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Execution of the intellectually disabled is unconstitutional in Trinidad says Privy Council, but courts may still impose death sentences


Today, the Judicial Committee of the Privy Council in London delivered a long awaited judgment in the appeals of Lester Pitman and Neil Hernandez, two intellectually disabled men who had both been convicted of murder and sentenced to the mandatory death penalty in Trinidad.

The cases were heard by the Privy Council, which is still the highest court of appeal in Trinidad and Tobago, in May 2016. Pitman and Hernandez, who both have extremely low IQs and are classified as intellectually disabled, brought appeals arguing that the imposition of a death sentence on someone with an intellectual disability amounts to cruel and unusual punishment and is prohibited under the Trinidadian Constitution.

In a judgment, delivered 23rd March 2017, the Privy Council accepted that the execution of a person with severe mental impairment, was a cruel and unusual punishment, and that someone with a significant learning disability like Pitman and Hernandez might be entitled to constitutional protection against execution. However, it found that the death penalty could still be imposed on them and it is up to the President to exercise mercy and commute their death sentences.

The Privy Council concluded that as Trinidad and Tobago retains the mandatory death penalty for murder, an offender can only avoid having the death sentence imposed by demonstrating that they cannot be held fully culpable for their actions and meet the legal test of diminished responsibility.

In cases like that of Pitman and Hernandez, where, despite severe mental impairment, the defence of diminished responsibility was not met or raised at the trial, the death sentences are therefore legitimate. The Court concluded that, prisoners in similar circumstances must therefore rely on the President to prevent their execution being carried out exercising the prerogative of mercy, subject to judicial review of that process by the Courts.

A press release is here, legal commentary is here and judgment is here.

Paul Bowen QC, instructed by Parvais Jabbar and Saul Lehrfreund of the Death Penalty Project at Simons Muirhead and Burton, appeared for the two men as part of a team comprising Edward Fitzgerald QC, Ruth Brander and Daniella Waddoup of Doughty Street Chambers, Alison McDonald QC of Matrix Chambers, Katherine Buckle of QEB Hollis Whiteman and Amanda Clift-Matthews, (In-house Counsel at the Death Penalty Project).