The Guardian 12/6/2011: artículo sobre la pena de muerte en el Caribe
West Indian death row prisoners to be defended by British lawyers
Privy council will rule on condemned islanders, but Caribbean countries are pressing to limit the UK’s judicial role
Lord Justice Phillips has questioned whether some privy council cases needed to be heard by a panel of five justices. Photograph: Michael Stephens/PA
The fate of six West Indian prisoners on death row will be decided through the adjudication of the privy council this summer amid fresh pressure from the Caribbean to limit the UK’s role in determining capital punishment cases.
In July, senior British lawyers will fly to St Kitts and Nevis to represent, in local courts, four islanders who have been condemned to hang after being convicted of murdering a key witness in a gangland trial.
The lives of Romeo Cannonier, Louis Gardener, Sheldon Isaac and Ruedeney Williams were saved in 2009 when judges on the judicial committee of the privy council sitting in Westminster granted them a temporary stay of execution – known formally as a “conservatory order”. One of the men, Sheldon Isaac, has suffered brain damage from a gunshot. Their appeals could yet return to London.
Next month, the JCPC will hear the case listed as Ernest Lockhart v the Queen. Lockhart faces the rope in the Bahamas; he was found guilty of a fatal shooting on the evidence of a co-defendant.
At the end of the summer, the same court will consider evidence against Marcus Daniel, who has been condemned to death for the murder of a young woman in Trinidad. Doubts have been raised about his mental health and whether he suffers from a severe personality disorder.
A decade after the Caribbean Court of Justice (CCJ) was set up to act as a supreme court for the region, supposedly replacing the JCPC, death penalty cases and other complex appeals are still being sent to London for adjudication. Only three states – Belize, Barbados and Guyana – have signed up to the CCJ; even Trinidad, where the court is situated, is not a member.
No one expected the historical anomaly of British supreme court justices ruling on such high profile and politically sensitive Caribbean cases to persist for so long. Even the UK judges appear to resent the additional judicial workload.
Reviled by critics in the Caribbean as an obstructive hangover of colonial rule, the work of the JCPC has, however, become increasingly influential around the world. Campaigners against the death penalty claim its jurisprudence has helped to reprieve almost 5,000 prisoners from death row in African states.
The farthest-reaching decision approved by the Privy Council came in a judgment that outlawed mandatory death sentences for murder on the grounds of their being unconstitutional.
That ruling has now been adopted by Kenya, Uganda and Malawi. “Death sentences on 900 people in Uganda were commuted; another 4,000 were taken off death row in Kenya last year and about 40 in Malawi – all as a result of those countries adopting privy council precedents,” explained Saul Lehrfreund of the London-based Death Penalty Project, which represents most of the applicants who come before the privy council.
The latest influx of capital punishment cases comes as pressure grows for more hangings in the Caribbean. Kamla Persad-Bissessar, the prime minister of Trinidad and Tobago, has extolled the death penalty as “a weapon in [our] arsenal” to fight the murder rate.
Her government introduced a bill to alter the constitution and sidestep restrictions imposed by the privy council, particularly a 1994 ruling that bans executions not carried out within five years from the date of sentence.
“[The legislation] simply seeks to plug some of the loopholes that have been exploited and manipulated by murderers who have been properly convicted and sentenced to death according to law,” Persad-Bissessar said earlier this year. The bill was defeated but the issue remains live.
Trinidad and Tobago’s top judge, chief justice,Mr Justice Ivor Archie, commented (pdf) last year: “It takes at least three trips to the privy council and the expenditure of enormous time, financial and other resources to facilitate an execution.” The country has more than 40 inmates on death row, but its last hanging was in 1999.
Saul Lehrfreund and Parvais Jabbar, who run the Death Penalty Project out of the Soho offices of the solicitors Simons Muirhead and Burton, remain unconvinced.
“If [Caribbean countries] made as much effort to try to improve the standard of policing and standard of forensics, that would significantly reduce the crime rate,” they said.
“The problem is that the real solution costs too much and won’t be done in four years. No one is interested in long-term solutions. Executing a few people is considered [to be] the answer.
