Article 4 and 5 - conditions of detention and method of execution
In relation to the cases in which the victims allege detention conditions
as violating one or more of Articles 4 and 5 of the Convention, the State argues
cumulatively that poor detention conditions alone will not render the victims'
execution unlawful. The State
relies in this regard on the decision of the Judicial Committee of the Privy
Council in the case Thomas and Hilaire v.
The Attorney General of Trinidad and Tobago and others.
According to the State, the Privy Council held in Thomas and Hilaire that conditions of detention similar to those
alleged by the victims did not constitute cruel and unusual treatment or
punishment, and that even if they did, commutation of the sentence would not be
the appropriate remedy, as the treatment did not involve such egregious conduct
as keeping an individual in solitary confinement, shackling, flogging or
Additionally, the State indicates that it would not adopt the generalized
positions concerning detention conditions stated in reports from international
and domestic bodies relied upon by the Petitioners. The State argues that these reports are based on conditions
from 1983 to 1990, and alleges that there have been "marked
improvements" to the prison conditions in Jamaica since those reports were
prepared. The State adds that it
would only consider and investigate individual complaints from the victims
containing specific information pertaining to their personal experience in
The State has also provided further submissions with respect to the
allegations and circumstances of the particular victims:
a. With respect to Case 12.023 (Desmond McKenzie), the State denies the
victim was detained with convicted persons prior to his conviction, contrary to
Article 5(4) of the Convention. The State claims none of the lock ups in which
the victim was detained hold convicted persons. The State also indicates that
St. Catherine's District Prison holds convicted persons, but they are held in
separate sections from those who are on remand. Further, the State claims the
victim was not in prison on February 23, 1995, and therefore he could not have
been subjected to abuse by prison warders on that date. The State indicated it
would investigate the victim's allegations of ill treatment for which
particulars are provided, including those alleged to have occurred on March 5,
b. With respect to Case 12.044 (Andrew Downer and Alphonso Tracey), the
State indicates that Andrew Downer was arrested on April 30, 1991, and taken to
the hospital on May 1, 1991. The State also claims there is no evidence that the
victim's medical condition was so dire at the time of his arrest that he could
not have been processed at the police station before attending the hospital, or
that he was released contrary to medical advice. The State indicates that the
victim's allegations in respect of his medical care should not be taken to show
a deliberate and consistent attempt to deny him medical care, but rather that
they reflect "the difficulties resulting from lack of resources, which
affect the prison system. The Ministry does not offer this as an excuse, but as
a statement of fact, however unfortunate." The State also notes that the
victim saw three doctors, had X-rays taken and was given medication.
Finally, the State denies that the victims' conditions of detention are
such that their executions are rendered unlawful
c. With respect to Case 12.107 (Carl Baker), the State initially denied the
victim's allegations of ill-treatment. Subsequently,
in its September 15, 1999 submission to the Commission, the State indicated it
would investigate the victim's detailed allegations of ill treatment. It
emphasized, however, that even if the allegations are found to be true, they
would not result in commutation of the victim's death sentence.
communication dated November 19, 1999, the State provided the Commission with
the results of its investigation into the allegations contained in the
Petitioners' supplemental submission of July 14, 1999. In its communication, the
State contends, inter alia, that the
prison records do not indicate a warder named "Oniss" being employed
on March 16, 1999. The records do, however, indicate that a warder named Mr.
Winston Holness was employed at the prison at that time, and Mr. Holness has
denied threatening the victim on March 16, 1999 or threatening or antagonizing
him on a regular basis. The State indicates further that Warder Willam Burke has
denied beating Mr. Baker on April 12, 1999 and that other members of the prison
staff responsible for guarding the area where the victim was held on that day
have denied having any knowledge of the beating. The State also claims that no
search involving warders, police and military personnel was carried out at the
prison on April 9, 1999, and that the medical journal and the victim's medical
records do not reflect the victim's allegations of illness for the period April
6-11, 1999 or any referrals or medical appointments outstanding. Finally, the
State alleges that, in the absence of specific information as to the identity of
the warders accused of issuing threats to the victim because he made complaints,
and in the absence of any report of the victim being threatened, the State has
been unable to investigate these allegations.
d. With respect to Case 12.126 (Dwight Fletcher), the State indicates that
it would investigate the victim's allegations of ill-treatment and poor prison
conditions, with additional information from the Petitioners, such as names,
dates, and locations. At the same time, the State reiterates its position that
poor prison conditions are not sufficient to result in commutation of a death
sentence, and suggests that only complaints of beatings could be grounds for
e. With respect to Case 12.146 (Anthony Rose), the State denies that St.
Catherine's District Prison has no or inadequate medical services.
The State reports that St. Catherine's District Prison has a Medical
Center staffed with two registered medical practitioners, a general practitioner
and psychiatrist, dentist, nurse, social worker and medical orderlies. The State
claims that, when a prisoner makes a complaint of a medical nature, arrangements
are made with a medical orderly for that prisoner to be taken to see the doctor
at the very earliest opportunity. If
the complaint is of a serious nature and a doctor is not on duty at the time or
cannot be located, the prisoner is immediately dispatched to the Spanish Town
General Hospital, which is a few miles from the prison.
Articles 4 and 8 - Right to a fair trial
In respect of those cases in which the Petitioners allege violations of
Article 8 of the Convention, based upon the adequacy of their legal
representation and preparation and the manner in which their trials were
conducted, the State raises several arguments.
With respect to the allegations in Case 12.023 (Desmond McKenzie)
concerning the judge's conduct during the victim's trial, the State indicated in
its initial observations on the Petitioners' petition that the Ministry
"concedes that the judge's instructions to the jury in the applicant's
trial were biased." The State nevertheless argued that this was a matter
properly left to the appellate courts of Jamaica, that the issue was dealt with
extensively by the Jamaican Court of Appeal, and therefore that there was no
compelling reason for the Commission to review the matter.
