Saturday, June 2, 2007

Reports on Canditates' work in the CAPE Law Exam

Below are links for Reports prepared by the CXC on candidate's performance in past exams.

Read the reports to see what the weaknesses were in each paper and also to better understand the level of answers expected by the examiner.

1. May/June 2005 Report
2. May/June 2004 Report
3. May/June 2003 Report

Friday, June 1, 2007

Caribbean Legal Systems: One Argument for Caribbean Court of Justice

The following appeared in the Gleaner on October 19, 2006.
The difficulty faced by Easton Grant in obtaining a Visa to visit England to represent himself before the Privy Council may be used as an argument FOR the adoption of the Caribbean Court of Justice.
The Privy Council Judgment was delivered on the 7th December 2006 and may be found here.
published: Thursday October 19, 2006

Attorney General and Minister of Justice, A.J. Nicholson, has intervened in the case involving Easton Grant, a Jamaican man, who is attempting to represent himself before the London-based Privy Council, but has been refused a visa to enter England.
Mr. Nicholson yesterday wrote to the British High Commissioner Jeremy Creswell, seeking a reversal of the decision.
Mr. Grant, a former teacher at the Montego Bay Community College in St. James, is seeking to have his termination of employment deemed illegal. He has so far been unsuccessful, having exhausted the local courts and has been granted leave by the Court of Appeal to take his case to the London lawlords.

Turned down
His case hearing is set for October 30 and 31, but the English High Commission turned down his visa application saying he had not demonstrated that he will return to Jamaica.

In his letter to Mr. Creswell yesterday, Mr. Nicholson noted that the Judicial Committee of the Privy Council remains Jamaica's final court of appeal.

"This, I believe, clearly implies that litigants will have access to their final court without impediment, and should not be denied the right to pursue their appeals to the highest level.

To date, Mr. Grant has opted to argue his case without legal representation, as is his right: he should be permitted to continue to do so especially before our highest court," Mr. Nicholson said.

Tuesday, May 8, 2007

Public Law Syllabus: Office of the Public Defender

Established in 1978, the Office of the Parlimentary Ombudsman was created to investigate and remedy complaints made by members of the public, of bad administration by the Jamaican Government, or its agencies or departments, while carrying out its function.

The Public Defender Act was passed in Jamaica in 1999, coming into effect April 16, 2000, repealing the Ombudsman Act and replacing the Office of the Parlimentary Ombudsman with the Office of the Public Defender with additional jurisdiction to investigate circumstances where it is alleged that a person's Constitutional rights have been violated.
There is a wealth of information about the role and duties of the Public Defender at the website for the Office of the Public Defender.

Monday, May 7, 2007

Public Law Syllabus : An in depth look at Hinds & Others v R

Hinds & Others v R (1975) 24 WIR 326 (PC)

Read David Rowe's article, "Trial by Jury- Right or Privilege" for a discussion of Hinds v R.

Below is an excerpt from the Privy Council Judgment :
In 1974 the Parliament of Jamaica passed the Gun Court Act 1974 as an ordinary Act of Parliament. It had not been preceded by legislation passed under the special procedure prescribed by s. 49 of the Constitution for an Act of Parliament to alter provisions of the Constitution.

The Act purported to establish a new court called the Gun Court. The court was empowered to sit in three Divisions, namely a Resident Magistrate’s Division, a Full Court Division and a Circuit Court Division. One or other of these Divisions was empowered to try certain kinds of offences which, prior to the coming into force of the Act were cognizable only in a Resident Magistrates Court or in a Circuit Court of the Supreme Court of Jamaica.
The Act provided, inter alia, that all the trials should be held in camera and that for certain specified offences the Gun Court should impose a mandatory sentence of detention at hard labour from which the detainee could only be discharged at the direction of the Governor General acting in accordance with the advice of a Review Board, a non-judicial body established by the Act.

The Review Board was to consist of five persons of whom the Chairman was to be a judge or a former Supreme Court or Court of Appeal Judge. None of the other members of the Board was a member of the Judiciary. They were to be the Director of Prisons, the Chief Medical Officer, a nominee of the Jamaica Council of Churches and a person qualified in psychiatry nominated by the Prime Minister after consultation with the Leader of the Opposition. Thus the majority of persons on the Review Board did not consist of persons appointed in the manner laid down in Chapter VII of the Constitution for persons entitled to exercise Judicial powers.

In substance therefore, the power to determine the length of any custodial sentence imposed for an offence under s. 20 of the Firearms Act 1967 was removed from the Judicature and vested in a body of persons not qualified under the Constitution to exercise judicial powers. The only function left to the Gun Court itself in relation to the length of the custodial sentence was the right to make recommendations for the consideration of the Review Board. Even though the Review Board was obliged to take the recommendations into consideration, it was not obliged to follow it. The power of decision rested with the Review Board alone.

Hinds and others were convicted in the Resident Magistrate’s Division of the Gun Court and sentenced to detention during the Governor General’s pleasure. They appealed to the Court of Appeal against conviction and sentence on the grounds, inter alia, that the provisions of the Act under which they had been tried and sentenced were in conflict with the Constitution of Jamaica and therefore void.

Held :
1. The provisions of the Act which provided for the establishment of a Full Court Division consisting of three Resident Magistrates were in conflict with the Constitution of Jamaica and, therefore, void since their practical consequence was to give to a court composed of members of the lower judiciary jurisdiction to try and to punish by penalties, extending in the case of some offences to imprisonment for like, all criminal offences, however grave, apart from murder or treason, committed by any person who had also committed an offence under s. 20 of the Firearms Act 1967.

2. The general rule in s. 20 (3) of the Constitution that trials should be held in public entrenches a previously existing common law rule. The rule however, was subject to the exceptions laid down in s. 20(4) and the exception applicable in this case was that which permitted persons other than the legal representatives of the parties to be excluded from the proceedings in the interests of public safety and public order. The Gun Court Act required all cases to be heard in camera. Parliament is vested with power under section 48(1) of the Constitution to make laws for the peace, order and good government of Jamaica.
Prima facie it is for Parliament to decide what is or is not reasonably required in the interests of public safety or public order. Such a decision involves considerations of public policy which lie outside the field of the judicial power and may have to be made in the light of information available to the Government of a kind that cannot effectively be adduced in evidence by means of the judicial process. In this case, therefore, in deciding the constitutionality of the section of the Act requiring all trials to be held in camera, the court must start with the presumption that the circumstances existing in Jamaica are such that hearings in camera are reasonably required in the interests of “public safety, public order or the protection of the private lives or persons concerned in the proceedings.”

3. Even though the Constitution does not expressly provide for Separation of Powers of the Executive, Legislature and Judicature, it is necessary by implication that the basic principle of separation of powers will apply to the exercise of their respective functions by these three organs of government. Thus even though the Constitution does not contain any express prohibition upon the exercise of legislation powers by the Executive or of judicial powers by either the Executive or Legislature, the doctrine of separation of powers sill applies.

It is a well established rule of construction applicable to constitutional instruments such as the Jamaican Constitution that the absence of express words to that effect does not prevent the legislature, the executive and the judicial powers of the state being exercisable exclusively by the Legislature, by the Executive and by the Judicature respectively.

