REPORT Nş 41/00
CASES 12.023 (DESMOND MCKENZIE)
12.044  (ANDREW DOWNER AND ALPHONSO TRACEY),
12.107 (CARL BAKER), 12.126 (DWIGHT FLETCHER),
AND 12.146  (ANTHONY ROSE)
JAMAICA
April 13, 2000

 

I.          SUMMARY 

1.          This Report concerns five capital punishment petitions brought against the State of Jamaica (hereinafter "the State" or "Jamaica") and pertain to alleged violations of one or more of Articles 1, 4, 5, 7, 8, 24 and 25 of the American Convention on Human Rights (hereinafter "the Convention"). The petitions were presented to the Inter-American Commission on Human Rights (hereinafter "the Commission") on behalf of six condemned men on death row, at St. Catherine District Prison, Jamaica (hereinafter "the victims"), by four firms of Solicitors in London, United Kingdom (hereinafter "the Petitioners"). This report addresses the issues of the admissibility of the petitions, pursuant to Articles 46 and 47 of the American Convention, as well as the merits of each case.  

2.          The names of the Petitioners and victims in each of the five cases, the dates on which the Commission opened files in respect of each complaint, and the provisions of the American Convention alleged to have been violated in respect of the six victims in each of the five cases, are as follows: 

Table 1 

Case No.

Petitioners

Victim(s)

Date Petition
Received

Date Case
Opened

Violations alleged:

12.023

Eversheds

Desmond McKenzie

29/06/98

30/06/98

1, 4, 5, 7, 8, 24, 25

12.044

Simons Muirhead & Burton

Andrew Downer

Alphonso Tracey

07/08/98

24/08/98

1, 2, 4, 5, 7, 8, 24, 25

12.107

Allen & Overy

Carl Baker

17/02/99

19/02/99

1, 4, 5, 8, 12, 24, 25

12.126

Cameron McKenna

Dwight Fletcher

11/03/99

29/03/99

4, 5, 7, 8, 24, 25

12.146

Simons Muirhead & Burton

Anthony Rose

30/04/99

11/05/99

4, 5, 24, 25

 

3.          The State's principal legislation governing the punishment for the crime of murder is the Offences Against the Person Act, 1864, as amended by the Offences Against the Person (Amendment) Act 1992 (hereinafter referred to as "the Act").  The Act distinguishes between categories of "capital" and "non-capital" murder.[1]  In addition, sections 3(1) and 3(1A) of the Act prescribe the death penalty as the only punishment for persons convicted of capital murder,[2] and for persons convicted on the same or a different occasion of more than one non-capital murder, referred to in this Report as "multiple non-capital murder".[3]  

4.          The victims in these cases were tried, convicted and sentenced to death by hanging for capital murder, pursuant to Article 3(1) of the Act, or for multiple non-capital murder, pursuant to Article 3(1A) of the Act.  In Case 12.023 (Desmond McKenzie) the victim was convicted of capital murder in the furtherance of burglary and terrorism. In Case 12.044 (Andrew Downer and Alphonso Tracey), the victims were convicted of capital murder in the course or furtherance of terrorism and robbery.[4] In Case Nos. 12.107 (Carl Baker)[5] and 12.126 (Dwight Fletcher),[6] the victims were each convicted of three counts of non-capital murder. Finally, in Case 12.146 (Anthony Rose), the victim was convicted of capital murder in the course or furtherance of arson.  Each of the victims in these cases appealed to the Court of Appeal in Jamaica and their appeals were dismissed.  Subsequently, each victim filed a petition for Special Leave to Appeal to the Judicial Committee of the Privy Council, which dismissed their petitions.   

5.          The petitioners in these cases allege that the State violated the victims' rights under the American Convention on one or more of the following grounds, particulars of which are provided in Part III.A of this Report: 

a.     violations of Articles 4(1), 4(2), 4(3), 4(6), 5, 8, 24 and 25 of the Convention, relating to the mandatory nature of the death penalty for the crime of capital and multiple non-capital murder in Jamaica and the process for granting amnesty, pardon or commutation of sentence in Jamaica;

 

b.    violations of Articles 5, 7(4), 7(5), 7(6) and 8 of the Convention, relating to delays in the victims' criminal proceedings;

 

c.    violations of Articles 4 and 5 of the Convention, relating to the victims' conditions of detention and the method of execution in Jamaica;

 

d.    violations of Articles 4, 8(1) and 8(2) of the Convention, relating to the adequacy of time and facilities for preparing the victims' legal defenses, the adequacy of their legal representation, and the manner in which their criminal proceedings were conducted;

 

e.    violations of Articles 2, 8, 24 and 25 of the Convention, relating to the unavailability of legal aid for Constitutional Motions in Jamaica;

 

f.    violations of Articles 4(1), 4(6), 5(2) and 25 of the Convention, relating to the validity of Jamaica's Governor General Instructions;
  g.                   violation of Article 12 of the Convention, relating to freedom of conscience and religion; 
 

h.    violations of Article 1(1) of the Convention with regard to the above mentioned violations.  

6.                 As a procedural matter, the Commission decided to consolidate these five cases for the purposes of this Report pursuant to Article 40(2) of the Commission's Regulations, on the basis that the cases involve similar facts and substantially the same issues under the Convention. 

7.                 The Commission had not previously made admissibility determinations pursuant to Articles 46 and 47 of the Convention in respect of any of the cases currently before it.  After having considered the matters, the Commission decided to declare admissible the claims presented on behalf of the victims in their entirety in four cases: 12.023 (Desmond McKenzie), 12.044 (Andrew Downer and Alphonso Tracey), 12.126 (Dwight Fletcher) and 12.146 (Anthony Rose). With respect to Case 12.107 (Carl Baker), the Commission decided to declare admissible the claims presented on behalf of the victim, with the exception of the violations of Articles 12(1) and 12(2) of the Convention alleged on behalf of the victim, which the Commission declared inadmissible pursuant to Article 47(b) of the Convention. 

8.                 In addition, upon consideration of the merits of the five cases that are the subject of this Report, the Commission reached the following conclusions: 

a.                   The State is responsible for violating the rights of the victims in Case 12.023 (Desmond McKenzie), 12.044 (Andrew Downer and Alphonso Tracey), 12.107 (Carl Baker), 12.126 (Dwight Fletcher) and 12.146 (Anthony Rose) under Articles 4(1), 5(1), 5(2) and 8(1), in conjunction with violations of Article 1(1) of the American Convention, by sentencing these victims to a mandatory death penalty.

 

b.                   The State is responsible for violating the rights of the victims in Case 12.023 (Desmond McKenzie), 12.044 (Andrew Downer and Alphonso Tracey), 12.107 (Carl Baker), 12.126 (Dwight Fletcher) and 12.146 (Anthony Rose) under Article 4(6) of the Convention, in conjunction with violations of Article 1(1) of the Convention, by failing to provide these victims with an effective right to apply for amnesty, pardon or commutation of sentence.

 

c.                   The State is responsible for violating the rights of the victims in Case 12.023 (Desmond McKenzie), 12.044 (Andrew Downer and Alphonso Tracey), 12.107 (Carl Baker), and 12.126 (Dwight Fletcher) under Articles 7(5) and 8(1) of the Convention, in conjunction with violations of Article 1(1) of the Convention, by reason of the delays in trying the victims.

