Case Review: Nervais & Severin v The Queen — How the CCJ Ended Barbados’ Mandatory Death Penalty
A review of Nervais v The Queen; Severin v The Queen [2018] CCJ 19 (AJ), where the Caribbean Court of Justice declared Barbados’ mandatory death penalty for murder unconstitutional and departed from the Privy Council’s approach to the savings clause.
On 27 June 2018, the Caribbean Court of Justice delivered one of its most important constitutional rulings. In the consolidated appeals of Jabari Sensimania Nervais v The Queen and Dwayne Omar Severin v The Queen [2018] CCJ 19 (AJ), the Court unanimously held that the mandatory death penalty for murder in Barbados was unconstitutional.
- Caribbean Court of Justice: Full judgment — [2018] CCJ 19 (AJ)
- CARICOM: CCJ strikes down mandatory death penalty in Barbados
- The Death Penalty Project: Caribbean Court of Justice strikes down mandatory death penalty in Barbados
1. The Law Being Challenged
Section 2 of Barbados’ Offences Against the Person Act required that every person convicted of murder be sentenced to death. Judges had no discretion to consider the circumstances of the offence or the offender.
In 2004, in Boyce and Joseph v The Queen, the Privy Council had accepted that the mandatory death penalty was problematic but held it was protected by the “savings clause” in the Barbados Constitution, which shielded laws existing before independence from constitutional challenge.
2. What the CCJ Decided
- The mandatory sentence violated the right to the protection of the law under section 11 of the Constitution, because it prevented courts from tailoring punishment to individual circumstances.
- Separation of powers: sentencing is a judicial function; a law that dictates a single sentence for all murders reduces judges to “rubber stamps”.
- The savings clause does not freeze rights: the CCJ held that the savings clause should be read narrowly and could not prevent the courts from interpreting pre-independence laws in conformity with the Constitution. This departed from the Privy Council’s approach in Boyce and Joseph.
3. The Outcome for the Appellants
The appeals against conviction were dismissed — both men remained guilty of murder — but their appeals against sentence were allowed. The CCJ ordered that they be brought back before the Supreme Court of Barbados to be resentenced through an individualised sentencing hearing.
4. The Wider Impact
- Barbados moved to amend its law so that the death penalty for murder is discretionary rather than mandatory.
- Others on death row became entitled to resentencing.
- The ruling, alongside the CCJ’s decision in McEwan v AG of Guyana the same year, signalled a more expansive approach to savings clauses across CCJ-jurisdiction states.
- Today, murder sentencing in Barbados follows the structured approach described in our Barbados sentencing review: starting point, aggravating and mitigating factors, guilty plea discount and full credit for time on remand.
Frequently Asked Questions
Does Barbados still have the death penalty?
The death penalty for murder is no longer mandatory in Barbados. Following Nervais and Severin, judges must conduct an individualised sentencing hearing, and the death penalty is reserved, if at all, for the most exceptional cases.
What is a savings clause?
A savings clause is a constitutional provision that protects laws existing before independence from being struck down for inconsistency with fundamental rights. The CCJ in Nervais read the Barbados savings clause narrowly.
Did Nervais and Severin go free?
No. Their murder convictions were upheld. Only their mandatory death sentences were set aside, and they were sent back to the Supreme Court of Barbados for resentencing.
Join the discussion on our Community Forum Thread.
Comments