The Parliament of Jamaica cannot, consistently with the separation of powers transfer from the judiciary to any executive body whose members are not appointed under Chapter VII of the Constitution a discretion to determine the severity of the punishment to be inflicted upon an individual member of a class of offenders.

The power conferred upon the Parliament to make laws for the peace, order and good government of Jamaica enables it not only to define what conduct shall constitute a criminal offence but also to prescribe the punishment to be inflicted on those persons who have been found guilty of that conduct by an independent and impartial court established by law. The carrying out of the punishment where it involves a deprivation of personal liberty is a function of the executive power; and subject to any restrictions imposed by a law, it lies within the power of the executive to regulate the conditions under which the punishment is carried out.

In the exercise of its legislative power, Parliament may, if it thinks fit, prescribe a fixed punishment to be inflicted upon all offenders found guilty of the defined offence – as, for example, capital punishment for the crime of murder. Or it may prescribe a range of punishments up to a maximum severity, either with or without a minimum, leaving it to the court by which the individual is tried to determine what punishment falling within the range prescribed by Parliament is appropriate in the particular circumstances of his case.

Thus Parliament in exercise of its legislative power may make a law imposing limits upon the discretion of the judges who preside over the courts by whom offences against that law are tried to inflict on an individual offender a custodial sentence the length of which reflects the judge’s own assessment of the gravity of the offender’s conduct in the particular circumstance of his case. What Parliament cannot do, consistently with the separation of powers is to transfer from the judiciary to any executive body whose members are not appointed under Chapter VII of the Constitution, a discretion to determine the severity of the punishment to be inflicted upon an individual member of a class of offenders.

Even though the Review Board would, no doubt, have acted in good faith, impartially and responsibly, a breach of a constitutional restriction is not excused by good intentions with which the legislative power has been exceeded by the particular law.

It is implicit in the very structure of a constitution on the Westminster Model that judicial power, however it be distributed from time to time between various courts, is to continue to be vested in persons appointed to hold judicial office in the manner and on the terms laid down in the Constitution. This was upheld in Liyanage v R [1966] 1 All E.R..650.

It followed that the provisions of the Act relating to the mandatory sentence of detention during the Governor General’s pleasure and to the Review Board were a law made after the coming into force of the Constitution which was inconsistent with the provisions of the Constitution relating to separation of powers and were void by virtue of s. 2 of the Constitution.
The Appellants whose trials for offences under Section 20 of the Firearms Act 1967 took place before a Resident Magistrate's Division of the Gun Court, were convicted by a court of competent jurisdiction; but that the sentences imposed upon them, "that they be detained at hard labour during the Governor General's pleaseure", were unlawful sentences which the Resident Magistrate had no power to award.
The Privy Council therefore recommended that the appeal of Hinds, Hutchinson, Martin and Thomas against their convictions be dismissed, the conviction against Jackson be restored and the sentences for the appellants be set aside, i.e. the cases be remitted to the Court of Appeal to pass such other sentences as they think ought to have been passed in substitution for the sentences passed by the Resident Magistrate.

Sunday, May 6, 2007

Public Law Syllabus: The Jury system

Section 2 of the Jury Act sets out the qualification of Jurors.

Note the exemptions set out in Schedule A of the Act. Schedule A is found on page 28 of the Act.

Section 31 deals with the required number of jurors for criminal matters.
Section 31 also sets out what is to be done where a juror dies or is discharged in the course of a criminal trial.

Section 32 deals with the required number of jurors for civil matters and what is to be done where a juror dies or is discharged in the course of a civil trial.

Section 34 deals with the appointment of and duties of the Foreman of the Jury.
The Ministry of Justice has prepared a short but concise paper on the Jury System in Jamaica. You may read it here. It is also available as a PDF brochure.

Saturday, May 5, 2007

Public Law syllabus : Appointment and removal of Judges under the Constitution

The Jamaican Constitution :

1. Here is the Jamaican Constitution. It may also be found here.

2. Chapter 7 of the Constitution concerns the Judiciary :

  • Section 98 speaks to the appointment of Judges to the Supreme Court
  • Section 100 (1) -(10) contains information about the removal of judges of the Supreme Court.
  • Section 103 & section 104 speak to the appointment of Judges to the Court of Appeal
  • Section 106 speaks to the circumstances under which and the means by which a Judge of the Court of Appeal may be removed from office.

3. The Judicature (Supreme Court) Act in section 6 (2) states :

No person shall be appointed to be a Judge of the Supreme Court unless he is a
member of the Bar of Jamaica, England, Northern Ireland or Scotland-

(a) of at least ten years standing; or

(b) such number of years standing as added to a period during which he has held the office of a Resident Magistrate in Jamaica prior to his becoming a member of such Bar amounts to not less than ten years.

4. The Judicature (Appellate Jurisdiction) Act in section 4(1) states :

A person shall not be appointed to be a Judge of the Court unless he is a member of the Bar of Jamaica, England, Scotland or Northern Ireland –

(a) of at least ten years standing; or

(b) who holds or has held office as a Judge of a court having unlimited jurisdiction in civil and criminal matters in some part of the Commonwealth or a court having
jurisdiction in appeals from any such court.

Friday, May 4, 2007

Public Law Syllabus: The Public Service Commission

1. Part 1 of Chapter 9 of the Jamaican Constitution governs the Public Service Commission.
Section 125 deals with the power to make appointments to public offices and to remove and to exercise disciplinary control over persons holding or acting in any such offices. This power rests in the Governor­ General acting on the advice of the Public Service Commission.
Section 125 (3) provides that before the Governor General can act on the advice of the Public Service Commission to discipline or remove any public officer, the officer must be informed of the advice. The officer has the option of applying for his case to be referred to the Privy Council. If the public officer makes the application for his case to go to the Privy Council, the Governor General will have to refer the case to the Privy Council and will not be able to act on the advice of the Public Service Commission to discipline or remove the officer. The Governor General, however, may, if the Public Service Commission so advises, suspend the public officer from the exercise of his office pending the determination of the case before the Privy Council.

Section 125 (4) states that where a reference is made to the Privy Council under the provisions of subsection (3) of this section, the Privy Council shall consider the case and shall advise the Governor­ General what action should be taken in respect of the officer, and the Governor­General shall then act in accordance with such advice.
Chapter 4 sets out the Code of acceptable conduct of public officers. Conduct covered under Chapter 4 includes :
  • Dress code
  • Substance abuse
  • Standard of behaviour & Service standards
  • Political Activity
  • Absence from duty
  • Conduct which is a conflict of interest
  • The acceptance of gifts
  • Engagement in Private Work
  • Confidentiality

Chapter 10 deals with rules governing disciplinary procedure.

For an explanation of the different Services Commissions, the Jamaica Information Service has prepared an article entitled "Office of the Services Commissions". The article can be viewed here.
UPDATED - MAY 17, 2007
Pay special attention to CHAPTER 10 of the Staff Orders. This Chapter deals with the discipline of Public Servants.
Here also is an interesting report entitled "Public Administration in Jamaica". It explains the legal structure (Executive, Legislative, Judiciary), the Public Service, Ombudsman etc.