 

d.                   The State is responsible for violating the rights of the victims in Case 12.023 (Desmond McKenzie), 12.044 (Andrew Downer and Alphonso Tracey) and  12.126 (Dwight Fletcher) under Article 7(5) of the Convention, in conjunction with violations of Article 1(1) of the Convention, by failing to bring the victims promptly before a judge following their arrests;

 

e.                   The State is responsible for violating the rights of the victims in Case. 12.023 (Desmond McKenzie), 12.044 (Andrew Downer and Alphonso Tracey), 12.107 (Carl Baker), 12.126 (Dwight Fletcher) and 12.146 (Anthony Rose) under Articles 5(1) and 5(2) of the Convention, in conjunction with violations of Article 1(1) of the Convention, by reason of these victims' conditions of detention.

 

f.                    The State is responsible for violating the rights of the victim in Case 12.126 (Dwight Fletcher) under Article 5(4) of the Convention, in conjunction with a violation of Article 1(1) of the Convention, by detaining the victim with convicted persons prior to his trial and conviction.

 

g.                   The State is responsible for violating the rights of the victim in Case 12.023 (Desmond McKenzie) under Article 5(6) of the Convention, in conjunction with a violation of Article 1(1) of the Convention, by depriving the victim of opportunities for reform and social readaptation.

 

h.                   The State is responsible for violating the rights of the victims in Case 12.023 (Desmond McKenzie) and 12.126 (Dwight Fletcher) under Articles 8(2)(d) and 8(2)(e) in conjunction with violations of Article 1(1) of the Convention, by denying the victims legal counsel during various stages of their criminal proceedings.

 

i.                     The State is responsible for violating the rights of the victims in Case 12.023 (Desmond McKenzie), 12.044 (Andrew Downer and Alphonso Tracey), 12.107 (Carl Baker), 12.126 (Dwight Fletcher) and 12.146 (Anthony Rose) under Articles 8 and 25 of the Convention, in conjunction with violations of Article 1(1) of the Convention, by failing to make legal aid available to these victims to pursue Constitutional Motions.

 

II.         PROCEEDINGS BEFORE THE COMMISSION 

A.                Petitions and observations 

9.                 The Commission opened the cases that are the subject of this Report on various dates between June of 1998 and May 1999, as set out in the previous Table 1, and transmitted the pertinent parts of the petitions to the State, with responses requested within 90 days. The materials filed in support of certain of the petitions included: transcripts from the victims’ criminal proceedings before the Courts in Jamaica; judgments of the Jamaican Court of Appeal dismissing the victims’ appeals from their convictions; petitions filed by the victims for Special Leave to Appeal to the Judicial Committee of the Privy Council; affidavits and questionnaires prepared by certain victims concerning the conditions of their detention and the circumstances of their criminal proceedings; and reports from various governmental and non-governmental organizations concerning prison conditions in Jamaica. The supporting materials pertaining to particular allegations raised by each victim are identified and discussed in the substance of this Report.   

10.             The particulars of the initial processing of each of the cases are set out in Table 2 below:  

Table 2

 

Case No.

Date Pertinent Parts of Petition Sent to State

Date State's Response Received/ Transmitted to Petitioners

Date Petitioners' Observations Received/ Transmitted to State

Date State's Reply Received/ Transmitted to Petitioners

Date Petitioners' Observations Received/ Transmitted to State

12.023

30/6/98

30/7/98,3/8/98

4/9/98,15/9/98

30/9/98,14/10/98

22/10/98,24/11/98

12.044

24/8/98

23/9/98,16/11/98

23/12/98,4/1/99

4/2/99,19/2/99

19/3/99,30/3/99

12.107

19/2/99

18/3/99,30/3/99

29/4/99,11/5/99

3/6/99,24/6/99

14/7/99,18/8/99

12.126

29/3/99

3/5/99,7/5/99

21/6/99,24/6/99

16/7/99,19/7/99

13/8/99,18/8/99

12.146

11/5/99

10/6/99,24/6/99

3/8/99,18/8/99

15/9/99,24/9/99

-

 11.             As the above Table 2 indicates, the Commission received responses to the original petitions from the State in each of the five Cases.  The pertinent parts of the State's responses were transmitted to the Petitioners, with observations and responses requested within 30 days.  In all of the cases, the Petitioners delivered observations on the State's responses, the pertinent parts of which the Commission subsequently transmitted to the State, with responses requested within 30 days.  In each of the five cases, the State delivered replies to the Petitioners' observations, the pertinent parts of which were transmitted to the Petitioners, with a response requested within 30 days.    

12.             Furthermore, in four of the five cases, Case Nos. 12.023 (Desmond McKenzie), 12.044 (Andrew Downer and Alphonso Tracey), 12.107 (Carl Baker) and 12.126 (Dwight Fletcher), the Petitioners delivered "supplementary" written submissions to the Commission, which the Commission subsequently transmitted to the State with a response requested within a period of 30 days. In each of these cases, Case Nos. 12.023 (Desmond McKenzie), [7] 12.044 (Andrew Downer and Alphonso Tracey),[8] 12.107 (Carl Baker)[9] and 12.126 (Dwight Fletcher),[10] the State delivered a response to each of the "supplementary" written submissions, and those responses were transmitted to the Petitioners. The Commission received several additional observations and responses from both parties in the four cases mentioned above, each of which were transmitted to the opposing party with a response requested within a specified period. This included a communication from the State dated November 18, 1999 in Case 12.107 (Carl Baker), in which the State provided the Commission with the results of its investigation into alleged violations of Articles 5(1) and 5(2) of the Convention contained in the Petitioners' supplemental submission dated July 14, 1999.  

13.             During its 102nd Period of Sessions at its Headquarters in Washington, D.C., the Commission scheduled an oral hearing on March 1, 1999, in Case 12.023 (Desmond McKenzie). The victim's representatives attended the hearing and made submissions to the Commission.  The State did not attend the hearing, but rather informed the Commission by letter dated February 19, 1999, that the State would not participate because it was "of the view that there are no outstanding issues that would necessitate the scheduling of such hearings." 

B.          Precautionary Measures  

14.             Contemporaneously with the transmission of the pertinent parts of the petitions in each of the five cases, Case 12.023 (Desmond McKenzie), 12.044 (Andrew Downer and Alphonso Tracey), 12.107 (Carl Baker), 12.126 (Dwight Fletcher) and 12.146 (Anthony Rose), the Commission requested pursuant to Article 29(2) of its Regulations that the State stay the execution of the victims pending investigation by the Commission of the alleged facts.   

C.          Friendly Settlement  

15.             By communications dated September 20, 1999 to the Petitioners and to the State, the Commission placed itself at the disposal of the parties in these five cases, with a view to reaching friendly settlements pursuant to Article 48(1)(f) of the Convention on the basis of respect for the human rights recognized therein.  The Commission also requested that the parties provide the Commission with a response to the Commission's offers within 7 days of receipt of the communication, in default of which the Commission would continue with consideration of these matters.

