CABINET has approved the drafting of legislation expected to remove the ambiguity surrounding murders committed by persons who breach the sanctity of private homes with or without an intention to murder.

Attorney General and Minister of Justice A J Nicholson said that this had become necessary following the ruling of the Judicial Committee of the Privy Council in London in the case of Evon Smith vs The Queen in November last year.

The Privy Council held that Smith committed “a burglary in the course of a murder” and not “a murder in the course of burglary”, and therefore his crime could not be interpreted as capital murder under the 1992 amendment of the Offences Against the Person Act. Capital murder carries a mandatory death penalty.

Smith was charged with murdering Yvette Williamson in July 2000 and was found guilty on a capital murder charge, as the court judged that the act was committed in furtherance of a burglary or housebreaking. However, the case for the prosecution was that Smith killed Williamson, his former lover, while she lay in bed in her house.

Burglary is defined as breaking into premises at nights, while house-breaking is the term used when the act is done by day.

The Privy Council voted three to two against Smith’s conviction of capital murder in the Jamaican Supreme Court, on the basis that while the law seeks to protect persons in their homes, it did not follow that every murder committed within a victim’s home is a capital murder, “nor does it follow that a capital murder is committed by every person who kills after breaking into the victim’s dwelling house”.

The majority supported the argument brought by Smith lawyers that the murder of Williamson was not committed in the course of, or in furtherance of, burglary or housebreaking and did not constitute capital murder. They have asked that the death sentence be set aside and the case remitted to the Supreme Court to decide what sentence should be imposed.

But Nicholson told yesterday’s post-Cabinet press briefing that the government did not agree with that decision. He said that the government agreed with the minority position that “it is difficult to see why the legislature would think that the intruder who breaks in with the express purpose of killing the occupier should be regarded as less heinous and should not be punished with equal severity”.

He added: “We are going to do two things. First of all, we are going to make this offence capital murder. It is going to be the most heinous of all murder offences, that’s what we are going to project in the law. But, secondly, we are going to find words to put into the legislation to make sure that the interpretation given by the three judges (of the Privy Council), that that interpretation cannot be given thereafter.

“The Cabinet has therefore instructed that the necessary legislation be brought to Parliament to ensure that no such restrictive interpretation of the intention of Parliament be given to this law as that given by the three members of the Privy Council. In these and all circumstances, the sanctity of the home is paramount,” Nicholson told reporters.