Communication No. 696/1996**
Submitted by: Peter
Blaine [represented by Allen
& Overy, a London law firm]
Victim: The author
State party: Jamaica
Date of communication:
3 May 1996 (initial submission)
The Human Rights Committee,
established under article 28 of the International Covenant on Civil
and Political Rights,
Meeting on 17 July
its consideration of communication No. 696/1996 submitted to the Human
Rights Committee on behalf of Mr. Peter Blaine under the Optional Protocol
to the International Covenant on Civil and Political Rights,
Having taken into account
all written information made available to it by the author of the communication,
his counsel and the State party,
Adopts the following:
Views under article 5, paragraph 4, of the Optional Protocol
1. The author of the communication
is Peter Blaine, a Jamaican citizen, 27 years of age, currently awaiting
execution at St. Catherine District Prison, Jamaica. He claims to be
a victim of violations by Jamaica of articles 7, 9, paragraph 2, and
14, paragraphs 1, 2, 3 (a), (b) and (e), and 5 of the International
Covenant on Civil and Political Rights. The author is represented by
Allen and Overy, a law firm in London.
The facts as submitted
2.1 On 14 October 1994,
the author and his co-defendant Neville Lewis Neville Lewis'
communication to the Human Rights Committee has been registered as communication
No. 708/1996. were convicted of the murder of a Mr. Higgs and they were
sentenced to death by the Home Circuit Court of Kingston. Their appeal
was dismissed by the Court of Appeal of Jamaica on 31 July 1995; the
Judicial Committee of the Privy Council denied special leave to appeal
on 2 May 1996. With this, it is submitted, available domestic remedies
have been exhausted.
2.2 During the trial, the
case for the prosecution was that the author and his co-defendant had
been given a lift in the car of the deceased, who had been asking for
directions at an intersection on 18 October 1992. The car was next seen
on 19 October 1992, driven by the co-defendant and with the author and
two other individuals as passengers. The body of the deceased was found
on 22 October 1992 in a mud lake, his hands and feet tied with pieces
of grey cloth and a piece of grey cloth wrapped around his neck. The
forensic pathologist concluded that the cause of death had been ligature
2.3 During the trial, the
prosecution sought to adduce a caution statement which it claimed was
given voluntarily to the police by the author on 21 July 1994. A voir
dire was held on the question of the admissibility of the caution
statement; the prosecution relied on the evidence of Detective Superintendent
Johnson, who was in charge of the investigation into the murder, Superintendent
Reginald Grant Not to be confused with Inspector W. Grant.
and Inspector Wright, the arresting officer. During the voir dire,
Mr. Johnson testified that the caution statement had been given voluntarily,
and that the author had not been coerced by Inspector Wright, nor been
offered any inducement prior to his giving the statement. Inspector
Wright testified that he was not present in the room when the author
made the caution statement, and that he had not assaulted him previously.
2.4 Also during the voir
dire, the author's sister testified that she had visited the police
station on 21 July 1994, that Inspector W. Grant Not to be
confused with Superintendent Reginald Grant. had told her that her brother
did not want to give a statement, that she had told the author that
it would be preferable if he gave a statement to the police, and that
the author had told her that one of the policemen was giving him "a
very hard time". Upon conclusion of the voir dire, the judge
rejected defence counsel's submission that the prosecution had failed
to establish beyond a reasonable doubt that the author's caution statement
was given voluntarily.
2.5 In the author's caution
statement, brought as evidence by the prosecution at the trial, it was
stated that the author was with his co-accused and the driver in the
car, when they picked up two friends of the co-accused. When the car
stopped, one of the friends proceeded to rob the driver at gunpoint.
Thereafter, they put him in the car trunk, but later they took him out
and tied him up. They then took off a strap of a golf bag and put it
around Mr. Higgs' neck. Together with one of the friends, the author
then drew the strap tight and strangled Mr. Higgs. Later, they dumped
him in the mud lake.
2.6 The author's co-defendant
gave sworn evidence at the trial, implicating the author as the driving
force behind the crime, responsible for the strangulation of the deceased
and for his disposal at the Alcan mud lake.
