Submitted by: Patrick Taylor [represented by Herbert
Smith, a London law firm]
Victim: The author
State party: Jamaica
Date of communication: 14 June 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. 707/1996 submitted to the Human Rights Committee on behalf of Mr.
Patrick Taylor 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 Patrick Taylor,
a Jamaican citizen, mechanic and taxi driver, currently awaiting execution
at St. Catherine District Prison, Jamaica. He claims to be a victim
of violations by Jamaica of articles 2, paragraph 3; 6; 7; 9, paragraphs
2 and 3; 10, paragraph 1; and 14, paragraph 3 (b), (c) and (d), of the
International Covenant on Civil and Political Rights. He is represented
by counsel, Ms. Paula Hodges of Herbert Smith, a law firm in London.
The facts as presented by the author
2.1 The author was convicted, together with his two co-defendants,
his brother Desmond Taylor and Steve Shaw, Steve Shaw's and
Desmond Taylor's communications to the Human Rights Committee have been
registered as communications Nos. 704/1996 and 705/1996, respectively.
for the murder of the Peddlar family, and sentenced to death, for four
counts of non-capital murder, The judge, when sentencing
the author, stated: "Mr. Taylor, you have been convicted of non-capital
murder, but because of the fact that several murders were committed
on the same occasion, it means that you are sentenced to suffer death
in the manner authorized by law". on 25 July 1994 by St. James
Circuit Court, Montego Bay, Jamaica. The judge ruled that as the murders
were committed on the same occasion the author was guilty of capital
murder. His appeal was dismissed by the Court of Appeal of Jamaica on
24 July 1995. On 6 June 1996, the author's petition for special leave
to appeal to the Judicial Committee of the Privy Council was dismissed.
2.2 On 27 March 1992, the decomposing bodies of Horrett
Peddlar, his wife, Maria Wright and their two sons, Matthew and Useph,
were found. They had been "chopped to death" with blows to
the head, body and limbs.
2.3 On the same day, the author, his brother, Desmond,
and several other members of the Taylor family were taken in for questioning,
all except the author being allowed to leave during the course of the
day. The author, however, was kept in custody at the Barrnet police
station, in Montego Bay, until 21 April 1992. They were questioned because
of the animosity between the Peddlar and the Taylor families. Desmond
was a judgement debtor of Mr. Peddlar and both Taylors had been charged
with having assaulted him; the criminal proceedings were still pending.
The author was re-arrested on 4 May 1992.
2.4 As there were no eye-witnesses, the case for the prosecution
was based on the statement allegedly made by the author while in police
custody on 4 May. The author was confronted with his co-accused, Steve
Shaw, in the presence of a police officer. Shaw had said to the author
"Me did down a Junie Lawn when me see Mark (Patrick Taylor is also
known as Mark), Boxer (Desmond) and President came dey. When me see
Mark, President and Boxer. Me and Mark go up a de gate and watch Boxer
and President go up a de yard and chop up the people dem". Patrick
was then alleged to have said "Curly" (a name by which Shaw
is known), and was said to have begun to cry, and said "Boxer no
tell you no fi say nothing. Alright sir. Me go up dey but me never know
say dem serious dem go kill de people dem".
2.5 The case for the defence was that apart from the confrontation
between the author and the co-accused, Shaw, there was no evidence against
the author, or that he had done anything other than be present near
the land on which the murders had been committed. The author denied
the police version. He made a statement from the dock denying any involvement
in the killings, and denied having gone to the Peddlar home.
2.6 It is stated by counsel that, in practice, constitutional
remedies are not available to the author because he is indigent and
Jamaica does not make legal aid available for constitutional motions.
Reference is made to the Human Rights Committee's jurisprudence.
Communication No. 445/1991 (Lynden Champagnie, Delroy Palmer
and Oswald Chisholm v. Jamaica), Views adopted on 18 July 1994.
Counsel submits therefore that all domestic remedies have been exhausted
for purposes of article 5, paragraph 2 (b), of the Optional Protocol.
3.1 Counsel contends that the State party's failure to
provide legal aid for constitutional motions constitutes a violation
of article 2, paragraph 3, of the Covenant in connection with article
14, paragraph 1, because it has not ensured an effective domestic remedy
in the determination of the author's rights. According to counsel the
proceedings in the constitutional court must conform with the requirements
of a fair hearing in accordance with the conditions spelled out in article
14, paragraph 1, encompassing the right to legal aid.