In a letter to the Commission dated August 28, 1998, however, the State
purported to amend its original response to the petition, declaring that it
erred when it said that the Ministry "concedes" that the judge's
instructions to the jury were biased, but rather intended to argue that the
State did not concede the bias issue. Furthermore, in a letter dated November 2,
1998, the State reiterated that the concession was an error, and attached the
memorandum of instructions dated July 29, 1998 from the Jamaican Attorney
General's Department to its Embassy in Washington regarding the State's response
in Case 12.023, which makes no reference to a "concession".
The State indicates that its officials in Washington erred in editing the
Ministry's memorandum, and therefore that it was an error to state there was a
concession when none had been made.
Additionally, in relation to Mr. McKenzie's allegations concerning the
violation of Article 8(2)(d) of the Convention, the State admits that it was
unfortunate that the judge denied an adjournment until the victim's counsel
could appear. However, the State denies that this incident rises to the level of
a violation of the Convention, since the victim's counsel returned that
afternoon. The State cites the Privy Council's decision in the case Robinson
v. R. for the proposition that the right to counsel is not
an absolute right, in that, for example, adjournments do not have to be
repeatedly granted in order to ensure protection of the right.
With respect to the allegations in Case 12.044 (Andrew Downer and
Alphonso Tracey) concerning the adequacy of the manner in which their trial was
conducted, the State claims that the victims' objection to the amended
indictment was overruled at trial. The State argues that issues concerning the
notification of charges and amendments to indictments should be left to the
trial and appellate courts to examine. It also notes that these issues were in
fact examined by the Court of Appeal and by the Judicial Committee of the Privy
Council in the context of the victims' cases, and therefore that no denial of
justice has been shown.
In relation to Case 12.107 (Carl Baker), the State indicates that the
judge amended the defect in the victim's sentence in accordance with his powers
pursuant to section 20 of the Criminal
Justice (Administration) Act of 1960. According
to this Act, it is lawful for every
judge at all times to amend all defects and errors of any proceedings in a
criminal case. The State also indicates that the victim did not raise an
objection when the judge amended his sentence.
Additionally, the State argues there was no act or omission on the
State's part to prevent Mr. Baker from seeing his attorney. The State maintains
that the preparation and handling of cases are matters for the attorney and his
client, and that the State will not partake or interfere in these matters. The
State argues that allegations by a victim that he had inadequate time with his
attorney to prepare for trial does not engage the responsibility of the State.
Finally, the State argues that it is not under an obligation to secure witnesses
for trial, and therefore denies any violation of the Convention in this regard.
With respect to the allegations in Case 12.126 (Dwight Fletcher) in
relation to the adequacy of the victim's legal representation, the State argues
that it cannot be held accountable for alleged errors committed by victim's
counsel. In support of its position, the State cites the decision of the United
Nations Human Rights Committee in the case D.
Taylor v. Jamaica,
in which the Committee expressed the opinion that "the State party cannot
be held accountable for any alleged deficiencies in the defence of the accused
or alleged errors committed by the defence lawyer, unless it was manifest to the
trial judge that the lawyer's behavior was incompatible with the interest of
justice." The State indicated, however, that it would investigate the
Petitioner's allegations concerning the failure to provide the victim with legal
representation at his preliminary hearing, the denial of contact with his
attorney for eighteen months following his arrest, and the allegation that Mr.
Fletcher's counsel failed to advance evidence and consult with the victim on
appeal. The State also points out that section 3 of the Jamaica's Poor
Prisoners' Defence Act obliges a Resident Magistrate or a Judge of the
Supreme Court to grant an indigent accused a legal aid certificate, which
entitles the accused to free legal aid in preparing and conducting his defense.
The State did not provide any observations in respect of the violations
of Article 8 of the Convention, alleged in Case 12.146 (Anthony Rose) relating
to the victim's inadequate legal representation and inadequate time and
facilities to prepare the victim's defense.
Articles 2, 8, 24 and 25 - unavailability of legal aid for Constitutional
In four of the five cases before the Commission, Case Nos. 12.023
(Desmond McKenzie), 12.044 (Andrew Downer and Alphonso Tracey), 12.107
(Carl Baker) and 12.126 (Dwight Fletcher), the State claims that it is not
required to provide legal aid for Constitutional Motions because Article 8(2)(e)
of the Convention only requires a State Party to provide legal aid in criminal
proceedings, indicating that a Constitutional Motion is not a criminal
proceeding. Moreover, according to
the State, a lack of legal aid regarding Constitutional Motions is not an
absolute bar to presenting Constitutional Motions in Jamaica. The State cites
cases such as Pratt v. Attorney General for
Jamaica as examples of situations in which victims were able to pursue
Constitutional Motions without legal aid. Consequently, the State denies any
violation of the Convention relating to the provision of legal aid for
Constitutional Motions. In Case 12.146 (Anthony Rose), the State did not respond
to the Petitioners' allegations concerning the lack of legal aid for
Constitutional Motions in violation of Articles 24 and 25 of the Convention.
Competence of the Commission
The Commission has jurisdiction ratione
materiae in the five cases in this Report, as the State deposited its
instrument of accession to the American Convention on August 7, 1978,
and the Petitioners allege that the State has violated Articles 1, 2, 4, 5, 7,
8, 12, 24 and 25 of the Convention. The Commission also has jurisdiction rationae
temporis, as the Petitioners' complaints pertain to acts or omissions that
transpired after the State's accession to the Convention. Finally, the
Commission has jurisdiction rationae
personae, as the victims are natural persons and the Petitioners were
authorized under Article 44 of the Convention to lodge petitions on behalf of
the victims. The Commission is therefore fully competent to examine the five
cases in this Report.
The Commission has considered the
admissibility of the five cases that are the subject of this Report, namely Case
Nos. 12.023 (Desmond McKenzie),
12.044 (Andrew Downer and Alphonso
Tracey), 12.107 (Carl Baker),
12.126 (Dwight Fletcher) and 12.146
(Anthony Rose) pursuant to Articles 46 and 47 of the Convention and makes
the following determinations.
In each of the five cases noted above, the Petitioners have indicated
that the victims' cases have not been submitted for examination by any other
procedure of international investigation or settlement.
The State has not contested the issue of duplication.