2.7 The author at the trial
gave a statement from the dock, to the effect that he was with Mr. Higgs,
his co-accused and two other friends in the car, that one of the others
took out a knife and held it to Mr. Higgs' neck and that Mr. Higgs ran
off pursued by the others. The author stated that he remained at the
car and that some time later his co-accused returned, called him a "chicken",
and then the two drove off. He stated that this was what he had told
the police before.
3.1 The author alleges a
violation of articles 7 and 10, paragraph 1, as he was repeatedly beaten
by police officers at different police stations over a period of approximately
two weeks. In one case, the author was allegedly taken to a room in
which six police officers were present. Here the author was kicked in
the stomach, beaten on his feet; on another occasion he was beaten unconscious.
When requesting medical attention, he was told that he would only be
able to see a doctor if he signed several blank sheets of paper. When
he refused, he was beaten again; finally, when he could take no more
beatings, he signed several blank sheets of paper.
3.2 The author also states
that he gave a statement to the police because his sister had told him
it would be better.
3.3 The author further submits
that articles 7 and 10, paragraph 1, were violated, since he was kept
in a small cell together with at least six other occupants for three
months between indictment and trial. He allegedly had no other choice
but to sleep on newspapers on the floor.
3.4 Counsel states that
the author was formally charged with murder on 21 or 22 July 1994, approximately
two weeks after having been detained by the police. This is said to
constitute a violation of articles 9, paragraph 2, and 14, paragraph
3 (a), of the Covenant.
3.5 The author complains
that his attorney first visited him in the General Penitentiary in Kingston,
after about two months. According to the author, the meeting was brief,
and after the normal introductions, the lawyer was called away by telephone.
The next time the author met with counsel was at the preliminary hearing.
He adds that he did not see the lawyer again between the preliminary
hearing and the start of the trial. As a result, it is submitted that
the author could not prepare his defence adequately and, in particular,
was unable to consult with the lawyer as to what evidence or which witness
should be called on his behalf. All this is said to constitute a violation
of article 14, paragraph 3 (b).
3.6 The author further submits
that he was told by the police what to say during the trial, and that
he repeated this when giving his unsworn statement from the dock at
trial. He states that he had no opportunity to discuss this with his
3.7 The author also claims
a violation of article 14, paragraph 3(e), in that he wanted his lawyer
to call as a witness the girl he was living with at the time. For unknown
reasons, this witness was not called on his behalf during the trial.
3.8 The author contends
that there has been a breach of articles 14, paragraphs 1 and 2, as
his case was fully and extensively covered by radio, television and
all other media prior to the trial. He argues that the media coverage
was very prejudicial to his case and must have influenced the jurors.
He accordingly submits that the presumption of innocence was not guaranteed;
furthermore, because of the adverse publicity he received prior to the
trial, the author requested that the press be excluded from the trial,
but the request was denied.
3.9 It is submitted that
the trial judge's admission into evidence of the caution statement given
by the author violated his right to a fair trial within the meaning
of article 14, paragraph 1. In this context, the author submits that:
(a) he did not give the statement voluntarily; (b) when he gave the
statement no justice of the peace was present; (c) he was induced to
make a statement by his sister, who in turn was encouraged by several
policemen, on the basis that he would be "better off"; and
(d) he was arrested on 12 July 1994 but not charged with murder then,
although Detective Superintendent Johnson testified on trial that there
was sufficient evidence at the time of arrest to charge the author.
Counsel points out that it was a breach of the Judges' Rules not
to charge the author then; these Rules are strict and do not allow the
police to delay charging an accused in order to improve their evidence.
It is said that this strengthens the defence's case that the statement
was involuntarily made.
3.10 Counsel further argues
that the trial judge had a duty to give reasons for his ruling that
the caution statement was admissible evidence, and that such reasons
as the judge in fact gave were inadequate to discharge that duty. Counsel
also submits that the prosecution failed to discharge the burden of
proof to show beyond a reasonable doubt that the statement was given
voluntarily. In this context, counsel complains that while Inspector
Wright was called to give evidence on the voir dire, Inspector
Grant was not.
