Georgia, 408 US, at 402-3, 33 L Ed 2d 346, 92 S Ct 2726 (Burger C.J., dissenting).  While the prevailing practice of individualizing sentencing determinations generally reflects simply an enlightened policy rather than a constitutional imperative, we believe that in capital cases the fundamental respect for humanity underlying the Eighth Amendment, see Trop v. Dulles, 356 US, at 100, 2 L Ed 2d 630, 78 S Ct 590 (plurality opinion), requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death. 

This conclusion rests squarely on the predicate that the penalty of death is qualitatively different from a sentence of imprisonment, however long.  Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.[62] 

148.            In the case of The State v. Makwanyane and McHunu,[63] the Constitutional Court of South Africa struck down the death penalty provision of the Criminal Procedure Act Nº 51[64] as inconsistent with South Africa’s 1993 Constitution.  As part of its analysis, that Court also suggested that the guided discretion provided to South African judges to consider the personal circumstances and subjective factors of a defendant in applying the death penalty satisfied in part the requirement that the death penalty not be imposed arbitrarily or capriciously, and reasoned as follows:[65] 

Basing his argument on the reasons which found favour with the majority of the United States Supreme Court in Furman v. Georgia, Mr. Trengove contended on behalf of the accused that the imprecise language of section 277, and the unbounded discretion vested by it in the Courts, make its provisions unconstitutional.

 

[. . .]

 

Under our court system questions of guilt and innocence, and the proper sentence to be imposed on those found guilty of crimes, are not decided by juries.  In capital cases, where it is likely that the death sentence may be imposed, judges sit with two assessors who have an equal vote with the judge on the issue of guilt and on any mitigating or aggravating factors relevant to sentence; but sentencing is the prerogative of the judge alone.  The Criminal Procedure Act allows a full right of appeal of persons sentenced to death, including a right to dispute the sentence without having to establish an irregularity or misdirection on the part of the trial judge.  The Appellate Division is empowered to set the sentence aside if it would not have imposed such a sentence itself, and it has laid down criteria for the exercise of this power by itself and other courts.[66] If the person sentenced to death does not appeal, the Appellate Division is nevertheless required to review the case and to set aside the death sentence if it is of the opinion that it is not a proper sentence.[67]

 

Mitigating and aggravating factors must be identified by the Court, bearing in mind that the onus is on the State to prove beyond a reasonable doubt the existence of aggravating factors, and to negate beyond a reasonable doubt the presence of any mitigating factors relied upon by the accused.[68] Due regard must be paid to personal circumstances and subjective factors which might have influenced the accused person’s conduct,[69] and these factors must then be weighed up with the main objects of punishment, which have been held to be: deterrence, prevention, reformation, and retribution.[70] In this process “[e]very relevant consideration should receive the most scrupulous care and attention”,[71] and the death sentence should only be imposed in the most exceptional cases, where there is no reasonable prospect of reformation and the objects of punishment would not be properly achieved by any other sentence. [72]

 

There seems to me to be little difference between the guided discretion required for the death sentence in the United States, and the criteria laid down by the Appellate Division for the imposition of the death sentence.  The fact that the Appellate Division, a court of experienced judges, takes the final decision in all cases is, in my view, more likely to result in consistency of sentencing, than will be the case where sentencing is in the hands of jurors who are offered statutory guidance as to how that discretion should be exercised.[73] 

149.            Similarly, in the case of Bachan Singh v. State of Punjab,[74] the appellant argued  before the Supreme Court of India that section 354(3) of the Indian Criminal Procedure Code of 1973, contravened the requirement under Article 21 of the Indian Constitution that “[n]o person shall be deprived of his life or personal liberty except according to procedure established by law”, because the provision provided judges with too much discretion in determining whether offenders should be sentenced to death.[75] The Indian Supreme Court rejected the appellant’s contention in this regard.  This was in part because, in the Court’s view, it was consistent with the requirements of Article 21 for the legislation to leave the imposition of the death penalty to “the judicial discretion of the Courts which are manned by persons of reason, experience and standing in the profession” who exercise their sentencing discretion “judicially in accordance with well-recognized principles crystallised by judicial decisions directed along the broad contours of legislative policy towards the signposts enacted in section 354(3).”[76] In reaching this conclusion, the Court articulated the following propositions intended to guide judges in India in exercising their sentencing discretion relating to the death penalty: 

