CCPR/C/43/D/283/1988

Distr.

RESTRICTED */

CCPR/C/43/D/283/l988

19 November 1991

ORIGINAL: ENGLISH

______________________________________________________________

HUMAN RIGHTS COMMITTEE

Forty-third session

DECISIONS

Communication No. 283/l988

Submitted by :

Aston Little (represented by counsel)

Alleged victim :

The author

State party :

Jamaica

Date of communication :

19 January 1988 (initial submission)

Documentation references

: Prior decisions -

CCPR/C/WG/32/D/283/1988

(Working Group

combined rule 86/

rule 91 decision,

dated 22 March 1988)

- CCPR/C/36/D/283/1988

(decision on

admissibility, dated

24 July 1989)

- CCPR/C/42/D/283/1988

(interlocutory

decision,

dated 24 July 1991)

Date of adoption of Views

under article 5,

paragraph 4, of the

Optional Protocol :

1 November 1991

On 1 November 1991, the Human Rights Committee adopted its

Views under article 5, paragraph 4, of the Optional Protocol in

respect of communication No. 283/1988. The text of the Views is

appended to the present document.

[Annex]

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*/

Made public by decision of the Human Rights Committee.

DEC283.43

ANNEX

Views of the Human Rights Committee under article 5, paragraph 4,

of the Optional Protocol to the International Covenant

on Civil and Political Rights

- Forty-third session -

concerning

Communication No. 283/1988

Submitted by :

Aston Little

(represented by counsel)

Alleged victim :

The author

State party :

Jamaica

Date of communication :

19 January 1988

(initial submission)

Date of decision on admissibility

:

24 July 1989

The Human Rights Committee

, established under article 28 of

the International Covenant on Civil and Political Rights,

Meeting on 1 November 1991,

Having considered communication No. 283/1988, submitted to

the Committee by Aston Little under the Optional Protocol to the

International Covenant on Civil and Political Rights,

Having taken into account

all written information made

available to it by the author of the communication and by the

State party,

Adopts the following Views under article 5, paragraph 4, of

the Optional Protocol.

The facts as presented by the author

:

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1. The author of the communication is Aston Little, a Jamaican

citizen born on 6 February 1952 at Maroon Town, Jamaica, and

currently awaiting execution at St. Catherine District Prison,

Jamaica. He claims to be the victim of a violation by Jamaica of

articles 6, 7, lO, and l4, paragraphs 1, 2, 3(b),(d), (e), and 5

of the International Covenant on Civil and Political Rights. He

is represented by counsel.

2.1 The author was arrested on 12 January 1982 on suspicion

of having murdered, on 9 January 1982, one Oswald Dawes.

After his apprehension, the arresting officer allegedly hit

him with his gun. The prosecution contended that the author

had made a statement to the arresting officer, one Detective

Corporal C., to the effect that he was not the only one

involved, and that one O.B. and her daughter, L.D., also knew

about the crime. The author denied ever having made such a

statement. Subsequently, the investigating officer suggested

to him that he should plead guilty to the charge of murder;

when the author professed his innocence, the officer

threatened to use O.B., who had been charged along with the

author, as the prosecution's principal witness against him.

2.2 The author was detained until 16 February 1982, when he

was released on bail; on 31 March 1983 he was again remanded

in custody. On 24 April 1984 he was charged with the murder

of Mr. Dawes; he went on trial in the Circuit Court of Spanish

Town between 23 and 25 July 1984. Upon conclusion of the

trial, the jury at first did not return a unanimous verdict;

having been told by the judge to reconsider the evidence, it

again retired and thereafter returned a guilty verdict.

During the trial, the woman who had initially been charged

with him, O.B., did in fact testify against the author, and it

was, inter alia, on the basis of her testimony that he was

convicted.