3.11 The author also alleges
a violation of article 14 in respect of the hearing of his appeal. He
claims that he gave sworn evidence at the voir dire but that
the trial transcript fails to record this, giving the impression that
he never gave sworn evidence. Accordingly, it is argued that the author
was deprived of his right that his representative pursue his appeal
and that the Court hear the appeal on the basis of a complete
report of all evidence and submissions given on trial.
3.12 It is stated that the
matter has not been submitted to another instance of international investigation
State party's submission
and counsel's comments
4.1 By submission of 12
July 1996, the State party addresses the question of admissibility of
the communication as well as the question of the merits of the communication,
in order to expedite the procedure.
4.2 Concerning the author's
claim that he was beaten up after his arrest, the State party denies
that the Covenant was breached. It refers to the voir dire held
during the trial, after which the judge found no evidence that the statement
was not voluntary, and notes that the author has produced no further
evidence in support of this allegation.
4.3 As regards the author's
claim that his caution statement was arbitrarily admitted into evidence
by the judge, the State party submits that this is a matter of facts
and evidence, which should be left to appellate courts according to
the Committee's jurisprudence. The State party points out that the Court
of Appeal examined the matter and found no errors.
4.4 As regards the author's
claim that the prosecution failed to call Inspector Grant as a witness
during the voir dire, the State party submits that this does
not constitute a breach of the Covenant. The State party argues that
the defence could have exercised its right to have the witness made
available to them when it became clear that the prosecution was not
going to call him.
4.5 With regard to the author's
contention that he gave sworn evidence at the voir dire, but
that this was not recorded and that this resulted in a violation of
his right to appeal, the State party states that it will investigate
the matter, but adds that, owing to the unusual nature of the allegation,
it would welcome a more precise account of the circumstances of the
failure to record the evidence.
4.6 Moreover, the State
party does not necessarily accept that if the evidence was indeed omitted
from the trial transcript, it constituted a violation of the author's
right to appeal. It argues that such a breach would only occur if the
evidence omitted was such that if it had been available to the Court
of Appeal, the case would have been decided differently.
4.7 With regard to the author's
complaint about the media coverage, the State party notes that the matter
was not raised before the domestic courts and that this part of the
communication is thus inadmissible for non-exhaustion of domestic remedies.
4.8 As regards the author's
complaints about the lawyer who represented him at trial, the State
party argues that it cannot be held responsible for the manner in which
a lawyer conducts a case, whether he is privately retained or appointed
by the State.
5.1 In reply to the State
party's submission, counsel states that it is difficult for a victim
of torture or cruel, inhuman or degrading treatment to substantiate
his allegations, for fear of reprisal and for lack of witnesses, and
because the police will collectively defend itself since its reputation
as a whole is at stake. Counsel draws the Committee's attention to the
following factors pointing to corroboration of the author's claim that
he was beaten by the police before being charged: he had been in custody
for two weeks; at the voir dire Inspector Grant was not called;
his sister gave evidence that Inspector Grant had told her it would
be better for the author if he made a statement; and there was conflicting
evidence as to when the applicant was formally charged, 21 or 22 July
1994, that is, the day of the caution statement or the day after. It
is also submitted that Inspector Wright had given incomplete evidence
at the voir dire saying that he had charged the author on 22
July, whereas before the jury he said that while he had executed the
warrant on 22 July, he had verbally charged the author on 21 July. Counsel
moreover recalls that it is accepted jurisprudence that the Committee
can form its view on the basis of facts which have not been contradicted
by the State party.
5.2 Counsel argues that
the failure to call Inspector Grant as a witness was a fundamental flaw
in the fairness of the criminal proceedings against the author.
5.3 Counsel does not provide
any further information concerning the author's claim that his sworn
evidence given at the voir dire was not recorded, but contends
that the Court of Appeal might well have come to a different conclusion
on the voluntariness of the caution statement if it had had access to
the author's evidence. Counsel contends that the test in this case should
be whether the omission gave rise to the possibility that his trial
was not fair.
5.4 Counsel argues that
where a fundamental right is infringed and the possibility exists that
a person's right will be taken in consequence, the Committee should
assume jurisdiction to consider whether or not the caution statement
was rightly admitted.
