Submitted by: Clifford McLawrence
Victim: The author
State party: Jamaica
Date of communication: 26 April 1996 (initial submission)
The Human Rights Committee, established under
article 28 of the International Covenant on Civil and Political Rights,
Meeting on 18 July 1997,
Having concluded its consideration of communication
No. 702/1996 submitted to the Human Rights Committee by Mr. Clifford
McLawrence 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 and the State
party,
Adopts the following:
Views under article 5, paragraph 4, of the Optional Protocol
1. The author of the communication is Clifford McLawrence,
a Jamaican citizen currently awaiting execution at St. Catherine District
Prison, Spanish Town, Jamaica. He claims to be a victim of violations
by Jamaica of articles 6, 7, 9, paragraphs 1 to 4, 10, paragraphs 1
and 2, 14, paragraphs 1, 3 (a), (b), (c), (d) and (e), and 5, and 17,
of the International Covenant on Civil and Political Rights. Initially,
the author was represented by counsel. After submitting his initial
communication on 26 April 1996, the author discharged the London-based
law firm which had initially agreed to represent him; another London-based
law firm agreed to take over his representation, but the author subsequently
also discharged that firm.
The facts as submitted
2.1 The author was charged with the murder of Hope Reid
on 8 July 1991 in the Parish of St. Andrews. He was tried in the Home
Circuit Court in Kingston, Jamaica, from 9 to 25 November 1992, found
guilty as charged and sentenced to death on 25 November 1992. Under
the Offenses against the Person (Amendment) Act of 1992, the author
is classified as a capital offender. He applied for leave to appeal
on 30 November 1992; the Court of Appeal of Jamaica heard his appeal
from 14 to 17 March 1995 and dismissed it on 26 June 1995. The author
then filed a petition for special leave to appeal with the Judicial
Committee of the Privy Council; the Judicial Committee heard the petition
on 28 March 1996 and dismissed it without giving reasons. With this,
it is submitted, available domestic remedies are exhausted.
2.2 Ms. Reid, a 36-year old banker, was strangled by an
electrical cord during the night of 7 to 8 July 1991; she was found
by her maid shortly before 7 a.m. on 8 July. Her husband and children
were abroad at the time. A television set and video had disappeared
from the house; the family car had also been stolen when her body was
found.
2.3 During the trial, the prosecution relied primarily
on three sources of evidence: (a) the evidence of two individuals who
had been found in possession of the stolen goods from the victim's house,
and who claimed that they had received them from the author. The two
were separately charged with receiving stolen goods, but charges were
dropped in return for their testifying for the prosecution during the
trial; (b) a confession statement which allegedly had been given and
signed by Mr. McLawrence; and (c) fingerprint evidence which allegedly
had been taken from a surge protector in the victim's home, and which
allegedly matched the author's fingerprints. The case for the defence
was that the author had made no confession statement, nor any statement
whatsoever; rather, the defence argued, the confession statement was
likely to have been made by another individual, one Horace Beckford,
who had been arrested by the police on the day following the murder
but had been released without charge.
2.4 The author complains that by failing to give his legal
representative an opportunity to cross-examine Horace Beckford or to
put the earlier statement Beckford made into evidence, a crucial part
of the defence's case was removed. Furthermore, although he consistently
denied having made a confession statement, it was clear from the jury's
guilty verdict, reached after only seven minutes of deliberations, that
they believed that the statement was his own. Since the author claims
to have been subjected to police violence at the time the statement
was supposed to have been made, he submits that the trial judge should
have considered the voluntary nature of the confession and ruled on
its admissibility. In addition, he argues that two potential alibi witnesses
were not called to give evidence.
2.5 For the appeal, author's counsel filed numerous grounds
of appeal. The most important ones, invoked by the author himself in
his written communications to the Committee, were that the trial judge
had been wrong that the authenticity of the (alleged) signed confession
statement was a question of fact for the jury. Counsel contended that
since Mr. McLawrence claimed that he was subjected to police beatings
at the time when the statement was made according to the prosecution,
the question of voluntariness was a live issue to be determined by the
judge. Furthermore, counsel claimed that the judge did not warn the
jury of the dangers in making comparisons of fingerprint evidence, in
the light of the incomplete nature of this evidence.