2.3 On 31 July 1984, the author appealed to the Court of

Appeal of Jamaica on the grounds that the judge had

misdirected the jury (a) on the issue of corroborative

evidence, and (b) on the value of the author's alleged

confession made after his arrest. On 20 January 1986, the

appeal was dismissed. Early in 1989, the author petitioned

the Judicial Committee of the Privy Council for special leave

to appeal; the petition was dismissed on 5 May 1989. With

this, it is submitted, available domestic remedies have been

exhausted.

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The complaint :

3.1 The author submits that the conduct of the trial violated

article 14, paragraph 1, of the Covenant, because the trial

judge's instructions to the jury on the issue of

"corroborative evidence" were inadequate. It is submitted

that these directions were vitally important given that (a)

the testimony of O.B. provided the only evidence against the

author, (b) her evidence was inconsistent with respect to the

author's possession of the knife with which Mr. Dawes had been

stabbed; and (c) no motive on the part of the author was ever

established. Counsel further submits that the trial judge

wrongly directed the jury that the statement made by the

author in the presence of Det. Corp. C. ("ah no mi alone

involve. L. and O. no about it too") amounted to a confession

of murder: these words could not have amounted, in law, to a

confession. It is further submitted that the judge should

have directed or warned the jury that a mere "involvement" in

any crime cannot necessarily be deemed, in the absence of

further evidence, to amount to participation sufficient to

establish guilt. Pursuant to the judge's instructions, the

jury had to convict Mr. Little if it was convinced that he had

played some part in the overall enterprise but remained unsure

as to whether he was a principal or an abettor.

3.2 The author further claims that he was denied adequate

time and facilities for the preparation of his defence,

contrary to article 14, paragraph 3(b), as well as inadequate

facilities to cross-examine witnesses, contrary to article 14,

paragraph 3(e). He states that he was assigned two

representatives, Mr. A.S. and his assistant, Ms. H.M.;

although they were assigned to the case prior to the hearing

before the examining magistrate, the author only had a brief

interview with Ms. H.M. prior to the preliminary hearing. He

further only met once for about 30 minutes with Mr. A.S. about

one month before the trial. The author submits that his

representatives were inexperienced and did not adequately

consult with him in preparation of the defence. Thus,

(a)

the statements of the prosecution witnesses were not

reviewed with the author;

(b)

his comments on the case of the prosecution were not

acted upon by his representatives;

(c)

he had only 10 minutes at the end of each trial day

to consult with counsel;

(d)

inconsistencies in the testimony of O.B. were picked

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up by the author and notified to counsel, who failed

to take any action;

(e) counsel initially intended to call the author to

testify but then changed his mind;

(f)

at least one witness identified by the author as

capable of providing relevant and credible evidence

on his behalf was not called by A.S., who indicated

that this was unnecessary, without however providing

an explanation;

(g) the author pointed out that the distance between the

bar where he had been drinking and the

locus in quo

was such that he could not possibly have killed Mr.

Dawes and made it in time for the beginning of his

work shift at 7 a.m. The author's presence in the

bar and on the bus to work could have been

established, but counsel did not investigate the

matter, in spite of requests to this effect

formulated by the author.

3.3 The author acknowledges that the Court of Appeal assigned

a lawyer, Mr. W.C., to him for the preparation of the appeal.

He submits, however, that he was not consulted by this lawyer

either before, during or after the appeal; he addressed

several letters to W.C. before and after the hearing of the

appeal, requesting an interview, but his letters went

unanswered. It is submitted that this situation constitutes a

violation of article 14, paragraphs 3(b), (d), and 5, of the

Covenant.

3.4 Counsel claims that the delays in the judicial

proceedings in his client's case constitute violations of

articles 7, lO, and l4, paragraphs 3(c) and 5, of the

Covenant. Thus, two years and six months passed between

arrest and trial and sentence, one year and seven months

between conviction and the dismissal of the appeal, and three

years and four months between the appeal and the dismissal of

Mr. Little's petition for special leave to appeal to the

Judicial Committee of the Privy Council.