(a)      the normal rule is that the offence of murder shall be punished with the sentence of life imprisonment.  The Court can depart from that rule and impose the sentence of death only if there are special reasons for doing so.  Such reasons must be recorded in writing before imposing the death sentence. 

(b)     while considering the question of sentence to be imposed for the offence of murder under section 302, Penal Code, the Court must have regard to every relevant circumstance relating to the crime as well as the criminal.  If the Court finds, but not otherwise, that the offence is of an exceptionally depraved and heinous character and constitutes, on account of its design and the manner of its execution, a source of grave danger to the society at large, the Court may impose the death sentence.[77]  

150.            The Court also emphasized the crucial role that mitigating factors play in the humane imposition of capital punishment.  The Court stated that the “scope and concept of mitigating factors in the area of the death penalty must receive a liberal and expansive construction by the Courts in accord with the sentencing policy written in section 354(3),” and opined that  

[a] real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality.  That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.[78] 

151.            The experience in other international and domestic jurisdictions therefore suggests that a court must have the discretion to take into account the particular circumstances of an individual offender and offense in determining whether the death penalty can and should be imposed, if the sentencing is to be considered rational, humane and rendered in accordance with the minimum requirements of due process.  The individual circumstances to be considered have been determined to include the character and record of the offender, the subjective factors that might have influenced the offender’s conduct, the design and manner of execution of the particular offense, and the possibility of reform and social readaptation of the offender.  Authorities in these jurisdictions have also suggested that, in order to be exercised in a rational and non-arbitrary manner, the sentencing discretion should be guided by legislative or judicially-prescribed principles and standards, and should be subject to effective judicial review, all with a view to ensuring that the death penalty is imposed in only the most exceptional and appropriate circumstances.  In the Commission's view, these principles should also be considered in interpreting and applying Articles 4, 5 and 8 of the Convention, so as to require individualized sentencing in implementing the death penalty.  To accept any lesser standard would, in the Commission’s view, fail to afford sufficient protection to the most fundamental of rights under the Convention. 

4.            The Cases Before the Commission 

a.            Mandatory Death Penalty 

152.            As indicated previously, the victims in the four cases that are the subject of this Report were convicted of capital murder, or multiple non-capital murders, under Jamaica's Offences Against the Person Act. Murder for the purposes of the Act is defined as the unlawfully killing of another person with the intent to kill or to cause serious bodily injury.[79]   Once an offender is found guilty of capital murder, Article 3(1) of the Act requires a court to impose the death penalty.  Similarly, the death sentence is mandatory for a conviction for multiple non-capital murders as provided for in Article 3(1A) of the Act. With the exception of the pregnancy provisions in Article 3(2) to 3(6) of the Act, there are no provisions in the Act that permit a judge or jury to consider the personal circumstances of an offender or his or her offense, such as the offender’s record or character, the subjective factors that may have motivated his or her conduct, or the offender’s likelihood of reform or social readaptation, in determining whether the death penalty is an appropriate penalty for a particular offender in the circumstances of the offender’s case.  Upon satisfying the elements of Article 3(1) or 3(1A) of the Act, death is the automatic penalty. 