The Commission therefore finds no bar to consideration of these cases
under Articles 46 (1)(c) or 46(1)(d) of the Convention.
Exhaustion of domestic remedies
Article 46(1)(a) of the Convention specifies that, in order for a case to
be admitted, “remedies under domestic law [must] have been pursued and
exhausted in accordance with generally accepted principles of international
law.” When domestic remedies are unavailable as a matter of fact or law,
however, the requirement that they be exhausted may be excused. Article 46(2) of
the Convention specifies that this exception to exhaustion applies if: (1) the
legislation of the state concerned fails to afford due process for the
protection of the right allegedly violated; (2) the party alleging the violation
has been denied access to remedies under domestic law or has been prevented from
exhausting them; or (3) where there has been unwarranted delay in rendering a
final judgment. When a victim alleges that he or she is unable to prove
exhaustion as provided for in Article 46(2) of the Convention, Article 37(3) of
the Commission’s Regulations provides that the burden shifts to the State to
demonstrate that the remedies under domestic law have not been previously
Exhaustion of domestic remedies also need not be demonstrated by a victim
in the event that the State against which the complaint is lodged waives this
requirement. In this regard, the Inter-American Court of Human Rights has held
that the rule which requires the prior exhaustion of domestic remedies is
designed for the benefit of the State, because the rule seeks to excuse the
State from having to respond to charges before an international body for acts
imputed to it before it has had an opportunity to remedy them by internal means.
According to the Court, the requirement is thus considered a means of defense
and, as such, waivable, even tacitly. Further, a waiver, once effected, is
As noted in Part III.B.1 of this Report, the State did not provide
observations in respect of admissibility in two of the five cases before the
Commission, Case 12.023 (Desmond McKenzie) and 12.044 (Andrew Downer and
Alphonso Tracey). In addition, in Case 12.107 (Carl Baker) the State stated that
domestic remedies were exhausted when the victims' petition to the Judicial
Committee of the Privy Council was dismissed, and in Case 12.126 (Dwight
Fletcher), the State expressly indicated that it waived the issue of
admissibility. Finally, in Case 12.146 (Anthony Rose), the State indicated that
it would "defer" its right to address the issue of admissibility, and
proceeded to address the merits of the petition "in the interest of
time". The State has subsequently made no submissions respecting
admissibility in this case.
After considering the issue of admissibility in the context of these
cases, the Commission finds that the State explicitly or tacitly waived any
challenge with regard to the exhaustion of remedies that could potentially have
been invoked by the Petitioners in domestic proceedings in all five of these
cases. The Commission therefore does not consider Case Nos. 12.023 (Desmond
McKenzie), 12.044 (Andrew Downer and Alphonso Tracey), 12.107 (Carl Baker),
12.126 (Dwight Fletcher) and 12.146 (Anthony Rose) to be inadmissible by reason
of Article 46(1)(a) of the Convention.
3. Timeliness of
In accordance with Article 46(1)(6) of the Covention, petitions must be
presented in a timely manner, namely within a period of six months from the date
on which the complaining party was notified of the final judgment at the
As Table 5 below indicates, based upon the records before the Commission,
the petitions in all five of the cases that are the subject of this Report were
lodged with the Commission within 6 months from the date on which the final
judgments on the victims' appeals from their criminal convictions were rendered.
The State has not contested the issue of timeliness.
Accordingly, the Commission finds no bar to consideration of these five
cases by reason of Article 46(1)(b) of the Convention.
Article 47(b) and (c) of the Convention require, respectively, a petition
to be declared inadmissible, if it does not state facts that tend to establish a
violation of the rights guaranteed by the Convention, or if the statements of
the Petitioner or the State indicate that the petition is manifestly groundless
or out of order.
The petitioners in the five cases have alleged that the State has
violated the victims' rights under one or more of Articles 1, 4, 5, 7, 8, 24 and
25 of the Convention as set out in paragraph 1 and particularized in Part III.A
of this Report. In addition, the Petitioners have provided factual allegations,
described in Part III.A.1 of this
Report, that tend to establish that these alleged violations may be
In Case 12.107 (Carl Baker), the Petitioners have also included Articles
12(1) and 12(2) of the Convention among the provisions alleged to have been
violated in respect of the victim in that case. However, the Petitioners have
not provided any submissions or evidence respecting the legal or factual
foundation for these alleged violations. Consequently, the Commission finds the
petition in Case 12.107 (Carl Baker) to be inadmissible pursuant to Article
47(b) of the Convention insofar as the Petitioners allege violations of Article
12(1) and 12(2) of the Convention.
The Commission therefore finds, in respect of all five cases, and without
prejudicing the merits of the matter, that the Petitioners have presented
colorable claims of violations of the victims' rights under the Convention for
the purposes of Articles 47(b) and 47(c) of the Convention, with the exception
of the violations of Articles 12(1) and 12(2) of the Convention alleged in Case
12.107 (Carl Baker).
Conclusions on admissibility
In accordance with the foregoing analysis of the requirements of Articles
46 and 47 of the Convention and the applicable provisions of the Commission's
Regulations, the Commission decides to declare as admissible the claims
presented on behalf of the victims in four cases that are the subject of this
Report: 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 decides to
declare as 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 declares inadmissible
pursuant to Article 47(b) of the Convention.
As detailed in Part III.A.1 of this Report, the violations alleged by the
Petitioners in the cases currently under consideration by the Commission fall
into one or more of the following categories:
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 and 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 5(1), 5(2), 5(4) and 5(6) of the Convention,
relating to the complaints' conditions of detention and the method of execution
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
and 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 Article 1(1) of the Convention with regard to the above
Standard of review
Before addressing the merits of the cases to which this Report relates,
the Commission deems it advisable to articulate its standard of review in
determining capital punishment cases. In this regard, the Commission is of the
view that it must apply a heightened level of scrutiny in such cases. The right
to life is widely-recognized as the supreme right of the human being, and the conditio
sine qua non to the enjoyment of all other rights.
