The Road Traffic Act, which prescribes mandatory fines for speeding and other offences, is next on the hit list of laws that defence lawyers plan to take down on ground that it is unconstitutional.

"We have to look at all mandatory sentences through new eyes, against the background of the United Kingdom Privy Council's ruling in the Mollison case," said defence lawyer Deborah Martin. "I don't see how any sentence which is not determined by the judiciary can be upheld."

HYLTON. says ruling could open up a can of worms

But a victory for Martin and the other defence lawyers, said Solicitor-General Michael Hylton, would "open up a can of worms", as all manner of claims could be made against the Government.
The London-based Privy Council ruled last Wednesday that the governor-general had no right to determine the length of the prison sentence imposed on Kurt Mollison, who was convicted on April 21, 1997 at the age of 19 for the capital murder of Leila Brown three years earlier.

The rationale for the ruling, which will be applied to all juveniles in Mollison's category, was, in part, that the law which gave the governor-general the right to decide how much time juvenile capital murder convicts should spend in prison was wrong because it offended one of the founding principles of the Constitution, namely, the separation of judicial, legislative and executive powers.
"....judicial functions such as sentencing must be exercised by the judiciary...," the law lords said.
Martin, who first argued the point in the Mollison case when it came up before the local Appeal Court two years ago, said that in her opinion, sentences like the mandatory death penalty and the mandatory road traffic fines, which were essentially determined by Parliament through legislation, would have to be repealed based on the principles outlined in the Mollison case.

"It's a point that Mr Justice Henderson Downer has been hammering at for years...," Martin told the Sunday Observer last week. "He has always pressed the point whether it was raised or not... that sentencing is a function that is to be carried out solely by the judiciary... the argument has prevailed in the case of the Customs Act, which had to be changed to take away the commissioner of customs' right to impose fines; the drug laws, from which the mandatory prison term had to be removed; and now the Juveniles Act."
However, Hylton, who is planning to refute the point in relation to the death penalty when lawyers representing murder convict Lambert Watson challenge it before the English law lords later this year, disagreed.

"The law that prescribes the death penalty falls into a different category from the other laws that were amended," he said last week. "It cannot be challenged, it is protected by the Constitution."
Not so, said a senior lawyer who spoke on condition of anonymity. "The law that prescribes the death penalty, that is the Offences Against the Person Act, is not protected by any section of the Constitution because it was amended in 1992," the lawyer said. "So it cannot be rightly defined as a pre-constitutional law, and in any case, even if it was a pre-constitutional law it still wouldn't be immune to a constitutional challenge."

Downer, one of the most senior judges on the local appellate court bench, made the point on two occasions last year - first, in April when he requested a social inquiry report on capital murder convict, Shabadeen Peart, and again in November in the case of murder convict Dale Boxx.
Downer's request for the report was made with a view to giving Peart's lawyer, Jack Hines, the opportunity to present evidence to assist the court in deciding whether or not to sentence Peart to death, an action which would have overturned the conventional automatic death sentence that the Offences Against the Person Act prescribes for capital murder.

But Hines told the Sunday Observer that while he agreed with Downer's reasoning and was busily preparing to present mitigating evidence with a view to saving his client's neck, he wasn't sure if he would really get the opportunity when the case comes up on February 10.
"I don't know what will happen when the case comes up," Hines said. "That will depend on how the other two judges who heard Peart's appeal along with Mr Justice Downer rule."

Executive Class

Gardens with Gravel

Death to the Mullet!