1er Congrès mondial contre la peine de mort
Strasbourg - 21, 22, 23 juin 2001

Thursday June 21 at the Council of Europe

Geographical survey

AN OVERVIEW OF THE DEATH PENALTY IN THE COMMONWEALTH CARIBBEAN
Saul Lehrfreund MBE
Simons Muirhead and Burton

1 SCOPE OF DEATH PENALTY AND THE LEGAL PROCESS

The death penalty has been retained throughout the Commonwealth Caribbean as the mandatory punishment for murder. The death sentence is carried out by hanging. Those convicted of murder and sentenced to death by judge and jury, can appeal to the local court of appeal and if unsuccessful then to the Judicial Committee of the Privy Council in London. All Commonwealth Caribbean countries, save for Guyana, have retained the Privy Council as the final court of appeal in all criminal and civil matters.
If a prisoner is unsuccessful in his criminal appeal to the Privy Council, other remedies may exist pursuant to the constitution and by virtue of the ratification of regional and international treaties providing for the right of individual petition.
Despite the lack of legal aid for domestic constitutional actions and applications to international human rights bodies (rendering such remedies theoretical and illusory rather than a reality for the vast majority of indigent defendants) free legal representation has been provided to those under sentence of death. They would otherwise face certain execution without an opportunity to enforce their constitutional and internationally recognised human rights.2 COMMON PROBLEMS
The retention of the death penalty for grave offences at common law does not in itself violate international human rights law. Nevertheless, if society in the Caribbean favours the retention of the death penalty above all else in the penal process, it has to pay a price in terms of effective legal resources for fair trials and speedy appeals. Unfortunately, past experience and present practice indicates that countries in the Caribbean are seeking to keep the penalty without assuming responsibility for the just and humane execution of it.
The common law as applied in the 19th century is not an adequate instrument for control of poorly paid, lightly disciplined police forces who are under pressure to secure results in the face of rising crime rates and criminal violence. The law as it stands does not provide an adequate basis for the exclusion of unreliable confessions, identifications and other aspects of a defective investigation. The right of access to a lawyer while in custody remains on the whole theoretical rather than practical, and trial and appeal lawyers are too frequently ill-equipped and insufficiently experienced to ensure that a fair trial is afforded.
Some 95% of death row prisoners in the Caribbean cannot afford to pay for legal representation and are therefore provided with an attorney under the hopelessly inadequate legal aid systems in the Caribbean. It is often the practice for an accused person to be assigned a very junior member of the bar, who will be required to prepare the defence, usually without the assistance of any expert help, medical or otherwise. Persons who face the death penalty are tried and convicted mostly upon challenged confession evidence given at a time when legal aid is not available, and after a trial at which the person has been represented by a junior attorney who may lack some of the basic skills and expert assistance (i.e. a forensic psychiatrist) necessary to adequately prepare a defence.
Appalling prison conditions are another feature common to the region. Prisoners (not only those under sentence of death) are being held in atrocious conditions often being treated violently and inhumanely. Numerous NGO’s including Amnesty International and America’s Watch have concluded that the conditions and treatment of death row inmates in the Caribbean falls below the standards set out in the domestic prison rules and the United Nations Standard Minimum Rules for the Treatment of Prisoners.

3. PUBLIC OPINION IN THE CARIBBEAN
It is recognised that countries in the Caribbean have rising crime rates, and an unacceptably large number of murders. Capital punishment remains popular as a penalty with the electorate, although the basis for its popularity has never been properly examined. There is a popular misconception that the death penalty deters people from committing murder and thus safeguards the lives of others. There is however, no evidence for such a proposition. Virtually every statistical survey that has been conducted and examined by the courts suggests that the death penalty produces no deterrent effect on the murder rate any different from a long sentence of imprisonment.
In S –v- Makwanyane, the South African Constitutional Court rejected arguments that the death penalty deters crime:
“We would be deluding ourselves if we believe that execution of…a comparatively few…people each year…will provide the solution to the unacceptably high rate of crime…The greatest deterrent to crime is the likelihood that offenders will be apprehended, convicted and punished. It is that which is lacking in our criminal justice system.”
The South African Constitutional Court also rejected the proposition that public opinion should be a determining factor in a state’s decision whether or not to use the death penalty.
Political popularity of a particular practice, is no guide as to whether it is just, lawful, or constitutional and in accordance with fundamental rights and the international obligation of states.
Commonwealth Caribbean states whilst relying on popular support for the retention of the death penalty, feature prominently as states who are out of step with the general international trend towards abolition and the emerging new international order on the death penalty. The recent decisions of Jamaica and Trinidad and Tobago to denounce the Optional Protocol to the Covenant, and Trinidad’s withdrawal altogether from the American Convention on Human Rights provide further compelling evidence that these countries are out of step with changing international attitudes towards the death penalty.
Trinidad and Jamaica have now taken a lone stance in the international arena as the only group of countries to withdraw deliberately from the rule of international human rights law. To impose and carry out the death penalty in conditions that would escape international accountability is a clear indication that certain Caribbean countries are isolating themselves from international principles concerned with the application of the death penalty. It is hoped that the states concerned will re-accede to the regional and international human rights bodies, and so enable domestic executive practice to be informed by new international attitudes to human rights and fundamental freedoms.

4. CONCLUSION
Countries in the Commonwealth Caribbean are fortunate to have constitutions guaranteeing to all individuals fundamental rights and freedoms. Parliamentary sovereignty is exercised within the confines of those rights, reflecting international norms, and the effective enforcement of those rights is for the domestic courts. However, the scope for dynamic jurisprudence by the courts, by examining the compatibility of ancient practices with modern standards, is all too often precluded by the saving of pre-existing laws. Thus practices such as the mandatory death penalty by hanging, close confinement pending execution, flogging, and the use of slop buckets, manacles and leg irons are precluded from being considered cruel and unusual treatment or punishment.
In going against the trend of restriction and reduction, there are concerns that Caribbean states continue to keep the death penalty without assuming proper responsibility for the just and humane execution of it. States that wish to retain the death penalty have a duty to satisfy themselves and the international community at large that their policies and practices are in tune with their international human rights obligations and the emerging international order on the death penalty.