Ernest Lockhart v The Queen (Bahamas)

Before imposing the death penalty, a sentencing court must be satisfied that the murder is among the most extreme and exceptional cases and that there is no reasonable prospect of reform and no alternative means of achieving the purposes of punishment. Those inquiries should normally be addressed disjunctively and sequentially. A consultant psychiatrist’s report is required in every case in which death is being considered. A clinical psychologist’s report is required where the court cannot decide the reform question without it. Schedule 21 to the Criminal Justice Act 2003 may provide general guidance, but is not a checklist.

Ernest Lockhart was convicted in the Bahamas of murdering Caxton Smith by shooting him. The trial judge imposed the death penalty, finding premeditation, planning and circumstances within the worst category of murder. The Court of Appeal affirmed the death sentence and indicated that, if wrong to do so, it would substitute sixty years’ imprisonment. The appeal concerned whether the murder was sufficiently exceptional to warrant death and whether the sentencing judge had adequate material to determine that there was no reasonable prospect of reform.

Lord Kerr delivered the judgment of the Board, which allowed the appeal and advised that the matter be remitted to the Court of Appeal. The Court of Appeal was directed to remit sentencing to a Supreme Court judge, since Isaacs J had retired.

1. The Board reaffirmed the two principles stated in Trimmingham v The Queen [2009] UKPC 25: death is reserved for the most extreme and exceptional murders, and the court must be satisfied that there is no reasonable prospect of reform and that punishment cannot properly be achieved by another sentence.
2. The seriousness inquiry and the reform inquiry should normally be considered disjunctively and sequentially. The court must first decide whether the murder is among the worst of the worst. Only then does the question of reform arise. Personal circumstances may affect the characterisation of the offence, but they remain primarily mitigating considerations.
3. Schedule 21 para 4 of the Criminal Justice Act 2003 may offer analogical guidance. It cannot operate as a template or checklist because it requires evaluative judgments, including whether seriousness is exceptionally high and whether planning or premeditation is substantial.
4. A consultant psychiatrist’s report is necessary in every case in which the death penalty is under consideration. A clinical psychologist’s report is indispensable where the court cannot decide the reform question without such assistance.
5. The murder was callous and brutal but was not among the worst of the worst. The probation report alone was insufficient to support the required finding on reform. A fresh sentencing exercise was therefore required, and the earlier indication of sixty years’ imprisonment was no longer relevant.

• Privy Council — Ernest Lockhart v The Queen (Bahamas) [2011] UKPC 33: appeal allowed and matter remitted to the Court of Appeal, with sentencing to be remitted to a Supreme Court judge.
• Court of Appeal of the Commonwealth of the Bahamas: death sentence affirmed; sixty years’ imprisonment would have been substituted if that decision was wrong.
• Trial court: Lockhart was convicted of murder and sentenced to death.