The 'felony murder rule' enacted in s.2A Criminal Law Act 1979 of Trinidad and Tobago was constitutional but a mandatory death sentence on conviction of murder under s.2A was unconstitutional.Appeal from the judgment of the Court of Appeal of Trinidad and Tobago dismissing the appeal of the appellant ('K') from his conviction for murder and imposition of the death penalty. In 1998, four men including K robbed a beer garden and injured the proprietor who died of his injuries two days later. Three of the men, including K, were charged with murder and the fourth was granted immunity and testified for the prosecution. During the trial two of the three pleaded guilty to manslaughter. K was convicted of murder under s.2A Criminal Law Act 1979 as inserted by s.2 Criminal Law (Amendment) Act 1997 which provided that where a person embarked on the commission of an arrestable offence involving violence, and someone was killed in the course or futherance of that offence, he was liable to be convicted of murder, even if the killing was done without intent to kill or to cause grievous bodily harm. K appealed against conviction and sentence. K argued that: (i) s.2A of the 1979 Act was unconstitutional because it violated his rights to due process and the protection of the law under s.4(a) and (b) Constitution of Trinidad and Tobago and the presumption of innocence protected by s.5(2)(f); And (ii) the death sentence was unconstitutional.HELD: (1) The 'felony murder rule', permitting murder convictions based on what was called constructive malice had been part of the criminal law of Trinidad and Tobago for many years. The application of s.4(a) and (b) of the Constitution should not be unduly restricted. An alteration of the criminal law might be so unreasonable and oppressive as to be unconstitutional, but the Court of Appeal was right that the 1997 amendment of the Criminal Law Act, to reintroduce a common law rule which had been part of the law for many years, could not be considered as even remotely approaching the type of enactment that might reasonably be challengeable. Section 2A of the 1979 Act did not infringe the presumption of innocence in s.5(2)(f) of the Constitution. (Per Lord Steyn dissenting) A person convicted under s.2A would be liable to the discretionary death penalty and that would be a cruel and unusual punishment barred by s.5(2)(b) of the Constitution because the moral culpability of such a person might not be of the most serious character. It was unconstitutional to extend the potential reach of the death penalty in 1997 by enacting s.2A. (Per Lord Millett dissenting) Section 2A was unconstitutional because it enlarged the class of persons who were liable to the death penalty and was not saved from constitutional challenge by s.6 of the Constitution.(2) In Roodal v The State [2003] UKPC 78, the Privy Council held: (i) that s.4 Offences against the Person Act 1925, in requiring the death sentence to be passed on all defendants convicted of murder, without any consideration of the culpability and circumstances of the individual defendant, violated the prohibition in s.5(2)(b) of the Constitution on the imposition of cruel and unusual punishment; and (ii) that s.4 was not saved by s.6 of the Constitution to the extent that it mandatorily required sentence of death to be passed. Where the jury convicted under s.2A of the 1979 Act, it could rarely if ever be known whether they had convicted on the basis of constructive malice or not. While it might be provided, consistently with the Constitution, that proof of Constructive malice should be a sufficient ground of conviction, it could not consistently with s.5(2)(b) be provided that the death penalty should be passed on all those convicted on that ground. Such a sentence mandatorily passed would be arbitrary and disproportionate. For the reasons given in Roodal (supra) s.4 of the 1925 Act should be understood as authorising but not requiring the death penalty.Appeal against conviction dismissed. Appeal against conviction allowed.

[2003] UKPC 79

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