3.2 The author alleges a violation of article 9, paragraphs
2 and 3, of the Covenant, on the ground that he was arrested on 27 March
1992 and held in custody for a period of 26 days, with no charges being
brought against him in that time. The author was re-arrested on 4 May
1992 and it was not till 7 May 1992 that he was informed that he had
been charged with murder and was cautioned. It is submitted that he
was detained for 29 days before being formally cautioned or having access
to a lawyer. Counsel adds that the author was neither promptly charged
within the meaning of article 9, paragraph 2, nor brought promptly before
a judicial officer within the meaning or article 9, paragraph 3. Reference
is made to the Committee's jurisprudence See communication
No. 336/1988 (Filastre v. Bolivia), Views adopted 5 November
1991, paragraph 6.4, and General Comment No. 8. where it was held that
detention must not exceed a few days.
3.3 The author submits that his rights under articles
9, paragraph 3, and 14, paragraph 3 (c), of the Covenant were violated
in that he was not promptly brought to trial. In this respect, counsel
alleges that two years and four months from the date of the initial
arrest, 27 March 1992 until the trial, on 18 July 1994, is excessive
as the issues involved were not complicated, notwithstanding that four
murders were involved.
3.4 Counsel further submits that the author is the victim
of a violation of article 14, paragraph 3 (b) and (d), as the author
was not represented by a lawyer at all until after his first appearance
before a judge. Subsequently, he was only able to consult with his lawyer
for 8 to 10 minutes. In the period leading up to the trial, though the
author saw his privately retained counsel (QC Hamilton) on several occasions,
it was always for very short periods of time, and at no stage did the
lawyer seek the author's comments on the prosecution's evidence. The
author had requested that a witness be called, but the lawyer failed
to do so. The author's lawyer was not in court on the day the author
was convicted. This allegation is not corroborated by the
3.5 Counsel further contends that the fairness of the
proceedings was flawed by reason of the fact that the author and his
brother received joint representation. The evidence of the case was
totally different for both brothers as the evidence against the author
was that he was merely present, whereas his brother was an active participant.
There was an evident conflict of interest in the two defences. Counsel
thus argues that the State party failed to provide adequate representation
to the author within the meaning of article 14, paragraph 3 (b) and
3.6 Counsel submits that an execution that might have
been lawful if carried out immediately and without exposing the convicted
man to the aggravated punishment of inhuman treatment during a long
period can become unlawful if the proposed execution is to come at the
end of a substantial period under intolerable conditions. In this respect,
counsel refers to Pratt and Morgan as an authority for the proposition
that carrying out a sentence of death can be rendered unlawful where
the subsequent conditions in which a condemned man is held, either in
terms of time or in terms of physical discomfort, constitute inhuman
and degrading treatment or punishment. Counsel contends that such an
approach is consistent with the structure of the Covenant, which shows
that detention may be unlawful if it is either unduly prolonged or the
physical conditions fall below recognized minimum standards. The author
was sentenced to death, not to death preceded by a substantial period
of inhuman treatment. Counsel claims that the author's execution would
be unconstitutional and in violation of articles 7 and 10, paragraph
1, of the Covenant.
3.7 Counsel submits that the conditions at St. Catherine
District Prison amount to a violation of the author's rights under articles
7 and 10, paragraph 1. Reference is made to the findings of various
reports by non-governmental organizations on the conditions of St. Catherine's
Prison. The actual conditions which are said by counsel to apply to
the author on death row include being confined in the cell for 23 hours
each day, no provision of mattress or bedding for the concrete bunk,
no integral sanitation, inadequate ventilation and no natural lighting.
In addition, the general conditions of the prison are also claimed to
affect the author. Counsel contends that the author's rights as an individual
under the Covenant are being violated, notwithstanding the fact that
he is a member of a class - those on death row - whose rights are also
being violated through being detained in similar conditions. In this
respect, counsel contends that a violation of the Covenant does not
cease to be a violation merely because others suffer the same deprivation
at the same time. The conditions under which the author is detained
at St. Catherine District Prison are said to amount to cruel, inhuman
and degrading treatment within the meaning of articles 7 and 10, paragraph
1, of the Covenant.
3.8 Furthermore, counsel submits that the cells and prison
conditions do not meet the fundamental and basic requirements of the
United Nations Standard Minimum Rules for the Treatment of Prisoners
and amount to violations of articles 7 and 10, paragraph 1, of the Covenant.