The Commission therefore considers that it has an enhanced obligation to ensure
that any deprivation of life perpetrated by a State Party through the death
penalty comply strictly with the provisions of the Convention, including in
particular the right to life provisions of Article 4, the guarantees of humane
treatment under Article 5, and the due process and judicial protections
guaranteed under Articles 8 and 25 of the Convention. This "heightened
scrutiny" test is consistent with the restrictive approach to the death
penalty provisions of human rights treaties advocated by the Commission and
other international authorities.
In particular, the Inter-American Court has concluded that the American
Convention has adopted an approach in respect of the death penalty that is
“incremental” in character, whereby, “without going so far as to abolish
the death penalty, the Convention imposes restrictions designed to delimit
strictly its application and scope, in order to reduce the application of the
penalty to bring about its gradual disappearance.”
As interpreted by the Inter-American Court, Article 4 of the Convention reflects
a tendency to restrict the application of the death penalty. The purpose is
"establishing a cut off as far as the penalty is concerned and doing so by
means of a progressive and irreversible process applicable to countries which
have not decided to abolish the death penalty altogether as well as to those
countries which have done so."
The Commission also notes that this heightened scrutiny approach to death
penalty cases is not precluded by the Commission's fourth instance formula.
According to this formula, the Commission in principle will not review the
judgments issued by the domestic courts acting within their competence and with
due judicial guarantees.
The fourth instance formula does not, however, preclude the Commission
from considering a case where the Petitioner’s allegations entail a possible
violation of any of the rights set forth in the Convention. In the case of Clifton
for example, a Jamaican citizen who alleged that a judicial error resulted
in a death sentence against him, the Commission concluded that the conviction
and sentence were undermined by the record in the case, but that the appeals
process in Jamaica did not permit for a correction of the situation.
Consequently, the Commission found that Jamaica had violated the Petitioner’s
right to judicial protection under Article 25 of the Convention, and recommended
that the Government of Jamaica order an investigation of the matter and afford
Mr. Wright a judicial remedy to have the inconsistency corrected. As Mr. Wright
had been denied effective domestic judicial protection, he was the victim of a
specific human rights violation under the Convention and the fourth instance
formula did not apply in the circumstances of his case.
171. The Commission will therefore review the Petitioners' allegations pertaining to the imposition of capital punishment with a heightened level of scrutiny, to ensure that the right to life as prescribed under the Convention is properly respected. In addition, the fourth instance formula will not preclude the Commission from adjudicating the Petitioners' claims, insofar as those claims disclose possible violations of the Convention.
Articles 4, 5, 8, and 24 - the mandatory death penalty
The victims have been sentenced to
mandatory penalties of death
The records in the 5 cases that are the subject of this Report indicate
that all of the victims have been convicted of capital murder or multiple
non-capital murders and sentenced to death.
In each case, the sentence was imposed pursuant to legislation in Jamaica that
prescribes the death penalty as the only punishment available when a defendant
is found guilty of capital murder, or of more than one non-capital murder.
More particularly, all of the victims have been convicted of capital
murder, or of more than one non-capital murder, under Jamaica's Offences Against the Person Act, as amended by the Offences
Against the Person (Amendment) Act, 1992 (hereinafter the “Act”).
Article 2(1) of the Act
defines capital murder as follows:
2.(1) Subject to subsection (2), murder committed in the following circumstances is capital murder, that is to say-
the murder of-
the murder of any person for any reason directly attributable to-
the murder of a Justice of the Peace acting in the execution of his
any murder committed by a person in the course or furtherance of-
burglary or housebreaking;
arson in relation to a dwelling house; or
any sexual offence;
any murder committed pursuant to an arrangement whereby money or anything
committed by a person in the course or furtherance of an act of terrorism, that
is to say, an act involving the use of violence by that person which, by reason
of its nature and extent, is calculated to create a state of fear in the public
or any section of the public.
Article 3(1) of the Act in turn prescribes the death penalty as the
mandatory punishment for any person convicted of a capital offence as defined
under Article 2 the Act:
Every 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
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."
In addition, Article 3(1A) of the Act prescribes the death penalty as the
mandatory punishment for an individual who has been convicted of more than one
non-capital murder, as follows:
whether before or after the 14th October, 1992, been convicted
in Jamaica of another murder done on a different occasion; or
been convicted of another murder done on the same occasion.
The Act therefore prescribes death as the mandatory punishment for all
capital murders, as well as for individuals who are convicted of more than one
non-capital murder. The Act also defines capital murder as murder committed
against certain persons by virtue of their employment, position or status, as
well as murder committed in the course or furtherance of certain other offences,
including robbery, burglary, housebreaking, and arson in relation to a dwelling
house. Non-capital murder is defined under the Act as any murder not falling
within the definition of capital murder.
Accordingly, once the jury found each of the victims in the five cases
currently before the Commission guilty of capital or multiple non-capital
murders, the death penalty was the only available punishment. The transcripts
for the trials in several of the cases, for example in Case 12.044 (Andrew
Downer and Alphonso Tracey),
illustrate and confirm the mandatory nature of the death penalty for the crime
of capital or multiple non-capital murders as it has applied to the victims in
Crimes of capital murder and multiple non-capital murders in Jamaica can
therefore be regarded as being subject to a “mandatory death penalty”,
namely a death sentence that the law compels the sentencing authority to impose
based solely upon the category of crime for which the defendant is found
responsible. Once a defendant is found guilty of the crime of capital murder or
of more than one non-capital murder, the death penalty must be imposed.
Accordingly, mitigating circumstances cannot be taken into account by a court in
sentencing an individual to death.
This is subject to one exception, however. Article 3(2) of the Act specifically exempts from the death penalty female offenders who
are convicted of offenses punishable with death, but who are found by a jury to
3(2) Where a woman convicted of an offence punishable with death is found in accordance with the provisions of this section to be pregnant, the sentence to be passed on her shall be a sentence of imprisonment with or without hard labour for life instead of sentence of death.
Where a woman convicted of an offence punishable with death alleges that
she is pregnant, or where the court before whom a woman is so convicted thinks
fit to order, the question whether or not the woman is pregnant shall, before
sentence is passed on her, be determined by a jury.