16.             In a communication dated September 24, 1999, the State informed the Commission that it had begun the process of consultation concerning the possibility of friendly settlement regarding each of the five cases, and that the Commission would be advised of its response within a week.

17.             In a letter dated September 24, 1999, the Petitioners in Case Nos. 12.044 (Andrew Downer and Alphonso Tracey) and 12.146 (Anthony Rose) informed the Commission as follows:

For the reason set out in the written petition and further submissions transmitted to the Commission, the Applicants would ask the Commission to recommend that their sentences of death be commuted forthwith, so that they can be removed from the death row regime in the prison. 

On the basis of respect for the human rights recognized in the [Convention], and the allegation that the Applicants' executions would now violate Articles 4, 5, 8 and 24 of the [Convention], the commutation of Messrs. Downer, Tracey and Rose's sentences of death is the only appropriate way of reaching a friendly settlement in this matter.

 

Should the State Party undertake to commute the Applicants' sentences of death, the Applicant would consider that a friendly settlement pursuant to Article 48(1)(f) of the Convention has been reached.

18.             Additionally, in a letter dated September 27, 1999, the Petitioners in Case 12.126 (Dwight Fletcher) indicated that they welcomed the Commission's offer to hold a friendly settlement meeting, and looked forward to receiving details of the proposed meeting.  

19.             By communication dated September 28, 1999, the Commission transmitted the pertinent parts of the Petitioners' responses in these cases to the State, with a response requested within 7 days. 

20.             By letter dated October 7, 1999, the State informed the Commission that the Petitioners' responses to the Commission's friendly settlement offers in two of the cases "make it clear that there is no common ground for the success of a friendly settlements [sic] procedure." Accordingly, the State indicated that it looked forward to an "early conclusion of [the Commission's] deliberations on these five (5) cases, in accordance with Article 50 of the Inter-American Convention on Human Rights". 

D.          Jamaican Governor General's instructions 

21.             The Commission wishes to note that in each of the cases that are the subject of this Report, the Petitioners allege violations of Articles 4, 5 and 25 of the Convention and the Commission’s Regulations in relation to the "Instructions for dealing with applications from or on behalf of prisoners under sentence of death to the United Nations Human Rights Committee or the Inter-American Commission on Human Rights", issued by Jamaica's Governor General (hereinafter referred to as the "Governor General's Instructions").[11]  The Governor General's Instructions designated limits on the time period during which a prisoner was permitted to petition the Inter-American Commission on Human Rights and the United Nations Human Rights Committee.[12] The Instructions also placed time limits on when the Governor General was required to receive the prisoner's petition and a request for stay of execution.[13]  Additionally, the Governor General's Instructions purported to prescribe a period of six months for the Commission and the Committee to investigate and rule on the prisoner's petition, and for the Governor General to advise the Jamaican Privy Council on the outcome of the petition.[14] 

22.             On July 5, 1999, several Petitioners informed the Commission that the Jamaican Court of Appeal had issued a decision on June 15, 1999, with respect to the lawfulness of Jamaica's Governor General’s Instructions.[15]  In Neville Lewis v. Attorney General for Jamaica et al. (hereinafter referred to as "Neville Lewis"), the Jamaican Court of Appeal determined that the Governor General’s Instructions were unlawful as a matter of Jamaica's domestic law.  On page 11 of its decision the Court of Appeal declared that:

 

…even though the recommendations of the [Inter-American] Commission are not binding on the Governor General in the exercise of the Prerogative of Mercy, given the terms of the treaty which the government ratified, the Privy Council ought to await the result of the petition, so as to be able to give it consideration in determining whether to exercise the Prerogative of Mercy.   

Subsequently, on page 18 of its decision, the Court of Appeal found that "…to issue Instructions calling upon the [Inter-American] Commission to complete its process in 6 months or about 180 days, is in my view disproportionate, and consequently unlawful."  

23.             In its submission to the Commission concerning Case 12.044 (Andrew Downer and Alfonso Tracey), the State acknowledged the Court of Appeal's decision in Neville Lewis and indicated that: 

the law in Jamaica is that the 1997 Governor General's Instructions are unlawful. The applicants therefore, could not be executed pursuant to those Instructions, unless the Instructions were amended or if the Privy Council were to overrule the Lewis decision.[16]    

24.              As the Instructions in their current form do not have any legal effect in Jamaica, and as they do not affect the cases currently under consideration by the Commission, the Commission does not consider it necessary to address the submissions of the Petitioners or the State concerning the validity of the Instructions under the Convention and the Commission's Regulations. 

III.          POSITIONS OF THE PARTIES 
A.                Positions of the petitioners

1.          Background to the cases 

25.             The following Table 3 summarizes the domestic criminal proceedings of the victims in the five cases before the Commission:

Table 3

 

Case No.

Victim(s)

Date of arrest

Date of Conviction

Date Court of Appeal of Jamaica Dismissed Appeal

Date Judicial Committeeof the Privy Council Dismissed Appeal

12.023

Desmond McKenzie

19/10/93

Trial 22/04/95 to 04/05/95

Retrial 13/03/96 to 02/04/96[17]

13/10/97

25/06/98

12.044

Andrew Downer Alphonso Tracey

Downer 30/4/91

Tracey 04/05/91

21/12/94

27/05/96

20/07/98

12.107

Carl Baker

11/08/95

27/11/96

26/02/98

20/01/99

12.126

Dwight Fletcher

21/11/93

21/08/96[18]

08/05/98[19]

21/01/99

12.146

Anthony Rose

20/01/97

25/07/97

31/07/98

14/04/99

 

26.             The pertinent background facts of these five cases, together with the categories of violations of the Convention raised in each case, are outlined below. 

Desmond McKenzie  (Case 12.023) 

27.             Desmond McKenzie was arrested and charged with the murder of the deceased, Fitzroy Dawson, on October 19, 1993.  Mr. McKenzie was originally tried from April 22, 1995 to May 4, 1995, however, the jury was unable to reach a majority decision.  A re-trial was held beginning March 13, 1996, and on April 2, 1996, Mr. McKenzie was convicted of capital murder in the furtherance of burglary and terrorism and sentenced to death.  Mr. McKenzie subsequently appealed his conviction to the Court of Appeal, and his appeal was dismissed on October 13, 1997.  He then petitioned the Judicial Committee of the Privy Council, and the Privy Council dismissed his petition on June 25, 1998. 

28.             The prosecution alleged that Mr. McKenzie was responsible for breaking and entering into the home of the deceased, Fitzroy Dawson, and his wife, Levina Miller, and causing the deceased's death during the evening of October 18, 1993. Mr. McKenzie was alleged to have visited the home of Ms. Miller and the deceased on the day of the murder, where Mr. McKenzie and the deceased argued and the deceased insulted Mr. McKenzie. Mr. McKenzie left, but returned to the home later the same evening, broke into the house, and shot the deceased. He then threw the deceased's body into the river. 

