Lloydell Richards v. Jamaica, Communication No. 535/1993,
U.N. Doc. CCPR/C/59/D/535/1993 (31 March 1997).
Lloydell Richards v. Jamaica, Communication No.
535/1993, U.N. Doc. CCPR/C/59/D/535/1993 (31 March 1997).
Distr. RESTRICTED [*] */
CCPR/C/59/D/535/1993
31 March 1997
Original: ENGLISH
------------------------------------------------------------------------
HUMAN RIGHTS COMMITTEE
Fifty-ninth session
24 March - 11 April 1997
VIEWS
Communication No. 535/1993
Submitted by:
Lloydell Richards
[represented by Mr. Saul Lehrfreund]
Victim: The
author
State party:
Jamaica
Date of communication: 14 January 1993 (initial submission)
Date of adoption of Views: 31 March 1997
On 31 March 1997, the Human Rights Committee
adopted its Views under article 5, paragraph 4, of the Optional
Protocol in respect of communication No. 535/1993. The text of the
Views is appended to the present document.
[ANNEX]
VWS535.59e cb
GE.97-
ANNEX*
Views of the Human Rights Committee under
article 5, paragraph 4, of the Optional Protocol to the International
Covenant on Civil and Political Rights
- Fifty-ninth
session -
concerning
Communication No. 535/1993**
Submitted by:
Lloydell Richards
[represented by Mr. Saul Lehrfreund]
Victim: The
author
State party:
Jamaica
Date of communication: 14 January 1993 (initial submission)
Date of decision on
admissibility: 17 March 1995
The Human Rights Committee, established under article 28 of the International
Covenant on Civil and Political Rights,
Meeting on 31 March
1997,
Having concluded its
consideration of communication No. 535/1993 submitted to the Human
Rights Committee on behalf of Mr. Lloydell Richards 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 Lloydell
Richards, a Jamaican citizen who at the time of submission of his
communication was awaiting execution at St. Catherine District
Prison, Jamaica. He claims to be a victim of violations by Jamaica of
articles 6, paragraph 2; 7; 14, paragraphs 1, 2, 3(c), (d) and (e),
and 5, of the International Covenant on Civil and Political Rights.
He is represented by Mr. Saul Lehrfreund. The author's death sentence
has been commuted.
The facts as presented by the author
2.1 On 15 March 1982, the author was charged with
the murder, on 8 or 9 March 1982 in the Parish of
Westmoreland, of one S.L. On 26 September 1983, he appeared before
the Home Circuit Court of Kingston; on arraignment, he pleaded guilty
to manslaughter, a plea accepted by the prosecution. Counsel for the
defence then requested an adjournment in order to call character
witnesses in mitigation. The hearing was adjourned to 3 October 1983.
However, the Director of Public Prosecutions (DPP), who has the
authority, pursuant to Section 94, paragraph 3(c), of the Jamaican
Constitution, to discontinue any criminal proceedings at any stage
before judgement is delivered, considered that the plea of guilty to
manslaughter should not have been accepted and decided to discontinue
the proceedings in the case in order to charge the author with the
murder on a fresh indictment.
2.2 Accordingly, at the hearing of 3 October 1983,
a nolle prosequi
was entered by the DPP; the new indictment was read out to the
author, who pleaded not guilty. On 6 December 1983, the author was
tried in the Home Circuit Court of Kingston, then presided over by
another judge. On 13 December 1983, he was found guilty of murder and
sentenced to death. On appeal, counsel for the author argued that the
trial had been unconstitutional, in the light of the earlier
acceptance by the prosecution of a plea of manslaughter. The Court of
Appeal of Jamaica dismissed his appeal on 10 April 1987. The author
subsequently petitioned the Judicial Committee of the Privy Council
for special leave to appeal; on 20 February 1991, leave to appeal was
granted. On 29 and 30 June 1992, the Privy Council heard the author's
appeal and dismissed it on 19 October 1992, recommending that the
author's death sentence be commuted. Following the enactment of the
Offences Against the Person (Amendment) Act 1992, Jamaica created two
categories of murder, capital and non capital, consequently all
persons previously convicted of murder had their conviction reviewed
and reclassified under the new system. In December 1992, the author's
offence was classified as Acapital".