Subject to the provisions of this subsection, the said jury shall be the
trial jury, that is to say the jury to whom she was given in charge to be tried
for the offence, and the members of the jury need not be re-sworn:
if any member of the trial jury, after the conviction, dies or is
discharged by the court as being through illness incapable of continuing to act
for any other cause, the inquiry as to whether or not the woman is pregnant
shall proceed without him; and
where there is no trial jury, or where a jury have disagreed as to
whether the women is or is not pregnant, or have been discharged by the court
without giving a verdict on that question, the jury shall be constituted as if
to try whether or not she was fit to plead, and shall be sworn in such manner as
the court may direct.
The question whether the woman is pregnant or not shall be determined by
the jury on such evidence as may be laid before them either on the part of the
woman or on the part of the Crown, and the jury shall find that the woman is not
pregnant unless it is proved affirmatively to their satisfaction that she is
Where in proceedings under this section the jury finds that the woman in
question is not pregnant the woman may appeal under the Judicature (Appellate
Jurisdiction) Act, to the Court of Appeal and that Court, if satisfied that for
any reason the finding should be set aside, shall quash the sentence passed on
her and instead thereof pass on her a sentence of imprisonment with or without
hard labour for life:
that the operation of the provisions of this subsection shall be deemed to be
coincident with the operation of the Judicature (Appellate Jurisdiction) Act.
Therefore, the penalty for a female offender who is convicted of a
capital or multiple non-capital murder, but who is found by a jury to be
pregnant, is a sentence of imprisonment with or without hard labour for life
instead of a sentence of death.
As indicated in III.A.3.a of this Report, the Petitioners in all five of
the cases before the Commission have alleged that their sentencing to a
mandatory death penalty violates one or more of Articles 4(1), 4(2), 4(3), 5(1),
5(2), 5(4), 8(1), 8(2), 24 and 25 of the Convention. In particular, the
Petitioners argue that although the death penalty is only imposed in capital or
multiple non-capital cases, the distinction between these categories of murders
and non-capital murders for which the death penalty is not imposed fails to
allow for considerations of the particular circumstances of each offence and
offender, including relevant aspects of the character and record of each
defendant. As a consequence, the Petitioners claim that mandatory sentencing for
capital and multiple non-capital murders violates the Convention. The
petitioners also argue that the process for granting amnesty, pardon or
commutation of sentence in Jamaica does not provide an adequate opportunity for
considering individual circumstances, and in itself is inconsistent with Article
4(6) of the Convention.
In addressing the Petitioners' allegations, the Commission will first
analyze the compatibility of mandatory death sentences for the crimes of capital
and multiple non-capital murder with Articles 4, 5 and 8 of the Convention, in
light of the terms of those provisions, their underlying principles, and
relevant international and domestic precedents. The Commission will then
determine whether the State has violated the Convention rights of the victims in
the cases within this Report, because of the manner in which those victims have
been sentenced to death.
4, 5 and 8 of the Convention and the mandatory death penalty
In light of the allegations raised by the Petitioners, the Commission
must first ascertain whether the practice of imposing the death penalty through
mandatory sentencing is compatible with Article 4 (right to life), Article 5
(right to humane treatment), and Article 8 (right to a fair trial) of the
Convention and the principles underlying those provisions.
Article 4 of the American Convention provides as follows:
Article 4. Right to Life
Every person has the right to have his life respected. This right shall
be protected by law and, in general, from the moment of conception. No one shall
be arbitrarily deprived of his life.
In countries that have not abolished the death penalty, it may be imposed
only for the most serious crimes and pursuant to a final judgment rendered by a
competent court and in accordance with a law establishing such punishment,
enacted prior to the commission of the crime. The application of such punishment
shall not be extended to crimes to which it does not presently apply.
The death penalty shall not be reestablished in states that have
In no case shall capital punishment be inflicted for political offenses
or related common crimes.
Capital punishment shall not be imposed upon persons who, at the time the
crime was committed, were under 18 years of age or over 70 years of age; nor
shall it be applied to pregnant women.
Every person condemned to death shall have the right to apply for
amnesty, pardon, or commutation of sentence, which may be granted in all cases.
Capital punishment shall not be imposed while such a petition is pending
decision by the competent authority.
Article 4 of the Convention permits States Parties that have not
abolished the death penalty to continue to impose it. At the same time, the
Convention strictly regulates the manner in which the death penalty may be
imposed by those States Parties. This restrictive approach to the implementation
of the death penalty mirrors the treatment of the death penalty generally under
contemporary international and, as the next section of this Report will
indicate, domestic practice.
Drawing in part upon the past experience of international human rights
bodies, several general principles of interpretation can be identified in
respect of the death penalty provisions of international human rights
instruments in general, and Article 4 of the Convention in particular. First,
the supervisory bodies of international human rights instruments have subjected
the death penalty provisions of their governing instruments to a rule of
restrictive interpretation. In its Advisory Opinion on Restrictions to the Death
Penalty under Articles 4(1) and 4(4) of the Convention, for example, the
Inter-American Court of Human Rights adopted a restrictive approach to Article 4
of the Convention, finding that “the text of the article as a whole reveals a
clear tendency to restrict the scope of this penalty both as far as its
imposition and its application are concerned”.
Other international human rights supervisory bodies have similarly
afforded a strict interpretation to the death penalty provisions of human rights
treaties. The U.N. Human Rights Committee has held in the context of Article 6
of the ICCPR, which parallels Article 4 of the Convention in many respects,
that the law must strictly control and limit the circumstances in which a person
may be deprived of his life by the authorities of the state.
The Committee has accordingly determined 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. Its recommended remedies in
such cases have included release
and commutation of the death sentence.
The U.N. Special Rapporteur on Extra-Judicial, Summary or Arbitrary Executions
has likewise emphasized that proceedings leading to the imposition of capital
punishment must conform to the highest standards of independence, competence,
objectivity and impartiality of judges and juries and other strict requirements
of due process. This Commission has also closely scrutinized the
circumstances of death penalty cases to ensure strict compliance with the
requirements of due process and judicial protection.