2.6 The Court of Appeal dismissed the appeal on the basis
that the trial judge was not wrong in terminating a voir dire
called to consider the voluntariness of the alleged confession statement,
since the accused had clearly indicated that he had never made a statement
and that, therefore, the question of voluntariness did not arise and
the question of authenticity of the statement was an issue of fact for
the jury to decide. It also considered that the judge gave correct directions
to the jury on how they were to treat fingerprint evidence.
2.7 Finally, before the Judicial Committee of the Privy
Council, the principal grounds of appeal were that the trial judge had
been wrong to terminate the voir dire that had been called, and
that he should have made a ruling on the admissibility of the author's
alleged confession. Without giving reasons, the Privy Council dismissed
the appeal.
The complaint
3.1 The author alleges a violation of article 7 of the
Covenant, on account of the length of his detention on death row since
25 November 1992, adducing, inter alia, the "appalling conditions
suffered by detainees in the death row section of St. Catherine District
Prison". He invokes judgements of the Judicial Committee of the
Privy Council Earl Pratt and Ivan Morgan v. Attorney General
of Jamaica and Another, judgment of 2 November 1993. and of the
Supreme Court of Zimbabwe Catholic Commission for Justice
and Peace in Zimbabwe v. Attorney General for Zimbabwe et al., Supreme
Court of Zimbabwe, judgment of 24 June 1993. in support of his argument.
3.2 The author claims a violation of article 9, paragraph
1, because, when he was arrested, the three principal sources of evidence
relied upon by the prosecution during the trial were not yet available
to it: accordingly, the arrest must be considered arbitrary. He further
contends that article 9, paragraph 2, was breached, since he was given
no reasons for his arrest and was not cautioned. He further contends
that the first time he was apprised of the reasons for his arrest was
approximately three weeks after the arrest, when being taken to the
preliminary hearing. The latter argument was filed in a supplementary
submission of 25 September 1996.
3.3 It is submitted that Clifford McLawrence is a victim
of violations of article 9, paragraphs 3 and 4, because of the delays
in bringing him before a judge or judicial officer. In this context,
the author provides the following chronology:
- On Saturday, 13 July 1991, the day of his arrest, the author was
taken immediately to Constance Spring Police Station, where he was
held for 45-60 minutes;
- On the same day, he was taken to the remand centre at Rema: according
to him, the police took the decision to send him to Rema on its
own, without consulting a judge;
- On Tuesday, 16 July 1991, he was taken from the remand centre
to the Central Police Station in Kingston. He was held there for
one day, during which he was questioned about a murder;
- Thereafter, the author was returned to the remand centre at Rema,
where he was detained for several weeks. He first appeared before
a judge on 20 July 1991; on the third court appearance (the author
does not remember the exact date), the judge ordered him transferred
to the General Penitentiary.
3.4 The author contends that he was not informed at any
time after his arrest of his right to legal representation or to apply
for a writ of habeas corpus.
3.5 The author alleges violations of articles 7 and 10,
paragraph 1, since, after being brought to the Constance Spring Police
Station, he was handcuffed to the side of an iron chair and subjected
to blows to the head, body and soles of his feet with an iron bar, a
sheet of aluminium metal and a large book. As a result, his feet swelled
up and he could not walk properly or put on shoes. He claims that police
officers applied electric shocks to his testicles and other parts of
the body, and that he was subject to verbal abuse and harassment, with
some officers threatening to shoot him.
3.6 According to the author, the proceedings before the
Home Circuit Court were contrary to article 14, paragraph 1, in that
despite repeated and continued attempts to locate Horace Beckford, considered
to be a crucial witness, the latter was unavailable to attend trial.
In his absence, author's counsel was prevented by the judge from submitting
documentary evidence to prove that Mr. Beckford had himself been arrested
shortly before the author himself. It is submitted that, given the absence
of this crucial witness, Mr. McLawrence could not have a fair trial.
