Communication No. 708/1996**
Submitted by: Neville
Lewis [represented by S
J Berwin & Co, a London law firm]
Victim: The author
State party: Jamaica
Date of communication:
24 May 1996 (initial submission)
The Human Rights Committee,
established under article 28 of the International Covenant on Civil and
Meeting on 17 July
Having concluded its
consideration of communication No. 708/1996 submitted to the Human Rights
Committee on behalf of Mr. Neville Lewis 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 Neville Lewis, a Jamaican citizen, currently awaiting execution at
St. Catherine District Prison in Jamaica. He claims to be a victim of
violations of articles 6, 7, 9, 10, and 14 of the International Covenant
on Civil and Political Rights. He is represented by Mr. David Stewart,
solicitor with S J Berwin & Co in London.
The facts as submitted
2.1 The author and his co-defendant
Peter Blaine were convicted of the murder of one Victor Higgs and sentenced
to death on 14 October 1994 by the Home Circuit Court in Kingston. Their
appeal was dismissed by the Court of Appeal on 31 July 1995, and on 2
May 1996, the author's petition for special leave to appeal to the Judicial
Committee of the Privy Council was refused. The author states that all
domestic remedies have thus been exhausted. He claims that a constitutional
remedy is not available to him because of his indigence, since Jamaica
does not provide legal aid for constitutional motions.
2.2 The author was arrested
on 11 November 1992, some three weeks after Mr. Higgs had been found dead,
and taken into custody at Lionel Town Police Station. During interrogation
by the police, the author initially denied any involvement. He claims,
however, that he was then severely beaten and as a result agreed to sign
blank sheets of paper. He claims that these sheets were later used to
forge his caution statement, in which he admitted having been with Blaine
at the scene of the murder, accusing Blaine of having carried out the
murder. (The veracity of the author's statement was never brought up at
trial. Indeed, the author's counsel at trial said that the statement was
2.3 After he made his statement
to the police, the author was transferred to the Central Police Station
in Kingston and charged with the murder of Mr. Higgs. He spent a week
in a filthy cell together with seven other detainees. The author states
that he did not have any contact with his lawyer until he was brought
to court, for the first of many preliminary hearings, approximately a
week after he was charged. At that hearing, the author met two co-accused,
known to him as "Garfield" and Cecil Salmon. The hearing was
2.4 Following the adjournment,
the author was remanded in custody at St. Catherine District Prison, in
a cell with 18 to 25 other prisoners. Eventually, the author's co-accused
It appears from the trial transcript that at the time of the trial
against the author the two co-accused were in detention on charges of
being accessory after the fact. were released on bail, but the author
remained in police custody. On 23 February 1993, a preliminary enquiry
was held, and the case was then transferred to the Home Circuit Court
in Kingston for trial. The author was remanded in custody at the General
Penitentiary in Kingston. The author states that he was kept with convicted
prisoners in a cell without basic sanitary facilities.
2.5 On 5 October 1994, the
trial against the author and his co-accused Peter Blaine started.
It appears that Blaine was arrested only on 12 July 1994. At trial,
the case for the prosecution was that Mr. Higgs, an American businessman
travelling in a Honda motor car, stopped at a road junction to ask for
directions at about 5 p.m. on 18 October 1992. The author and Blaine entered
his car offering to direct him. Mr. Higgs' body was found four days later
in a mud lake. His car had been found the previous day, its appearance
having been altered by changing the registration plates and tinting the
windows. The victim had been strangled with a strip of grey cloth wound
around his neck. His hand and feet were bound with the same cloth and
an attempt had been made to sink the body by weighting it with a piece
of railway line. The prosecution called witnesses who had seen the author
and his co-accused enter the victim's car, a witness who had helped the
accused in tinting the windows of the car, and a policeman who had stopped
the accused while driving in the car on 19 October 1992. Medical evidence
was led as to the cause of death, strangling with a piece of cloth. The
caution statements made by the two accused were also led as evidence.