2.3 The case for the prosecution was that, on 8
March 1982 at about 8 p.m., the author, who worked as a driver of a
minibus, picked up S.L., who was living in Montego Bay. She was
stranded in Savanna-la-mar, and although Montego Bay was not on the
scheduled route, the author said that he would bring her home, as he
had completed the last trip of the day. He first dropped the
conductor of the bus at his home. At 9 p.m., the author stopped and
had drinks in a bar. The bar owner saw S.L. coming out of the bus and
trying to obtain a lift from cars going in the direction of Montego
Bay. When she did not succeed, she re-entered the bus and left with
the author. At 1 a.m., a witness who knew the author saw him coming
out of a guest house, and pulling S.L. who was crying, into the
minibus. Several hours later, the author, covered in mud and blood,
appeared at the bus conductor's house. He said that the bus had been
hijacked by three armed men and that they had ordered him to drive
into the countryside. When the bus became stuck in the mud, he
managed to escape; he further said that he feared for S.L.'s life.
The author and a few other people, followed by the police, soon found
the minibus and the body of S.L. was discovered in a shallow grave
nearby. She had died as a result of a head injury; a blood-stained
tool was found in the bus. The deceased's body also showed signs of
rape.
2.4 The author gave an unsworn statement from the
dock. He maintained that the bus had been hijacked, and said that two
of the prosecution witnesses were motivated by malice. He further
stated that he had been tortured by the police.
The complaint
3.1 The author claims that his trial was unfair.
He encloses two articles which appeared in a well-known Jamaican
newspaper, and submits that the information given was prejudicial to
his case. One of the articles, published on 1 October 1983, informed
Athat the author had pleaded guilty to manslaughter in the case of
the death of S.L., a 17-year-old school girl". It further stated
Athat some members of the judiciary felt that manslaughter did not
arise in a case of that nature", and summarized the prosecution's
case. The author points out that this article was published two days
before he appeared in court to be sentenced on the basis of his
manslaughter plea, and before the prosecution entered the
nolle prosequi.
The second article, published on 4 October 1983, reported the
proceedings of the previous day, and, according to the author, in a
way prejudicial to his defence. The author that he had already
pleaded guilty to manslaughter, deprived him of the right to a fair
trial before an independent and impartial tribunal, contrary to
article 14, paragraph 1, of the Covenant.
3.2 The author further claims that the publicity
given to the proceedings violated his right to be presumed innocent
until proven guilty according to law.
3.3 The author points out that he was arrested on
9 March 1982, tried on 6 December 1983, and that the Court
of Appeal dismissed his appeal on 10 April 1987. He submits
that a delay of one year and nine months before being tried, and of
three years and four months before hearing his appeal, is
unreasonable, thus violating his rights under article 14, paragraphs
3(c) and 5, of the Covenant.
3.4 With regard to article 14, paragraph 3(d), the
author notes that, on 26 September 1983, when he pleaded
guilty to manslaughter, he was represented by leading counsel, Mr.
C.M., who requested an adjournment. At the hearing on 3 October 1983,
he was again represented by C.M., who had been notified by the
prosecution of its intention to enter a nolle prosequi. Prior to the
hearing on 6 December 1983, C.M. applied to withdraw from the case on
professional ethical grounds, and requested an adjournment because
junior counsel, who would take over the defence, could not attend the
hearing. The judge refused both requests, primarily on the ground
that the trial had already been postponed several times, and
criticized C.M. for not having started his investigations in
Westmoreland until 27 November 1983 and for not having informed his
client of his position. C.M. then indicated that he would remain for
the defence that day. In the circumstances, the author submits, he
was not adequately represented by C.M.
3.5 The author further claims that junior counsel
was not in a position to effectively represent him, which she herself
admitted. In this context, he notes that on 7 December 1983, she,
while apologizing to the Court for having been absent on the first
day of the trial, said: ABut I wish to indicate to the Court that I
have no intention of taking or accepting any money from the
Government for this case, because I feel that I have not given it my
best and in the circumstances I am here this morning to >fight the
good fight with all my might'; but I will not, because I don't feel
it is justified and my conscience would not allow me, accept any
money in relation to this legal aid assignment, but I am here to
protect my client".
3.6 The author points out that on Friday, 9
December 1983, just before the end of the hearing, counsel indicated
that an expert witness, a medical doctor, would be called to give
evidence on behalf of the defence. On Monday, 12 December 1983, she
stated, however, that the witness was not available. No other
witnesses were called for the defence. According to the author, this
amounts to a violation of article 14, paragraph 3(e), of the
Covenant.
3.7 In the light of the above, article 6,
paragraph 2, is said to have been violated, since 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 available, a violation of this
provision.
3.8 The author submits that, during the
interrogation on 9 March 1982, he was tortured by the police. He
alleges that the officer who arrested him held him by the shirt in a
chocking position so that he was unable to reply to any of the
questions. Later that day, he was taken to an office where,
allegedly, he was Amobbed" by five or six police officers, who
sprayed tear-gas in his eyes, ears and nostrils, and his him with a
stick. As a result, he submits, he could not see or hear well for a
number of days, and was unable to drink for 17 days. He claims that
he was denied medical treatment.