“The people are more sophisticated that the politicians. They don’t believe the death penalty will have an impact on the crime rate, [though] they may believe [that murderers] need to be killed as retribution.”
Most of the British lawyers involved in death row cases work on a pro bono or voluntary basis. Lehrfreund and Jabbar will be joined by Edward Fitzgerald QC and Julian Knowles QC when they go out to St Kitts in July.
The tiny island was the scene of the last execution in the Caribbean in December 2008. Charles Laplace, who was sentenced to death for killing his wife, had not been informed of his right to appeal and was said to hav been suffering from a serious mental imbalance.
In praise of the privy council, Fitzgerald told students at Sussex University last month: “It has outlawed executions after delay; introduced judicial review and natural justice at the mercy stage; struck down the mandatory imposition of the death sentence for murder as unconstitutional; and introduced a new, restrictive approach to the imposition of the death penalty in murder cases.”
Appeals from West Indian colonies to the privy council were first heard in 17th century. In a more recent tradition, each country’s flag is now raised inside the JCPC courtroom opposite parliament when cases are considered.
In the 1920s, at the height of the British Empire, it was said that people living on a quarter of the world’s land could technically bring their appeals to the privy council. There are still 27 jurisdictions outside the UK for which the privy council is the final court of appeal. They include the Channel Islands, British overseas territories such as the Falklands and Gibraltar, and former colonies in the Caribbean and Pacific.
Several Caribbean states have recently tried to quit this relationship. Jamaica and St Vincent both signalled their intent to join the CCJ. Jamaica’s attempt was struck down as unconstitutional on the grounds that it required a referendum for approval; in St Vincent a referendum was held but lost. “This may indicate that people don’t necessarily trust their politicians and may feel that the JCPC gives an added level of protection,” Lehrfreund comments. (The CCJ has been more successful in its functions as an international tribunal, resolving disputes between Caricom nations.)
The outgoing president of the court, Michael de la Bastide, whose tenure comes to an end in August has expressed disappointment that more countries have not signed up to the CCJ. In March this year, he said it would be a “regional catastrophe” if the court was allowed to fail. “The region continues to be beholden to a foreign government for its final court of appeal and, in so doing, is failing to take full responsibility for its legal process.”
Two years ago Lord Justice Phillips, the first president of the UK’s supreme court, questioned whether some privy council cases needed to be heard by a panel of five justices, as Caribbean cases were taking up a lot of time. He supported the idea of Commonwealth countries establishing their own final courts of appeal.
Mr Justice Archie of Trinidad and Tobago has claimed that “less importance” is given to appeals from the islands. “If you will pardon the cricketing analogy, it looks as though the test side is not necessary to deal with us any more so they could send the ‘B’ team,” he said.
“Do we have to await the final humiliation of being asked to leave? … After 48 years of supposed independence, it astonishes me that there is even a debate about whether the the CCJ should be our final appellate court.
Asked about its role, a JCPC official said: “The judicial committee of the privy council does not lobby or encourage countries to join or leave its jurisdiction. It is the government’s policy to continue to make this service available, and a number of Commonwealth and ex-Commonwealth countries countries have long appreciated the service that some of the UK’s most senior judges have offered in providing their final court of appeal. Those judges sit as part of their duties as privy counsellors, and as part of their wider judicial commitment to upholding common law principles.”
On its website, the CCJ has a series of frequently asked questions. One inquires about the role of its rival, the privy council in London. Its answer includes the statement: “Persons interpreting and applying the law should be attuned to the relevant dynamics of social interaction, which determine the quality and intensity of human intercourse, and the values conditioning such dynamics… In short, the decisions may tend not to reflect the needs of the society, because the people applying the law would not understand the society.”
Disagreements with states that have the death penalty have become politically more pronounced since the UK government made opposition to capital punishment more of an international policy priority. “Abolition of the death penalty is an area that the government is keen to emphasise and put at the forefront of its human rights agenda,” Jeremy Browne, the Foreign Office minister and Liberal Democrat MP, declared in January, shortly after visiting Trinidad.