Thursday, May 3, 2007

Public Law Syllabus: Locus Standi

Below is an excerpt from an article by Melanie Plimmer. The Title of the article is "Standing in someone else's shoes".
The article appeared in the New Law Journal 10 July 1998 - Vol 148 No 6848 p 1026.
The entire article , which is worth reading, may be found here (PDF) or here (HTML) so please read it.
The excerpt is from the section of the article that would be useful in answering the following CXC CAPE question,
"Effie is concerned when the government amends the Terrorism Act
empowering the police to conduct DNA tests on all persons
detained on suspicion of offences under the Act, without an order of the court.
Explain whether Effie could successfully bring an action against the government?"
Under the Commonwealth Constitutions any person who has alleged that a fundamental human rights provision has been, is being or is likely to be contravened, in relation to him may apply to the High Court for relief. (Section 14(1) of the Trinidad and Tobago Constitution.)
Caribbean courts have in general remained committed to the doctrine which states that an individual has no right to bring an action in court to litigate a matter of general public interest.
S/he must have sufficient relevant interest in order to be given locus standi.
In R v Sir Loius Mbanefo, ex parte Pierre (1966) 10 WIR 368 a Commission of Enquiry was appointed to enquire into subversive activity in Trinidad and Tobago. The applicant was called to give evidence, but refused and eventually sought an order of certiorari to quash the Commission's report. The application was dismissed for want of standing on the basis that,
". . . the applicant has to show that he is a person aggrieved. In otherwords, he has to show he is one who is wrongly deprived of or refused something to which he is legally entitled or upon whom a legal burden is cast, and not merely one who is dissatisfied with an act or decision".
See also the St. Lucia case of Gordon v Minister of Finance (1968) 12 WIR 416. An MP claimed that the Appropriation Act was in violation of the Constitution. He argued that membership of Parliament and his status as a taxpayer was enough to give him relevant interest, which was rejected by the court.
There have been more liberal trends in the case-law since the above decision such as:
-the wife of a deceased person who had been killed unlawfully by the police could complain of a breach of her fundamental rights as a result of an unlawful act or omission in respect of another; (Patrice Kareem v AG CA/Civ No 71 of 1987 (unreported).);
- a merchant company acting as shipping agents was held to be a person who could obtain redress under s 14 of the Constitution for a violation by the Chief Immigration Officer to grant equality before the law (Smith v LJ Williams (1981) 32 WIR 395.);and
- a citizen and tax-payer of St Lucia was held to have locus standi in seeking to prevent a Commission of Enquiry looking into alleged misappropriation of UN funds. (Lionel v AG of St Lucia (357 of 1995) (unreported).
Other articles and cases of note are :
by The Hon. Mr. Justice Benjamin J Odoki - Chief Justice of Uganda (at page 20 of the Journal)

Wednesday, May 2, 2007

Public Law Syllabus: Entrenched provisions explained

Section 49 of the Constitution lists certain parts of the Constitution as being entrenched or deeply/specially entrenched. What this means is that Parliament cannot seek to amend these sections in any way unless the procedure set out in the Constitution for their amendment is followed by Parliament.
The procedure for amending entrenched and deeply/specially entrencehed provisions is set out here. David Rowe's article, 'Trial by Jury-Right or Privilege' also sets out the procedure for amending entrenched provisions.

Two cases which address the issue of entrenchment are Hinds v R and the case of Independent Jamaica Council for Human Rights Ltd & Others v Attorney General & Another .
UPDATED MAY 16, 2007 :
Examples of entrenched provisions of the Jamaican Constitution :
  • Section 2 which establishes that (subject to sections 49 & 50 of the Constitution) where any other law is inconsistent with the Constitution, the Constitution shall prevail and the other law shall, to the extent of the inconsistency, shall be void.
  • Section 34 which establishes the Parliament and states that it shall which shall consist of Her Majesty, a Senate and a House of Representatives.
  • Section 35 and section 36 which deal with the Senate and the House of Representatives respectively.
  • Section 39 which sets out the Qualification for membership of Senate and House of Representatives.
  • Section 63 (2) which states that Sessions of Parliament shall be held at such times so that a period of six months shall not intervene between the last sitting of Parliament in one session and the first sitting thereof in the next session.
  • Section 64 (2), (3), (5) which deal with Prorogation and dissolution of Parliament.
  • Section 68(1) which establishes that the executive authority of Jamaica is vested in Her Majesty.

Tuesday, May 1, 2007

Public Law Syllabus : Supremacy of the Constitution

Subject to the provisions of sections 49 and 50 of this Constitution, if any other law is inconsistent with this Constitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void.
There are several cases that have enforced the Supremacy of the Constitution in the Commonwealth Caribbean.
1. Hinds v R (1977) AC 195 is considered to be the authority on the doctrine of Separation of the Legislative, Executive and Judicial Powers. It is a Jamaican case which concerned the constitutionality of the Gun Court Act of 1974. You might not find the full text of the judgment online, but it is discussed in several other cases which may be found online. One such case is Trinidad and Tobago Civil Rights Association v Patrick Manning. A discussion of Hinds v R may be found at page 28 of the judgment.
2. D.P.P. v Kurt Mollison (No. 2), which is reported at P.C.#88 of 2001, is another example of the way in which the Courts have enforced the principle of Constitutional Supremacy. This case also deals with the doctrine of Separation of Powers.
3. Charles Matthew v The State is a 2004 Trinidadian case which required the Privy Council to determine the constitutionality of the death penalty.
4. Three Jamaican cases which upheld the supremacy of the constitution are :
5. In February 2005, the Jamaican Government's bid to make the Caribbean Court of Justice the final Appeal Court of the island was disappointed by the Privy Council's Ruling in the case of Independent Jamaica Council for Human Rights Ltd & Others v Attorney General & Another .
The issue which came up before the Judicial Committee of the Privy Council was stated as follows:
On 30 September 2004 the Governor-General of Jamaica, acting under section 60 of the Constitution, gave his assent to three bills, the broad effect of which was to abolish the right of appeal to Her Majesty in Council and to substitute a right of appeal to a new regional court of final appeal, the Caribbean Court of Justice (“the CCJ”). The key question in this appeal is whether the procedure adopted in enacting that legislation complied with the requirements laid down in the Constitution.

The judgment of the Judicial Committee of the Privy Council declared the Caribbean Court of Justice Act 2004 along with the Caribbean Court of Justice (Constitutional Amendment) Act 2004 and the Judicature (Appellate Jurisdiction) Act 2004 unconstitutional and void.
6. Like Hinds v R the full text of the judgment of Collymore v Attorney General for Trinidad and Tobago might not be available online. However, you can find the case discussed in other cases. One such case is the 2003 Trinidad & Tobago case Alleyne & Others v Attorney General of Trinidad and Tobago. The reference to Collymore is found at page 55 of the judgment.
UPDATED : MAY 11, 2007:
** In January 2007 legal history was created in The Cayman Islands when that country's Court of Appeal ruled that no adult or juvenile can be sentenced to be detained at Her Majesty's pleasure or at the Governor's pleasure. Read more here.
**An excellent article written by Ms Dawn Palackdharry Singh discussing the hierarchy of the Laws in Trinidad and Tobago, including a brief discussion on the supremacy of the Constitution, may be found here.