29.             In his defense, Mr. McKenzie claimed that he was driving home on the evening of the offense when a woman with a baby waved him down.  When he stopped, two men ran out of a house, one with a bottle and the other with a machete.  The victim was hit with the bottle, fired two shots in self defense, and one of the men stumbled into the river. During his re-trial, Mr. McKenzie gave evidence concerning his good character. He testified that he owned a supermarket and managed a clothing business, his father's farm and a warehouse business. He also claimed to have promoted community youth projects, assisted the elderly and local schools, and had standing as a local politician. The victim had no previous criminal record. A teacher, who was also a justice of the peace, was present at the re-trial to give character evidence on the victim's behalf. 

30.             The violations of the Convention alleged on behalf of Mr. McKenzie can be categorized as follows: 1) violations of Articles 4(3), 4(6), 5(1) and 24 relating to the mandatory nature of the death penalty under the Offences Against the Person Act and the process for granting of amnesty, pardon or commutation of sentence in Jamaica; 2) violations of Articles 4 and 5 relating to the victim's conditions of detention and his time in detention; 3) violations of Articles 7(5) and 7(6) relating to delays in the victim's criminal proceedings; 4) violations of Articles 8(1) and 8(2) relating to the trial judge's lack of impartiality and the inadequacy of the victim's legal representation; and 5) violation of Article 25 relating to the unavailability of legal aid for Constitutional Motions in Jamaica. 

Andrew Downer and Alphonso Tracey (Case 12.044) 

31.             Mr. Downer and Mr. Tracey were charged with the March 4, 1991 murder of Kenneth McNeil.  Mr. Downer was arrested on April 30, 1991, and Mr. Tracey was arrested May 4, 1991. Their joint trial commenced December 14, 1994, and they were convicted of murder in the course or furtherance of terrorism and robbery on December 21, 1994, and sentenced to death.  The victims subsequently appealed their convictions to the Court of Appeal of Jamaica, and their appeals were dismissed on May 27, 1996. The victims then petitioned the Judicial Committee of the Privy Council on October 18, 1996.  The victims were granted leave to appeal, however, the Privy Council dismissed their appeals on July 20, 1998. 

32.             The prosecution alleged that on March 4, 1991, the deceased, Kenneth McNeil, was working as a security guard with his co-worker Christian Riley. Mr. McNeil and Mr. Riley were collecting computer papers from bank safe deposit boxes when they noticed a car with four men pull alongside their van. The men in the car began to shoot at Mr. McNeil and Mr. Riley. Mr. McNeil and Mr. Riley returned fire, and Mr. Riley was shot in the shoulder. Mr. Riley then ran for cover and was shot twice in the back. Looking back from where he was lying, Mr. Riley saw two men exiting the car, approach Mr. McNeil and "sandwich" him on the sidewalk.  Mr. Riley saw one man point a gun at Mr. McNeil and heard shots, and then heard the car drive off.  Mr. Riley was not certain whether one or both of the men shot Mr. McNeil. Three months after the incident, Mr. Riley identified the victims in an identification parade as the two men he saw exiting the car. Mr. Riley was the prosecution's principal witness at the victims' trial. 

33.             In their defense, the victims made unsworn statements from the dock. Mr. Tracey alleged that he was at a hotel on the night of the murder. He also alleged that his identification at the identification parade in June 1991 was unfair and that he was innocent. Mr. Downer alleged he was held up by a gunman and shot during an attempted robbery on the night of the murder. He denied any involvement in the crime. 

34.             The violations of the Convention alleged on behalf of Mr. Downer and Mr. Tracey can be categorized as follows: 1) violations of Articles 4(2) and 4(6) relating to the mandatory nature of the death penalty under the Offences Against the Person Act and the process for granting amnesty, pardon or commutation of sentence in Jamaica; 2) violations of Article 5 relating to the victims' conditions of detention; 3) violations of Articles 7(5) and 8(1) relating to the failure to bring the victims promptly before a judge and to try the victims within a reasonable time; 4) violations of Articles 4(1) and 8 relating to the fairness of the victims' trial; and 5) violations of Articles 2 and 25 relating to the unavailability of legal aid for Constitutional Motions in Jamaica.   

Carl Baker (Case 12.107) 

35.             Mr. Baker was charged with the August 1995 murder of his wife, Ena, their 2 1/2-year-old daughter Lacy, and their 1-year-old daughter Renee. Mr. Baker was arrested on August 11, 1995.  Mr. Baker's trial commenced on November 25, 1996, and he was convicted of three counts of non-capital murder on November 27, 1996 and sentenced to death.  Mr. Baker subsequently appealed his conviction to the Jamaican Court of Appeal, and his appeal was dismissed on February 26, 1998.  Mr. Baker then petitioned for Special Leave to Appeal to the Judicial Committee of the Privy Council, and the Privy Council dismissed his petition on January 20, 1999. 

36.             On the morning of August 10, 1995, Mr. Baker's home was discovered burned to the ground with the deceased members of his family inside.  The prosecution alleged that Mr. Baker hit his wife with an axe and left her unconscious. They also alleged that a fire started in the house, and that the victim left his home without trying to save his family from the fire. An axe traced with blood was found between the house and the family's chicken coop, and the victim's belongings, including a television and gas burner, were found inside of the chicken coop. The prosecution claimed that Mr. Baker could have attempted to save his family, for example by shouting to neighbors for help or by using water from containers close to their house to extinguish the fire. Instead, according to the prosecution the victim ran to the home of his friend, Edward Morgan, who lived a mile from Mr. Baker's home. Mr. Baker also gave Mr. Morgan an attaché containing some of his belongings. The prosecution argued that this evidence was consistent with the victim having deliberately set fire to his house with the intent to kill all inside.  

37.             In a cautioned statement and at trial, Mr. Baker maintained that he had several quarrels with his wife on the night of the fire, which culminated in his wife stabbing him in the hand twice with a screwdriver. The victim claims to have then grabbed an axe from under the table and hit his wife on the head in self defense. He also claimed that as he brought the axe down he knocked the kerosene lamp off the table, which set the house on fire. He became frightened, climbed out of the window, and ran to Edward Morgan's home, after which he reported the incident to the police.  He also stated that he had removed his belongings from the house because he intended to leave his family, and that he had left his attaché with Mr. Morgan on his way home from church the previous Sunday. He maintained that the fire was not deliberate, and that he loved his family. 

38.             The violations of the Convention alleged on behalf of Mr. Baker can be categorized as follows: 1) violations of Articles 4(1), 4(3), 4(6), 5, and 24 relating to the mandatory nature of the death penalty under the Offences Against the Person Act and the process for granting amnesty, pardon or commutation of sentence in Jamaica;  2) violations of Articles 4 and 5 relating to the victim's conditions of detention; 3) violations of Articles 5, 8(1) and 8(2) relating to the fairness of the victim's trial and the inadequate time and means for preparing the victim's defense; 4) a violation of Article 12 with regard to freedom of conscience and religion; 5) violations of Articles 8 and 25(1) relating to the absence of legal aid for Constitutional Motions in Jamaica; and 6) a violation of Article 1(1) relating to the above violations of the American Convention.   