2.6 The author's co-accused
Peter Blaine made an unsworn statement from the dock, admitting to taking
a ride with Higgs on 18 October 1992, together with the author and two
other youths. He blamed the author for having concocted the plan to steal
Higgs' car and murder him.
2.7 The author gave sworn
evidence, stating that it was Blaine who had attacked Higgs and had forced
the author to cooperate, despite his pleas to leave the man alone. One
other witness, a policeman, was called on the author's behalf, and testified
as to the willingness of the author to cooperate. At the trial, the author
was represented by a Queen's counsel, who had been retained for him by
an ex-girlfriend. Allegedly he only met his representative 30 minutes
before the beginning of the trial and was unable to examine the evidence
2.8 On 15 December 1994, the
author wrote to the Ombudsman to complain that he had been forced by the
police to sign blank sheets of paper, and that when he arrived at the
court on 5 October 1994, his lawyer was not yet there and he was approached
by a detective who told him what evidence to give, which he then did.
This seems to contradict the statement that the author saw his counsel
half an hour before the beginning of the trial. The trial transcript further
shows that the author gave evidence in the afternoon of 11 October 1994,
with his counsel leading him. The Ombudsman, in his reply of 21 March
1995, replied that he should raise these issues on appeal and that allegations
of misconduct by the police should be directed to the Police Complaints
Department to be investigated.
2.9 On 20 June 1995, the Registrar
of the Court of Appeal informed the author that he would be represented
on a legal aid basis by a lawyer, who had not earlier been involved with
the case. He was also informed that the hearing would be held in the week
of 10 July 1995. The author states that he never met his lawyer. The appeal
was argued on three grounds of misdirections by the judge to the jury.
3.1 As regards the events
before the trial, the author claims that he is a victim of a violation
of articles 7, 9, 10, and 14, paragraph 2, of the Covenant. He recalls
that he was severely beaten upon arrest, that he was forced to sign blank
sheets of paper, that he was kept in detention with convicted prisoners,
and that he was kept in custody for 23 months until the beginning of the
trial. The author claims that the delay in bringing him to trial was due
to the fact that without Blaine's testimony, there was not enough evidence
against him. In this context, he claims a violation of article 14, paragraph
2. The author further states that the fact that he was kept in detention
throughout hindered him in the preparation of his defence, and that he
met his privately retained lawyer for the first time only 30 minutes before
the beginning of the trial. This is said to constitute a violation of
article 14, paragraph 3 (b).
3.2 As regards the trial,
the author claims that the extensive media coverage before and during
his trial, prejudiced his right to a fair trial and the right to be presumed
innocent. In this connection, the author states that he requested the
Court at the beginning of the trial to bar the press from attending, which
was refused. No support for this claim is found in the trial
transcript. During the trial, an erroneous broadcast stated that the author
had admitted to taking part in the murder of Higgs. The author's counsel
mentioned this to the trial judge, who then instructed the jury to disregard
any media coverage of the case.
3.3 The author further claims
that the judge did not adequately instruct the jury as to the evidence
the two accused entered against each other. He also claims that he wanted
his counsel to call his girlfriend to give evidence on his behalf, but
that she was never called, in violation of article 14, paragraph 3 (e).
3.4 The author claims that
the delays in the proceedings against him (three and a half months between
his arrest and the preliminary enquiry, 16 months between his arrest and
the arraignment, and nearly two years between his arrest and the trial)
constitute violations of articles 9, paragraph 3, and 14, paragraph 3
(c), of the Covenant.
3.5 As regards the appeal,
the author claims that the legal aid lawyer who argued his appeal, failed
to properly prepare the appeal, since he never met with the author before
the hearing. This is said to constitute a violation of article 14, paragraph
3.6 The author claims that
the imposition of the death penalty was in violation of article 6 of the
Covenant, because of the previous violations of the Covenant.
3.7 The author claims that
the circumstances of his detention on death row at the Gibraltar block
at St. Catherine Prison are in violation of article 10 of the Covenant.
He claims that the cell block is dirty, smelly and infected with insects.