It is also generally recognized that the death penalty is a form of
punishment that differs in substance as well as in degree in comparison with
other means of punishment. It is the absolute form of punishment that results in
the forfeiture of the most valuable of rights, the right to life and, once
implemented, is irrevocable and irreparable. As the United States Supreme Court
has observed, “the penalty of death is qualitatively different from a sentence
of imprisonment, however long. Death, in its finality, differs more from life
imprisonment than a 100-year prison term differs from one of only a year or two.
Because of that qualitative difference, there is a corresponding difference in
the need for reliability in the determination that death is the appropriate
punishment in a specific case.”
In the Commission's view, the fact that the death penalty is an exceptional form
of punishment must also be considered in interpreting Article 4 of the American
Finally, with respect to the restrictions prescribed in Article 4 of the
American Convention in particular, the Inter-American Court has identified three
principal limitations explicitly prescribed in Article 4 on the ability of
States Parties to the Convention to impose the death penalty:
three types of limitations can be seen to be applicable to States Parties which
have not abolished the death penalty. First, the imposition or application of
this sanction is subject to certain procedural requirements whose compliance
must be strictly observed and reviewed. Second, the application of the death
penalty must be limited to the most serious common crimes not related to
political offenses. Finally, certain
considerations involving the person of the defendant, which may bar the
imposition or application of the death penalty, must be taken into account.
The Court’s observations therefore accentuate the significance of
strict adherence to and review of due process guarantees in implementing the
death penalty in accordance with Article 4 of the Convention. Moreover, as part
of that process, the Court indicates that certain circumstances of individual
offenses and individual defendants may bar the imposition or application of the
death penalty altogether, and therefore must be taken into account in sentencing
an individual to death.
It is in light of the
foregoing interpretive rules and principles that the Commission must determine
whether the practice of imposing the death penalty through mandatory sentencing
is compatible with the terms of Articles 4, 5 and 8 of the Convention and the
principles underlying those provisions.
The Commission recognizes that the State, like many other jurisdictions
that have retained capital punishment, has created a distinction in its criminal
law between capital and non-capital murder. By doing so, the State has limited
punishment by the death penalty to more narrowly defined categories of crimes
than murder simpliciter. In the Commission's view, this development is
consistent with the reductive interpretation of Article 4 of the Convention
enunciated by the Inter-American Court, and the Commission commends the State
for taking this initiative.
Notwithstanding the prescribed distinction between capital and
non-capital murder, it remains the case in Jamaica that the death penalty is
imposed in capital and multiple non-capital cases through mandatory sentencing.
In the Commission’s view, three aspects of imposing mandatory death penalties
are problematic in the context of a proper interpretation and application of the
Convention, even when applied to limited categories of murder. First, it is
well-recognized that the crime of murder, even when defined through categories
akin to "capital" and "non-capital" murder, can be
perpetrated in the context of a wide variety of mitigating and aggravating
circumstances, with varying degrees of gravity and culpability.
This conclusion is illustrated by, for example, the broad definition of certain
categories of capital murder under Jamaican law, such as murder committed by a
person in the course of a robbery.
It is also illustrated by the circumstances of the cases currently before the
Commission, as described in Part III.A.1
of this Report, which vary in terms of degrees of gravity and culpability as
between individual offenses and offenders. Notwithstanding the existence of such
disparities, however, the mandatory death penalty seeks to impose capital
punishment in all cases of capital and multiple non-capital murders, without
distinction, save that provided in respect of pregnant offenders. It subjects an
individual who, for example, commits a capital murder in a impulsive act of
passion or anger, to the equivalent and exceptional punishment as an individual
who executes a capital murder after careful planning and premeditation.
Indeed, by its very nature, mandatory sentencing precludes consideration
of whether the death penalty is an appropriate or permissible form of punishment
in the circumstances of a particular offender or offense. Moreover, by reason of
its compulsory and automatic application, a mandatory sentence cannot be the
subject of an effective review by a higher court. Once a mandatory sentence is
imposed, all that remains for a higher court to review is whether the defendant
was properly convicted of an offense for which the death sentence is the
In the Commission’s view, these aspects of mandatory death sentences
cannot be reconciled with Article 4 of the Convention in several respects. As
noted above, the mandatory death penalty in Jamaica imposes the death penalty on
all individuals convicted of capital or multiple non-capital murders, despite
the fact that such crimes can be committed with varying degrees of gravity and
culpability. Moreover, in the case of Article 2 of Jamaica's Offences
Against the Person Act, the law presumes that the murder of certain
individuals, for example judges or witnesses, will, by virtue of the person's
employment, position or status alone warrant the imposition of the death penalty
in all cases. While the status of an individual may be a significant aggravating
factor in determining whether the death penalty is an appropriate punishment,
Jamaican law permits no account to be taken of the circumstances in which a
particular murder may be committed or the degree of culpability of the offender.
It also allows for no comparison with murders involving individuals not falling
within the prescribed categories, for example children, but which may in their
circumstances be considered equally or more grave or culpable. Not only does
this practice fail to reflect the exceptional nature of the death penalty as a
form of punishment, but, in the view of the Commission, it results in the
arbitrary deprivation of life, contrary to Article 4(1) of the Convention.
More particularly, imposing a mandatory death penalty for all crimes of
capital or multiple non-capital murders prohibits a reasoned consideration of
each individual case to determine the propriety of the punishment in the
circumstances. By its nature, then, this process eliminates a reasoned basis for
sentencing a particular individual to death, and fails to allow for rational and
proportionate connections between individual offenders, their offenses, and the
punishment imposed on them. Implementing the death penalty in this manner
therefore results in the arbitrary deprivation of life, within the ordinary
meaning of that term and in the context of the object and purpose of Article
4(1) of the Convention.