3.7 As to alleged breach of article 14, paragraph 3 (a),
the author indicates that he was never formally apprised of the charges
against him: he first learned about the reasons for the arrest when
he was taken to the first preliminary hearing. He also contends that
he did not know that the men who apprehended him were policemen until
he reached the police station. He contends that he did not have access
to a lawyer at any of his preliminary appearances in court, that is,
approximately 15 times before the start of his trial. The nature of
these court visits was to set a trial date and to keep him on remand.
It was only shortly prior to the commencement of the trial that he was
given access to a lawyer, and therefore this lawyer had no time to prepare
the defence. This claim submitted by author's counsel does
not tally with one of the author's handwritten letters to the Committee,
in which he concedes that his lawyer, a Queen's Counsel, represented
him well on trial. Allegedly, the lawyer only visited him after the
start of the trial, on the second-to-last day of the second week of
the trial, after the author had already given evidence; moreover, the
duration of the visit was only 10 minutes. This is said to be in violation
of article 14, paragraph 3 (b). Similarly, the author claims that the
fact that two alibi witnesses he relied on as evidence, namely his girlfriend
and a friend, were not called to testify, amounts to a violation of
article 14, paragraph 3 (e).
3.8 The author contends that he did not see a lawyer again
after his conviction. He was not, for example, able to consult with
counsel about the appeal process and, although he had expressly stated
on the appeal form that he wished to be present during the hearing of
the appeal, was not informed of the date on which the appeal was heard.
He allegedly learned of the appeal's dismissal from the press. This
is said to constitute a violation of article 14, paragraphs 3 (d), and
5.
3.9 According to the author, the length of his pre-trial
detention -16 months - and the delay of almost 31 months between his
conviction and the dismissal of his appeal constitute a violation of
his right to be tried without undue delay, article 14, paragraph 3 (c).
3.10 Finally, the author claims a violation of article
17, paragraph 1, of the Covenant, since his correspondence was repeatedly
and unlawfully interfered with by prison guards, and letters sent to
the prison office by him did not reach their addressees.
The State party's information and observations
4.1 In its submission of 15 July 1996, the State party
does not object to the admissibility of the communication and offers
comments on the merits of the author's allegations.
4.2 The State party rejects the contention that a period
of detention of three and a half years on death row constitutes a violation
of article 7 of the Covenant. It notes that the threshold set by the
Judicial Committee of the Privy Council in the Pratt and Morgan
judgement of 2 November 1993 and denies that there are any exceptional
circumstances which would make the five-year limit inapplicable.
4.3 The State party denies that there has been a breach
of article 9, paragraph 1, on the basis that Mr. McLawrence's arrest
was without grounds or that he was arrested on grounds which were never
disclosed to him. It submits that, in order to effect an arrest, "there
needs to be enough evidence to reasonably show that the person may have
committed the offence. The fact that other evidence later became available
and could be relied upon by the prosecution at trial does not mean that
the original arrest was baseless". Furthermore, the State party
indicates that, as far as the alleged breach of article 9, paragraph
2, is concerned, the author should provide evidence that he had no idea
of the reasons for his arrest.
4.4 As to the alleged breaches of articles 9, paragraphs
3 and 4, and 14, paragraph 3 (c), the State party rejects the assertion
that the 16-month delay between arrest and trial constituted undue delay,
as a preliminary hearing was held during that time. Furthermore,
while the 31-month delay between conviction and the judgement of the
Court of Appeal was "somewhat longer than is desirable", this
did not result in substantial injustice to the author.
4.5 The State party emphatically rejects the allegation
that article 10, paragraph 1, was breached because the author was beaten
upon his arrest and forced to sign a confession statement. Firstly,
there is no medical evidence or any other evidence to support this allegation.
Secondly, this matter was extensively examined both during the trial
and on appeal, where the author's assertions were rejected. Since this
matter has been fully evaluated by the Jamaican courts, and given that
there is no evidence in support of the author's assertions, the State
party contends that it is inappropriate for the Committee to reopen
this issue.