Dwight Fletcher (Case 12.126) 

39.             Mr. Fletcher was charged together with his co-defendants Whyett Gordon and Edwy Watson (now deceased) with the October 23, 1993 murders of Rajhni Williams, Georgia Shaw and Racquel Fearon.  He was arrested on November 21, 1993 and was tried in August of 1996. On August 21, 1996 he was convicted on three counts of capital murder and sentenced to death.  Mr. Fletcher subsequently appealed his conviction to the Jamaican Court of Appeal on May 8, 1998, where he was found guilty on three counts of non-capital murder, and his death sentence was maintained in accordance with 3(1A) and 3B(3) of the Offences Against the Person Act.  Mr. Fletcher then petitioned the Judicial Committee of the Privy Council on October 9, 1998, and the Privy Council dismissed his petition on January 21, 1999. 

40.             The prosecution alleged that Mr. Fletcher and his co-defendants abducted the deceased Rajhni Williams, Georgia Shaw and Racquel Fearon from an open air dance on October 23, 1993. Mr. Fletcher drove the car that was used to commit the crimes. Following the abduction, Mr. Watson shot and killed Mr. Williams. Mr. Gordon then sexually assaulted Miss Fearon, and both women were then shot and killed. In a statement under caution Mr. Gordon said the shooting was carried out by Mr. Watson. The prosecution contended that Mr. Fletcher was part of a common criminal enterprise leading to the deaths of three people. 

41.             The violations of the Convention alleged on behalf of Mr. Fletcher can be categorized as follows: 1) violations of Articles 4(1), 4(6), 5(2) and 24 relating to the mandatory nature of the death penalty under the Offences Against the Person Act;  2) violations of Articles 4, 5(1), 5(2) and 5(4) relating to the victim's conditions of detention;  3) violations of Articles 7(4), 7(5), and 8(1) relating to the failure to bring the victim promptly before a judge and to try him within a reasonable time;  4) violations of Articles 8(1) and 8(2) relating to inadequate legal representation and inadequate time and facilities for preparing the victim's defense; and 5) a violation of Article 25 relating to the unavailability of legal aid for Constitutional Motions in Jamaica.  

Anthony Rose (Case 12.146) 

42.             Mr. Rose was charged with the murder of Danisha Williams in the course or furtherance of arson of a dwelling house in June of 1996. The arson occurred on June 5, 1996 and Ms. Williams died on June 8, 1996.  Mr. Rose was arrested on January 20, 1997.  His trial commenced on July 21, 1997, and on July 25, 1997 he was convicted of murder in the course or furtherance of arson and sentenced to death. Mr. Rose subsequently appealed his conviction to the Jamaican Court of Appeal, and his appeal was dismissed on July 31, 1998.  Mr. Rose then petitioned the Judicial Committee of the Privy Council for Special Leave to Appeal on February 15, 1999, and the Privy Council dismissed his petition on April 14, 1999. 

43.             The deceased Danisha Williams was the daughter of Mr. Rose's maternal step-brother.  The prosecution alleged that on June 5, 1996, Mr. Rose and his step-brother argued while trying to defend their mother from her husband.  During the dispute, Mr. Rose drew a knife and his step-brother drew a machete, following which they went their respective ways.  Later the same evening, the victim set his step-brother's home on fire.  Two witnesses claimed to have seen Mr. Rose running away from his step-brother's home at the time of the fire.  The deceased was asleep in the home prior to the fire, and she could not be rescued in time to save her from the fire.  

44.             The victim's defense at trial was alibi. He claimed that he was at home on the evening of the fire. He also relied upon the evidence of one witness, Livina James, who was present at the scene and claimed that she did not see any one running from the house at the time of the fire.  In addition, the victim maintained that he did not own the clothes that the witnesses claim were worn by the person seen running from the scene.   

45.             The violations of the Convention alleged on behalf of Mr. Rose can be categorized as follows: 1) violations of Articles 4(1), 4(2), 4(6) and 5(2) relating to the mandatory nature of the death penalty under the Offences Against the Person Act and the process for granting amnesty, pardon or commutation of sentence in Jamaica;  2) violations of Articles 5(1) and 5(2) relating to the victim's treatment and conditions during detention and the method of execution in Jamaica;  3) violations of Articles 4(2), 8(2)(c) and 8(2)(e) relating to the inadequacy of the victim's legal representation and of the time and facilities for preparing the victim's defense; and 4) violations of Articles 24 and 25 relating to the unavailability of legal aid for Constitutional Motions in Jamaica.  

2.          Positions of the petitioners on admissibility 

46.             In each of the five cases before the Commission, the Petitioners have submitted that their petitions are admissible in accordance with Articles 46 and 47 of the American Convention, based upon several grounds. 

47.             The petitioners in all five cases have submitted that the victims have exhausted all available and effective domestic remedies, because the victims have unsuccessfully appealed their convictions to the Jamaican Court of Appeal, and to the Judicial Committee of the Privy Council, the highest appellate body in Jamaica.  The particular dates and decisions of the appeals sought by each victim are set out in Part III.A.1 of this Report. 

48.             In addition, the Petitioners in all five cases have indicated that the victims in those cases have not pursued Constitutional Motions in the domestic courts of Jamaica, because such a motion does not constitute an available and effective remedy within the meaning of Article 46(1)(a) of the American Convention.[20]  The petitioners claim that a Constitutional Motion provided for by section 25(1) of the Constitution of Jamaica has effectively been denied to these victims because of the high cost and procedural complexity of instituting such a motion.  Furthermore, the Petitioners indicate that no legal aid is available for such a motion and that the legal costs involved are well beyond the victims' means. They also claim it is extremely difficult to find a Jamaican lawyer to take Constitutional Motions pro bono.  Moreover, the Petitioners indicate that even if some attorneys were willing to take a case pro bono, it is not sufficient reason for and does not justify the State's failure to provide prisoners with legal aid to present a Constitutional Motion.[21]  The petitioners rely upon decisions of the United Nations Human Rights Committee, in which the Committee has rejected the State's argument that Constitutional Motions must be pursued in order to exhaust domestic remedies.[22] 

49.             Furthermore, the Petitioners in Case 12.146 (Anthony Rose) claim that, even if victims had the funds to pursue Constitutional Motions in the domestic courts of Jamaica, the issue of the mandatory nature of the death penalty in Jamaica could not in any event be raised by way of a Constitutional Motion, as such challenges are barred under the Constitution of Jamaica. The petitioners claim in this regard that Articles 17(2) and 26(8) of the Constitution of Jamaica[23] prohibit challenges to forms of punishment that pre-dated independence, which  include the mandatory death penalty.[24]

50.             In each of the five cases in this Report, the Petitioners have also indicated that the victims' cases have not been submitted for examination by any other procedure of international investigation or settlement. 