Accepted principles of treaty interpretation suggest that sentencing
individuals to the death penalty through mandatory sentencing and absent
consideration of the individual circumstances of each offender and offense leads
to the arbitrary deprivation of life within the meaning of Article 4(1) of the
Convention. Article 31(1) of the Vienna Convention on the Law of Treaties
provides that a treaty shall be interpreted “in good faith in accordance with
the ordinary meaning to be given to the terms of the treaty in their context and
in light of its object and purpose.” In this regard, the ordinary meaning of
the term “arbitrary” connotes an action or decision that is based on random
or convenient selection or choice rather than on reason or nature.
The U.N. Human Rights Committee suggested a similar meaning for the term
"arbitrary" in the context of Article 6(1) of the ICCPR, in the case
of Kindler v. Canada.
In that case, the victim, a citizen of the United States, was ordered
extradited from Canada to face a possible death sentence in the State of
Pennsylvania for a murder conviction. The Committee found that Canada did not
violate the victim’s right under Article 6(1) of the ICCPR not to be
arbitrarily deprived of his life, by extraditing him to the United States
without first seeking assurances from the U.S. Government that the death penalty
would not be imposed. At the same time, the Committee suggested that the
decision not to refuse extradition or to seek assurances must be shown to have
been based upon a reasoned consideration of the circumstances of Mr. Kindler’s
States must be mindful of the possibilities for the protection of life when
exercising their discretion in the application of extradition treaties, the
Committee does not find that the terms of article 6 of the Covenant necessarily
require Canada to refuse to extradite or to seek assurances. The Committee notes
that the extradition of Mr. Kindler would have violated Canada’s obligations
under article 6 of the Covenant, if the decision to extradite without assurances
would have been taken arbitrarily or summarily. The evidence before the
Committee reveals, however, that the Minister of Justice reached a decision
after hearing argument in favor of seeking assurances. The Committee further
takes note of the reasons given by Canada not to seek assurances in Mr.
Kindler’s case, in particular, the absence of exceptional circumstances, the
availability of due process, and the importance of not providing a safe haven
for those accused of or found guilty of murder.
The Committee has therefore suggested that an arbitrary decision includes
one that is taken in the absence of a reasoned consideration of the
circumstances of the case in respect of which the decision is made. In this
respect, the mandatory death penalty can be regarded as arbitrary within the
ordinary meaning of that term and in the context of the Convention as a human
rights instrument. In Jamaica, for example, the decision to impose the death
penalty on a person for the crime of capital or multiple non-capital murder
through a mandatory sentence is not based upon a reasoned consideration of a
particular defendant’s case or upon objective standards that guide courts in
identifying circumstances in which the death penalty may or may not be an
appropriate punishment. Rather, the penalty flows automatically once the
elements of the offenses of capital or multiple non-capital murders have been
established. The death penalty is also imposed regardless of the relative degree
of gravity of the offense or culpability of the offender.
The mandatory death penalty cannot be reconciled with Article 4 of the
Convention in another significant respect. As noted previously, the
Inter-American Court has emphasized several restrictions upon the implementation
of the death penalty that flow directly from the terms of Article 4 of the
Convention. These include considerations relating to the nature of a particular
offense, for example whether it can be considered a political or related common
offense, as well as to factors concerning the circumstances of an individual
offender, for example the offender's age at the time he or she committed the
crime for which the death penalty may be imposed. In this manner, Article 4 of
the Convention itself presumes that before capital punishment may be lawfully
imposed, there must be an opportunity to consider certain of the individual
circumstances of an offender or an offense. By its very nature, however,
mandatory sentencing imposes the death penalty for all crimes of murder and
thereby precludes consideration of these or any other circumstances of a
particular offender or offense in sentencing the individual to death. In
Jamaica, this is subject to the exception in Articles 3(2) to 3(6) of the
Offences Against the Person Act, whereby a mechanism is prescribed for
exempting pregnant offenders who are convicted of capital or multiple
non-capital murders from sentences of death.
 Darren Roger Thomas and Haniff Hilaire v. Cipriani Baptiste and others, Privy Council Appeal Nº 60 of 1998 (21 January 1999).
 Frank Robinson v. R.  1 A.C. 957
 U.N.H.R.C., D. Taylor v. Jamaica, Communication Nº 705/1996.
 Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.VII.92 doc.31 rev.3 (3 May 1996), p. 53.
 I/A Court H.R., Velásquez Rodríguez Case, Merits, Judgment of July 29. 1988, Ser. C Nº 4, para. 59.
 I/A Court H.R., Loayza Tamayo Case, Preliminary Objections, Judgment of January 31, 1996, Series C Nº 25, para. 40.
 See e.g. U.N.H.R.C., Baboheram-Adhin et al. v. Suriname, Communication Nos. 148-154/1983, Adopted 4 April 1985, para. 14.3 (observing that the right to life under Article 6(1) of the International Covenant on Civil and Political Rights is the “supreme right of the human being”).
(finding that the law must strictly control and limit the circumstances in
which a person may be deprived of his life by the authorities of the state.). See
also Report by the U.N. Special Rapporteur on Extra-judicial Executions,
Mr. Bacre Waly Ndiaye, submitted pursuant to Commission on Human Rights
Resolution 1994/82, Question of the Violation of Human Rights and Fundamental
Freedoms in any part of the World, with particular reference to Colonial and
Other Dependent Countries and Territories, U.N. Doc.E/CN.4/1995/61 (14
December 1994) (hereinafter “Ndiaye Report”), para. 378 (commenting upon
fair trial standards relating to capital punishment as follows):
While in many countries the law in force takes account of the standards of fair trials as contained in the pertinent international instruments, this alone does not exclude that a death sentence may constitute an extra-judicial, summary or arbitrary execution. It is the application of these standards to each and every case that needs to be ensured and, in case of indications to the contrary, verified, in accordance with the obligation under international law to conduct exhaustive and impartial investigations into all allegations of violation of the right to life.
 I/A Court H.R., Restrictions to the Death Penalty (Arts. 4(2) and 4(4) American Convention on Human Rights), Advisory Opinion OC-3/83, (8 September 1983), Annual Report 1984, p. 31, para. 57.
para. 56. The Inter-American Court concludes its authoritative interpretation
of the American Convention by stating the aspiration to progressively suppress
the death penalty:
On this entire subject, the Convention adopts an approach that is clearly incremental in character. That is, without going so far as to abolish the death penalty, the Convention imposes restrictions designed to delimit strictly its application and scope, in order to reduce the application of the death penalty to bring about its gradual disappearance. (Id., para. 57).