He alleges that he is confined to his cell for 24 hours a day, with the
exception of five minutes to slop out. There is no artificial light in
the cell and he is only allowed to see visitors once a week for five minutes.
The author also claims a violation of article 10, paragraph 3, because
the Jamaican Penitentiary System does not in practice aim to achieve the
social rehabilitation and reformation of prisoners. In this context, the
author refers to the overcrowding of prisons and the imposition of the
death penalty as a form of punishment.
3.8 It is stated that the
same matter has not been submitted to another procedure of international
investigation or settlement.
State party's observations
and the author's comments thereon
4.1 By submission of 23 September
1996, the State party notes that the author alleges that he was ill-treated
by the police during his initial detention. The State party further notes
that the author wrote to the Ombudsman who then replied and directed him
to the Police Complaints Authority. The author, however, failed to pursue
this course of action, nor did he raise the matter at any stage of his
trial. The State party therefore argues that this claim is inadmissible
for non-exhaustion of domestic remedies.
4.2 The State party denies
a violation of article 9 of the Covenant. As regards his complaint that
he was not allowed to see an attorney, the State party indicates that
it will investigate the matter.
4.3 As regards the author's
continued pre-trial detention, the State party submits that the refusal
to grant bail does not constitute a violation of the Covenant. In the
State party's opinion, there are circumstances in which a person should
not be granted bail and these circumstances are best determined by a magistrate.
The duty of the State is to review regularly the circumstances of the
individual's detention in order to determine whether there has been a
change in circumstances justifying the release of the individual. This,
the State party submits, was done and therefore there was no breach of
articles 9 and 14, paragraph 2, of the Covenant.
4.4 As regards the length
of the pre-trial detention, the State party explains that during the 23
months, a preliminary enquiry was held and the author appeared in court
on several occasions. According to the State party, the delay therefore
does not constitute undue delay in violation of the Covenant. As regards
the three months' delay between the author's arrest and the preliminary
hearing, the State party explains that the author appeared in Court during
that period on several occasions and argues that there was no undue delay
which would amount to a violation of the Covenant. Nor does the period
of 16 months between the author's arrest and arraignment, during which
period the author appeared in Court several times and a preliminary inquiry
was held, constitute a violation of the Covenant, in the opinion of the
4.5 As regards the author's
claim that a violation of article 14, paragraph 1, occurred because of
the media coverage of the case, which would have influenced the jurors
against him, the State party notes that it was open to the author to raise
this issue at trial or on appeal, but that he failed to do so. The State
party therefore argues that this aspect of the communication is inadmissible
for non-exhaustion of domestic remedies.
4.6 As regards the author's
contention that his right to have adequate time and facilities for the
preparation of his defence was breached since his continued detention
hindered him and he had only minimal contact with his attorney for his
trial and none with his appeal attorney, the State party denies that pre-trial
detention as such would hinder the preparation of the defence to the extent
that it would lead to an unfair trial. As regards the legal representation,
the State party maintains that it is its responsibility to appoint competent
counsel to represent persons who require legal aid. How counsel conducts
the case is not a matter for which the State party can be held accountable
under the Covenant.
4.7 The State party notes
that the author also complains about the judge's instructions to the jury
and points out that the Committee has recognized that this is a matter
which falls within the jurisdiction of the appellate courts.
4.8 As regards the author's
claim under article 14, paragraph 3 (e), the State party notes that the
author fails to indicate why his girlfriend was not called to give evidence.
The State party argues that it cannot be held responsible for the failure
to call her, unless it can be attributed to some action by the State authorities.
5.1 In his comments on the
State party's submission, counsel argues that the communication is admissible
and that the State party has failed to address certain issues raised by
the communication, which must be taken as an acknowledgement of their
admissibility. As regards the merits of the communication, counsel submits
that the State party has undertaken to investigate why the author was
not able to see an attorney, and moreover, that there are a number of
matters which would require further investigation by the State party,
before the Committee could determine the merits of the case.
