Shaw v. Jamaica

Communication No 704/1996, Views of the UNHRC, 2 April 1998
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Shaw (S) was arrested for the murder of a family and allegedly acknowledged his involvement in the killings  in an interview preceding a caution statement. He claimed that he was not charged with murder until nineteen days later (although it appeared from the file that the delay was actually nine days) and that he was then detained for eight months without being able to communicate with lawyers, friends or family, with three months elapsing before he was brought before a judge. He further claimed that he spent a total of one year in the police lock-up and that he was then held on remand in prison for fifteen months until his conviction. In addition he claimed that during his pre-trial detention he shared a poorly ventilated cell with as many as twenty-one detainees, with most of them having to stand up and that he was then held on remand in prison for fifteen months until his conviction. one detainees, with most of them having to stand up or sit down on a wet floor for the whole night.

S claimed that the first time that he met with a lawyer was when he was approached by the lawyer for his co-defendants (see Taylor v Jamaica, Fair Hearing, supra) who helped him to obtain the services of a legal aid lawyer but that, as this lawyer became a magistrate after the preliminary inquiry, it was another ten months before he obtained legal assistance. S also claimed that this lawyer ignored his instruction to call his father as a defense witness, failed to investigate his alibi and did not act on any of his instructions which meant that he was deprived of any opportunity to put any defense to the jury and allowed the judge to direct the jury that it could (if it saw fit) ignore his unsworn statement from the dock that he had not been at the crime scene.

S was convicted and sentenced to death in July 1994. An appeal was rejected in July 1995 and the judicial committee of the privy council rejected a petition for special leave to appeal in June 1996.

S referred to several NGO reports on the conditions of detention in his prison and claimed that those applicable to him included the absence of bedding and electric lighting, deficient sanitation, inadequate ventilation, poor natural lighting, confinement to his cell for a minimum of twenty-three hours a day in almost total darkness, the lack of provision for health care and medical facilities and the absence of reeducation and work programs. He also claimed that he was unable to seek constitutional redress for the violation of his fundamental rights because legal aid was not available for a constitutional motion. S complained about the delay in being charged and bringing him before a judge, the inadequate facilities to prepare his defense, the conditions of detention before and after his conviction, the length of his detention on death row and the absence of legal aid for the purpose of a constitutional motion.

Jamaica denounced the Optional Protocol to the International Covenant on Civil and Political Rights (“OP”) with effect from 23 January 1998.

[Adapted from INTERIGHTS summary, with permission]

The Committee held:

(1) that all available domestic remedies had been exhausted with the dismissal of S’s petition for special leave to appeal;

(2) that due weight must be given to S’s allegations regarding the pre-trial detention conditions, given Jamaica’s failure to put forward the findings (if any) of a promised investigation into them, and there was thus a violation of Arts 7 and 10(1);

(3) that, in the absence of further compelling circumstances, S’s detention on death row for three and a half years was not a violation of Art 7;

(4) that the claims about the conditions on death row had not been refuted by Jamaica and these were a violation of Arts 7 and 10(1);

(5) that, as it was not contested that S was kept in custody for at least nine days before he was formally charged and that there was a further delay of three months before he was brought before a judge or judicial officer, there was a violation of Art 9(3);

(6) that the delay of twenty-seven months between arrest and trial, during which S was detained, was a violation of Art 9(3) and, as Jamaica had not provided any arguments relating to matters such as the complexities of the case which could have justified such a delay, also of Art 14(3)(c);

(7) that, although it was a matter of concern that S was left without legal representation for a considerable period, his lawyer for the preliminary inquiry having had to abandon his defense following a judicial appointment, there were no proceedings during this period and a lawyer was assigned to him some months prior to the start of the trial;

(8) that, as it did not appear that this lawyer’s failure to act on S’s instructions was a function of anything but her professional judgment, there was no violation of Art 14(3)(b)&(d);

(9) (9-4) that the absence of legal aid for a constitutional motion deprived S of any opportunity to test the irregularity of his criminal trial in a fair hearing in the constitutional court and was a violation of Art 14;

(10) that the final sentence of death had been passed without having met the requirements for a fair trial and was thus a violation of Art 6;

(11) that S was entitled to an effective remedy entailing commutation of his death sentence; and

(12) that, pursuant to OP Art 12(2),  Jamaica continued to be subject to the application of the OP with respect to this case as it was submitted before the denunciation.

 

[Adapted from INTERIGHTS summary, with permission]

"7.1 The author alleges a violation of articles 7 and 10(1) of the Covenant because he was detained in unacceptable conditions for several months following his arrest. The State party has not refuted this claim and promised to investigate it, but failed to forward to the Committee the findings, if any, of its investigation. In the circumstances, due weight must be given to the author's allegations. The Committee notes that during his pre-trial detention, much of which was spent at Montego Bay Police Lock-Up, the author was confined to a cell which was grossly overcrowded, that he had to sleep on a wet (concrete) floor, and that he was unable to see family, relatives or a legal representative until late in 1992. It concludes that these conditions amount to a violation of articles 7 and 10, paragraph 1, of the Covenant, constituting inhuman and degrading treatment and a failure, on the State party's part, to respect the inherent dignity of the author as a person."

INTERIGHTS  Comment: These rulings follow the Committee’s established case law but, as in the  Taylor case, Ando, Bhagwati, Buergenthal and Kretzmer dissented with respect to the need for legal aid for a constitutional motion whereby S could challenge his conviction.
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