153.            Consequently, in the cases within this Report, the Commission concludes that once the victims were found guilty of their crimes, the law in Jamaica did not permit a hearing by the courts as to whether the death penalty was a permissible or appropriate penalty for those victims.  There was no opportunity for the trial judge or the jury to consider such factors as the victims’ characters or records, the nature or gravity of the offenses, or the subjective factors that may have motivated the victims’ conduct, in determining whether the death penalty was an appropriate form of punishment.  The victims were likewise precluded from making representations on these matters, which accounts for the absence of evidence of such factors in the records of these cases.  The courts sentenced the victims based solely upon the category of crimes for which they had been found responsible.  

            b.            Prerogative of Mercy 

154.            The Commission is aware of the Governor General's authority under the Constitution of Jamaica to grant a pardon or respite, or to substitute a less severe punishment for that imposed on any person, in death penalty and other cases, on recommendation of the Jamaican Privy Council.  The Commission does not, however, consider that the exercise of the Prerogative of Mercy by the Jamaican Privy Council provides an adequate opportunity consistent with the requirements of Articles 4, 5 and 8 of the Convention for the proper implementation of the death penalty through individualized sentencing.  The authority of the Executive in Jamaica to exercise its Prerogative of Mercy is prescribed in Sections 90 and 91 of the State's Constitution: 

90.(1)  The Governor General may, in Her Majesty's name and on Her Majesty's behalf-

 

(a)      grant to any person convicted of any offence against the law of Jamaica a pardon, either free or subject to lawful conditions;

(b)      grant to any person a respite, either indefinite or for a specified period, from the execution of any punishment imposed on that person for such an offence;

(c)      substitute a less severe form of punishment for that imposed on any person for such an offence; or

(d)      remit the whole or part of any punishment imposed on any person for such an offence or any penalty or forfeiture otherwise due to the Crown on account of such an offence. 

(2)      In the exercise of the powers conferred on him by this section the Governor-General shall act on the recommendation of the Privy Council. 

91.(1) Where any person has been sentenced to death for an offence against the law of Jamaica, the Governor-General shall cause a written report of the case from the trial judge, together with such other information derived from the record of the case or elsewhere as the Governor-General may require, to be forwarded to the Privy Council so that the Privy Council may advise him in accordance with the provisions of section 90 of this Constitution. 

(2)      The power of requiring information conferred on the Governor-General by subsection (1) of this section shall be exercised by him on the recommendation of the Privy Council or, in any case in which in his judgement the matter is too urgent to admit of such recommendation being obtained by the time within which it may be necessary for him to act, in his discretion.[80]  

 

continued...


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[37] I/A Court H.R., Restrictions to the Death Penalty (Arts. 4(2) and 4(4) American Convention on Human Rights), Advisory Opinion OC-3/83, (8 September 1983), Annual Report 1984, p. 31, para. 52.

[38] Article 6 of the ICCPR provides as follows:

Article 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.

2. In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgment rendered by a competent court.

3. When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall authorize any State Party to the present Convention to derogate in any way from any obligation assumed under the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide.

4. Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases.

5. Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.

6. Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant. 

[39]See e.g. U.N.H.R.C., Baboheram-Adhin et al. v. Suriname, Communication Nos. 148-154/1983, 4 April 1985, para. 14.3.

[40] See e.g. Anthony McLeod v. Jamaica, Communication Nº 734/1997, U.N.Doc CCPR/C/62/734/1997.

[41] See e.g. Patrick Taylor v. Jamaica, Communication Nº 707/1996,  U.N. Doc. CCPR/C/60/D/707/1996.

[42] Report by the U.N. Special Rapporteur on Extra-Judicial Executions, Mr. Bacre Waly Ndiaye, submitted pursuant to Commission on Human Rights Resolution 1994/82, Question of the Violation of Human Rights and Fundamental Freedoms in any part of the World, with particular reference to Colonial and Other Dependent Countries and Territories, U.N. Doc. E/CNB.4/1995/61 (14 December 1994) (hereinafter "Ndiaye Report"),  para. 377.

[43] See e.g. Case Nº 9260 (Clifton Wright v. Jamaica), Annual Report of the IACHR 1987-88, 16 September 1988, p. 154.

[44] Woodson v. North Carolina 49 L Ed 2d 944, 961.

[45] Advisory Opinion OC-3/83, supra, para. 55.