3.9 It is submitted that the execution of the
author at this point in time would amount to a violation of article
7, because of the delays in adjudicating the case and the time spent
on death row. In support of this contention, it is submitted that the
Privy Council, when dismissing the author's appeal, expressed its
concern about the delays in the judicial proceedings in the case, and
recommended that the death sentence be commuted. Furthermore, the
author is said to have been subjected to cruel, inhuman and degrading
treatment and punishment while being held in the death row section of
St. Catherine District Prison, where the living conditions are said
to be appalling. Finally, the mental anguish and anxiety resulting
from prolonged detention on death row, exacerbated by the changing
attitudes of the Jamaican authorities in carrying out executions, are
said to constitute a separate violation of article 7.
3.10 As to the exhaustion of domestic remedies,
the author concedes that he has not applied to the Supreme
(Constitutional) Court of Jamaica for redress. He argues that a
constitutional motion in the Supreme Court would inevitably fail, in
the light of the precedent set by the Judicial Committee's decisions
in DPP v. Nasralla [(1967) 2 ALL ER 161] and Riley
et al. v. Attorney General of Jamaica
[(1982) 2 ALL ER 469], where it was held that the Jamaican
Constitution was intended to prevent the enactment of unjust laws and
not merely unjust treatment under the law. Since he claims unfair
treatment under the law, and not that post-constitutional laws are
unconstitutional, a constitutional motion would not be an effective
remedy in his case. He further argues that even if it were accepted
that a constitutional motion is a final remedy to be exhausted, it
would not be available to him because of his lack of funds, the
absence of legal aid for this purpose and the unwillingness of
Jamaican lawyers to represent applicants on a pro bono basis for the
purpose.
State party's observations on admissibility and
counsel's comments
4. By submission of 23 June 1993, the State party
argued that the communication was inadmissible for failure to exhaust
domestic remedies. In this context, the State party argued that it is
open to the author to seek redress for the alleged violations of his
rights by way of a constitutional motion to the Supreme Court.
5. In his comments, counsel reiterated that the
constitutional motion was not an effective and available domestic
remedy in the author's case. In this context, he refers to the
Committee's jurisprudence that, in the absence of legal aid, a
constitutional motion is not an available remedy. It was stated that
the constitutionality of the execution of the death sentence cannot
be brought before the Judicial Committee of the Privy Council without
first exhausting domestic remedies through the Supreme
(Constitutional) Court.
The Committee's decision on
admissibility
6.1 At its 53rd session, the Committee considered
the admissibility of the communication. It noted the State party's
claim that the communication was inadmissible for failure to exhaust
domestic remedies. The Committee recalled its constant jurisprudence
that for purposes of article 5, paragraph 2(b), of the Optional
Protocol, domestic remedies must be both effective and available. As
regards the State party's argument that a constitutional remedy was
still open to the author, the Committee noted that the Supreme Court
of Jamaica had, in some cases, allowed applications for
constitutional redress in respect of breaches of fundamental rights,
after the criminal appeals in these cases had been dismissed.
However, the Committee also recalled that the State party has
indicated on several occasions that no legal aid is made available
for constitutional motions. The Committee considered that, in the
absence of legal aid, a constitutional motion does not, in the
circumstances of the instant case, constitute an available remedy
which needs to be exhausted for purposes of the Optional Protocol. In
this respect, the Committee therefore found that it was not precluded
by article 5, paragraph 2(b), from considering the
communication.
6.2 The Committee considered that the author and
his counsel had sufficiently substantiated for purposes of
admissibility the claim that the trial against the author did not
fulfil the requirements laid down in article 14 of the Covenant.
The Committee found that the entering of nolle prosequi by the
prosecution after the author had pleaded guilty to manslaughter and
the publicity connected thereto may have affected the presumption of
innocence in the author's case. The Committee also found that the
judge's refusal to adjourn the trial after counsel had indicated that
he was no longer willing to represent him may have affected the
author's right to prepare his defence adequately and to obtain the
attendance of witnesses on his behalf. Further, the Committee found
that the delay in the judicial proceedings might raise issues under
article 14, paragraphs 3(c) and 5, of the Covenant. The Committee
considered that these issues needed to be examined on the
merits.
6.3 The Committee considered that, in the absence
of information provided by the State party, the author had
sufficiently substantiated, for purposes of admissibility, his claim
that he was subjected to ill-treatment upon arrest and subsequently
denied medical treatment. This claim might raise issues under
articles 7 and 10 of the Covenant, which needed to be examined on the
merits.