5.5 As regards the State
party's argument that the author failed to exhaust domestic remedies
with regard to the pre-trial publicity, counsel states that he does
not know of any reported Jamaican case where the courts stayed proceedings
because of adverse publicity. Counsel argues that no effective remedy
was available after the trial judge refused the author's application
to exclude the press from the court.
5.6 As regards the preparation
of the defence, counsel notes that the legal aid given by the State
party is at such a meagre level that it is most often inexperienced
counsel who take death row cases, and that because of the level of remuneration
counsel will almost inevitably reduce the time he spends in preparation
of the case. Counsel further notes that the State party has failed to
ascertain what exactly was the position with counsel for the author.
Decision on admissibility
and examination of the merits
6.1 Before considering any
claims contained in a communication, the Human Rights Committee must,
in accordance with article 87 of its rules of procedure, decide whether
or not it is admissible under the Optional Protocol to the Covenant.
6.2 The Committee has ascertained,
as required under article 5, paragraph 2 (a), of the Optional Protocol,
that the same matter is not being examined under another procedure of
international investigation or settlement.
6.3 The Committee notes
that the State party has argued that the author's claim that the media
coverage prejudiced the jury against him is inadmissible for non-exhaustion
of domestic remedies. The Committee notes that the matter was not raised
by the author or his counsel during the trial. The Committee considers
therefore that this part of the communication is inadmissible.
6.4 As regards the author's
claim that he only saw his lawyer briefly once before the preliminary
enquiry, and that he had no time to prepare his defence properly, the
Committee notes that neither the author nor his counsel requested more
time for the preparation of the defence at the beginning of the trial.
This part of the communication is thus inadmissible under article 2
of the Optional Protocol.
6.5 As regards the author's
claim that his lawyer failed to call his girlfriend as a witness at
the trial, the Committee considers that the State party cannot be held
accountable for alleged errors made by a defence lawyer, unless it was
manifest to the judge that the lawyer's behaviour was incompatible with
the interests of justice. In the instant case, there is no reason to
believe that counsel was not using his best judgement and this part
of the communication is therefore inadmissible under article 2 of the
6.6 With regard to the author's
claim that the admission of his caution statement into evidence by the
judge was in violation of article 14, paragraph 1, since the prosecution
had not shown that the statement was given voluntarily, the Committee
notes that this claim pertains to the evaluation of facts and evidence
by the judge. The Committee refers to its prior jurisprudence and reiterates
that it is generally not for the Committee, but for the appellate courts
of States parties, to review the evaluation of facts and evidence. The
material before the Committee does not show that the trial judge's decision
was arbitrary or amounted to a denial of justice. Accordingly, this
part of the communication is inadmissible as incompatible with the provisions
of the Covenant, pursuant to article 3 of the Optional Protocol.
6.7 As regards the author's
claim that he gave sworn evidence during the voir dire, but that
this was not recorded, the Committee notes that the State party has
offered to investigate the claim but has requested more specific information
as to the circumstances. The Committee rejects the State party's affirmation
that it is for the author or his counsel to provide additional information,
and regrets the lack of information about the results, if any, of the
investigation promised by the State party. However, the Committee notes
that the trial transcript reveals that there appears to have been a
comprehensive voir dire. It remains unclear to the Committee
whether any part of it could have been suppressed. In the circumstances,
the Committee considers that neither the author nor his counsel have
sufficiently substantiated their claim, and this part of the communication
is accordingly inadmissible under article 2 of the Optional Protocol.
6.8 The Committee notes
that the State party has forwarded comments on the merits of the communication
so as to expedite the procedure. Counsel has not raised any objection
to the examination of the merits at this stage.
7. Accordingly, the Committee
declares the author's remaining claims admissible and proceeds, without
further delay, to an examination of the substance of those claims in
the light of all the information made available to it by the parties,
as required by article 5, paragraph 1, of the Optional Protocol.
8.1 The author has claimed
that he was not formally charged until after two weeks after his arrest,
although the police testified at trial that there was enough evidence
on the basis of which he could have been charged. The Committee observes
that it appears from the trial transcript that, during cross-examination,
Superintendent Johnson testified that the author was not charged before
21 July, because the witnesses did not know his correct name, and therefore
an identification parade was held on 21 July 1994 to allow for the author's
identification by the witnesses. After the witnesses had identified
the author, he was formally charged. In the circumstances, the Committee
finds that the facts before it do not disclose a violation of articles
9, paragraph 2, and 14, paragraph 3 (a).
