The appellant, Richard Daniel, was convicted in Trinidad and Tobago of a murder committed during the course of an attempted robbery. He was sentenced to death. The Death Penalty Project assisted him in his application for appeal against conviction and sentence in December 2013 before the Judicial Committee of the Privy Council. Tim Owen QC and Raj Desai, barristers at Matrix Chambers were instructed pro bonoto represent Mr Daniel before the Privy Council. It was submitted on Daniel’s behalf that the defence of provocation should have been put before the jury, and that his mandatory death sentence was unlawful.
The prosecution had pursued cases of both murder and with felony murder – the latter being murder that is committed during the course of a violent offence, and operates regardless of whether there was any intention to kill.
Although the Privy Council found that there was no scope for any defence of provocation, self-induced or otherwise, to operate against felony murder, it confirmed that self-induced provocation can operate as a defence to murder. This is so even where it was the defendant’s conduct that generated the deceased’s provocative conduct – in other words, even where the provocation was “self-induced”.
On the facts of this case, since there was no evidence that the appellant had at any time actually lost his self-control, a defence of provocation could not succeed.
Nonetheless, the Privy Council quashed the appellant’s capital sentence and substituted a term of life imprisonment. It noted that, whilst a mandatory death sentence in the case of murder is lawful in Trinidad; in the case of felony murder, however, a death sentence is discretionary (See Nimrod Miguel v The State). Since it was not known whether the jury at trial convicted the appellant of murder or felony murder, his mandatory sentence of death could not stand. In any event, it had been more than 5 years since the appellant had been placed on death row, and as such, no sentence of death – even a discretionary one – could be lawfully imposed now upon the appellant. Hence the Privy Council substituted a sentence of life imprisonment.
Photo credit: Thomas Hawk (Flickr, Creative Commons), https://creativecommons.org/licenses/by-nc/2.0/