Nine Law Lords of the United Kingdom-based Privy Council have reserved their decision in a landmark case seeking to declare this country’s mandatory death penalty for murder as unconstitutional.

The board deferred their decision in the case after hearing lengthy submissions from lawyers for convicted murderer Jay Chandler and the State during hearings at the UK’s Supreme Court on Tuesday and yesterday.

UK Supreme Court President Lord Robert Reed, who chaired the board, said, “This is obviously an important case in which a lot was said on both sides of the argument.”

In the appeal, the Privy Council is being asked to consider the continued applicability of Section 6 of this country’s Constitution, which “saves” or insulates laws passed prior to Independence such as the death penalty and public health ordinances, being used in the Covid-19 pandemic, from review.

Chandler is relying on a 2018 ruling in a case from Barbados in which the Caribbean Court of Justice (CCJ), as that country’s final appellate court, said that the death penalty violated rights under its Constitution, which has a similar saving clause as T&T.

Presenting submissions on behalf of the State, yesterday morning, Howard Stevens, QC, called upon the Privy Council to not adopt the CCJ’s reasoning, which directly contradicts its position on the continued applicability of the saving clause in previous cases.

“There is no reason for the board to adopt this view,” Stevens said. While Stevens accepted the death penalty constituted cruel and inhumane punishment based on modern human rights norms, he suggested that the savings clause, which protects it from review, is supreme.

In his submissions for the State, Tom Poole, QC, sought to address Chandler’s second ground that even if the saving clause is upheld, the mandatory death penalty breaches the doctrine of the separation of powers as Parliament infringed on the sentencing discretion of the Judiciary by prescribing the sentence.

Poole said that such a prescription of a sentence does not breach the doctrine as Parliament is also permitted to criminalise conduct through legislation.

“The well established common law rule is that Parliament is entitled to set a prescribed sentence. This extends to all levels of punishment even the most severe,” Poole said.

Briefly responding to the submissions, Chandler’s lawyer Edward Fitzgerald, QC, claimed that the saving clause, which is included in several Caribbean countries’ constitutions, was meant to be transitional and not permanent.

He also maintained that the separation of powers applied as the Judiciary is being mandated to impose a cruel and unusual punishment in breach of the rule of law.

While the death penalty remains law, the sentence has not been carried out since late July 1999, when Anthony Briggs was executed for bludgeoning a taxi driver to death during in a botched robbery seven years earlier.

In 2011, Chandler was convicted of murdering Kern Phillip, a fellow remand prisoner at the Golden Grove Prison in Arouca in 2004. Chandler, 43, was accused of stabbing Phillip with a makeshift knife during airing time in the communal area of the prison. Chandler lost his appeal in the Court of Appeal and in 2018 the Privy Council dismissed his final appeal, which sought to have fresh medical evidence of his mental state at the time of the crime admitted.

Chandler’s case is important as if the Privy Council changes its position on the saving clause it would affect several other constitutional cases over human rights.

Chandler is also being represented by Douglas Mendes, SC, Rajiv Persad and Amanda Clift-Matthews, while Fyard Hosein, SC, and Hannah Fry are also representing the State.