Lester Pitman v The State

In Trinidad and Tobago, the admissibility of a confession depends on voluntariness and absence of unfairness. Breach of a police code does not automatically require exclusion, and an English appropriate-adult requirement cannot be imported as a common-law rule. Any breach of the constitutional right to a lawyer is assessed by its nature and effect.

The mandatory death penalty for murder is cruel and unusual, but Constitution of Trinidad and Tobago s 6 preserves it as an existing law. Following the enactment of diminished responsibility in s 4A of the Offences against the Person Act 1925, execution cannot constitutionally be carried out where the offender’s mental condition meets the level required for that defence. The prerogative of mercy, subject to judicial review, provides the safeguard. A murder conviction may nevertheless stand where felony-murder independently establishes guilt.

These conjoined appeals concerned defendants convicted of murder in Trinidad and Tobago and originally sentenced to death. Pitman appealed against conviction and sentence. He relied on fresh evidence of significant learning difficulties, challenging the admission of his confession and the effect of the subsequent decision on joint responsibility in R v Jogee and R v Ruddock. Hernandez appealed against sentence on the ground that execution was unconstitutional in view of his severe learning difficulties and depression.

The Court of Appeal had affirmed the convictions. It had set aside the death sentences because of delay and substituted life sentences with minimum terms. The Board had earlier admitted fresh evidence and remitted Pitman’s case: [2008] UKPC 16. The central questions were whether mental impairment affected confession admissibility or constitutional protection from execution, and whether Pitman’s conviction could stand after the change in the law of joint responsibility.

1. Confession evidence. The appeals were dismissed. The governing test for a confession was voluntariness and absence of unfairness. The trial judge had properly found Pitman’s confession voluntary. The fresh evidence of learning difficulties did not undermine that finding. It also gave no sufficient basis for exclusion on grounds of unfairness. The English appropriate-adult requirement under Code C made under the Police and Criminal Evidence Act 1984 could not be imported into Trinidad as an essential common-law rule. A breach of the constitutional right to legal assistance might justify exclusion through the fairness jurisdiction, but its effect depended on the nature of the breach and its effect on the suspect. The admission of the confession was therefore upheld, applying the approach in Noor Mohamed v The King [1949] AC 182.
2. Joint responsibility and felony-murder. The trial direction, based on Chan Wing-Siu v The Queen [1985] AC 168 and R v Powell and English [1997] UKHL 45, contained the misdirection identified in R v Jogee [2016] UKSC 8 and R v Ruddock [2016] UKPC 7. Exceptional leave to appeal out of time after a conviction reached by faithfully applying the former law required substantial injustice. There was none. The confession established that Pitman participated in a violent robbery and that the killings occurred during or in furtherance of it. Under s 2A of the Criminal Law Act 1979, he was unarguably guilty of murder under the felony-murder rule, irrespective of intention to kill or cause grievous bodily harm. The conviction therefore stood.
3. Common law and mandatory death sentences. The common law could not override the statutory scheme. The mandatory death sentence in s 4 of the Offences against the Person Act 1925 was an existing law. The courts could not construe it contrary to its express language by importing a general common-law exception for mentally impaired defendants. International materials and Atkins v Virginia 536 US 304 (2002) could not justify judicial legislation or transplantation of a rule based on a different constitutional text.
4. Constitutional protection. A mandatory death penalty was cruel and unusual, but as existing law it was immune from direct challenge under s 6 of the Constitution of Trinidad and Tobago, following Matthew v State of Trinidad and Tobago [2005] 1 AC 433 and Boyce v The Queen [2005] 1 AC 400. The later enactment of diminished responsibility in s 4A of the 1925 Act was a legislative recognition that substantial mental impairment could make mandatory execution cruel and unusual. Constitutional protection therefore extended to a person whose mental condition met the level required for diminished responsibility, even where the defence had not been advanced for sufficient reason. Fresh evidence could exceptionally be admitted on appeal, but early expert assessment was preferable.
5. Safeguard and disposal. The prerogative of mercy, subject to judicial review as explained in Lewis v Attorney General of Jamaica [2001] 2 AC 50, provided a constitutionally sufficient safeguard for cases involving significant mental impairment. Pitman’s sentence appeal failed because diminished responsibility was not pursued and the minimum term was a matter for the Trinidadian courts. Hernandez’s death sentence had already been replaced by a life sentence. Both appeals were dismissed.

1. Privy Council. The conjoined appeals were dismissed. Pitman’s conviction and sentence appeals failed. Hernandez’s sentence appeal failed.
2. Court of Appeal of Trinidad and Tobago. Pitman’s conviction was affirmed on the second appeal. His death sentence was set aside because of delay and replaced by life imprisonment with a 40-year minimum term. Hernandez’s conviction appeal was rejected, and his death sentences were replaced by concurrent life sentences with a specified minimum period.
3. Earlier Privy Council proceedings. Fresh mental-capacity evidence was admitted and the relevant issues were remitted for consideration, including in Pitman’s case under [2008] UKPC 16.
4. Trials and first appeals. Both appellants were convicted of murder and originally received mandatory death sentences. Their initial conviction appeals were unsuccessful.