6.4 The Committee next turned to the author's
claim that his prolonged detention on death row amounted to a
violation of article 7 of the Covenant. While the Committee had taken
due note of the judgment of the Privy Council in the case of Earl
Pratt and Ivan Morgan (which the author has apparently not invoked in
the domestic courts of Jamaica), it reiterated its prior
jurisprudence that lengthy detention on death row does not
per se
constitute cruel, inhuman or degrading treatment in violation of
article 7 of the Covenant. The Committee observed that the author had
not substantiated, for purposes of admissibility, any specific
circumstances of his case that would raise an issue under article 7
of the Covenant. This part of the communication was therefore deemed
inadmissible under article 2 of the Optional Protocol.
Examination on the merits
7.1 The Committee has considered the communication
in the light of all the information provided by the parties. It notes
with concern that, following the transmittal of the Committee's
decision on admissibility, no further information has been received
from the State party clarifying the matter raised by the present
communication. The deadline for submission of the State party's
information and observations under article 4, paragraph 2, of the
Optional Protocol expired on 1 November 1995. No additional
information has been received from the State party, in spite of a
reminder addressed to it on 2 August 1996. The Committee recalls that
in accordance with article 4, paragraph 2, of the Optional Protocol,
a State party must examine in good faith all the allegations brought
against it, and provide the Committee with all the information at its
disposal. In the light of the failure of the State party to cooperate
with the Committee on the matter before it, due weight must be given
to the allegations submitted by the author, to the extent that they
have been substantiated.
7.2 The author has claimed that his trial was
unfair because the prosecution entered a nolle prosequi plea after the
author had pleaded guilty to a charge of manslaughter. The author
claims that the extent of media publicity given to his guilty plea
negated his right to presumption of innocence and thus denied him the
right to a fair trial. The Court of Appeal of Jamaica acknowledged
the possibility of disadvantage to author at presenting his defence
at the trial, but observed that Anothing shows that the convicting
jury was aware of this". The entry of a nolle prosequi was found by the
Jamaican courts and the Judicial Committee of the Privy Council to be
legally permissible, as under Jamaican law the author had not been
finally convicted until sentence was passed. The question for the
Committee is not, however, whether it was lawful, but whether its use
was compatible with the guarantees of fair trial enshrined in the
Covenant in the particular circumstances of the case. Nolle prosequi is a procedure
which allows the Director of Public Prosecutions to discontinue a
criminal prosecution. The State party has argued that it may be used
in the interests of justice and that it was used in the present case
to prevent a miscarriage of justice. The Committee observes, however,
that the Prosecutor in the instant case was fully aware of the
circumstances of Mr. Richards' case and had agreed to accept his
manslaughter plea. The nolle
prosequi was used not to discontinue
proceedings against the author but to enable a fresh prosecution
against the author to be initiated immediately, on exactly the same
charge in respect of which he had already entered a plea of guilty to
manslaughter, a plea which had been accepted. Thus, its purpose and
effect were to circumvent the consequences of that plea, which was
entered in accordance with the law and practice of Jamaica. In the
Committee's opinion, the resort to a nolle
prosequi in such circumstances, and the
initiation of a further charge against the author, was incompatible
with the requirements of a fair trial within the meaning of article
14, paragraph 1, of the Covenant.
7.3 With regards to the further claims of
violations of article 14, paragraphs 3(b), (c) and (e) and 5, in
respect of the author's inadequate representation, and undue delay in
the proceedings, the Committee expresses its concern with the
allegations made. However, the Committee is of the view that in the
light of the original flaw in the author's trial as stated above, it
need not make a finding on these issues.
7.4 With respect to the author's allegation
regarding his ill-treatment upon arrest and the subsequent denial of
medical treatment, the Committee notes that this was put before the
jury and the jury rejected it, and moreover that the author chose to
make an unsworn statement from the dock which prevented his
cross-examination on the subject. In the circumstances of the present
case, the Committee considers that there has been no violation of
articles 7 and 10, paragraph 1, of the Covenant.
7.5 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. 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 Athe 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 the conviction
and sentence by a higher tribunal". In the present case, since the
final sentence of death was passed without having observed the
requirements of article 14, concerning fair trial and presumption of
innocence, it must be concluded that the right protected by article 6
of the Covenant has been violated.
8. 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 14, paragraph 1, and
consequently article 6, of the Covenant.
