Homicide - statutory death penalty for murder - statute to be construed as imposing maximum rather than mandatory sentence

Roodal v The State of Trinidad and Tobago [2003] UKPC 78: PC (Lord Bingham of Cornhill, Lord Steyn, Lord Millett, Lord Rodger of Earlsferry and Lord Walker of Gestingthorpe): 20 November 2003

The defendant was convicted of murder in Trinidad and Tobago.

A mandatory death sentence was imposed under section 4 of the Offences Against the Person Act 1925.

His appeal against sentence was dismissed by the Court of Appeal because, although section 4 imposed a 'cruel and unusual punishment' in breach of section 5(2)(b) of the constitution, it was saved as an 'existing law' by virtue of section 6 and did not require to be modified under section 5(1) of the Constitution Act 1976.

The defendant appealed to the Privy Council.

Edward Fitzgerald QC and Keir Starmer QC with Frank Solomon SC, Desmond Allum SC, Douglas Mendes, Gregory Delzin and Rajiv Persad (all five of the Trinidad and Tobago Bar) (instructed by Simons Muirhead & Burton) for the defendant; Sir Godfray Le Quesne QC, Peter Knox and Tom Poole (instructed by Charles Russell) for the state.

Held (Lord Millett and Lord Rodger of Earlsferry dissenting), that the constitutional provisions permitted a two-stage approach whereby it was first determined whether section 4 of the 1925 Act could be modified under section 5(1) of the 1976 Act so as to conform with the constitution, and section 6 of the constitution only applied if such modification were not possible; that since section 4 of the 1925 Act could be interpreted by virtue of sections 64 and 68 of the Interpretation Act 1962 as imposing a maximum rather than a fixed penalty, it was possible to apply it in such a way as did not infringe section 5 of the constitution; and that, accordingly, the mandatory death sentence should be set aside and the issue of sentencing remitted for reconsideration by the trial judge.

(WLR)

Expert medical evidence - Experts disagreeing as to cause of death of infants - Inappropriate to prosecute parent for murder

R v Cannings: CA (Lord Justice Judge, Mrs Justice Rafferty and Mr Justice Pitchers):19 January 2004

Three of the defendant's four children died in infancy.

She was charged with the murder of two of the children.

It was alleged by the Crown that she smothered them.

The Crown relied on specialist evidence about the conclusions to be drawn from the history of three infant deaths and further acute life-threatening events in the same family.

The defendant's case was that the deaths were natural, if unexplained incidents, to be classified as sudden infant death syndrome.

She was convicted.

On appeal against conviction fresh evidence was received by the court which suggested that even when they were unexplained such deaths could occur naturally.

Michael Mansfield QC and Joanne Briggs (instructed by Pye-Smiths, Salisbury) for the appellant; Paul Dunkels QC and Sean Brunton (instructed by the Crown Prosecution Service, Wiltshire) for the Crown.

Held, allowing the appeal and quashing the convictions, that where a full investigation into two or more sudden unexplained infant deaths in the same family was followed by a serious disagreement between reputable experts about the cause of death, and a body of such expert opinion concluded that natural causes, whether explained or unexplained, could not be excluded as a reasonable (and not a fanciful) possibility, the prosecution of a parent or parents for murder should not be started, or continued, unless there was additional cogent evidence, extraneous to the expert evidence, which tended to support the conclusion that the infant or infants were deliberately harmed.

Knowingly permitting premises to be used for smoking cannabis resin - cannabis cigarettes found on premises but no evidence of drugs having been smoked - no case to answer

R v Auguste: CA (Lord Justice Kay, Mr Justice Douglas Brown and Sir Michael Wright): 9 December 2003

Police raided a flat, of which the defendant was the sole tenant and occupier, and found the defendant and seven others present and two hand-rolled cannabis cigarettes which had never been lit.

On searching the premises the police could detect no smell of cannabis.

The defendant was charged with having permitted his premises to be used for the smoking of cannabis resin, contrary to section 8(d) of the Misuse of Drugs Act 1971, which made it an offence for an occupier of premises knowingly to permit or suffer the smoking of cannabis, cannabis resin or prepared opium on those premises.

It was accepted by the Crown that there was no evidence to contradict the suggestion that no smoking had taken place.

The defendant was convicted.

He appealed.

Tania Panagiotopoulou (assigned by the Registrar of Criminal Appeals) for the defendant; Philip Rueff QC (instructed by the Crown Prosecution Service, Ludgate Hill) for the Crown.

Held, allowing the appeal, that on a true construction of section 8, the opening words of which made it an offence for a person to permit 'any of the following activities', it was necessary to prove that one of the activities specified had taken place; and that, since it was common ground that it had not been open to the jury to conclude that smoking had taken place on the premises, there had been no case to answer.