[46] In 1953, the British Commission on Capital Punishment noted that “there is perhaps no single class of offences that varies so widely both in character and culpability as the class comprising those which may fall within the comprehensive common law definition of murder…no one would now dispute that for many of these crimes it would be monstrous to inflict the death penalty. The view is widely accepted that this penalty should be reserved for the more heinous offences of murder.” Royal Commission on Capital Punishment, September 1953 Cmnd 8932, Exh. 20. Even in those jurisdictions in which a distinction has been drawn between capital and non-capital murder, experience indicates that varying degrees of culpability exist within categories of capital murder which may warrant discriminate application of the death penalty. See e.g. Woodson v. North Carolina, 49 L Ed 2d 944, 956, n. 31 (indicating that data compiled on discretionary jury sentencing of persons convicted of capital murder in the United States reveal that the penalty of death is generally imposed in less that 20% of the cases).

[47] See e.g. The State v. Kevin Mykoo and Martin Dixon, Transcript, Criminal Appeal Nos. 24 & 28/96, at pp. 425, 473 (in instructing the jury on the law relevant to the case, defining "murder" as occurring when a person "by his own act caused the death of or inflicted or attempted to inflict grievous bodily harm on the person murdered", and that, to find the defendant guilty of capital murder, it must be shown that he was "present and actively assisting in the furtherance of the common purpose which in this case was to rob"). R. v. Cummingham [1982] A.C. 566 (P.C.) (defining murder as the unlawful killing of another person with the intent to kill or to cause serious bodily injury.).

[48] Webster’s Third International Dictionary.

[49] U.N.H.R.C., Kindler v. Canada, Communication Nº 470/1991, U.N. Doc. CPR/C/48/D/470/1991 (1993).

[50] Id., para. 14.6.

[51] The Preamble to the Convention recognizes that “the essential rights of man are not derived from one’s being a national of a certain state, but are based upon the attributes of the human personality.”

[52] The Commission refers in this regard to the interpretative approach advocated by the European Court of Human Rights, that its governing Convention is “a living instrument which…must be interpreted in light of present-day conditions.” See Tyrer v. United Kingdom (1978) 3 E.H.R.R. 1 at para. 31.

[53] Advisory Opinion on the Death Penalty, supra, at para. 57.

[54] Lubuto v. Zambia (Nº 390/1990), U.N. Doc. CCPR/C/55/D/390/1990/Rev. 1, (October 1995) (U.N. Human Rights Committee), para. 7.2.

[55] Article 6 of the ICCPR provides as follows:

Article 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.

2.                    In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgment rendered by a competent court.

3.                    When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall authorize any State Party to the present Convention to derogate in any way from any obligation assumed under the provisions of the Convention on the prevention and punishment of the Crime of Genocide.

4.                    Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases.

5.                    Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.

6.                    Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant. 

[56] Ndiaye Report, supra, para. 377. With respect to international sentencing standards more generally, the International Criminal Tribunal for the Former Yugoslavia provides one of the few modern examples of an international tribunal adjudicating serious violations of international humanitarian law, including genocide. While the penalty imposed by the Tribunal is limited to imprisonment, the Tribunal’s governing statute specifically provides that “[i]n imposing the sentences, the Trial Chambers should take into account such matters as the gravity of the offence and the individual circumstances of the convicted person.” Statute for the International Criminal Tribunal for the former Yugoslavia, Annex to the Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808, U.N., Doc. S/25704/Add.1/Corr.1 (1993), Art. 24. See similarly Statute for the International Criminal Tribunal for Rwanda, Annex to Security Council Resolution 955, U.N. SCOR, 49th Sess., 3453 mtg., U.N. Doc. S/RES/955 (1994), Art. 23.

[57] Woodson v. North Carolina 49 L Ed 2d 944.

[58] The Constitution of the United States, Amendment VIII (1791) (providing “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”).

[59] Id. Amendment XIV, Section I (providing “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”).