8.2 As regards the author's
claim that he was beaten in order to make him sign a confession, the
Committee notes that this claim was put before the judge and the jury
at trial, who rejected it. The Committee further notes that the author,
in his statement from the dock during the trial, did not make any allusion
to having been beaten by the police. Although the matter was raised
on appeal, counsel did not pursue it and the Court found no merit in
it. The Committee concludes that the information before it does not
justify the finding of a violation of articles 7 and 10 of the Covenant.
8.3 As regards the author's
claim that the failure of the prosecution to call Inspector Grant as
a witness violated the author's right to a fair trial, the Committee
notes that if Inspector Grant's evidence were important to the accused,
his counsel could have requested the judge to have him called. It appears
from the trial transcript that counsel failed to do so. In the circumstances,
the facts before the Committee do not disclose a violation of article
14, paragraph 1, or paragraph 3 (e).
8.4 The State party has
not contested the author's claim that he was kept in a small cell together
with six other occupants for three months between indictment and trial,
and that he had to sleep on newspapers on the floor. In the absence
of a reply from the State party, the Committee finds that the conditions
of pre-trial detention as described by the author amount to a violation
of article 10, paragraph 1, of the Covenant.
9. The Human Rights Committee,
acting under article 5, paragraph 4, of the Optional Protocol to the
International Covenant on Civil and Political Rights, is of the view
that the facts before it disclose a violation of article 10, paragraph
1, of the Covenant.
10. Pursuant to article
2, paragraph 3 (a), of the Covenant, the author is entitled to an effective
remedy, entailing compensation. The State party is under an obligation
to ensure that similar violations do not occur in the future.
11. Bearing in mind that,
by becoming a party to the Optional Protocol, the State party has recognized
the competence of the Committee to determine whether there has been
a violation of the Covenant or not and that, pursuant to article 2 of
the Covenant, the State party has undertaken to ensure to all individuals
within its territory and subject to its jurisdiction the rights recognized
in the Covenant and to provide an effective and enforceable remedy in
case a violation has been established, the Committee wishes to receive
from the State party, within ninety days, information about the measures
taken to give effect to the Committee's Views.
* The following
members of the Committee participated in the examination of the present
communication: Mr. Nisuke Ando, Mr. Prafullachandra N. Bhagwati, Mr.
Thomas Buergenthal, Mrs. Christine Chanet, Lord Colville, Mrs. Elizabeth
Evatt, Mrs. Pilar Gaitan de Pombo, Mr. Eckart Klein, Mr. David Kretzmer,
Mr. Rajsoomer Lallah, Mrs. Cecilia Medina Quiroga, Mr. Fausto Pocar,
Mr. Martin Scheinin, Mr. Danilo Türk and Mr. Maxwell Yalden.
** The text of an individual
opinion by Committee member Martin Scheinin is appended to the present
[Adopted in English, French
and Spanish, the English text being the original version. Subsequently
to be issued also in Arabic, Chinese and Russian as part of the annual
report to the General Assembly.]
Individual opinion by Committee member Martin Scheinin (dissenting)
I disagree with the Committee's
decision to deal jointly with admissibility and merits in the present
case. It is true that the State party did address both issues in its
submission of 12 July 1996, and that counsel of the applicant in substance
commented also on the merits. Nevertheless, counsel of the applicant
was never explicitly invited to comment on the merits of the case. On
the basis of the text of the Optional Protocol and the publicly available
version of the Committee's rules of procedure counsel had reason to
expect that there would be another opportunity to deal with the merits
of the case.
These concerns are aggravated
by the fact that the case involves capital punishment and that the State
party has not answered to the author's complaint formally presented
under article 9, paragraph 2, of the Covenant but raising issues under
paragraph 3 of the said article. If the issue of whether and when the
author was brought before a judicial authority after his detention by
the police "on or about 12 July 1994" had been clarified through declaring
the case admissible and inviting new submissions from the parties, more
light could also have been shed on the author's allegations relating
to articles 7 and 10.