5.2 As regards the State party's
argument that the author's claim concerning his ill-treatment at the hands
of the police is inadmissible for non-exhaustion of domestic remedies,
counsel recalls that the author complained in writing to the Ombudsman
on 15 December 1994. He received a reply from the Ombudsman on 21 March
1995, in which he was referred to the Police Complaints Department in
Kingston. Counsel points out that at the time, the author was already
on death row and in practice it was impossible for the author to lodge
a complaint with the Police Complaints Department because of his vulnerable
position, exposed to brutality and intimidation by prison guards. Counsel
points to the inherent difficulty of a detainee to prove allegations of
torture or ill-treatment and, with reference to the Committee's jurisprudence
in Ramirez v. Uruguay Communication No. 4/1977, Views
adopted by the Committee at its tenth session, on 23 July 1980., argues
that where the author has given adequate particulars of the acts concerned,
a refutation by the State party in general terms is not sufficient. Counsel
contends that the author had no reasonable prospect of a complaint to
the Police Complaints Department succeeding, and that, on the contrary,
such a complaint would only result in reprisals by the guards. He therefore
decided not to write, but to pursue his other legal remedies on appeal
and in the international tribunals.
5.3 Counsel notes that the
State party has not contradicted the author's allegations concerning the
conditions of detention on death row, which allegedly constitute in themselves
a violation of articles 7 and 10, paragraph 1, of the Covenant.
5.4 As regards the author's
pre-trial detention, counsel submits that the author had no prior convictions
and was ignorant as how to deal with the police. It is submitted that
he was tricked by the police into testifying against himself, something
the State party should be held accountable for.
5.5 Counsel submits that the
State party has failed to address the author's allegations that the presumption
of innocence was not respected in his case, particularly in the light
of the fact that his co-accused Peter Blaine was only arrested on or about
12 July 1994, some three months before trial.
5.6 As regards the 23 months
delay between arrest and trial, counsel notes that the State party has
denied that the delay was unreasonable but has not offered to investigate
the reasons for it. Counsel contends that the lengthy incarceration was
extremely unjust because the author was unable to meet his defence attorneys
to prepare adequately his defence. This breach is said to be a violation
of the State party's obligations under article 9, paragraph 3, and ultimately
an infringement of the author's right to life protected under article
6 of the Covenant. According to counsel, even though the delay of three
months between arrest and preliminary hearing may not be unreasonable
because the author appeared in court several times, this argument cannot
be relied upon by the State party to justify the delay of 16 months between
the author's arrest and his arraignment on 6 April 1994. It is submitted
that the authorities should not have been allowed to hold the author until
they arrested Blaine, his co-accused, in July 1984, and that this constituted
a violation of article 14, paragraph 3 (c).
5.7 As regards the media coverage
and the prejudices this created in respect of the author and his co-accused,
counsel states that both the author and his co-accused attempted to have
the press excluded from the court room prior to the initial hearing, but
this was denied. Further, it is submitted that the police distributed
a passport photograph of the author to the press, which was used to implicate
him in the murder. The author maintains that the publicity of his involvement
in the crime prejudiced his trial and the interests of justice, in contravention
of article 14, paragraph 1. As regards the State party's argument that
the author did not exhaust domestic remedies, counsel states that he does
not know of any Jamaican case where the courts have stayed proceedings
because of adverse publicity. He therefore submits that there was no effective
remedy available to him, since the trial judge refused the application
to exclude the press from the court. According to counsel, the matter
could not have been raised as a ground of appeal, neither to the Court
of Appeal in Jamaica nor to the Judicial Committee of the Privy Council.
5.8 With regard to the inadequacy
of time and facilities for preparation of the author's appeal, counsel
recalls that the author was represented on appeal by a legal aid lawyer
who did not come to discuss the case with him, despite the fact that the
author had written to him to say that he had important information. In
general, counsel submits that the State party only provides the most meagre
level of legal aid to indigent defendants. As a result, it is often inexperienced
counsel who take on death row cases, who, because of the level of remuneration
will almost inevitably reduce the time in preparation of the case.