3.          Positions of the petitioners on the merits 

a.       Articles 4, 5, 8, 24 and 25 - mandatory nature of the death penalty and the prerogative of mercy

i.        Mandatory nature of the death penalty 

51.             All five of the petitions that are the subject of this Report allege that the State acted contrary to one or more of Articles 4(1), 4(2), 4(3), 4(6), 5(1), 5(2), 5(4), 8(1), 8(2), 24 and 25 of the American Convention by sentencing the victims to a mandatory death penalty, for the crime of capital murder or for committing more than one non-capital murder. In particular, the Petitioners argue that although the death penalty is only imposed in capital murder and multiple non-capital murder cases, the distinction between these categories of murder fail to allow for considerations of the particular circumstances of each offense and offender, including relevant aspects of the character and record of each convicted defendant. The petitioners therefore argue that the mandatory death penalty is cruel, inhumane and degrading, is an arbitrary and disproportionate punishment and violates the right to a fair trial. Certain petitioners have also argued that the process for granting amnesty, pardon or commutation of the sentence in Jamaica does not remedy these violations, and in itself violates Article 4(6) of the Convention.   

52.             In support of their position that the mandatory death penalty for capital and multiple non-capital murder contravenes the American Convention, the Petitioners refer to decisions of the highest courts of several common law countries, including the United States of America,[25] the Republic of South Africa[26] and India,[27] where the death penalty has, at least until recently, been retained.  According to the Petitioners, these authorities support the proposition that States that wish to retain the death penalty must distinguish between capital and non-capital murder. States must also provide for some form of "individualized sentencing", where victims are permitted to present mitigating factors concerning the particular circumstances of the case and the personal characteristics of the offender in determining whether the death penalty is an appropriate punishment. 

53.             The petitioners therefore argue that the mandatory death penalty for capital and multiple non-capital murder in Jamaica interferes with the victims' right to life by imposing a sentence of death automatically and irrespective of the circumstances, and therefore violates Articles 4(1) and 4(6) of the Convention. 

54.             Also in relation to Article 4, the Petitioners in Case 12.146 (Anthony Rose) argue that the requirement under Article 4(2) of the Convention that the death penalty be imposed only for the most "serious offenses" should be interpreted so as to encompass more than the elements of a criminal offense, and in particular should be interpreted to require consideration of all factors of a criminal offense, including those referable to an individual applicant.  

55.             Each of the Petitioners who takes issue with the mandatory death penalty also claims that the mandatory death penalty violates the right to humane treatment under Article 5 of the Convention. They argue that, because of the wide variety of circumstances in which capital or multiple non-capital murder may be committed, the mandatory death penalty fails to retain a proportionate relationship between the circumstances of the actual crime, the offender and the punishment.  In this regard, they submit that the manner in which the death penalty is carried out can be determined to be cruel, inhuman or degrading on the basis that it is arbitrary and disproportionate, even if the death penalty itself is not unlawful. They also contend that it is cruel to impose the death penalty where there is no mechanism to take into account the particular circumstances and characteristics of the offender.  

56.             The petitioners in several cases, including Case Nos. 12.023 (Desmond McKenzie), 12.044 (Andrew Downer and Alphonso Tracey) and 12.146 (Anthony Rose), argue further, that the absence of an opportunity for the victims to present mitigating evidence and make representations to the trial judges concerning the appropriateness of the death penalty in the circumstances of their cases contravened their rights to due process of law under Article 8 of the American Convention. They submit that, to the extent that the consideration of individual factors is a necessary component of the proper application of the death penalty, it follows that the right of the victims to make submissions is also a necessary component of the process, as there is no other proper way for the court to obtain the relevant information.  The victims therefore contend that individualized sentencing forms part of the due process required in adjudicating offenses that may result in the death penalty. 

57.             In each of the five cases before the Commission, the Petitioners also argue that the mandatory nature of the death penalty violates Article 24 of the Convention. They claim that the mandatory death penalty deprives offenders of equality before the law, as offenders are not permitted to bring mitigating circumstances into consideration in order to differentiate their cases from those of others likely to face the death penalty. In this respect, the Petitioners claim that there is no accommodation for consistency in like and unlike cases, and therefore that the death penalty is applied in an arbitrary, and therefore inequitable, manner. In addition, the Petitioners maintain that although the mandatory nature of the death penalty presents a form of equality by treating all capital murders the same, it has the effect of imposing a uniform sentence for unequal offenses, and thereby creates substantive inequality between offenders. 

58.             In connection with the alleged violations of Articles 4, 5, 8 and 24 of the Convention relating to the mandatory death penalty, certain of the Petitioners have also identified specific mitigating factors in the circumstances of those victims' cases, which they claim should have been taken into account in determining whether the death penalty was an appropriate punishment in the circumstances of their cases. For example, in Case 12.023 (Desmond McKenzie), the Petitioners refer to evidence on the record relating to the victim's good character, namely that he was the owner of a supermarket, and managed a clothing business, as well as his father's farm and a warehouse. He had no previous convictions, promoted community youth projects and assisted at local schools and with the elderly. The victim also had standing as a local politician, and had the support of a character witness who was a teacher and a justice of the peace. Moreover, the Petitioners claim that the victim committed his crime as revenge for earlier insults from the deceased. While the jury may not have been satisfied that this fulfilled the requirements of the legal defense of provocation, the Petitioners argue that it was a relevant circumstance that should have been taken into account in the context of sentencing.  

59.             Finally, the Petitioners in Case Nos. 12.023 (Desmond McKenzie) and 12.107 (Carl Baker) argue that the victims' executions would violate Article 4(3) of the Convention, on the basis that there has been a moratorium on executions in Jamaica since 1988. The petitioners claim that this circumstance has given rise to an expectation on the part of death row prisoners that they will not in fact be executed. Moreover, the Petitioners claim that if the victims' executions were carried out after a moratorium of over 10 years, this in effect constitutes a reestablishment of the death penalty after if has been abolished, contrary to Article 4(3) of the Convention. 

          ii.          Prerogative of mercy 

60.             The petitioners submit that, insofar as the rigors of the death penalty are mitigated by the power of pardon and commutation by the Jamaican Privy Council under Articles 90 and 91 of the Constitution of Jamaica, there are no criteria governing the exercise of the executive's discretion.[28] They also claim that there is no information as to whether the power is exercised on an accurate account of admissible evidence as to facts relating to the circumstances of an offense, and that there is no opportunity for a defendant to make oral or written representations as to whether the death sentence should be carried out. The petitioners also cite the decision of the Judicial Committee of the Privy Council in the case Reckley v. Minister of Public Safety (Nş 2) [1996] 2 W.L.R. 281, for the proposition that the exercise of the power of pardon involves an act of mercy that is not the subject of legal rights and therefore is not subject to judicial review. Consequently, the Petitioners claim that the exercise of the Prerogative of Mercy does not provide an adequate mechanism for individualized sentencing. 

61.             Moreover, the Petitioners allege that the State has violated the victims' rights under Article 4(6) of the Convention, because no procedural protections are provided by the Jamaican Privy Council when considering whether to exercise the Prerogative of Mercy in a particular case. Cumulatively, the Petitioners contend that the process of mercy lacks criteria governing the State's discretion with regard to the Prerogative of Mercy since the Jamaican Privy Council meets in private, fails to provide or publish reasons for its decisions, and does not permit prisoners to appear and make representations. Therefore, the Petitioners argue that the State fails to properly consider petitions for amnesty, pardon or commutation in accordance with Article 4(6) of the Convention because there is no criteria governing the exercise of the Governor-General's discretion, no possibility to draw attention to particular facts of a victim's case, and no way of knowing on what basis the discretion is ultimately exercised.  The petitioners also argue that much of the information that the Privy Council requires to make a proper decision concerning amnesty, pardon or commutation is in the knowledge of the offender and his or her family, but that no mechanism exists for this information to be presented to the Privy Council.  