4.6 As regards the alleged violation of article 14, paragraph
1, the State party notes that even the author's representative concedes
that strenuous but unsuccessful efforts were made to locate Horace Beckford,
a witness considered crucial. That this witness could not give evidence
and that the defence could not challenge his credibility do not amount
to circumstances which breached the author's right to a fair trial.
Furthermore, "in the absence of detailed information", the
State party rejects that there has been a violation of article 14, paragraph
3 (b).
4.7 The State party categorically denies that the author
was not informed of his right to legal representation during his first
and second court appearances. As to his presence at the hearing of the
appeal, the State party notes that the convicted person is generally
not present during the appeal hearing. Furthermore, the Registrar of
the Court of Appeal regularly dispatches notices about the date of the
hearing of an appeal to all appellants: the State party contends that
the author did receive this notice and thus was aware of the
date of his appeal.
4.8 Concerning the violation of article 14, paragraph
3 (e), because two potential alibi witnesses for the author were not
called during the trial, the State party notes that this breach cannot
be attributed to it, without clear evidence that the State party somehow
obstructed the attendance of these witnesses at a trial.
4.9 The State party denies a breach of article 14, paragraph
5, since several grounds of appeal were filed on Mr. McLawrence's behalf
and the appeal was in fact heard over a full three-day period by the
Court of Appeal.
4.10 Finally, the State party notes that the author's
blanket assertion that his mail was interfered with by prison guards
is not enough to support a finding of a violation of article 17. Indeed,
that letters mailed from the prison may not have reached their intended
destination could well be attributed to factors other than deliberate
interference with correspondence.
Examination of the merits
5.1 The Committee notes that the State party, in its submission
of 15 July 1996, does not contest the admissibility of the communication.
It has examined whether the communication meets all the admissibility
requirements under the Optional Protocol. In respect of the author's
complaint that the prison authorities arbitrarily interfered with his
correspondence, in violation of article 17 of the Covenant, the Committee
considers that the author has failed to substantiate his claim, for
purposes of admissibility. This aspect of the communication is accordingly
inadmissible under article 2 of the Optional Protocol.
5.2 As to the other claims of the author, the Committee
concludes that they are admissible and therefore proceeds directly with
the examination of the merits of these claims. It has examined the present
communication in the light of all the information made available by
the author, his former counsel and the State party, as provided for
under article 5, paragraph 1, of the Optional Protocol.
5.3 The author has alleged a violation of article 7, on
account of his prolonged detention on death row, which at the time of
submission of the communication was three years and five months. The
Committee reiterates that prolonged detention on death row does not
per se amount to a violation of article 7 of the Covenant in the absence
of further compelling circumstances. No such further circumstances,
over and above the length of detention, are discernible in the instant
case; accordingly, there has been no violation of article 7 on this
count.
5.4 The author complains about beatings and treatment
in violation of articles 7 and 10, paragraph 1, at the hand of police
officers following his arrest; the State party has rejected this allegation.
The Committee notes that the incidents invoked by the author were considered
in detail by the court of first instance and the Court of Appeal. No
material has been produced to show that the evaluation of the evidence
by these instances was arbitrary or amounted to a denial of justice.
The Committee therefore finds no violation of articles 7 and 10, paragraph
1.
5.5 As to the claim that article 9, paragraph 1, was breached
because the author's arrest warrant did not feature the three principal
sources of evidence later relied upon by the prosecution, the Committee
recalls that the principle of legality is violated if an individual
is arrested or detained on grounds which are not clearly established
in domestic legislation. There is no indication, in the instant case,
that Mr. McLawrence was arrested on grounds not established by law.
He has argued, however, that he was not promptly informed of the reasons
for his arrest, in violation of article 9, paragraph 2. The State party
has refuted this claim in general terms, in that the author must show
that he did not know the reasons for his arrest; it is, however, not
sufficient for the State party simply to reject the author's allegations
as unsubstantiated or untrue. In the absence of any State party information
to the effect that the author was promptly informed of the reasons
for his arrest, the Committee must rely on Mr. McLawrence's statement
that he was only apprised of the charges for his arrest when he was
first taken to the preliminary hearing, which was almost three weeks
after the arrest. This delay is incompatible with article 9, paragraph
2.