Issues and proceedings
before the Committee
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 the
State party's argument that the author's claim that media coverage prejudiced
the jury against him is inadmissible for non-exhaustion of domestic remedies.
It notes that this matter was not raised by the author or his counsel
during the trial, as it was incumbent upon them to do. Accordingly, the
Committee considers that this part of the communication is inadmissible.
6.4 The Committee further
notes the State party's argument that the author's claim that he was beaten
upon arrest is inadmissible for non-exhaustion of domestic remedies. It
notes that neither the author nor his counsel raised this issue during
the trial as it was incumbent upon them, and that the author's defence
at trial was partly based on the voluntariness of his statement and his
cooperation with the police. The Committee, therefore, considers that
this claim is inadmissible.
6.5 As regards the author's
claim that the judge's instructions to the jury were inadequate, 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 specific instructions to the jury by the trial judge, unless
it can be ascertained that the instructions to the jury were clearly arbitrary
or amounted to a denial of justice. The material before the Committee
does not show that the trial judge's instructions or the conduct of the
trial suffered from such defects. Accordingly, this part of the communication
is inadmissible as incompatible with the provisions of the Covenant, pursuant
to article 3 of the Optional Protocol.
6.6 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 Optional Protocol.
6.7 The Committee considers
that the author has failed to substantiate, for purposes of admissibility,
that he is a victim of a violation of article 10, paragraph 3. This part
of the communication is therefore inadmissible under article 2 of the
6.8 The Committee notes that
the State party has shown a willingness to have the instant communication
examined on the merits, insofar as it had no objection to admissibility.
The Committee has taken note of counsel's argument that a number of matters
would still require investigation by the State party. Nevertheless, the
Committee is of the opinion that the information before it is sufficient
to allow an examination of the merits of the communication.
7. In the circumstances, the
Committee decides that the author's remaining claims are admissible and
proceeds 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 argued
that the 23 months' delay between his arrest and trial was unduly long
and constitutes a violation of articles 9, paragraph 3, and 14, paragraph
3 (c), of the Covenant. Article 9, paragraph 3, entitles an arrested person
to trial within a reasonable time or to release. The Committee notes that
the arguments forwarded by the State party do not give an adequate explanation
why the author, if not released on bail, was not brought to trial for
23 months. The Committee is of the view that in the context of article
9, paragraph 3, and in the absence of any satisfactory explanation for
the delay by the State party, a delay of 23 months during which the author
was in detention is unreasonable and therefore constitutes a violation
of this provision. The Committee does not, in the circumstances, consider
it necessary to consider the question of violation of article 14, paragraph
8.2 In the context of the
delay, the author has also argued that his right to presumption of innocence
was violated, because the delay was caused by the failure of the police
to find his co-accused and that in the absence of his co-accused there
was not enough evidence against him. The Committee notes that the author
was arraigned before his co-accused was apprehended, which shows that
there was sufficient prima facie evidence against him to put him
to trial. In the circumstances, the Committee finds that the facts before
it do not disclose a violation of article 14, paragraph 2.
8.3 The author has also argued
that his continued detention hindered him in the preparation of his defence,
since he could not freely consult with his counsel. In this context, the
Committee notes that the State party has said it would investigate why
the author was not allowed to see an attorney. The Committee observes,
however, that the author has never claimed that he was not allowed to
see an attorney and that he in fact saw an attorney a week after his arrest.
In the instant case, the information before the Committee does not show
that the restrictions placed on the author hindered the preparation for
his defence to such an extent as to constitute a violation of article
14, paragraph 3 (b), of the Covenant. In this context, the Committee notes
also that neither the author nor his counsel requested more time for the
preparation of the defence at the beginning at the trial.
8.4 As regards the author's
argument that he was not effectively represented on appeal, since his
legal aid lawyer failed to consult with him, the Committee notes that
the author was informed beforehand who would represent him at the appeal,
that he was informed of the date of the hearing and that counsel for the
author did argue the appeal on his behalf. The Committee recalls its jurisprudence
that under article 14, paragraph 3 (d), the court should ensure that the
conduct of a case by the lawyer is not incompatible with the interests
of justice. In the instant case, nothing in the conduct of the appeal
by the author's lawyer shows that he was not using his best judgement
in the interests of his client. The Committee concludes therefore that
the information before it does not show that article 14, paragraph 3 (d),
has been violated.
