Capital vs Non-Capital Murder

Dionne Lawrence-Pivotte

We have been hearing in the news recently terms such as capital and non-capital murder. These are two concepts that have recently been introduced into the criminal law landscape of Grenada, Carriacou and Petite Martinique.

These terms were introduced in Grenada by the Criminal Code (Amendment) Act 29/2012. Few jurisdictions in the English speaking Caribbean, by way of legislation, have actually introduced this distinction. Simply, the distinction categorizes certain murders of a particularly serious nature as “capital”, which attract the death penalty and others as “non-capital”, which do not, except in specific circumstances.

The Grenadian Situation

According to Section 230 of the Criminal Code (Amendment) Act 29/2012 of Grenada a person commits murder if he causes the death of another person:

(a) intending to cause death; or

(b) intending to cause grievous bodily injury.

The phrase ‘grievous bodily injury’ does not have a statutory definition. However, Section 220 of the Criminal Code Cap 1 Volume 1 of the Continuous Revised Laws of Grenada defines what is referred to as grievous harm. Grievous harm means:

‘any harm which amounts to a maim or dangerous harm as herein defined, or which seriously or permanently injures health, or which is likely so to injure health, or which extends to permanent disfigurement or to any permanent  or serious injury to any external or internal organ, member or sense.’

The Criminal Code Amendment Act (Amendment) Act 29/2012 further reveals that there are two types of murder; namely, capital and non-capital murder.

Capital Murder

According to Section 230A(1) of the Criminal Code (Amendment)Act 29/2012 (hereinafter referred to as CC(A)A) capital murder is committed in circumstances set out in the Criminal Code, as well as any other circumstances which the Court may determine.

The circumstances as set out in the Criminal Code include:

(a) the murder of:

(i) a member of the Police Force acting in the execution of his duties or a person assisting a member so acting;

(ii) a correctional officer acting in the execution of his duties;

(iii) a judicial officer acting in the execution of his duties or a former judicial officer in retaliation of his or her duties;

(iv) any member of the Police Force, correctional officer or judicial officer for

any reason directly attributable to the nature of his occupation;

(b) any person for any reason directly attributable to:

(i) the status of that person as a witness or party in a pending or concluded civil cause or matter or in any criminal proceedings; or

(ii) the service or past service of that person as a juror in any criminal trial;

(c) the murder of a justice of the peace acting in execution of his judicial functions;

(d) any murder committed by a person in the course or furtherance of:

(i) robbery

(ii) burglary or housebreaking

(iii) arson

(iv) any sexual offence

(v) any drug trafficking offence or other drug related offence

(e) any murder committed pursuant to an arrangement whereby money or anything of value:

(i) passes or is intended to pass from one person to another or to a third party at the request or direction of that other person; or

(ii) is promised by one person to another or to a third person at the request or direction of that other person;

(ii) is promised by one person to another or to a third person at the request or direction of that other person;

as consideration for that other person causing or assisting in causing the death of any person or counselling or procuring any person to do any act causing or assisting in causing death of another person;

(f) any murder committed by a person in the course or furtherance of an act of terrorism, that is to say an act involving the use of violence by that person, which by reason of its nature and extent, is calculated to create a state of fear in the public or any sector of the public.

Punishment

According to Section 230A(4) of the CC(A)A, A person convicted of capital murder under subsection (1) may on conviction on indictment, be sentenced to death.

DEATH SENTENCE

It should be noted that Section 230A(4) of the CC(A)A provides that such a convicted person “may” be sentenced to death. This ensures that a judge presiding over proceedings in which there is such a conviction is not automatically bound to pronounce a sentence of death. This is critical since the death sentence as an automatic punishment, according to the Eastern Caribbean Court of Appeal in the cases Newton Spence v the Queen Criminal Appeal No.20 of 1998; and Peter Hughes v the Queen Criminal Appeal No. 14 of 1997 and Patrick Reyes v The Queen Privy Council Appeal No 64 of 2001, was unconstitutional and unlawful. This gave convicted persons the opportunity to plead mitigation in sentence.

SENTENCING PROCESS

During the sentencing process, the judge is at liberty to take into account a number of factors prior to sentencing. These factors have now been codified in Section 230A(5) of  the Criminal Code (Amendment)Act 29/2012. They are:

(i) the gravity and nature of the offence

(ii) the character and record of the offender

(iii) any subjective factors which may have influenced the conduct of the offender

(iv) the design and manner of execution of the offence

(v) the possibility of reform and social re-adaptation of the offender; and

(vi) any other factors which the Court may deem necessary.

According to section 230A(6) of Section 230A(5) of the Criminal Code (Amendment) Act 29/2012 the victim’s family at the time of sentencing may be given an opportunity by the sentencing judge to address the Court on any matter connected with the offence. The Court may determine who constitutes the family of the victim.

Section 230A(8) of the CC(A)A states a death sentence shall not be pronounced on or recorded against a person convicted of capital murder if it appears to the Court that the person at the time of the commission of the offence was under the age of 18 years of age.

NON-CAPITAL MURDER

Section 230B(1) of the Criminal Code (Amendment) Act 29/2012 states that one commits non-capital murder in circumstances not included under capital murder.

Punishment

According to Section 230B (3) of the CC(A)A, a person who is convicted  of an offence of non-capital murder is liable to imprisonment for life; but also may be sentenced to death if he has a prior conviction of murder committed on another occasion or another conviction of murder committed on the same occasion with which he is charged.

However, according to Section 230B(4) of the CC(A)A such a person shall  not be sentenced to death as a result of a previous conviction for murder unless 7 days prior to the trial notice is given to the convicted person that the previous conviction is intended to be proved against him and also if  it is admitted by him or found to be proven against him by the trial judge.

CONCLUSION

This tri-island state has in recent times taken a progressive approach in the implementation of new legislation and it is incumbent on all to be aware of such changes. This article was presented for the purpose of removing the veil that many times shroud legal terminologies and provides information and guidance in understanding these legal terms.

Dionne Lawrence–Pivotte practises criminal and civil law and has practised in the jurisdictions of Jamaica and Grenada. She is the principal attorney and Notary Public in the law office of Dionne Lawrence Pivotte & Associates which is based in Grenada.

Tel: (473) 435-0168/410-8786
Email: [email protected]

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