Heads continue to roll with impunity in Jamaica

Anthony GOMES

Wednesday, April 02, 2014    

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THE uncivilised barbaric practice of beheading continues without partiality to the age or sex of the victims. We know of such primitive behaviour occurring in Middle Eastern countries such as Syria, but that region is in a state of civil war where daily existence is a matter of life and death. But why in Jamaica, where the level of civilisation, strongly embraced by Christianity, is so much higher?

In the minds of many, such crimes are deserving of the death penalty, as provided by the law of the land, but which law has been dormant since the 1980s due to the dictates of the UK Privy Council who themselves are at odds when determining the different characteristics between capital and non-capital murder that has created judicial concern in Jamaica's jurisprudence when dealing with decapitation.

An example is the November 14, 2005 Privy Council judgement in the case of Evon Smith v The Queen that caused disquiet in Jamaica until the Offences Against the Person Act was amended to give greater protection against being killed in your home by an intruder, with or without the intention to murder.

The judgement delivered by the Privy Council ruled that as Smith "had shown only one criminal purpose in committing the crime — murder — he should not be convicted of capital murder. If, on the other hand, he had killed his victim, while in the process of committing another offence, he would have been eligible for a conviction of capital murder. The statute defines capital murder as any murder committed in furtherance of a robbery, burglary or housebreaking, arson in relation to a dwelling house, or any sexual offence. Smith was charged with murdering Yvette Williamson in July 2000. He did so by breaking into her house in Manchester through a window and chopping her several times with a machete while she lay in bed".

Dissenters Lords Hoffman and Hutton, members of the Privy Council, could not understand why the Lords would think "the intruder who breaks in with the express purpose of killing the occupier should be regarded as less heinous and should be punished with less severity". The majority of Jamaicans may not be so steeped in the language of the law but believe that, as in the Smith case, a human life wilfully taken is deserving of no less severe punishment if the intruder's intention was to kill and steal or to steal and kill. In both cases a murderous criminal act had been committed, and in a layman's view should warrant the same penalty, except in clear cases of passion ie crime passionnel that do not involve sexual offences and without premeditation. This principle also applies today in the Oscar Pistorius trial in South Africa, which is soon to be determined and expected to present a self-defence argument.

Evon Smith is only one case since 1993, when the Privy Council handed down controversial judgements regarding capital murder and the death penalty. The Pratt and Morgan judgement was one such case, which dictated that prisoners incarcerated on death row for more than five years constituted cruel and inhumane punishment and should be removed from death row and their sentence commuted to life imprisonment.

David Coore, a former attorney general, saw these varied judgements as the Privy Council's determination to effectively abolish the death penalty, thereby preventing capital punishment taking place in any jurisdiction over which they have power and control. Delroy Chuck proposed that the statutory differentiation between capital and non-capital murder should be removed, leaving it to the judges to determine which offences should warrant capital or non-capital punishment. That would neutralise the Privy Council's influence in future referrals of this type, while reinforcing the need for a Caribbean Court of Justice with appellate jurisdiction exercising similar discretion.

The latest extraordinary determination delivered by the UK Privy Council relates to the murder of Assistant Commissioner of Police Gilbert Kameka by Massinissa Adams in 2007, whose appeal to the Privy Council was successful — a judgement that outraged Jamaicans — which quashed the earlier Jamaica-awarded death sentence. The Privy Council's judgement introduced a grounding against capital punishment not previously encountered, which rules capital punishment may only be applied when the facts of the crime are "most extreme and exceptional", ie "the worst of the worst, or the rarest of the rare". Does beheading fit into any of these categories?

The majority decision by the Law Lords almost sounds like a play on words, without due concern for the innocent life that has been extinguished.

"Thou shalt not kill" is a paramount commandment in any Christian society that appears to have been sacrificed for the sake of technical correctness, while casting a shadow of ineptness on the drafters of the Jamaican Act. The traditional teaching of the Roman Catholic Church does not exclude recourse to the death penalty if this is the only possible way of effectively defending human lives against the unjust aggressor. Cases in which the execution of the offender is an absolute necessity are very rare if not practically non-existent.

In the opinion of attorney Bert Samuels, if Jamaica cuts ties with the UK Privy Council the guidelines must still be followed; even if Jamaica accepts the Caribbean Court of Justice as its final court of appeal the Privy Council's judgements "would still be persuasive". Does this argument apply when/if Jamaica becomes a republic, or will our sovereignty remain forever compromised and capital crime awards handed down by the Jamaican bench, therefore, redundant?





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