8.5 The Committee notes that
the State party has not contested the author's claims under article 10
of the Covenant (1) that after his arrest he spent a week in a filthy
cell with seven other prisoners, (2) that in the General Penitentiary
he was kept with convicted prisoners in a cell without basic sanitary
facilities and (3) that the cell in which he is held on the death row
is dirty, smelly and infected with insects and that he is in there all
day, except for five minutes to slop out and during visits, once a week
for five minutes. The Committee finds that, in the circumstances, the
facts presented by the author constitute a violation of article 10, paragraphs
1 and 2 (a), 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 9, paragraph 3, and article
10, paragraph 1, of the Covenant.
10. The Committee is of the
view that Mr. Neville Lewis is entitled, under article 2, paragraph 3
(a), of the Covenant, to an effective remedy, including 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 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 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, Mr. Rajsoomer
Lallah, Ms. Cecilia Medina Quiroga, Mr. Julio Prado Vallejo, Mr. Martin
Scheinin, Mr. Danilo Türk and Mr. Maxwell Yalden.
** The texts of four individual
opinions by Committee members Nisuke Ando, Lord Colville, Rajsoomer Lallah
and Martin Scheinin are appended to the present document.
[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.]
A. Individual opinion by Committee member Lord Colville (dissenting)
1. I am unable to agree that
the delay of 23 months which elapsed between the author's arrest and trial
constitutes a violation, on the facts of this case, of articles 9, paragraph
3, of the Covenant. The crucial matter is that concerning his statement,
which in paragraphs 2.2 and 3.1 of the Views he complains was falsely
obtained after his being beaten by the police.
2. This statement, which contained
his confession to an involvement in the killing of the victim, was central
to the author's defence at his trial, and was always so intended. Contrary
to his claim, a study of the trial transcript shows that the statement
was taken voluntarily, in the presence of a Magistrate who attended for
this purpose at the request of the police officer in charge of his case.
It was confirmed at the trial, by his counsel (p. 92) and by the author
in the course of his sworn evidence, to be true: he never complained that
it had been extracted from him in the manner now claimed. To the contrary,
it was an essential part of his defence, in his attempt to ensure that
his conviction (which was virtually certain) was for non-capital
murder under section 2(2) of the Offences against the Person (Amendment)
Act 1992, in that, he claimed, he had "not himself used violence on that
person in the course or furtherance of an attack" on him - see Court of
Appeal judgement, 31 July 1995, p. 17 & 18. The author's defence was,
and had always been, to transfer the blame for all application of violence
to his co-defendant, Peter Blaine. Such a line of defence (colloquially
known to common lawyers as a "cut-throat" defence) would have stood very
little chance of success unless the same jury was also engaged in the
decision whether they could convict Peter Blaine, in accordance with the
proper rules of procedure, exemplified in article 14, paragraph 2, of
3. In the event the author's
defence on these lines was not successful, possibly because of major inconsistencies
between what he had said in the statement before the Magistrate and the
evidence he gave during the trial. Nevertheless it was sufficiently important
to him to give sworn evidence, and to subject himself to cross-examination
by the prosecution and also counsel for his co-defendant (which did occur),
in order to seek to obtain a non-capital verdict.
4. The author's co-defendant,
Peter Blaine, had gone into hiding after the murder and there was a police
block on Jamaican ports to prevent his leaving the jurisdiction. It was
not open to the author to assist in his apprehension but it was essential
to the author that he should not be tried alone, by a jury not also seized
of the case of Peter Blaine. No complaint is made that the author sought
release on bail, whatever the probabilities of such an application being
successful, and he gives no information in that respect.
