Making Sense of the Privy Council’s Ruling in the ‘Compay’ Case

The issue of the death penalty has surfaced again within the context of the move toward having a referendum on a revised constitution. This is likely to be one of the least controversial of the issues because the majority of Vincentians seem to support retaining the death penalty. Even the Government and Opposition are agreed on this. In this kind of climate it is hard to be a supporter of the abolition of the death penalty. I have always had an inner struggle on this issue, a virtual war between gut feeling and intellectual reflection. The gruesomeness of some crimes sometimes forces you to the conclusion that persons guilty of such barbarity are not fit to remain in a civilised society, even if behind bars.{{more}} The usual questions arise, however, would the death penalty bring back the victim? Is this not simply revenge? Is the death penalty a deterrent? Then there are the religious arguments, with both sides claiming support from the bible. Furthermore, the death penalty is not automatic.

The other matter that will continue to be debated is that of the Caribbean Court of Justice as our final Court of Appeal. Because of statements made in the past some Caribbean people have jumped on to statements made by some of our political leaders as evidence that their interest in moving away from the Privy Council is to make it easier to continue to carry out the death penalty. This is really short changing the whole issue because to many persons the abolition of the Privy Council as our final Court of Appeal is to carry our independence to its logical conclusion, or partly so, because there are other inconsistencies in our behaviour and with some of our retentions that raise questions about what our independence really means. In this debate also there appears to be an assumption that to have our own Caribbean Court of Justice as our final Court of Appeal necessarily means that the judges who make up that body are going to instinctively favour or pronounce in favour of the death penalty.

The Court of Appeal in its ruling on Daniel Dick “Compay” Trimmingham’s appeal against the Death Sentence stated among other things: “Beyond falling into the category of reprehensible killings, because it was committed in furtherance of a robbery, the murder that the appellant committed was heinous because it was cold blooded and inhuman. It is the criminal culpability, the degree of moral guilt, present in this specific murder that made it appropriate to consider it as one of “the rarest of rare” cases in which the death penalty may be appropriate” It stated, too, “When the aggravating and the mitigating factors were weighed afresh in the balance we were satisfied beyond reasonable doubt that this particular murder required consideration of the imposition of the death penalty. After due consideration we were further satisfied beyond reasonable doubt that there was no basis upon which we could say that the object of punishment could be achieved by a sentence other than death. It is on this basis that we dismissed the appeal against the death penalty.” In the appeal before the Privy Council, Counsel argued ,among other things, that the case did not fall into the category of “the worst of the worst” which would justify a death sentence. He considered the imposition of the death penalty on a mentally retarded defendant as inhuman and degrading punishment and that the unconstitutional delay in the execution of the sentence made it ‘no longer lawful for the sentence of death to be carried out.’

The Lords of the Judicial Committee of the Privy Council in their judgement delivered by Lord Carswell made reference to determination by Judges in Caribbean Courts on what should constitute the basis for the imposition of a death sentence. This they said was based on Pipersburgh v the Queen (2008), which “received the approval of the Board…and should be regarded as established by law.” This they suggested was based on 2 principles which they identified as occurring in situations where the offence could be regarded as of “the most extreme and exceptional, ‘the worst of the worst’ or ‘the rarest of the rare’ “. Judges were to compare with other murder cases “and not with ordinary civilised behaviour” (a strange formulation). Furthermore, it should be a situation with no “reasonable prospect of reform of the offender” and that the punishment could not be achieved by means other than that of the death penalty.

The Privy Council’s Judgement is an interesting one and in my view really does not defer from the Court of Appeal’s Judgements on any nice point of law but on a determination in my view of the magnitude of the crime. They admitted that it was ‘undeniably a bad case’ but went on to say that it fell short “of being among the worst of the worst, such as to call for the ultimate penalty of capital punishment. The appellant behaved in a revolting fashion, but this case is not comparable with the worst cases of sadistic killings.” They opted for life imprisonment rather than the death sentence.

Wow! It could not be considered among the worst of the worst! What were they expecting? Cannibalistic behaviour? The sucking of blood, perhaps? To Vincentians this was among the most gruesome of crimes seen here, only surpassed by the beheading at the Bus Terminal. Clearly what stands out is that the members of the Court of Appeal and the Privy Council Lords are living in completely different environments that influence how they see and understand things. While it is true that being away from the environment as the Privy Council normally is, avoids being influenced by the environment, sometimes that understanding of the environment, of the feelings, of what transpires, of how the societies tick, is sometimes necessary. The Court of Appeal saw it as heinous, being cold blooded and inhumane. They considered it as among the ‘rarest of rare’ cases. They were satisfied ‘Beyond reasonable doubt’ that there was no other way of delivering the object of punishment than the death penalty. For the Privy Council having considered that it was not among the worst cases of sadistic killings, that was enough to prevent them from expressing an opinion on other grounds of appeal advanced on behalf of the appellant. Is this a clash of cultures? Of civilisations? Is it that these decisions are grounded in environments that have already adopted positions on this issue? If the beheading at the Leeward Bus Terminal ever reaches the Privy Council, it would be interesting to hear their judgement. “Not among the most sadistic, Perhaps?”

Dr Adrian Fraser is a social commentator and historian.