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Sentencing in Capital Cases Joe Middleton Amanda Clift-Matthews W Sentencing in Capital Cases Joe Middleton Amanda Clift-Matthews WITH Edward Fitzgerald QC In association with: Acknowledgements The Death Penalty Project would like to thank the authors and congratulate them on this significant body of work. In particular, we would like to express our gratitude to Edward Fitzgerald QC, who co-authored the original version of this book in 2007. Edward has been the driving force behind this new publication, which we hope will be of great assistance to all criminal justice professionals working in capital jurisdictions. This publication was made possible by a grant to The Death Penalty Project from the Magna Carta Fund of the United Kingdom Foreign and Commonwealth Office. © 2018 The authors All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording or any information storage retrieval system, without permission in writing from the authors. Copies of this report may be obtained from: The Death Penalty Project 87-91 Newman Street London W1T 3EY ISBN: 978-0-9576785-9-0 Contents Foreword The Honourable Mr Justice Adrian Saunders ................................................................................ vi Editors’ preface Saul Lehrfreund and Parvais Jabbar ................................................................................................ix Authors’ acknowledgements ..........................................................................................................xi Chapter 1: Introduction .........................................................................................................01 The decline of the mandatory death penalty in common law jurisdictions .......................................................02 Developments since 2007 ....................................................................................................................................02 The purpose of this book .....................................................................................................................................04 Legality and legitimacy of the death penalty ......................................................................................................05 Chapter 2: The decline of the mandatory death penalty in national and international law ........07 Abolition of the mandatory death penalty by domestic courts ..........................................................................08 Different directions taken in Ghana, Singapore and Malaysia ...........................................................................11 The decline of the mandatory death penalty in international law .....................................................................11 The position under the American Declaration and American Convention ...........................................................11 The irrelevance of the prospect of executive clemency ...........................................................................................12 The position under the International Covenant on Civil and Political Rights .....................................................13 The approach of the African Commission and African Court on People’s and Human’s Rights ..............................13 The position under other regional and international instruments ........................................................................14 Status of international human rights obligations under domestic law .................................................................15 Chapter 3: The ‘rarest of the rare’ test and other approaches to discretionary capital sentencing ....17 The first approach to discretionary capital sentencing: a strong presumption in favour of life (the ‘rarest of the rare’ or ‘worst of the worst’ approach) ....................................................................................18 The presumption in favour of life .......................................................................................................................18 The appearance and development of the ‘rarest of the rare’ test in India ................................................................19 The approach in South Africa ............................................................................................................................20 Development of the ‘rarest of the rare’ test in the Caribbean ................................................................................21 The emergence of a second element in the ‘rarest of the rare’ approach: the prospect of rehabilitation .......................21 The relevance of societal context .........................................................................................................................22 The irrelevance of public opinion .......................................................................................................................22 The irrelevance of previous convictions ..............................................................................................................23 The impact of the ‘rarest of the rare’ test in the Caribbean ...................................................................................23 Adoption of the ‘rarest of the rare’ test in Uganda ...............................................................................................24 Adoption of the ‘rarest of the rare’ test in Malawi ...............................................................................................25 The position in Kenya .......................................................................................................................................26 Further observations on the ‘rarest of the rare’ approach......................................................................................26 The second approach to discretionary capital sentencing: aggravating and mitigating circumstances are considered together, with no express presumption in favour of life or death ..............................................27 The United States of America ............................................................................................................................27 Swaziland .......................................................................................................................................................27 Zimbabwe .......................................................................................................................................................27 Application of the second approach in practice ....................................................................................................28 The need for clearly and narrowly defined aggravating circumstances ..................................................................29 The third approach to discretionary capital sentencing: a presumption in favour of death, which is mandatory unless there are extenuating circumstances.......................................................................30 The approach in Singapore ..................................................................................................................................32 Conclusions on the three approaches to discretionary capital sentencing .......................................................34 Chapter 4: Factors to be considered in discretionary capital sentencing ......................................35 The limited range of aggravating circumstances ................................................................................................36 No closed lists of mitigating circumstances........................................................................................................37 Offence-based circumstances The nature and seriousness of the offence ...........................................................................................................38 Applying the first sentencing approach (the ‘rarest of the rare’ test) ......................................................................38 Applying the second sentencing approach (no express presumption in favour of life or death) ................................40 Applying the third sentencing approach (presumption in favour of death unless extenuating circumstances are established) ............................................................................................................................40 Singapore .........................................................................................................................................................41 The offender played a lesser role in the offence ...................................................................................................41 Lack of premeditation or significant planning ...................................................................................................41 Partial excuses ......................................................................................................................................................42 The impact on victims and the views of the victims on sentence .......................................................................43 Victim impact statements ..................................................................................................................................43 The opinions of victims on whether the death penalty should be imposed ..............................................................43 An exception to the
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