Tuesday, April 17, 2007

Criminal Law : Sentencing: UPDATE: Jamaicans call for changes to sentencing schedule

The following article appeared on the Website of the Ministry of Justice :


Jamaicans attending the three justice reform consultations in Kingston, St. Ann and St. Thomas last evening (March 15) have advocated for more creative sentencing in order to achieve equity in the treatment of offenders and to reduce overcrowding in prisons. A recommendation was made from a member of the public for sentencing guidelines similar to what obtains in the United States of America to be introduced to the Jamaican Justice System. According to Mrs. Susan Reid-Jones, Project Advisor, Jamaicans feel that there was disparity in how persons were being sentenced for offences of a similar nature. “This is a matter that has been raised in just about every fora that we have held. People feel that there is need for greater consistency in sentencing”, she said.
Other concerns that were expressed in the consultations included overcrowding in cells and holding areas, improving access to legal aid, increasing the number of lawyers and their remuneration. Persons also raised the matter of how users of the court system were being treated by court staff and judges, arguing that judges should see themselves as providing a service to the public. Mrs. Reid-Jones said that there was general agreement that legal fees were too high and out of the reach of ordinary Jamaicans. She said that persons attending the consultations complained that lawyers do not attend Court until the entire legal fee has been paid.
Meanwhile, Project Manager of the Jamaican Justice Reform project, Mr. Peter Parchment, speaking on the importance of the consultations, said that the reform process was designed to engage a wide cross section of the Jamaican public in keeping with the principles and objectives of the Government’s Consultation Code and the need to ensure the credibility of the reform process. “We are using the process as an opportunity to empower the Jamaican people, improve their knowledge of the court and justice system and to ensure that the long-term development of justice service delivery reflects the views and responds to the needs and concerns of the Jamaican people. We understand that there are different perspectives on the direction of our justice system but we are confident that these consultations will result in consensus in some critical areas”, he said.
The justice reform project is expected to develop strategies and mechanisms to facilitate the modernization of the justice system to meet the current and future needs of Jamaicans. A final report on the consultations will be submitted to the national consultation which is scheduled for May this year.

Monday, April 16, 2007

Criminal Law: Sentencing: UPDATE : Earl Pratt to be released from prison

The following story appeared in the May 12 2007 edition of the Gleaner :

From death row to freedom - Earl Pratt to be released after decades in prison
published: Saturday May 12, 2007
Glenroy Sinclair, Assignment Coordinator

More than a decade after the United Kingdom Judicial Committee of the Privy Council recommended that his death sentence should be commuted to life imprisonment in a landmark ruling for the Caribbean, Earl Pratt will be released this month from prison.

"The Department of Correctional Services is awaiting a formal notification regarding the status of parole applicants for May 2007," Major Richard Reese, commissioner of corrections, disclosed yesterday.

The Gleaner understands that Pratt, now in his 50s, and another high-profile inmate, Mary Lynch, 62, who was convicted for killing her husband in the early 1990s, are likely to be released as early as next Friday, but Commissioner Reese is awaiting the parole unit to complete the paper work.

The 1994 Privy Council ruling was a landmark case for Pratt and his long-time friend, Ivan Morgan, who later died of natural causes in prison. Both were sentenced to death for the October 6, 1977 murder of Junior Bissick. On three separate occasions the death warrant was read to them and they were removed to the condemned cells, located next door the gallows, at the St. Catherine correctional facility, the maximum-security prison in the parish.

Breach of their rights
But after waiting more than five years to be executed, the U.K. Privy Council cited a breach of their constitutional rights, under Section 17 (1) of the Constitution Act, which provides that 'no person shall be subjected to torture or to inhuman or degrading punishment'. This was after they had appealed the case.

The Privy Council recommended in 1994 that because Pratt and Morgan were on death row for more than five years after their conviction, they should not be hanged. At the time, the recommendation of the UK Privy Council provided reprieve for 110 other death row inmates in Jamaica, who were also waiting for more than five years to be executed. No one has been hanged in Jamaica since 1988.

Sunday, April 15, 2007

Criminal Law: Sentencing; Insanity

The following article appeared in the Trinidad and Tobago's Newsday.

‘Free’ after 39 years
By FRANCIS JOSEPH Thursday, May 24 2007

SEVENTY-TWO-YEAR-OLD Christopher Ventour walked out of the St Ann’s Psychiatric Hospital a free man yesterday afternoon after spending the last 39 years there. But Ventour only tasted freedom for 20 minutes – there were no relatives or friends to meet him, nowhere safe for him to go, so on the advice of his lawyers, Ventour was readmitted to the hospital for “safe-keeping.”

Ventour was found guilty, but insane in 1968, for killing a young man in La Brea. He was the longest serving prisoner in Trinidad. His brief taste of freedom came yesterday after Justice Mustapha Ibrahim ordered in the morning that he be released forthwith in keeping with a Cabinet minute dated January 5, 2006. Ventour walked out of Ward 20 shortly after 4 pm with his lawyers Mark Seepersad and Gerald Ramdeen. He looked frail and weak. He had to be assisted by a hospital orderly. He walked slowly and at times appeared as if he was about to fall. There was a fluid bag hooked up to him due to a bladder problem. The first thing he did was to smoke a cigarette given to him by another inmate who was elated that Ventour was being released. Approached by reporters, Ventour said he was happy to be out of the hospital after 39 years. He insisted he was going home to his wife, although his lawyers reported that she had died a long time ago. He could not say how many children he has, although he said some live in the United States and others were “all over the place.”

Ventour said he intends to stay out of trouble. “I feel very happy to know I am leaving,”Ventour told Newsday. He said he hopes that his mental problems of 39 years ago would not affect him in the future. He said before he was arrested for murder, he used to hear voices in his head. Whenever that happened, he used to react and get violent. It was during one of these violent times, that he killed a young man, a crime for which he was tried and found guilty, but insane. He said he asked for help when he heard the voices, but no one took him on.
Then Ventour asked, “The man I killed? He dead yet?” Then he took another puff of his cigarette. Ventour was convicted before Trinidad and Tobago’s first female judge – Elizabeth Borne – and he was represented at his trial by Aeneas Wills. In 1998, doctors recommended that Ventour be released, but nothing was done. On January 5, 2006, Cabinet agreed that Ventour and other persons be released, but they remained warded at the hospital. On Monday, Justice Ibrahim ordered the release from St Ann’s of six prisoners – Simon Habib, Junior Collins, Wayne Allen, Roger Sobers, Winston Solomon and Lennard Sylvester. Ventour was not released on Monday because of a mix-up with his name. When the matter was called yesterday, Justice Ibrahim wasted no time in ordering his release. The judge gave the State until June 6 to decide on another prisoner Miguel Francois. Failure to take action by then will result in Francois also being released by court order.

Saturday, April 14, 2007

Criminal Law: Sexual Offences: Law amendment

This appeared in today's edition of the Gleaner Newspaper :

Sex laws report for Senate tomorrow
published: Thursday June 7, 2007

Far-reaching proposals contained in a report drafted by the parliamentary committee, which examined the Offences Against the Person Act and the Incest Punishment Act, will be tabled in the Senate tomorrow.

The committee wrapped up its final meeting in Gordon House yesterday, after putting the finishing touches on recommendations to amend laws relating to rape, incest and other sex crimes.