5.6 Concerning the alleged violation of article 9, paragraph
3, it is apparent that the author was first brought before a judge or
other officer authorized to exercise judicial power on 20 July 1991,
i.e. one week after being taken into custody. The State party has not
addressed the allegations under article 9, paragraphs 3 and 4, but rather
situated them in the context of delays in the trial process. While the
meaning of the term "promptly" in article 9, paragraph 3,
must be determined on a case-by-case basis, the Committee recalls its
General Comment on article 9 General Comment 8 [16] of 27
July 1982, para. 2. and its jurisprudence under the Optional Protocol,
pursuant to which delays should not exceed a few days. See
Views on communication No. 373/1989 (Lennon Stephens v. Jamaica),
adopted 18 October 1995, para. 9.6. A delay of one week in a capital
case cannot be deemed compatible with article 9, paragraph 3. In the
same context, the Committee considers that pre-trial detention of over
16 months in the author's case constitutes, in the absence of satisfactory
explanations from the State party or other justification discernible
from the file, a violation of his right, under article 9, paragraph
3, to be tried "within reasonable time" or to be released.
5.7 With respect to the alleged violation of article 9,
paragraph 4, it is uncontested that the author did not himself apply
for habeas corpus. He further claims that he was never informed of this
entitlement, and that he had no access to legal representation during
the preliminary enquiry. The State party categorically maintains that
he was informed of his right to legal representation on the occasion
of his first court appearances. On the basis of the material before
it, the Committee considers that the author could have requested
a review of the lawfulness of his detention when he was taken to the
preliminary hearing in his case, where he was informed of the reasons
for his arrest. It cannot, therefore, be concluded that Mr. McLawrence
was denied the opportunity to have the lawfulness of his detention reviewed
in court without delay.
5.8 The author has claimed a violation of article 14,
paragraph 1, since a witness deemed to be crucial, Horace Beckford,
was unavailable at trial, and because the judge failed to make a ruling
on the voluntariness of the alleged confession statement and gave inadequate
directions on the admissibility of fingerprint evidence. The right to
a fair trial before an independent and impartial tribunal does not encompass
an absolute right to have a certain witness testify in court on trial;
it may not necessarily amount to a violation of due process if all possible
steps are taken, unsuccessfully, to secure the presence of a witness
in court, though this may depend on the nature of the evidence. In the
instant case, counsel concedes that "repeated efforts" were
made to secure the attendance of Horace Beckford. As to the issue of
the voluntariness of the alleged confession statement and the admissibility
of fingerprint evidence, the Committee recalls that it is generally
for the appellate courts of States parties to the Covenant to evaluate
all the facts and evidence in a given case. It is not for the Committee
to question the evaluation of such evidence by the courts unless it
can be ascertained that the evaluation was arbitrary or otherwise amounted
to a denial of justice; neither is discernible in the present case.
The Committee does not consider that the author has established a violation
of article 14, paragraph 1.
5.9 Article 14, paragraph 3 (a), of the Covenant gives
the right to everyone charged with a criminal offence to be informed
"promptly and in detail ... of the charge against him". Mr.
McLawrence contends that he was never formally informed of the charges
against him, and that he first knew of the reasons for his arrest when
he was taken to the preliminary hearing. The Committee notes that the
duty to inform the accused under article 14, paragraph 3 (a), is more
precise than that for arrested persons under article 9, paragraph 2.
So long as article 9, paragraph 3, is complied with, the details of
the nature and cause of the charge need not necessarily be provided
to an accused person immediately upon arrest. On the basis of the information
before it, the Committee concludes that there has been no violation
of article 14, paragraph 3 (a).
