17 punishment case may attempt to escape a guilty verdict by claiming certain common law defenses to a charge of murder.55 These defenses seek to escape a conviction for murder and replace it with one for manslaughter, for example, which carries a sentence of life imprisonment, or even to totally exclude criminal liability for murder.56 Nevertheless, if and when a defendant is found guilty of the crime of murder, the law does not allow the judge any latitude to consider the degree of culpability of the defendant or other forms of punishment that may be better suited for that particular person in light of all circumstances. That is, courts have no authority to individualize the sentence in conformity with information of the offence (supra pars. 54) and the offender. 60. The State has argued that the unique circumstances of the individual and of the crime are taken into account by the executive branch, which, through the recommendation of the Barbados Privy Council,57 may decide to commute a death sentence (supra par. 20). In this regard, the Court considers that a distinction must also be made between the right under Article 4(6) of the Convention of every convicted person to “apply for amnesty, pardon, or commutation of sentence”, and the right recognized in Article 4(2) to have a “competent court” determine whether the death penalty is the appropriate sentence in each case, in accordance with domestic law and the American Convention. That is, sentencing is a judicial function. The executive branch may grant pardon or commutation of a sentence already imposed, but the judicial branch may not be stripped away of its responsibility to impose the appropriate sentence for a particular crime. In the present case, the judicial branch had no other option than to sentence the four alleged victims to death when they were found guilty of murder, and no judicial review of the actual punishment of death was allowed because it is a punishment specifically fixed by law.58 61. In sum, regardless of the available defenses for the determination of a murder conviction, and despite the possibility to apply to the executive branch for a commutation of a death sentence, the Court considers that “in the determination of punishment, [the Offences Against the Person Act] mechanically and generically imposes the death penalty for all persons found guilty of murder”.59 This is in contravention of the prohibition of the 55 Cf. Offenses Against the Person Act, (defining, for example, diminished responsibility and provocation), supra note 38, ss. 4 and 5, (folios 2980-82). 56 Cf. Offenses Against the Person Act, supra note 38, s. 6, (folio 2982). 57 Article 78 of Barbados Constitution provides for the Barbados Privy Council to advice the GovernorGeneral in his duty to exercise the prerogative of mercy, through which he may grant a pardon or respite, substitute a less severe form of punishment for that imposed on any person for such an offence, or remit the whole or part of any punishment or any other penalty or forfeiture. The Governor-General appoints the members of the Barbados Privy Council, also known as the Mercy Committee, after consultation with the Prime Minister. Currently, the Mercy Committee is composed of members from the executive branch, the academia, the church and the private sector. Members serve for a term of office that should not exceed 15 years or until the age of 75. However, the Governor-General can revoke their appointment after consultation with the Prime Minister. Cf. The Constitution of Barbados, Chapter VI, Executive Powers, ss. 76, 77 and 78 (case file of appendices to the answer to the application, volume I, appendix 17, folios 2840-2841), and Final written submissions of the State (merits case file, volume III, folio 874). 58 After a murder conviction, an appeal against conviction can be pursued to the Court of Appeal of Barbados, and following that, to the Judicial Committee of the Privy Council. Since 2005, the Caribbean Court of Justice replaced the latter. Grounds for appeal to the Court of Appeal are based on questions of law, fact, mixed law and fact, or any other grounds sufficient for appeal, and in mandatory death penalty cases, it is an appeal against the conviction, not the death sentence, which is specifically fixed and mandated by law. Grounds for appeal to the Judicial Committee of the Privy Council were based on questions of law, interpretation of the Constitution, general or public importance, and mixed law and fact. Cf. Criminal Appeal Act, Ch. 113A (case file of appendices to the final written submissions presented by all parties, folios 6867 and 6887). Grounds for appeal to the Caribbean Court of Justice on criminal proceedings are mainly based on the interpretation of the Constitution. Cf. Caribbean Court of Justice Act, Ch. 117 (case file of appendices to the final written submissions presented by all parties, folios 6903-6904). 59 Case of Hilaire, Constantine and Benjamin et al., supra note 42, para. 104. Cf. also Case of Raxcacó Reyes, supra note 37, para. 81.