Bahamian judges and lawyers must guard against the influence of “the London factor” and take complete responsibility for the sentencing of murder convicts, particularly in the new atmosphere created by discretionary sentencing.
The Hon. Denys Barrow, Justice of Appeal on the Eastern Caribbean Court of Appeal, delivered that admonition to local lawyers on Saturday at a seminar hosted by Freeport lawyer Maurice Glinton.
The seminar was designed to familiarize Bahamian lawyers with approaches to sentencing on murder convictions adopted in the Eastern Caribbean and Belize following the abolition of the mandatory death penalty.
Justice Barrow told the gathering of about 50 lawyers at the British Colonial Hiltonﾒs Victoria Room that the Privy Councilﾒs declaration in Bowe & Davis vs. The Queen ﾖ striking down the mandatory death sentence ﾖ ought to have been expected.
“Even so,” he warned them, “judges and lawyers will need to make significant adjustments to the idea of holding sentencing hearings after murder convictions and to the actual conduct of such hearings,” he said.
This adjustment, the justice suggested, would fundamentally be an attitude shift.
“Judges and lawyers now recognize or are recognizing that they need to fully prepare themselves to participate in the sentencing exercise,” Justice Barrow said.
“The experience has been that the preparation and participation required are significantly more than a normal or even a good effort. What is required is an all out best effort.”
According to Justice Barrow, “the London factor” is two-fold.
First, it consists of the impact on local judges and lawyers of the knowledge that there is a cadre of lawyers in London who will act pro bono for appellants to the Privy Council against death sentences.
“Defence lawyers in particular must be careful not to rely on the London lawyers to do for them, at the Privy Council stage or earlier, what the local lawyer should do before there is even an appeal, or if there is an appeal, before it reaches the final stage,” Justice Barrow exhorted.
Defence counsel, he asserted, must always be alert to ensure that they do all within their capacity to do, which avoids “an unnecessary dependency on others to do for us what we can do for ourselves, which is the true, new imperialism against which we must guard.”
The second aspect of the London factor is the belief that the Privy Council will always find a way to upset a death sentence.
“The belief that the Privy Council may ultimately be relied on to quash a death sentence must not be allowed to affect the approach that we take to sentencing,” Justice Barrow urged.
“First of all, it is a wrong belief.”
He pointed out that in ‘Bowe and Davis’ the Privy Council had dismissed Boweﾒs appeal against conviction and that dismissal had left standing the sentence of death. In the case of Davis, he said, the Privy Council had refused his leave to appeal, which also left standing the sentence of death.
“(Further), a reliance ﾖ be it ever so subtle ﾖ on the Privy Council to put right what local judges and lawyers should have got right in the sentencing court and in the court of appeal is dangerously close to a colonial mentality of dependency,” the justice warned.
“It also amounts to dereliction of duty and violation of principle. It is the duty of those who participate in a sentencing hearing to get it right.”
According to Justice Barrow, it should be no part of the final court of appealﾒs function to compensate for the failure of judges and lawyers who participated at first instance to conduct a proper exercise in sentencing.
“More than a violation of principle, it cannot be far short of cruel that the death penalty should be imposed on a murder convict which, as is later established on appeal, would not have been done had the extra effort been made,” he said.
Justice Barrowﾒs admonition to disregard the London influence tied in with his charge to local lawyers that they must now play a significantly increased role in that sentencing process.
By: Quincy Parker, The Bahama Journal