62.             Consequently, the Petitioners submit that, in order to be fair and effective, the process for granting amnesty, pardon or commutation of sentence should provide the victims with the right to be notified of the period during which the Jamaican Privy Council considers his or her case, the right to be supplied with the materials before the Privy Council and the right to submit materials and representations prior to the hearing. The petitioners also claim that condemned prisoners should be afforded the right to an oral hearing before the Privy Council, and to place before the Privy Council and to have it consider the decisions and recommendations of international human rights bodies. 

63.             The petitioners in Case Nos. 12.044 (Andrew Downer and Alphonso Tracey) and 12.126 (Anthony Rose) also suggest that the State's process for granting the Prerogative of Mercy violates Article 4(2) of the Convention, because it provides no guarantee that the death penalty will be imposed only for the "most serious crimes."  In order for there to be a reliable determination of which crimes constitute the most serious crimes, the decision making body, in the present cases the Jamaican Privy Council, must have before it all relevant mitigating evidence in relation to the prisoner. Only then can the body charged with the duty of exercising mercy make a reliable determination, and so comply with the requirements of Article 4(2). This in turn requires full participation on the part of the prisoner. According to the Petitioners, however, the "invariable practice" in Jamaica is that prisoners are not informed of the date on which their case is to be considered, and often they have no knowledge that the Jamaican Privy Council has met until they are told that the Prerogative of Mercy is not to be exercised in their favor. 

64.             Certain of the Petitioners also argue that there are no objective criteria to establish whether the death penalty should be imposed or carried out, and therefore the exercise of the Prerogative of Mercy can operate in an unequal and discriminatory fashion, contrary to Article 24 of the Convention. In this regard, the Petitioners in Case 12.107 (Carl Baker) argue that the Prerogative of Mercy is consistently exercised in favor of women on death row, and therefore there is no equal protection before the law in the application of the Prerogative of Mercy.[29] 

65.             In response to the State's argument that the Jamaican Constitution prescribes a procedure for exercising the Prerogative of Mercy, and that there is nothing that prohibits an offender from applying for mercy, the Petitioners contend that the process in fact does not provide for effective participation in the process. The petitioners indicate that Jamaican procedures do not permit an offender to present a case for mercy or to respond to adverse materials before the Jamaican Privy Council. Consequently, the right to apply for amnesty, pardon or commutation of sentence is theoretical and illusory. In this regard, the Petitioners in Case 12.146 (Anthony Rose) distinguish the right to apply for pardon in law from the right to apply for pardon in fact, and argue that the process in Jamaica violates Article 4(6) of the Convention because it does not provide for an effective opportunity in fact for petitioners to present a case for mercy.

 continued...


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[1] Section 2(1) of the Act defines "capital murder" as including murder committed against certain persons by virtue of their employment, position or status, for example law enforcement officials and judicial officers. It also includes murder committed in the course or furtherance of certain other crimes, including robbery, burglary, housebreaking, and arson in relation to a dwelling house. Section 2(3) defines non-capital murder as murder not falling within section 2(1) of the Act. The text of these provisions is set out in Part IV.C.1.a of this Report.

[2] Section 3(1) of the Act provides that "[e]very person who is convicted of capital murder shall be sentenced to death and upon every such conviction the court shall pronounce sentence of death, and the same may be carried into execution as heretofore has been the practice; and every person so convicted or sentenced pursuant to subsection (1A), shall, after sentence, be confined in some safe place within the prison, apart from all other prisoners.  Where by virtue of this section a person is sentenced to death, the form of the sentence shall be to the effect only that he is to 'suffer death in the manner authorized by law.'"

[3] Section 3(1A) of the Act provides that, "a person who is convicted of non-capital murder shall be sentenced to death if before that conviction he has (a) whether before or after the 14th October, 1992, been convicted in Jamaica of another murder done on a different occasion; or (b) been convicted of another murder done on the same occasion."

[4] In Case 12.044 (Andrew Downer and Alphonso Tracey), the victims were originally charged with murder in the course or furtherance of an act of terrorism. The charge was amended during trial to add the charge of murder in the course or furtherance of robbery.

[5] In Case 12.107 (Carl Baker), the jury originally found the victim guilty on three counts of non-capital murder and he was sentenced to life in prison.  The judge subsequently re-sentenced him on the same day to the death penalty, in accordance with the provisions of the Offences Against the Person Act.

[6] In Case 12.126 (Dwight Fletcher), the victim was originally convicted on three counts of capital murder and sentenced to death.  On appeal, however, he was found guilty on three counts of non-capital murder. His death sentence was nevertheless sustained, in accordance with sections 3B3 and 3(1A) of the Offences Against the Person Act. Section 3(1A) of the Act provides that a conviction of non-capital murder with another murder results in a sentence of death.  Section 3B3 of the Act provides that in the case of an appeal of capital murder which results in a conviction of more than one non-capital murder the court will determine whether the death sentence is warranted.

[7] In Case 12.023 (Desmond McKenzie), the Commission received a response from the State on November 2, 1998, the pertinent parts of which were transmitted to the Petitioners on November 24, 1998, for a response within 30 days.  The petitioners submitted a response on December 14, 1998, the pertinent parts of which were transmitted to the State on January 5, 1999, for a response within 30 days.  The Commission received observations from the State on December 22, 1998, the pertinent parts of which were transmitted to the Petitioners on January 5, 1999, for a response within 30 days.  The Commission continued to receive subsequent correspondence from both parties, the pertinent parts of which were transmitted for a response within a specified period.

[8] In Case 12.044 (Andrew Downer and Alphonso Tracey), the Commission received a response from the State on May 3, 1999, the pertinent parts of which were transmitted to the Petitioners on May 7, 1999, for a response within 30 days.  The State submitted additional information to the Commission on June 14, 1999, the pertinent parts of which were transmitted to the Petitioners on July 1, 1999, for a response within 30 days.  The petitioners submitted a response to the Commission on July 5, 1999, concerning the State's June communication, the pertinent parts of which were transmitted to the State on July 21, 1999, for a response within 30 days.  The petitioners also submitted a response to the Commission on August 5, 1999, concerning the State's July communication, the pertinent parts of which were transmitted to the State on August 18, 1999, for a response within 30 days.  The Commission received a response from the State on August 27, 1999, the pertinent parts of which were transmitted to the Petitioner for their information on September 3, 1999.

[9] In Case 12.107 (Carl Baker), the Commission received a response from the State on September 15, 1999, the pertinent parts of which were transmitted to the Petitioners on September 24, 1999.

[10] In Case Dwight Fletcher (12.126), the Commission received a response from the State on September 15, 1999, the pertinent parts of which were transmitted to the Petitioners on September 24, 1999.