[60] Id., at 950, n. 4.

[61] Id. at 960. In its decision in the case Furman v. Georgia, 408 U.S. 238, the Supreme Court declared the vesting of standardless sentencing discretion in the jury in imposing capital sentences as contrary to the Eighth and Fourteenth Amendments. In rejecting North Carolina’s contention in Woodson that the inadequacies identified in Furman were remedied by withdrawing all sentencing discretion from juries in capital cases, the Court suggested that the mandatory sentencing scheme was no more rational, as the statute provided “no standards to guide the jury in its inevitable exercise of the power to determine which first-degree murderers shall live and which shall die”, and provided no way for the judiciary to “check arbitrary and capricious exercise of that power through a review of death sentences.” Id. 

[62] Id. at 961. See also Roberts (Stanislaus) v. Louisiana, 428 U.S., 325, 333, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976).

[63] The State v. Makwanyane and McHunu, Judgment, Case Nº CCT/3/94 (6 June 1995) (Constitutional Court of the Republic of South Africa).

[64] Section 277 of the Criminal Procedure Act Nº 51 provided:

Sentence of Death

(1)                 The sentence of death may be passed by a superior court only and only in the case of a conviction for:

(a)                 murder;

(b)                 treason committed when the Republic is in a state of war;

(c)                 robbery or attempted robbery, if the court finds aggravating circumstances to have been present;

(d)                 kidnapping;

(e)                 child-stealing;

(f)                  rape.

 

(2)                 The sentence of death shall be imposed

 

(a)                 after the presiding judge conjointly with the assessors (if any), subject to the provisions of s. 145(4)(a), or, in the case of a trial by a special superior court, that court, with due regard to any evidence and argument on sentence in terms of section 274, has made a finding on the presence or absence of any mitigating or aggravating factors; and

(b)                 if the presiding judge or court, as the case may be, with due regard to that finding, is satisfied that the sentence of death is the proper sentence.

[65] Id. pp. 32-36 (footnotes included). The Court went on to conclude that additional factors such as discrimination and the “imperfection” inherent in criminal trials may also lead to arbitrary results in the imposition of the death penalty, and determined further that such arbitrary results could not be appropriately remedied through strict due process, as had been endeavored in the United States. Id. at 36-43.  

[66] Criminal Procedure Act Nº 51 of 1977, section 322(2A) (as amended by section 13 of Act Nº 107 of 1990).

[67] Id. section 316A(4)(a).

[68] S. v Nkwanyana and Others 1990 (4) SA 735 (A) at 743E-745A.

[69] S v. Masina and Others 1990 (4) SA 709 (A) at 718G-H.

[70] S v. J 1989 (1) SA 669 (A) at 682G. “Generally speaking, however, retribution has tended to yield ground to the aspects of correction and prevention, and it is deterrence (including prevention) which has been described as the ‘essential’, ‘all important’, ‘paramount’, and ‘universally admitted’ object of punishment.” Id. at 682I-J (cited with approval in S v P 1991 (1) SA 517 (A) at 523G-H. CF. R. v Swanepoel 1945 AD 444 at 453-455.

[71] Per Holmes JA in S v Letsolo 1970 (3) SA 476 (A) at 477B (cited with approval by Nicholas AJA in S v Dlamini 1992 (1) SA 18 (A) at 31I-32A in the context of the approach to sentencing under section 322(2A)(b) of the Criminal Procedure Act Nº 51 of 1977).

[72] S v Senonohi 1990 (4) SA 727 (A) at 734F-G; S v Nkwanyana, supra at 749A-D.

[73] Id. at 35-36.

[74] Bachan Singh v. State of Punjab, (1980) 2 S.C.C. 475.

[75] Id. at 509-510.

[76] Id. at 516.

[77] Id. at 515.

[78] Id. at 534.

[79] R. v. Cunningham [1982] A.C. 566.

[80] The Jamaica (Constitution) Order in Council 1962, Second Schedule, Sections 90, 91.