5. As for the author's claim,
in paragraph 3.1 of the Views, that there was insufficient evidence, without
that of Peter Blaine, to bring him to trial, this is wholly inconsistent
with (i) his initial statement, (ii) his sworn evidence at the trial and
(iii) his own adopted line of defence which was to transfer any liability
for capital (as opposed to non-capital) murder on to his co-defendant,
6. Accordingly I am of the
opinion that the author's substantive rights under the Covenant were neither
invoked nor violated in the respect set out above.
opinion by Committee member Nisuke Ando (dissenting)
After carefully reading the
individual opinion of Lord Colville, I am unable to concur with the Views
of the Committee that the delay of 23 months in this case between the
author's arrest and trial constitutes a violation of article 9, paragraph
3, of the Covenant (paragraph 8.1).
In this connection, the Committee
notes that "the arguments put forward by the State party do not address
the question of why the author, if not released on bail, was not brought
to trial for 23 months" (ibid). However, according to the State
party, "during the 23 months, a preliminary enquiry was held and the author
appeared in court on several occasions" (paragraph 4.4). Furthermore,
Lord Colville's opinion makes clear that "it was essential to the author
that he should not be tried alone, by a jury not also seized of the case
of Peter Blaine" (individual opinion, paragraph 4), the co-accused of
the same murder charge who was arrested probably early in July 1994, some
20 months after the author was arrested (Views in communication No. 696/1996,
paragraphs 2.1 and 3.4). In fact, Lord Colville notes that "[n]o complaint
is made that the author sought release on bail" and that "he gives no
information in that respect" (individual opinion, paragraph 4).
All the above indicates to
me that the delay of 23 months between the author's arrest and trial was
not necessarily caused by the State party's inaction but was essentially
caused by the convenience of the author himself. Since it is an established
jurisprudence of the Committee that the prolongation of judicial proceedings
caused by an author should not be attributable to the State party concerned,
I am unable to concur with the Views in this case that the 23 months'
delay between the author's arrest and trial constitutes a violation of
article 9, paragraph 3, of the Covenant.
Nisuke Ando [signed]
C. Individual opinion by Committee member Rajsoomer Lallah
I am unable to agree
with the Committee's view that there has been a violation of article
9, paragraph 3, in the present case. The grounds relied upon by the
Committee are, first, that the period of 23 months which had elapsed
between the arrest of the author and his trial was unreasonable and,
secondly, that the State party had not given any satisfactory explanation
which would account for the length of this period.
The State party did provide
some explanations which, in my view, were quite relevant. These could
legitimately be considered in the context of other relevant factors
shown in the case record. Those explanations and the record indicate
the following: the police first conducted an enquiry; on the basis
of that enquiry, a preliminary enquiry was held before a court and
the author appeared several times in court; at the close of the committal
proceedings, the author was committed by the court for eventual trial;
the trial did not take place in the normal course since the police
then succeeded in arresting a co-accused, and it must be assumed that
a preliminary enquiry had to be held with regard to the participation
of the co-accused, so that there could be a joint trial of the author
and his co-accused in respect of a joint offence. It would seem to
me that, in these circumstances, it could not be said that the time
that elapsed between the committal of the author and beginning of
his trial, though ex facie somewhat long, was unreasonable.
It is worthy of note
that there does not appear to have been any attempt by the author
to seek any order from the court to be tried within a reasonable time,
if it appeared to him that proceedings were dragging on.
D. Individual opinion by Committee member Martin Scheinin
I share the Views of
the Committee with respect of the issues where a violation of the
Covenant has been established.
In addition the author
has complained of a violation of article 9, paragraph 3, of the Covenant
and counsel's presentation of the facts refer to a delay of one week
before the author was first brought before a judge after being taken
into custody by the police. As the State party has failed to address
this issue or to present any information of the author in fact being
brought before a judicial authority during the first week of his detention,
I believe the right of a person detained on a criminal charge to be
promptly brought before a judge or other judicial authority, as secured
in the first part of article 9, paragraph 3, also has been violated.
After a finding of a
multiple violation of the Covenant the commutation of the death sentence
is, in my opinion, the only appropriate remedy to be recommended.