[11] Instructions for dealing with applications from or on behalf of prisoners under sentence of death to the United Nations Human Rights Committee or the Inter-American Commission on Human Rights where the Judicial Committee of the Privy Council has refused a petition or dismissed an appeal from or on behalf of such prisoner or a petition or an appeal from or on behalf of such a prisoner to the Judicial Committee of the Privy Council has been abandoned or withdrawn, Jamaican Gazette (Extraordinary), Vol. CXX, Nş 84 (7 August 1997) (hereinafter the "Governor General's Instructions").

[12] Governor General's Instructions, Section 1 (defining "International Human Rights bodies" for the purposes of the Instructions as the United Nations Human Rights Committee and the Inter-American Commission on Human Rights).

[13] Governor General's Instructions, Sections 2, 3.

[14] Under Sections 4 to 10 of the Governor General's Instructions, prisoners were permitted to petition both International Human Rights Bodies, and each body was limited to six months during which it was required to advise the Governor General of the outcome of the prisoner's petition.

[15] This information was provided for in the Petitioner's communication to the Commission concerning Case 12.044 (Andrew Downer and Alphonso Tracey) dated July 5, 1999.  Subsequently, the Commission received a similar communication from petitioners in Case 12.146 (Anthony Rose), dated August 3, 1999, and from petitioners in Case 12.126 (Dwight Fletcher), dated August 13, 1999.

[16] The Government's submission to the Commission dated August 27, 1999 in Case 12.044 (Andrew Downer and Alphonso Tracey). In its most recent submissions to the Commission dated September 15, 1999 in Case 12.126 (Dwight Fletcher) and 12.146 (Anthony Rose), the State indicated that steps were being taken to amend the Instructions so as to bring then in conformity with the Neville Lewis’ decision. The Commission has not, however, been informed as to when any such amendments may be adopted or what effect, if any, such amended Instructions might be purported to have on the cases currently before the Commission.

[17] In Case 12.023, Mr. McKenzie was tried from April 22, 1995 to May 4, 1995, however, the jury was unable to reach a majority decision.  A retrial was held beginning March 13, 1996, in which Mr. McKenzie was convicted and sentenced to death on April 2, 1996. 

[18] In Case 12.126, Mr. Fletcher was convicted at his second trial, as the jury was unable to reach a verdict during his first trial in May of 1995. 

[19] In Case 12.126, Mr. Fletcher was convicted of three counts of capital murder and sentenced to death.  On appeal, Mr. Fletcher was found guilty on three counts of non-capital murder, but his death sentence was maintained in accordance with Article 3B(3) of the Act.

[20] In Case 12.146 (Anthony Rose), the Petitioners also rely upon Article 46(2)(b) of the Convention as an exception to the requirement of exhaustion. The petitioners allege that the State has prevented the victim from exhausting domestic remedies as a result of not providing legal aid for such motions, and has thereby denied the victim access to judicial redress.

[21] In support of their position, the Petitioners cite decisions of other international human rights tribunals, including the decision of the European Court of Human Rights in Airey v. Ireland 2 EHRR 305 (1979), and the Human Rights Committee decision in the case of Currie v. Jamaica, Communication Nş 377/1989, U.N. Doc. Nş CCPR/C/50/D/377/1989 (1994).

[22] In support of their position, the Petitioners cite the decisions of the U.N. Human Rights Committee in Little v. Jamaica, Communication Nş 283/1988, U.N. Doc. Nş CCPR/C/43/D/283/1988, Reid v. Jamaica, Communication Nş 725/1987, U.N. Doc. Nş CCPR/PR/C/39/D/725/1987; Collins v. Jamaica, Communication Nş 356/1989, U.N. Doc. Nş CCPR/C/47/D/356/1989, Smith v. Jamaica, Communication Nş 282/1988, U.N. Doc. CCPR/C/47/D/282/1988, Campbell v. Jamaica, Communication Nş 248/1987, U.N. Doc. Nş CCPR/C/44/D/248/1987, and Kelly v. Jamaica, Communication Nş 253/1987, U.N. Doc. Nş CCPR/C/41/D/253/1987.

[23] The Constitution of Jamaica, 23 July 1962, Enacted as the Jamaica (Constitution) Order in Council, Second Schedule, Ch. III , Article 17(2) (providing in respect of protection from inhuman treatment that "[n]othing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question authorizes the infliction of any description of punishment which was lawful in Jamaica immediately before the appointed day"); Article 26(8) (providing that "[n]othing contained in any law in force immediately before the appointed day shall be held to be inconsistent with any of the provisions of this Chapter [including the right to life and protection from inhuman treatment]; and nothing done under the authority of any such law shall be held to be done in contravention of any of these provisions.").

[24] In this regard, Articles 14 and 17 of the Jamaican Constitution provide for the recognition and protection of fundamental human rights and freedoms in Jamaica, including the right not to be subjected to cruel and unusual treatment or punishment. Also, as noted above, Articles 17(2) and 26(8) of the Constitution qualify the rights and freedoms under the Constitution, including and in particular the right not to be subjected to cruel and unusual treatment or punishment, by exempting laws that had effect as part of the law of Jamaica immediately before the commencement of the Constitution in 1962 from challenge under Articles 14 to 17 of the Constitution. As capital punishment, and the mandatory death penalty, were a part of the law of Jamaica before the enactment of its Constitution, the Petitioners allege that it is not open to individuals in Jamaica to effectively challenge the mandatory nature of the death penalty itself as contrary to their rights and freedoms under domestic law. 

[25] Woodson V. North Carolina, 428 U.S. 280 (1976) (U.S. Supreme Court).

[26] The State v. Makwanyane and McHunu, Judgement, Case CCT/3/94 (6 June 1995) (Constitutional Court of the Republic of South Africa).

[27] Bachan Singh V. State of Punjab, (1980) S.C.C. 475 (Supreme Court of India).

[28] Articles 90 and 91 of the Constitution of Jamaica provide as follows:

            90.(1) The Governor General may, in Her Majesty's name and on Her Majesty's behalf-

(a)  grant to any person convicted of any offence against the law of Jamaica a pardon, either free or subject to lawful conditions;

(b)  grant to any person a respite, either indefinite or for a specified period, from the execution of any punishment imposed on that person for such an offence;

(c)  substitute a less severe form of punishment for that imposed on any person for such an offence; or

(d)  remit the whole or part of any punishment imposed on any person for such an offence or any penalty or forfeiture otherwise due to the Crown on account of such an offence.

(2)  In the exercise of the powers conferred on him by this section the Governor-General shall act on the recommendation of the Privy Council.

91.(1) Where any person has been sentenced to death for an offence against the law of Jamaica, the Governor-General shall cause a written report of the case from the trial judge, together with such other information derived from the record of the case or elsewhere as the Governor-General may require, to be forwarded to the Privy Council so that the Privy Council may advise him in accordance with the provisions of section 90 of this Constitution.

(2)  The power of requiring information conferred on the Governor-General by subsection (1) of this section shall be exercised by him on the recommendation of the Privy Council or, in any case in which in his judgement the matter is too urgent to admit of such recommendation being obtained by the time within which it may be necessary for him to act, in his discretion.

[29] In their petition, the Petitioners in Case 12.107 (Carl Baker) claim that "it is understood that the Governor General always exercises the Prerogative of Mercy for women in Jamaica convicted of capital murder.").