Peart and Peart v. Jamaica

Communication Nos. 464 & 482/1991
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Peart and Peart (A and G) were convicted of murder and sentenced to death in 1988. They claimed that their conviction was based on the uncorroborated evidence of an eyewitness, evidence which had conflicted with a written statement previously made to the police but which they had not been allowed to see before or during the trial. They also claimed that the eyewitness’ identification of A and G from the witness stand should have been disallowed because their request to be put on an identification parade had been refused, that the judge was biased in favor of the prosecution, that the judge had not given the jury proper instructions as to the evaluation of the evidence, that there was inadequate time and facilities for the preparation of their defense, that prison officers were present during a meeting between A and his lawyer, and that there had been a failure to obtain expert evidence as to weather conditions at the time of the murder.

In addition, both A and G claimed to have been beaten in prison, A claimed that there was an 18-month delay between his arrest and trial and that he had been receiving death threats from warders for testifying about the death of another inmate. G claimed that he should have been released on bail. Appeals against their conviction were dismissed. A and G complained about the unfairness of their trial and hard and inhuman prison conditions. G also alleged that his prolonged detention on death row constituted cruel and unusual punishment in violation of Article 7 of the International Covenant on Civil and Political Rights (“ICCPR”).

[Adapted from INTERIGHTS summary, with permission]

The Committee held that the failure to make the witness' police statement available to A and G seriously obstructed the defense's cross-examination of the witness and was a violation of Article 14(3)(e) of the ICCPR (right of a criminal defendant to examine the witnesses against him).

The Committee also held that A and G's treatment in prison was cruel within the meaning of Article 7 and was also a violation of Article 10(1) (right to be treated with dignity); that A's claim about unimpeded access to his lawyer had not been substantiated; that the facts did not disclose a violation of Article 9 (arbitrary detention); that, as the final sentence of death was passed without due respect for the requirement of a fair trial, there was also a violation of Article 6 (right to life); and that an effective remedy would be the release of A and G.

[Adapted from INTERIGHTS summary, with permission]

"From the copy of the statement, which came into counsel's possession only after the Court of Appeal had rejected the appeal and after the initial petition for special leave to appeal to the Judicial Committee of the Privy Council had been submitted, it appears that the witness named another man as the one who shot the deceased, that he implicated Andrew Peart as having had a gun in his hand, and that he did not mention Garfield Peart's participation or presence during the killing. The Committee notes that the evidence of the only eye-witness produced at the trial was of primary importance in the absence of any corroborating evidence. The Committee considers that the failure to make the police statement of the witness available to the defence seriously obstructed the defence in its cross-examination of the witness, thereby precluding a fair trial of the defendants. The Committee finds therefore that the facts before it disclose a violation of article 14, paragraph 3(e), of the Covenant." Para. 11.5.

"With regard to the authors' allegations about maltreatment on death row, the Committee notes that the State party has indicated that it would investigate the allegations, but that the results of the investigations have not been transmitted to the Committee. Due weight must therefore be given to the authors' allegations, to the extent that they are substantiated. The Committee notes that the authors have mentioned specific incidents, in May 1990 and May 1993, during which they were assaulted by prison warders or soldiers and, moreover, that Andrew Peart has been receiving death threats. In the Committee's view this amounts to cruel treatment within the meaning of article 7 of the Covenant and also entails a violation of article 10, paragraph 1." Para. 11.6.

 

INTERIGHTS Comment: The decision reiterates the Committee's well-established position on the non-availability of constitutional challenge as a remedy in the absence of legal aid and the unacceptability of capital punishment where the fairness of the trial has been successfully impugned. Similarly the complaint about prolonged detention on death row did not pass the admissibility stage. The reliability of the prosecution witness's evidence - the only eye-witness - was of crucial importance in the absence of any corroborating evidence and the earlier statement to the police which conflicted with the testimony in court could have been effective in discrediting it on cross-examination. The Committee, however, only looked at the effect of withholding the statement and did not call into question as such the existence of a discretion as to disclosure; in this case the effect was relatively obvious but in others it may be harder to demonstrate that non-disclosure was particularly significant. The finding with respect to the expert witness is understandable in that there had been an adjournment after his first non-appearance and when he still did not appear it was the applicant's lawyer who had elected to go on without him. Although there had been an official investigation into the applicants' treatment in prison, the outcome had not been transmitted to the Committee and the finding was inevitable given the specificity of the allegations made.
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