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By Justin L. Simon QC

Following The Daily Observer’s page 3 news item in Tuesday’s edition, I wish to share my views on this ongoing murder investigation, and the law as it relates to a conviction of murder.

Prior to November 2013, section 2 of the Offences against the Person Act, Chapter 300 of the Laws of Antigua and Barbuda provided that “Whomsoever is convicted of murder shall suffer death as a felon.” This meant that the only punishment for a convicted murderer was death which sentence was executed by hanging. This position has long been changed.

The Offences against the Person Act was amended by Act No. 13 of 2013 which received the Governor General’s assent on October 28, 2013 and shortly thereafter published in the Official Gazette. Section 2 now reads: “Whosoever is convicted of murder shall be sentenced to death or to imprisonment for life or for such lesser term as the court considers appropriate.” A new section 3D was added which provides that: “Before determining the sentence, the court shall give the prosecutor and the convicted person an opportunity to make submissions with respect to any matters relevant to the sentence to be imposed.”

Whilst therefore the sentence of death remains a punishment option, a convicted person need not be punished by a sentence of death, since life imprisonment or imprisonment for a specified term of years are additional options. The Judge’s decision will depend on the circumstances of the incident, along with the submissions made by the Director of Public Prosecutions and the convicted felon’s lawyer, each of whom will have the right and be given the opportunity to make recommendations on the appropriate sentence to the trial Judge.

Let’s face facts. The death penalty has never been a deterrent in respect of committing murder. Some advanced countries have abolished the death penalty altogether – not all. And my position has always been that this is a matter for the society to determine, and no country should compel us to do what they think is right. We are an independent country whose passage of laws, for the most part, should reflect our society’s norms. We have in fact created optional punishments for the crime of murder, and have left the Trial Judge to make that determination after considering the pleas of both the Prosecutor and Defence Counsel. As the DPP has been quoted by your correspondent, for the death penalty to be imposed the case must be “the worst of the worst and the rarest of the rare.”

When Scotland Yard’s assistance was requested in the Mullany murders (at Coco Point) many years ago, the government faced a similar position. The matter was turned over to the Director of Prosecutions to address the demands of the Scotland Yard authorities. And rightly so. The Antigua and Barbuda Constitution confers on the DPP the power to deal with all criminal proceedings, and (except only as pertain to official secrets, mutiny, or obligations under international law), he “shall not be subject to the direction or control of any other person or authority”: section 88(5) of the Constitution.

The public wants that murder solved, and the investigation brought to a successful close. That was the same heavy public feeling of fear and depression following the Mullany murders. Our DPP (the same person currently in office) was asked to intervene, and he brokered an acceptable arrangement with Scotland Yard ultimately leading to an arrest and a successful prosecution which brought a certain calm to the society.

Now is not the time for a debate over the death penalty. We need to see this matter closed, and Scotland Yard’s assistance is necessary. The DPP needs to be formally approached by the Executive and the Police High Command for his appropriate independent assistance. Let this be done now; too long we have tarried.

         Thoughts and views expressed in guest editorials do not necessarily reflect the opinion of Observer NewsCo, its management or staff.

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