In this respect, reference is made to the Committee's jurisprudence.
Communication No. 458/1991 (Albert Womah Mukong v. Cameroon),
Views adopted on 21 July 1994, paragraph 9.3. Where it was held that,
as to the conditions of detention in general, the Committee observes
that certain minimum standards regarding the conditions of detention
must be observed regardless of a State party's level of development
(i.e., the Standard Minimum Rules for the Treatment of Prisoners). It
should be noted that these are minimum requirements which the Committee
considered should always be observed, even if economic or budgetary
conditions may make compliance with these obligations difficult.
3.9 Finally, counsel submits that the imposition of a
sentence of death upon the conclusion of a trial in which a provision
of the Covenant has been breached, if no further appeal against the
sentence is available, constitutes a violation of article 6, paragraph
2, of the Covenant. In this respect, counsel contends that: "the
imposition of a death sentence where as here the State party knows that
the convicted person will be subjected to the conditions which exist
on death row (which are contrary to the Covenant) for a protracted period
and where that convicted person is then actually subjected to such conditions
(which in themselves amount to violations of the Covenant), such treatment
amounts to a violation of a protection of the law to the individuals'
inherent right to life. The Applicant's inherent right to life does
not end with the imposition of the sentence of death. Rather, the sentence
of death by a competent Court gives legitimate authority to the State
to take the life of a convicted person in a constitutional manner which
is not then contrary to any international norm. However, up until the
point and time when the sentence of death is carried out, the individuals'
right to life continues. Such a right to life is then subject to all
applicable international norms, including those covered by the Covenant
for the protection of civil and political rights and the United Nations
Standard Minimum Rules for the Treatment of Prisoners. Subjecting the
Applicant to the conditions at Montego Bay Police Station, as well as
the conditions on death row, amounts to a violation of articles 7 and
10 (1) of the Covenant in conjunction with violations of the provisions
of the United Nations Standard Minimum Rules for the Treatment of Prisoners.
In addition, the violations of articles 9 and 14 also amount to a violation
of article 6".
3.10 It is submitted that the same matter has not been
submitted to another procedure of international investigation or settlement.
The State party's information and observations and
counsel's comments thereon
4.1 In its observations dated 19 September 1996, the State
party does not formulate objections to the admissibility of the case
but rather directly addresses the merits of the communication.
4.2 With regard to the allegation of violations of article
9, paragraphs 2 and 3, because the author spent 29 days in detention
before being formally charged for murder, the State party contends that
the period of detention can be broken down into two sections, the first
being 26 days after which the author was released, and the second of
three days' detention from 4 May 1992 after which the author was charged
with murder. The State party concedes that a detention of 26 days is
undesirable, but does not accept that a three-day period constitutes
a violation of the Covenant.
4.3 With respect to the undue delay in hearing the author's
case because of the two years and four months between the author's detention
and his trial, the State party rejects that this delay constitutes a
violation of articles 9, paragraph 3, and 14, paragraph 3 (c), particularly
because during this period a preliminary inquiry took place.
4.4 In respect of the allegations of inadequate legal
representation in violation of article 14, paragraph 3 (b) and (d),
the State party contends that if the author was not represented during
the preliminary inquiry it was not the State party's responsibility
as it had been open to the author to request legal representation. With
respect to the author's allegation that he only saw his counsel for
short periods of time and the complaint regarding the way counsel conducted
the trial the State party contends that it cannot be held responsible
for these actions. In the same manner the State party contends that
if there was a conflict of interest between the two brothers as the
cases against them were different, then it was up to the author or his
brother to have requested separate representation.
4.5 With regard to the allegations under articles 7 and
10, paragraph 1, the State party submits that the author has not been
on death row for five years, after which point Pratt and Morgan
could be invoked, and with respect to the Committee the State party
notes that the Committee itself has held that prolonged detention per
se does not constitute inhuman and degrading treatment.
4.6 With respect to the allegation of a violation of article
14, paragraphs 1, 2 and 3, because the author has been unable to obtain
legal aid for constitutional redress the State party does not interpret
the Covenant as obliging the Government to provide legal aid for constitutional
motions. The State party does, however, concede that indigence may limit
access to the Supreme Court to obtain a constitutional remedy.
4.7 The State party submits that as there has been no
breach of any of the provisions of the Covenant, there can be no breach
of article 6.