9. Pursuant to article 2, paragraph 3(a), of the
Covenant, the author is entitled to an effective remedy. The
Committee notes that the State party has commuted the author's death
sentence and considers that this constitutes sufficient remedy in
this case.
10. 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.
[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
Nisuke Ando (dissenting)
I am unable to persuade myself to share the
Committee's Views in the present case for the following
reasons:
In my opinion, the purpose of a criminal trial is
to ascertain what actually took place in the case at issue, that is,
to find Atrue facts" of the case, on which conviction and sentence
should be based. Of course, Atrue facts" as submitted by the
defendant may differ from Atrue facts" as submitted by the
prosecution, and since defendants are generally at a disadvantage
compared to the prosecution, various procedural guarantees exist to
secure a Afair trial". The requirement of equality of arms, rules of
evidence, control of the proceedings by independent and impartial
judges, deliberation and decision by neutral juries, and the system
of appeals are all part of these guarantees.
In the present case, the author initially pleaded
guilty to manslaughter, which was accepted by the prosecution.
However, the Director of Public Prosecution, who has authority to
discontinue any criminal proceedings at any stage before judgment is
delivered, considered that the plea of guilty of manslaughter should
not have been accepted and decided to discontinue proceedings in the
case, in order to charge the author with murder on a fresh indictment
(see paragraph 2.1). Consequently, a nolle
prosequi was entered by the prosecution to
discontinue the proceedings and the new indictment of murder was
entered. In the subsequent trial, the author was found guilty of
murder and sentenced to death. His appeal to the Court of Appeal of
Jamaica was dismissed, and the Judicial Committee of the Privy
Council, which granted the author special leave to appeal, heard his
appeal and dismissed it (see paragraph 2.2).
In the Committee's view, the resort to a
nolle prosequi
in the present case, and the initiation of a further charge against
the author, were incompatible with the requirements of a fair trial
within the meaning of article 14, paragraph 1, of the Covenant (see
paragraph 7.2). However, in my opinion, fairness of the trial in the
present case must not be determined solely on the basis of the use of
nolle prosequi
by the prosecution. Such determination requires careful appreciation
of all the relevant circumstances, including the handling of a
nolle prosequi
by the judges concerned, those at first instance, at the Court of
Appeal, and in the Judicial Committee of the Privy Council. It is my
understanding that judges need not accept the prosecution's charge
entered after its resort to a nolle
prosequi. It is also my understanding that
the independence and impartiality of judges are well established in
Jamaica as well as in the United Kingdom. Considering all these
circumstances and the very purpose of a criminal trial as stated
above, I am unable to persuade myself to share the Committee's Views
that the use of a nolle
prosequi by the prosecution at the initial
stage made the author's trial in its entirety an unfair one, in
violation of article 14, paragraph 1, of the Covenant.
Nisuke Ando [signed]
[Original: English]
B. Individual opinion by
David Kretzmer (dissenting)
Like my colleague Nisuke Ando, I am unable to
agree with the Committee's view that the State party violated the
author's right to a fair trial under article 14, paragraph 1, of the
Covenant.
In December 1993, the author was tried for murder
by a judge and jury under the regular proceedings of the Jamaican
legal system. He was found guilty by the jury which heard and
assessed all the evidence against him. The Committee does not point
to any departure during this trial from the minimum guarantees
specified in article 14, paragraph 3, of the Covenant. It bases its
finding of a violation of article 14, paragraph 1, solely on the fact
that the trial was held subsequent to nolle
prosequi being entered by the Director of
Public Prosecutions, after the author had pleaded guilty to a charge
of manslaughter in the initial trial on the same charges.
While the lack of co-ordination between the
prosecutor in the first trial, who consented to the plea of
manslaughter, and the Director of Public Prosecutions, who entered
the nolle prosequi, was clearly unfortunate, I cannot agree that this lack of
co-ordination inevitably meant that the author was denied a Afair and public
hearing by a competent, independent and impartial tribunal
established by law" in the second trial. Had the defence in the
second trial been of the opinion that the jury could not be
independent and impartial since it would be influenced by press
reports of the author's guilty plea in the first trial, it could have
raised this point at the beginning of the trial, or made an attempt
to challenge the jurors. It did neither. Furthermore, in his summing
up to the jury, the judge made it quite clear to the jurors that they
were to base their verdict solely on the evidence presented to them.
There was strong evidence against the author and there is nothing to
suggest that the jurors ignored the directions of the judge. I am
therefore of the opinion that there is no adequate basis for finding
a violation of article 14, paragraph 1, of the Covenant, in the
present case.
David Kretzmer [signed]
[Original: English]
-*-
__________
*/
Made public by decision of the Human Rights Committee.