5.10 The right of an accused person to have adequate time
and facilities for the preparation of his defence is an important aspect
of the guarantee of a fair trial and an important aspect of the principle
of equality of arms. Where a capital sentence may be pronounced on the
accused, sufficient time must be granted to the accused and his counsel
to prepare the trial defence. The determination of what constitutes
adequate time requires an assessment of the individual circumstances
of each case. The author also contends that he was unable to obtain
the attendance of two potential alibi witnesses. The Committee notes,
however, that the material before it does not reveal that either counsel
or the author complained to the trial judge that the time for the preparation
of the defence had been inadequate. If counsel or the author felt that
they were inadequately prepared, it was incumbent upon them to request
an adjournment. Furthermore, there are inconsistencies in the author's
own version of this issue: whereas, in communications to his representative
before the Committee, he claims that his trial lawyer had no time to
prepare the defence, he argues, in a letter to the Committee dated 1
October 1996, that his representation on trial had been "excellent".
Finally, there is no indication that counsel's decision not to call
two potential alibi witnesses was not based on the exercise of his professional
judgement or that, if a request to call the two witnesses to testify
had been made, the judge would have disallowed it. Accordingly, there
is no basis for finding a violation of article 14, paragraph 3 (b) and
(e).
5.11 The author has claimed violations of article 14,
paragraphs 3 (c) and 5, on account of "undue delays" of the
criminal proceedings in his case. The Committee notes that the State
party itself admits that a delay of 31 months between trial and dismissal
of the appeal is "longer than is desirable", but does not
otherwise justify this delay. In the circumstances, the Committee concludes
that a delay of 31 months between conviction and appeal constitutes
a violation of the author's right, under article 14, paragraph 3 (c),
to have his proceedings conducted without undue delay. The Committee
observes that in the absence of any State party justification, this
finding would be made in similar circumstances in other cases.
5.12 Concerning the adequacy of the author's legal representation,
on trial and on appeal, the Committee recalls that legal representation
must be made available to individuals facing a capital sentence. In
the present case, it is uncontested that Mr. McLawrence was unrepresented
during his initial court appearances, although the State party maintains
that he was informed of his right to legal assistance on those
occasions. On the other hand, he did secure legal representation
thereafter, and on his own admission was represented satisfactorily
during the trial. Concerning the appeal, the Committee notes that the
appeal form dated 30 November 1992 indicates that the author did not
wish the Court of Appeal assign him legal aid, that he had the means
of securing legal representation for himself and that he gave the names
of the two lawyers who had represented him on trial. The author did
initially indicate the desire to be present during the hearing of the
appeal. However, he was represented at the appeal hearing, and it is
not clear from the material before the Committee whether the author
continued to insist, in March 1995, to be present during the hearing
of the appeal. In the circumstances of the case, the Committee is not
in a position to make any finding on article 14, paragraph 3 (d).
5.13 The Committee considers that the imposition of a
sentence of death upon conclusion of a trial in which the provisions
of the Covenant have not been respected constitutes, if no further appeal
against the sentence is possible, a violation of article 6 of the Covenant.
As the Committee noted in its General Comment 6 [16], the provision
that a sentence of death may be imposed only in accordance with the
law and not contrary to the provisions of the Covenant implies that
"the procedural guarantees therein prescribed must be observed,
including the right to a fair hearing by an independent tribunal, the
presumption of innocence, the minimum guarantees for the defence, and
the right to review of conviction and sentence by a higher tribunal".
In this case, since the final sentence of death was passed without due
respect for the requirements of article 14, the Committee must hold
that there has also been a violation of article 6 of the Covenant.
6. 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 articles 9, paragraphs 2 and 3, and 14, paragraph
3 (c), and consequently of article 6, of the Covenant.
7. The Committee is of the view that Mr. McLawrence is
entitled, under article 2, paragraph 3 (a), of the Covenant, to an effective
remedy, entailing commutation of the death sentence.
8. Bearing in mind that, by becoming a State 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 90 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. Julio Prado Vallejo, Mr. Martin
Scheinin, Mr. Danilo Türk and Mr. Maxwell Yalden.
[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.]