Changes proposed by the committee over its seven-month-long sitting will afford more protection to vulnerable persons, including the mentally challenged, women and children.
Chairman of the committee, Senator A.J. Nicholson, who is also the Attorney-General and Justice Minister, said the report should be debated in less than two weeks.
Preparing new legislation

He said the Office of the Chief Parliamentary Counsel had the task of preparing new legislation, which would be reviewed by Cabinet and introduced in the House for debate before the end of the calendar year.

Highlighting some key areas covered in the report, Senator Nicholson mentioned the definition of rape and sexual intercourse, marital rape, abolition of the common law presumption that a boy under 14 years was incapable of committing rape; incest and related matters.

Senator Nicholson argued that the companion pieces of legislation impacted mostly on young women.

He explained that certain activities that were reported to have taken place in schools, were alarming.
Another interesting incest case was reported in the Observer today as well.
By T K WHYTE Observer correspondent
Thursday, June 07, 2007

SPANISH TOWN, St Catherine - A 15-year-old schoolboy who pleaded guilty to having sexual intercourse with his 44-year-old mother, who the police described as an imbecile, was remanded to a place of safety Tuesday, when he appeared in the Spanish Town criminal court.The boy's father was charged with aiding and abetting the offence, and was offered $80,000 bail with surety. They are return to court on July 3 when the case will again be mentioned.
The boy was charged with incest and defilement of a female imbecile, while his father was slapped with charges of aiding and abetting carnal abuse and aiding and abetting the defilement of a female imbecile.
Senior St Catherine resident magistrate Lorna Errar Gayle also ordered that the court apply to the Director of Public Prosecutions for a nolle prosequi, to allow the case to go directly to the St Catherine Circuit Court for trial.
Detective sergeant Kirk Roach of the Guanaboa Vale police told the court that between December 2006 and January this year, the boy confessed to sexually assaulting his mother six times in the one room shack where he lives with his parents and three sibblins.
Although the mother reported her son's behaviour to his father - her common law husband - he took no action, and when she became tired of her son's abuse, she told neighbours who alerted the police.A visibly distraught Errar Gayle questioned the boy, who admitted to having sexual relations with his mother, and using a condom "one of the time."
The father told the judge he knew his son was "troubling him mother". "I talk to him and beat him two times and tell him not to go back and (I) move him out of the room," he said.
The police's account of the family also prompted the judge to order the Child Development Agency to investigate.According to the police, the father and his common law wife live with their three other young children at the house under deplorable and unsanitary conditions.
One of the children, a nine-year-old girl, reportedly had a wound to the head which was infected by maggots.The father told the judge that he had filled the wound with crushed crackers and corn meal to stop the maggots, but it did not help, so he took her to a doctor who had given him a prescription which he had not yet filled.

Friday, April 13, 2007

Criminal Law: Sexual Offences : Carnal Abuse

Section 48 : Carnally knowing girl under twelve.
(1) Whosoever shall unlawfully and carnally know and abuse any girl under the age of twelve years shall be guilty of felony, and, being convicted thereof, shall be liable to imprisonment for life.
(2) Any person who is convicted of an attempt to have carnal knowledge of any girl under the age of twelve years shall be liable to imprisonment for a term not exceeding ten years.
Section 50: Above twelve and under sixteen.
Whosoever shall unlawfully and carnally know and abuse any girl being above the age of twelve years and under the age of sixteen years shall be guilty of a misdemeanour, and being convicted thereof, shall be liable to imprisonment for a term not exceeding seven years: Provided that in the case of a man of twenty­three years of age or under, the presence of reasonable cause to believe that the girl was over the age of sixteen years shall be a valid defence on the first occasion on which he is charged with an offence under this section.
78. Proof of carnal Knowledge.
Whenever upon the trial of any offence punishable under this Act, it may be necessary to prove carnal knowledge, it shall not be necessary to prove the actual emission of seed in order to constitute a carnal knowledge, but the carnal knowledge shall be deemed complete upon proof of penetration only.
**UPDATED : MAY 16, 2007**
** 1. "...while the Offences Against the Person Act stipulates that a man prosecuted for carnal abuse receives a sentence of life imprisonment, a man between the ages of 20-23 can be found guilty of only a misdemeanour, if he can prove he had reasonable cause to believe the child was over 16 years old the first time he is charged for the offence." Read this article which appeared in the June 4 2006 edition of the Gleaner.
**2. The following article appeared in the Jamaica Observer on November 27, 2006 :

17-year-old sentenced to 3 years probation for carnal abuse
reported in the Jamaica Observer by Paul Henry
Monday, November 27, 2006

A judge jokingly told a 17-year-old youth who was sentenced to three years probation for carnal abuse in the Home Circuit Court on Friday to temporarily quit studying Biology in school as he had already completed the practical.
Justice Lloyd Hibbert made the comment after Attorney-at-Law Jean Barnes informed him that her client - a former Calabar High School student - was furthering his studies. As Barnes mentioned the subjects her client was pursuing at his new school, the judge interrupted when she listed Biology among them.
"Biology?" Hibbert asked. Hibbert then told the youth to drop Biology for a while as he had already "done the practical before the theory".Last June, a 13-year-old girl told her mother and the police that the youth was her "boyfriend" and that the two had had sex.
The girl left home for school on June 13, and when she did not return home her mother made a report to the Lawrence Tavern police in St Andrew. The youth was arrested and charged on June 19 for having sex with the girl. Based on information the mother received, the two were found at a house in Lawrence Tavern.The youth recently pleaded guilty to carnal abuse. Barnes told the court that the 13-year-old was introduced to her client by a mutual friend, and that the girl had expressed a desire to have sex with him.
Barnes added that adults find it difficult to control their sexual urges, much more a "boy his age" and that under the circumstances, it was difficult for her client to refuse having sex with the 13-year-old.
**3. The following article appeared in the Jamaica Observer's April 23rd 2007 edition.
Margarette May Macaulay
Monday, April 23, 2007
I have received many phone calls and have engaged in many discussions both public and private about the suspended sentence being enjoyed by the very adult male of the media for his carnal abuses of a 13-year-old girl over a period of 2 or 3 years.
It was also reported that in the course of the period of his violations of the child, he threatened her life if she ever reported his abuses. In the course of these calls and discussions, many requests were made of me to write a column about it, I consequently now do so.
Let me start by saying that I was rather startled to learn the identity of the judge who pronounced that her sentence of the convict would be suspended for a period of years, (the number now escapes me), because I have always found her to be caring, sensible and appropriately judicial in her conduct and pronouncements throughout matters conducted before her. I must say though that her sentence does not make sense to me.
We do not know what was contained in the indictment. Was there only one count in the indictment, or were there multiple counts? You see, each sexual violation/each sexual act of carnal abuse is an offence.
So, if that man had committed the act of carnal abuse 20 times, for example, there should be 20 counts charged because each is a separate offence. The number of counts charged in the indictment will, of course, depend on the cogency of evidence which exists to prove each and every separate act. This evidence would include the date, time and place the sexual violation by the perpetrator is alleged to have occurred. These must form a part of the wording of the counts charging the offence in the indictment.
From the media reports of the matter, on first blush, as the report related to violations over a number of years, it would seem that the indictment would have included several counts. However, this is merely a conclusion arrived at because of the length of time alleged during which the adult male violated the child. If only one charge of carnal abuse was laid, I conclude that the DPP did not have enough evidence to lay more than one. Read the continuation of the article.