5.1 In her comments on the State party's submission, counsel
agrees to the joint examination of the admissibility and the merits
of the case. She reaffirms that the delay of 29 days in charging the
author constitutes a violation of article 9, paragraphs 2 and 3.
5.2 Counsel maintains her allegations that the author
has been a victim of violations of article 14, paragraph 3 (b) and (d),
owing to the inadequate legal representation he received: i.e., no counsel
for his first appearance before a judge, the short time he was able
to consult with his lawyer and prepare his defence and finally being
represented by the same counsel as his brother where there was an evident
conflict of interests.
5.3 In a further submission of 6 May 1997, counsel has
forwarded a statement from one Glenroy Hodges, allegedly corroborating
the author's contention that he was never confronted with his co-accused
Steve Shaw, while in police detention.
Admissibility consideration and examination of merits
6.1 Before considering any claims contained in a communication,
the Human Rights Committee must, in accordance with rule 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
6.3 With respect to the author's claim that the two years
and eight months that the author has spent on death row, since his conviction,
on 25 July 1994, constitutes a violation of articles 7 and 10, paragraph
1, the Committee notes that it remains its jurisprudence See
communication No. 558/1994 (Errol Johnson v. Jamaica), Views
adopted on 22 March 1996. that detention on death row for a specific
time does not violate the Covenant, in the absence of further compelling
circumstances. In the instant case, the Committee considers that neither
the author nor his counsel have sufficiently substantiated, for purposes
of admissibility, how the 28 months spent on death row, during which
the author was availing himself of appeal possibilities against his
conviction, entailed a violation of the author's Covenant rights. The
Committee therefore finds that this part of the communication is inadmissible.
6.4 As regards the author's claims that he saw his lawyer,
senior counsel (Mr. Hamilton QC) several times but only for 8 to 10
minutes each time, that he was not represented until after the preliminary
hearing and that counsel took no instructions from him, and in particular
did not call a witness whom the author felt should be called, the Committee
notes that counsel was initially privately retained, and 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 other
than his best judgement and this part of the communication is therefore
inadmissible under article 2 of the Optional Protocol.
6.5 As regards the author's claim that his defence was
tainted because he was represented by the same counsel as his brother
and there was a conflict of interest between them, as the charges against
both brothers were different, the Committee notes that the author was
represented by senior counsel (Mr. Hamilton QC), that counsel had been
privately retained by the brothers for the preliminary hearing, that,
before the jury was empanelled, counsel requested first that the author
be tried separately and then that he, counsel, be assigned on a legal
aid basis to them both. From the trial transcript it is clear that the
author was represented at the preliminary hearing by the same Queen's
counsel that later represented him on trial. Furthermore, the Committee
notes that during the trial, counsel kept his questions on behalf of
both brothers separate. The Committee considers that there were no factors
giving rise to a conflict of interest in the representation of both
accused either when counsel was privately retained or when he was acting
as legal aid; therefore these claims remain unsubstantiated, and accordingly
this part of the communication is inadmissible.
6.6 As regards the new evidence submitted by counsel,
on 6 May 1997, this is a matter which should have been raised before
the national courts. Accordingly, the Committee considers that this
part of the communication is inadmissible for non-exhaustion of domestic
remedies, under article 5, paragraph 2 (b), of the Optional Protocol.
6.7 The Committee observes that with the dismissal of
the author's petition for special leave to appeal to the Judicial Committee
of the Privy Council in June 1996, the author has exhausted domestic
remedies for purposes of the Optional Protocol. In the circumstances
of the case, the Committee finds it expedient to proceed with the examination
of the merits of the case. In this context, it notes that the State
party has not raised objections to the admissibility of the complaint
and has forwarded comments on the merits. The Committee recalls that
article 4, paragraph 2, of the Optional Protocol stipulates that the
receiving State shall submit its written observations on the merits
of a communication within six months of the transmittal of the communication
to it for comments on the merits. The Committee reiterates that this
period may be shortened, in the interest of justice, if the State party
so wishes. See Views on communication No. 606/1994 (Clement
Francis v. Jamaica), adopted 25 July 1995, paragraph 7.4. The Committee
further notes that counsel for the author has agreed to the examination
on the merits of the case at this state.
7. The Committee accordingly, declares the remaining claims
admissible and proceeds, without further delay, to an examination of
the substance of these 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 complains that he has been detained on
death row in appalling and insalubrious conditions, complaints which
are supported by the reports annexed to counsel's submission; neither
these nor the author's claims have been refuted by the State party.