 See I/A Comm. H.R., Santiago Marzioni, Report Nº 39/96, Case 11.673 (Argentina), October 15, 1996, Annual Report 1996, p. 76, paras. 48-52. See also I/A Comm. H.R., Clifton Wright, Case 9260 (Jamaica), September 16, 1988, Annual Report 1987-88, p. 154.
 Clifton Wright Case, supra. See also I/A Comm. H.R., William Andrews v. United States of America, Annual Report 1997, p. 614.
 Case 12.023 (Desmond McKenzie) (convicted of capital murder in the furtherance of burglary); Case 12.04 (Andrew Downer and Alphonso Tracey) (convicted of murder in the course of furtherance of robbery); Case 12.107 (Carl Baker) (convicted of three counts of non-capital murder); 12.126 (Dwight Fletcher) (convicted of three counts of non-capital murder); Case 12.146 (Anthony Rose) (convicted of murder in the course or furtherance of arson).
 Offences Against the Person Act, as amended by the Offences Against the Person (Amendment) Act, 1992 (13 October 1992), Nº 14.
Section 2(5) of the Act defines the various officials referred to in Section
2(1) as follows:
In this section-
officer" has the same meaning as in the Corrections Act; "judicial
a Judge of the Supreme Court or the Court of Appeal,
the Master in Chambers or any person for the time being performing the
functions of a Judge of the Supreme Court or the Court of Appeal or of the
Master in Chambers;
the Registrar or Deputy Registrar of the Supreme
Court, the Revenue Court or the Court of Appeal or any person for the time
being performing the function of Registrar or Deputy Registrar;
a Resident Magistrate or any person for the time
being performing the functions of a Resident Magistrate;
a person employed in a court's office who carries
out prosecution of offences or in the Office of the Director of Public
Prosecutions or engaged to carry out functions on behalf of the Director of
"member of the security
forces" means a member of-
the Jamaica Constabulary Force;
the Jamaica Defence Force to the extent that such
member has been assigned to act in aid of the Police;
the Island Special Constabulary Force;
d. the Rural Police.
The State v. Alphonso Tracey and Andrew Downer, Transcript,
Verdict and Sentencing, Home Circuit Court Nº 2, 21 December 1994, File Nº
5&6/95, at p. 289 (sentencing the victims as follows:
Alphonso Tracey, please stand. The jury having found you guilty of capital murder, the sentence of the court is that you shall suffer death in the manner prescribed by law. Downer, the jury having found you guilty of capital murder, the sentence of the court is that you shall suffer death in the manner prescribed by law. )
 Advisory Opinion OC-3/83, supra, at 31, para. 52.
Article 6 of the ICCPR provides as follows:
Every human being has the inherent right to life.
This right shall be protected by law. No one shall be arbitrarily deprived of
In countries which have not abolished the death
penalty, sentence of death may be imposed only for the most serious crimes in
accordance with the law in force at the time of the commission of the crime
and not contrary to the provisions of the present Covenant and to the
Convention on the Prevention and Punishment of the Crime of Genocide. This
penalty can only be carried out pursuant to a final judgment rendered by a
When deprivation of life constitutes the crime of
genocide, it is understood that nothing in this article shall authorize any
State Party to the present Convention to derogate in any way from any
obligation assumed under the provisions of the Convention on the Prevention
and Punishment of the Crime of Genocide.
Anyone sentenced to death shall have the right to
seek pardon or commutation of the sentence. Amnesty, pardon or commutation of
the sentence of death may be granted in all cases.
Sentence of death shall not be imposed for crimes
committed by persons below eighteen years of age and shall not be carried out
on pregnant women.
6. Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant.
See e.g. Baboheram-Adhin et al. v. Suriname, supra, para. 14.3.
 See e.g. Anthony McLeod v. Jamaica, Communication Nº 734/1997, U.N.Doc CCPR/C/62/734/1997.
 See e.g. Patrick Taylor v. Jamaica, Communication Nº 707/1996, U.N. Doc. CCPR/C/60/D/707/1996.
 Ndiaye Report, supra, para. 377.
 See e.g. Clifton Wright, supra.
 Woodson v. North Carolina 49 L Ed 2d 944, 961.
 Id. at 31, para. 55.
 In 1953, the British Commission on Capital Punishment noted that “there is perhaps no single class of offences that varies so widely both in character and culpability as the class comprising those which may fall within the comprehensive common law definition of murder…no one would now dispute that for many of these crimes it would be monstrous to inflict the death penalty. The view is widely accepted that this penalty should be reserved for the more heinous offences of murder.” Royal Commission on Capital Punishment, September 1953 Cmnd 8932, Exh. 20. Even in those jurisdictions in which a distinction has been drawn capital and non-capital murder, experience indicates that varying degrees of culpability exist within categories of capital murder which may warrant discriminate application of the death penalty. See e.g. Woodson v. North Carolina, 49 L Ed 2d 944, 956, n. 31 (indicating that data compiled on discretionary jury sentencing of persons convicted of capital murder in the United States reveal that the penalty of death is generally imposed in less that 20% of the cases).
 See e.g. The State v. Alphonso Tracey and Andrew Downer, Transcript, Summing Up, Home Circuit Court Nº 2, 21 December 1994, File Nº 5&6/95, at pp. 251, 287 (defining "murder" for the jury as "the deliberate act of killing another person with the intention to kill or to cause serious bodily harm from which death in fact results" and "robbery" as "taking and carrying away somebody's things"); R. v. Cummingham  A.C. 566 (P.C.) (defining murder as the unlawful killing of another person with the intent to kill or to cause serious bodily injury.).
 Webster’s Third International Dictionary.
 U.N.H.R.C., Kindler v. Canada, Communication Nº 470/1991, U.N. Doc. CPR/C/48/D/470/1991 (1993).
 Id., para. 14.6.