Thursday, April 12, 2007

Criminal Law: Crimes by Omission

Please take a look at the Lecture Notes on the website of Sixth Form Law.

Wednesday, April 11, 2007

Criminal Law: Unlawful Act Manslaughter, Causation: Specimen Answer

Many of you have asked me to do this so, below is Question 4 of your recent test. I have provided a specimen answer to the question. Note the organisation in the answer, the application of only the relevant cases, the analysis of the issues.
You will notice that I have not come to any conclusion as to Fitzroy's guilt or innocence of manslaughter. I have done this deliberately as I believe it is up to the jury to decide this. I have, however, discussed Fitzroy's liability, which is what is required by the question. If, however, the examiner had asked me to decide whether or not Fitzroy is guilty or not, then I would be required to state in my answer whether he is or is not guilty.
Question 4 :
One Sunday afternoon Julia, 7 years old, was walking with some other children across a path. Julia came into contact with a live electric wire and was electrocuted. That wire had been illegally connected by Fitzroy to a Jamaica Public Service Pole and it ran across the path and a stream up to a house belonging to Fitzroy.
When efforts were made to rescue Julia from her predicament, another child, 8 year old Mark, who was using a piece of stick, received a shock and became unconscious. Mark also suffered severe burns to both his hands.
Mark was allergic to penicillin (an antibiotic) and wore an allergy alert bracelet on his right hand.
After 3 months, Mark developed an infection in the area of the burn while still in the hospital and was treated with penicillin. He had a severe allergic reaction which left him unable to breathe on his own. Six days after receiving the penicillin Mark died.

With what, if anything, can Fitzroy be charged for the deaths of Julia and Mark?

Note : this situation question has been adapted from the facts of the Jamaican case which may be found at the following citation: R v Fitroy Greenland 27 JLR 558

Sample Answer:

For both the deaths of Julia and Mark, Fitzroy can be charged for manslaughter as a result of an unlawful act. However, in the case of the charge for Mark’s death, Fitzroy may argue in his defence that the chain of causation has been broken and thus, if he is successful, he may be acquitted of this charge.

In order to secure a conviction for manslaughter by an unlawful act, the burden of proof rests on the prosecution to prove, beyond a reasonable doubt, four things.

The first thing the Prosecution must prove is that Fitzroy had actually committed an unlawful act. The case of R v Franklin held that the unlawful act must be a crime. It is submitted that the prosecution would have no problem in proving the unlawful, criminal act. In this case, the unlawful, criminal act is the illegal connection by Fitzroy of the electricity wires to the JPS Poles.
Secondly, the case of R v Lamb states that prosecution must prove that Fitzroy intended to commit the unlawful act albeit that he did not intend the tragic consequences that followed.
In order to prove the mens rea for unlawful act manslaughter, the Crown must establish that Fitzroy possessed the necessary mens rea for abstracting electricity [under the Larceny Act section 15]. The mens rea must go to the unlawful act itself. In this case, the mens rea required for the crime is maliciousness (intention or recklessness) or fraud. It must be noted, however, that it is not necessary for the prosecution to prove that the defendant realised the risk of causing some harm. As long as the reasonable man in his position would have so realised, this is sufficient mens rea.

So the Crown must show that the act was dangerous in the sense that a sober and reasonable person would inevitably recognize that it carried some risk of harm.This is the third thing to be established by the Prosecution. The case of DPP v Newbury and Jones stated that in judging whether the act was dangerous, the test is not whether the accused recognised that his act was dangerous but rather whether all sober and reasonable people would have recognised its danger.The test of whether an act is dangerous, therefore, is whether the sober and reasonable man would have appreciated that the act was dangerous in the light, not only of the circumstances actually known to the accused but also of any additional circumstances of which that hypothetical person would have been aware.

The fourth element required to be proved by the prosecution is that the act was a substantial cause of the deaths of both Julia and Mark.

To establish causation it is necessary to ask whether the defendant in fact caused the specified consequence of the offence. In other words, "But for what the defendant did would the consequences have occurred?"

In the case of Julia, it is submitted that the prosecution should have no difficulty establishing that the electric shock received by Julia was the operating cause of her death. As she received that shock because of her coming into contact with the live wire as a result of Fitzroy’s illegal electrical connection, Fitzroy would no doubt be convicted of manslaughter. In other words, but for Fitzroy’s actions, Julia would not have died. In order to escape liability, Fitzroy would, it is submitted, have to set up a defence negating either the mens rea or the actus reus.

Mark’s death, however, may have a different result. It may be argued logically that had it not been for Fitzroy’s unlawful act the sequence of events concerning Mark would not have happened, i.e. Mark would not have had to try to save Julia and thus receive the burn to his hands (which required his hospitalization) which then became infected and had to be treated with an antibiotic.

However, this argument would go too far as it would appear from decided cases that there may have been, in this case, an intervening act which broke the chain of causation. In R v Jordan, following his being stabbed by the defendant Jordon, the victim died in hospital, after receiving treatment to which he proved allergic. Even though his allergy was known, the doctors still gave him the medication to which he was allergic. It was held in that case that the treatment was palpably wrong and thus constituted a new intervening act, breaking the chain of causation. The defendant was acquitted of the murder.

However, in the case of R v Cheshire, the victim, having been shot by the defendant, had to be admitted to hospital where he received a tracheotomy. Six weeks after receiving the tracheotomy the victim developed breathing problems and it was shown that the hospital had been negligent in its treatment of the victim as they had not properly recognized the cause of the victim’s breathing problem. The court held that this did not break the chain of causation. So long as the defendant’s actions contributed significantly to the death, his actions need not be the sole or even the main cause of death. The court further stated that medical negligence or even recklessness did not exclude the defendant’s liability unless it (the medical negligence/recklessness) was so independent of his acts and so potent as to make his own contribution insignificant. Only in the most extraordinary and unusual case would treatment, whether right or wrong, given in good faith by a generally competent doctor, be regarded as independent of the original injury.

It was further emphasized in R v Smith that if, at the time of death, the original wound was still an operating cause and was still a substantial cause of the death, then death can be said to be a result of the wound even though some other cause is also operating.
Only when the second cause of death is so overwhelming as to make the original wound merely part of the history can it be said that death does not flow from the wound.
Fitzroy could raise this issue as a defence to the charge against him for Mark's death. In doing this he might very well be successful in, at least, raising some doubt in the minds of the jurors that the treatment received by Mark in hospital was a new intervening act which broke the chain of causation between his unlawful act and Mark's subsequent death.
If the prosecution is not able to overcome this reasonable doubt in the minds of the jury, then they have not successfully proved that Fitzroy's act caused Mark's death.
Fitzroy would be acquitted of the charge of manslaughter (by an unlawful act) of Mark.
(c) wrongjungle 2007.