Counsel's submission summarizes the main points made by these reports,
and shows that these conditions affect the author himself, as a prisoner
on death row. In the Committee's opinion, the conditions described therein
and which affect the author directly are such as to violate his right
to be treated with humanity and with respect for the inherent dignity
of the human person, and are therefore contrary to article 10, paragraph
8.2 The author has claimed that the absence of legal aid
for the purpose of filing a constitutional motion in itself constitutes
a violation of the Covenant. The determination of rights in proceedings
in the Constitutional Court must conform with the requirements of a
fair hearing in accordance with article 14, paragraph 1. See
communication No. 377/1989 (Currie v. Jamaica), Views adopted
on 29 March 1994, paragraph 13.4. In this particular case, the Constitutional
Court would be called on to determine whether the author's conviction
in a criminal trial has violated the guarantees of a fair trial. In
such cases, the application of the requirement of a fair hearing in
the Constitutional Court should be consistent with the principles in
paragraph 3 (d) of article 14. It follows that where a convicted person
seeking constitutional review of irregularities in a criminal trial
has insufficient means to meet the costs of legal assistance in order
to pursue his constitutional remedy and where the interest of justice
so requires, legal assistance should be provided by the State. In the
present case, the absence of legal aid has denied the author the opportunity
to test the irregularities of his criminal trial in the Constitutional
Court in a fair hearing, and is thus a violation of article 14.
8.3 The author has claimed that he was not charged for
29 days, nor was he promptly brought before a judge. In the instant
case, the author was kept in detention for 26 days, was released and
later arrested and held in detention for three days before being charged
and brought before a judicial authority; the Committee notes that the
State party itself concedes that there was a delay of 26 days and that
this delay is undesirable, though denying that either this period or
a further three days might constitute a violation of the Covenant. In
the circumstances, the Committee, and notwithstanding the State party's
arguments, finds that to detain the author for a period of 26 days without
charge was a violation of article 9, paragraph 2, of the Covenant. The
failure of the State party to bring the author before the Court during
the 26 days of detention and not until three days after his re-arrest
was a violation of article 9, paragraph 3.
8.4 As regards the author's claim that he was not tried
without undue delay because of the unreasonably long period, 28 months,
between arrest and trial, the Committee is of the opinion that a delay
of two years and four months between arrest and trial, during which
time the author was held in detention was a violation of his right to
be tried within a reasonable time or to be released. The period in question
is also such as to amount to a violation of the author's right to be
tried without undue delay. The Committee therefore finds that there
has been a violation of articles 9, paragraph 3, and 14, paragraph 3
8.5 The Committee is of the opinion 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.
In the present case, since the final sentence of death was passed without
having observed the requirement for a fair trial set out in article
14, it must be concluded that the right protected by article 6 of the
Covenant has been violated.
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 violations of articles 9, paragraphs 2 and 3; 10, paragraph
1; 14, paragraphs 1 and 3 (c), and consequently of article 6 of the
10. Pursuant to article 2, paragraph 3 (a), of the Covenant,
the author is entitled to an effective remedy entailing commutation.
11. 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 or subjected 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, Ms. Christine Chanet,
Lord Colville, Ms. Elizabeth Evatt, Ms. Pilar Gaitan de Pombo, Mr. Eckart
Klein, Mr. David Kretzmer, Ms. Cecilia Medina Quiroga, Mr. Fausto Pocar,
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 Committee's annual report to the
Individual opinion by Committee member Nisuke Ando**
I am not dissenting from the Committee's Views,
but I would like to point to the following similarities of this communication
to communication No. 708/1996, Neville Lewis v. Jamaica (see
the two individual opinions appended to the latter):
(1) the author in both the cases has co-accused and there was a
confrontation between the author and the co-accused, each asserting
different versions of facts;
(2) the delay between the author's arrest and trial
was 26-28 months in the instant case and 23 months in case No. 708/1996;
(3) in both the cases, the State party argues that
a preliminary enquiry took place during the respective period.
Taking these similarities into account and maintaining
consistency of evaluation of relevant facts in both the cases, I am
unable to persuade myself to conclude that the delay of 26-28 months
between the author's arrest and trial in this case is entirely attributable
to the State party and constitutes a violation of article 9, paragraph
3 (see paragraph 8.4).