Tuesday, April 10, 2007

Criminal Law: Strict Liability: Dangerous Drugs Act -Jamaica

Below are important sections of The Dangerous Drugs Act :

1. Definition of Ganja:
Section 2: “ganja” includes all parts of the plant known as cannabis sativa from which the resin has not been extracted and includes any resin obtained from that plant, but does not include medicinal preparations made from that plant;

2. Taking Steps preparatory to exportation of dangerous drugs:
Section 13
(5) : Every person who exports, causes to be exported, or takes any steps preparatory to exporting, any dangerous drug from the Island except under and in accordance with, the provisions of this Act shall be guilty of an offence against this Act.

Section 7A (1) Every person who imports or exports or takes any steps preparatory to exporting ganja shall be guilty of an offence…

(2) Where there is evidence-

(a) that the ganja for which an accused person has been charged under this section is packaged in such a way as to make it reasonably suitable for exporting; or
(b) that the ganja for which a person is charged was found to be in or at any prescribed port or place,

that evidence shall be prima facie evidence of steps being taken preparatory to the exporting of the ganja by the person charged.

Section 7B. Every person who deals in ganja; or

(a) cultivates, gathers, produces, sells or otherwise deals in ganja; or

(b) being the owner or occupier of any premises, uses such premises for the cultivation or storage of ganja or the selling or otherwise dealing in ganja or knowingly permits such premises to be so used;
(c) uses any conveyance for carrying ganja or for the purpose of selling or otherwise dealing in ganja, or being the owner or person in charge of any conveyance, knowingly permits it to be so used,

shall be guilty of an offence

3. Possession of Ganja :

Section 7C : Every person who has in his possession any ganja shall be guilty of an offence…

>>>Case Law:

1. Warner v Metropolitan Police Commissioner [1969] 2 AC 256 (upheld in R v McNamara (1988) 87 Cr App R 246) :

This case concerned possession of prohibited drugs. D who sold scent as a side line, collected two boxes which had been left for him at a cafe. One box contained scent, the other controlled drugs. D said he assumed both boxes contained scent.The Court of Appeal held that if D was in possession of the box and he knew the box contained something, he was inpossession of the contents, whatever they were.

-Criminal Law by J.C. Smith & Brian Hogan 7th edition

2. R v Lewis (1987) 87 Cr App R 270 :

The tenant of a house might be found to be in possession of drugs found on the premises although he did not know they were there provided he had the opportunity to find out that they were. Possession was being 'knowingly in control of a thing in circumstances which have involved an opportunity (whether availed of or not) to learn or discover, at least in a general way, what the thing is'.
-Smith & Hogan Criminal Law by David Ormerod 11th edition

3. R v Brian Bernal & Moore P.C App 56/96 [28.4.97]:
Issue: What is the Mens Rea required where accused charged with possession of ganja which is in a sealed container?
The court must be satisfied that the accused knew :
a. that he had the container; and
b. that the prohibited substance was in the container
4. R v Sylmore Dawkins RMCCA 77/89 [6.3.90] :
At a Jamaican airport a police dog sniffed out a piece of luggage while it was at the baggage chute. The baggage tag bore the name of Sylmore Dawkins. Dawkins claimed the suitcase when he was boarding the plane. When the suitcase was opened several tins were found and in them were vegetable matter resembling ganja.
Issue : was there sufficient evidence from which the inference could be drawn that the appellant had knowledge that the tins contained ganja?
The court held that the totality of the evidence was sufficient, to allow the learned resident magistrate to draw the inference she did and to conclude from all the circumstances that the appellant knew that ganja was in the tins.
- Harrison's Law Notes & Materials (2000)
Section 7D. Every person who-

(a) being the occupier of any premises knowingly permits those premises to be used for the smoking of ganja; or

(b) is concerned in the management of any premises which he knows is being used for such purpose as set out in paragraph (a); or

>>> Case Law :

1. Westminster City Council v Croyalgrange Ltd [1986] 2 All ER 353 : is always open to the tribunal of base a finding of knowledge on evidence that the defendant had deliberately shut his eyes to the obvious or refrained from enquiry because he suspected the truth but did not want to have his suspicions confirmed.

c) has in his possession any pipes or other utensils for use in connection with the smoking of ganja; or

(d) smokes or otherwise uses ganja, shall be guilty of an offence

Monday, April 9, 2007

Criminal Law: Recklessness : Caldwell? Cunningham? G?

Please note the distinctions between 'Caldwell' / Objective Recklessness and 'Cunningham' / Subjective type recklessness.

Note : The case of R v G has, for the most part, removed Caldwell Recklessness. Please become familiar with the decision in R v G

Most offences requiring a mens rea of recklessness now require Cunningham / Subjective Recklessness.

Sunday, April 8, 2007

Criminal Law: Mens Rea : Distinction between Specific intent and Basic Intent

You are required to know in detail the difference between crimes of "basic" intent and crimes of "specific" intent.

Saturday, April 7, 2007

Criminal Law: Damage to Property

In Jamaica the offence is Malicious Injury to Property under the Malicious injuries to Property Act .

Mens Rea under the MITP Act is explained in the judgment of R v G & Another

In the U.K., the offence is Criminal Damage under the Criminal Damage Act 1971 .

For the U.K. position, see Smith & Hogan 11th edition. Please note that this edition has been updated as follows:

2005 Update to Chapter 24 Smith & Hogan
2006 Update to Chapter 24 Smith & Hogan

The following cases represent the U.K. Position.

Ayliffe & Others Judgment

R v. Jones Judgment

Friday, April 6, 2007

Criminal Law: Larceny (Jamaica) vs Theft (UK)

Look at this website for a comparison of the old UK Larceny Act and their new Theft Act.

The position under the old act represents to a large degree the current law in Jamaica.


The relevant Statute covering Larceny in Jamaica is the LARCENY ACT.

Please note the differences between the provisions of the UK Theft Act and the Jamaica Larceny Act.

The offence in Jamaica is Larceny not Theft.

Thursday, April 5, 2007

Criminal Law: Offences against the Person Act 2005 Amendment

Below are the 2005 amendments to sections of the Offences against the Person Act as they relate to the provisions of the Act that deal with sentences of capital punishment and life imprisonment.

Note that capital punishment is no longer mandatory on a conviction of capital murder.

Wednesday, April 4, 2007

Criminal Law : Offences against the Person Act: Section 2. Murders

(1) Subject to subsection (3), every person to whom section 3 (1A) applies or who is convicted of murder committed in any of the following circumstances shall be sentenced in accordance with section 3 (1) (a), that is to say -

(a) in subsection ( 1 ) [of section 2 of the Offences against the Person Act] by deleting paragraph (d), relettering paragraphs (a) to (c) as paragraphs (b) to (d), and inserting the following as paragraph (a)-

"(a) any murder

(i) committed by a person if, in the course or furtherance of, arising out of, or ancillary to, that murder, the person commits an offence referred to in subsection (1 A); or committed by a person in the course or furtherance of, arising out of, or ancillary to, an offence referred to in subsection (1A), whether or not the individual murdered was an individual that the offender intended to murder in committing the offence;

(b) the murder of -

(i) a member of the security forces acting in the execution of his duties or of a person assisting a member so acting;
(ii) a correctional officer acting in the execution of his duties or of a person assisting a correctional officer so acting;
(iii) a judicial officer acting in the execution of his duties; or
(iv) any person acting in the execution of his duties, being a person who, for the purpose of carrying out those duties, is vested under the provisions of any law in force for the time being with the same powers, authorities and privileges as are given by law to members of the Jamaica Constabulary Force, or the murder of any such member of the security forces, correctional officer, judicial officer or person for any reason directly attributable to the nature of his occupation;

(c) the murder of any person for any reason directly attributable to -
(i) the status of that person as a witness or party in a pending or concluded civil cause or matter or in any criminal proceedings; or
(ii) the service or past service of that person as a juror in any criminal trial;

(d) the murder of a Justice of the Peace acting in the execution of his judicial functions;

(e) any murder committed pursuant to an arrangement whereby money or anything of value - (i) passes or is intended to pass from one person to another or to a third party at the request or direction of that other person; or
(ii) is promised by one person to another or to a third person at the request or direction of that other person, as consideration for that other person causing or assisting in causing the death of any person or counselling or procuring any person to do any act causing or assisting in causing that death;

(f) any murder committed by a person in the course or furtherance of an act of terrorism, that is to say, an act involving the use of violence by that person which, by reason of its nature and extent, is calculated to create a state of fear in the public or any section of the public.

(1A) For the purposes of subsection (1)(a), the offences referred to in this subsection are-

(a) burglary or housebreaking;
(b) arson in relation to a dwelling house;
(c) robbery; or
(d) any sexual offence.

(2) Subject to subsection (3), every person convicted of murder other than a person-

(a) convicted of murder in the circumstances specified in subsection (1) (a) to (f); or

(b) to whom section 3 (1A) applies,shall be sentenced in accordance with section 3 (1) (b).

(3) If in the case of any murder referred to in subsection (1) (not being a murder referred to in paragraph (e) of that subsection), two or more persons are convicted of that murder-

(a) the provisions of section 3 (1) (a) shall apply to any of those persons who-

(i) by his own act caused the death of, or inflicted or attempted to inflict grievous bodily harm on, the person murdered; or

(ii) himself used violence on that, person in the course or furtherance of an attack on that person; and

(b) any other persons convicted of the murder shall be sentenced in accordance with section 3(1)(b).

(4) (Subsection 4 deleted by Act 1 of 2005)

(5) In this section –

"correctional officer" has the same meaning as in the Corrections Act;

"judicial officer" means –

(a) a Judge of the Supreme Court or the Court of Appeal, the Master in Chambers or any person for the time being performing the functions of a Judge of the Supreme Court or Court of Appeal or of the Master in Chambers;

(b) the Registrar or Deputy Registrar of the Supreme Court, the Revenue Court or the Court of Appeal or any person for the time being performing the functions of Registrar or Deputy Registrar;

(c) a Resident Magistrate or any person for the time being performing the functions of a Resident Magistrate;

(d) a person employed in a court's office who carries out prosecution of offences or in the Office of the Director of Public Prosecutions or engaged to carry out functions on behalf of the Director of Public Prosecutions;

"member of the security forces" means a member of ­

(a) the Jamaica Constabulary Force;

(b) the Jamaica Defence Force to the extent that such member has been assigned to act in aid of the Police;

(c) the Island Special Constabulary Force;

(d) the Rural Police.

Tuesday, April 3, 2007

Criminal Law: Offences against the Person Act: Section 3

Section 3 : Sentence for Murder.

(1) Every person who is convicted of murder falling within-

(a) section 2 (1) (a) to (f) or to whom subsection (1A) applies, shall be sentenced to death or to imprisonment for life;

(b) section 2 (2), shall be sentenced to imprisonment for life or such other term as the court considers appropriate, not being less than fifteen years.

(1A) This subsection applies to a person who is convicted of murder and who, before that conviction, has been convicted in Jamaica-

(a) whether before or after the 14th October, 1992, of another murder done on a different occasion; or

(b) of another murder done on the same occasion.

(1B) (a) Where a court pronounces a sentence of death pursuant to subsection (1)(a) -(a) the form of the sentence shall be to the effect only that the person is to "suffer death in the manner authorized by law";

(b) every person so sentenced shall, after sentence, be confined to some safe place within the correctional institution, apart from all other inmates; and

(c) the sentence may be carried into execution as heretofore has been the practice.

(1C) In the case of a person convicted of murder, the following provisions shall have effect with regard to that person's eligibility for parole, as if those provisions had been substituted for section 6(1) to (4) of the Parole Act-

(a) where a court imposes a sentence of imprisonment for life pursuant to subsection (1)(a), the court shall specify a period, being not less than twenty years, which that person should serve before becoming eligible for parole; or

(b) where, pursuant to subsection (1)(b), a court imposes-

(i) a sentence of imprisonment for life, the court shall specify a period, being not less than fifteen years; or

(ii) any other sentence of imprisonment, the court shall specify a period, being not less than ten years,which that person should serve before becoming eligible for parole.

(1D) A person shall not be sentenced to death under this section by reason of a previous conviction for murder referred to in subsection (1 A) unless-

(a) at least seven days before the trial, notice is given to him that it is intended to prove the previous conviction; and

(b) before he is sentenced, his previous conviction for murder is admitted by him or is found to be proven by the trial Judge.

(1E) Before sentencing a person under subsection (1), the court shall hear submissions, representations and evidence, from the prosecution and the defence, in relation to the issue of the sentence to be passed.

Sentence of death not to be passed on pregnant woman.

(2) Where a woman convicted of murder falling within section 2(1) (a) to (f) or to whom subsection (1A) applies is found in accordance with the provisions of this section to be pregnant, the sentence to be passed on her shall be any sentence of imprisonment that may be imposed under subsection (1)(b) instead of sentence of death.

Procedure where woman convicted of capital offence alleges she is pregnant.

(3) Where a woman convicted of murder falling within section 2(1) (a) to (f) or to whom subsection (1A) applies alleges that she is pregnant, or where the court before whom a woman is so convicted thinks fit so to order, the question whether or not the woman is pregnant shall, before sentence is passed on her, be determined by a jury.

(4) Subject to the provisions of this subsection, the said jury shall be the trial jury, that is to say the jury to whom she was given in charge to be tried for the offence, and the members of the jury need not be re­sworn:

Provided that -

(a) if any member of the trial jury, after the conviction, dies or is discharged by the court as being through illness incapable of continuing to act or for any other cause, the inquiry as to whether or not the woman is pregnant shall proceed without him; and

(b) where there is no trial jury, or where a jury have disagreed as to whether the woman is or is not pregnant, or have been discharged by the court without giving a verdict on that question, the jury shall be constituted as if to try whether or not she was fit to plead, and shall be sworn in such manner as the court may direct.

(5) The question whether the woman is pregnant or not shall be determined by the jury on such evidence as may be laid before them either on the part of the woman or on the part of the Crown, and the jury shall find that the woman is not pregnant unless it is proved affirmatively to their satisfaction that she is pregnant.

(6) Where on proceedings under this section the jury find that the woman in question is not pregnant the woman may appeal under the Judicature (Appellate Jurisdiction) Act, to the Court of Appeal and that Court, if satisfied that for any reason the finding should be set aside, shall quash the sentence passed on her and instead thereof pass on her any sentence of imprisonment that may be imposed under subsection (1)(b):

Provided that the operation of the provisions of this subsection shall be deemed to be coincident with the operation of the Judicature (Appellate Jurisdiction) Act.