3.5 In this context, it is submitted that the Court of Appeal

of Jamaica never issued a properly reasoned judgment in the

case. It was only on 31 January 1989 that counsel

representing the author before the Judicial Committee received

a note from the Registrar of the Court of Appeal of Jamaica,

signed by one of the judges on appeal. This note merely states

that the Court of Appeal considered counsel's submissions to

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"Prison Conditions in Jamaica", May 1990.

1

Coun sel refers to the decision of the European Cour

t

2

of Human Rights in the case of

Soering v. United Kingdom

, where

the "death row phenomenon" was

considered in terms of inhuman an

d

degrading treatment.

be devoid of merit, that there was no ground on which an

application for leave to appeal could be based, and that the

application was, accordingly, refused by oral judgment.

Counsel submits that this note does not constitute proper

grounds for the dismissal of the appeal, as it fails to

address the central issue of corroboration, namely whether the

statement allegedly given by Mr. Little to the police after

his arrest was capable of corroborating the evidence of the

prosecution's only witness, O.B.

3.6 The author further submits that the conditions of his

detention are inhuman and degrading, amounting to a violation

of articles 7 and 10 of the Covenant. He confirms the

findings of a recent report on prison conditions in Jamaica,

including the death row section of St. Catherine District

Prison to which he is confined, prepared by an American

non-governmental organization.

Specifically, he complains

1

that prison conditions are extremely insalubrious, with waste

littering the area and constant unpleasant odours. A slop

bucket in his cell, filled with human excrement, waste and

stagnant water is only emptied once a day. Inmates are

required to share eating utensils made of plastic, which are

not properly cleaned. Finally, the daily time devoted to

recreational activities is often limited to half an hour.

Combined, these conditions are said to violate the author's

inherent dignity, protected by article 10, paragraph 1.

Furthermore, the treatment allegedly constitutes cruel,

inhuman and degrading treatment within the meaning of article

7, particularly if taking into consideration the inherent

uncertainty of the author's position as a person under

sentence of death, prolonged by the delays in the judicial

proceedings referred to in paragraph 3.4 above. Finally, the

mental anguish and anxiety resulting from prolonged detention

on death row in themselves are said to violate article 7.

2

3.7 With regard to the requirement of exhaustion of domestic

remedies in respect of the author's claim under article 7 of

the Covenant, counsel refers to the decision of the Judicial

Committee of the Privy Council in the case of

Noel Riley et

al. v. Attorney General

, where it had been held that whatever

the reasons for or length of delay in executing a sentence of

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See 1982 3 A.E.R. 469.

3

Elettronica Sicula S.p.A.,

ICJ Reports 1989, p. 59, at

4

Appendix 5.

death lawfully imposed, the delay could afford no ground for

holding the execution of the sentence to be in contravention

of Section 17 of the Jamaican Constitution (similar to article

7 of the Covenant).

Counsel submits that, on the basis of

3

judicial precedent, any constitutional motion based on this

ground would inevitably fail.

3.8 Furthermore, counsel submits that a constitutional motion

based on alleged violations of the right to a fair trial

(Sections 20 and 25 of the Jamaican Constitution) would not be

an available and effective remedy within the meaning of the

Optional Protocol. If the State party submits that Mr. Little

should argue before a court of lower jurisdiction in Jamaica

issues which he had already placed before the Judicial

Committee of the Privy Council, then, as noted by the

International Court of Justice in a recent decision, the State

party should provide authority for that contention.

More

4

specifically, counsel observes that no legal aid is provided

for constitutional motions pursuant to the Poor Prisoners'

Defence Act (1961) or the Poor Persons (Legal Proceedings) Act

1941, at Appendix 6 and Associated Rules. The Poor Prisoners'

Defence Act only allows for the grant of legal aid

certificates in respect of "appropriate proceedings", defined

as the preliminary examination, the trial or any subsequent

appeal from conviction. Constitutional motions are not

appeals from conviction but applications for constitutional

redress. As the Poor Persons (Legal Proceedings) Act 1941 was

enacted before the Jamaican Constitution, the "legal

proceedings" referred to in the Rules do not include

applications to the Supreme Court. In any event, the author

has not succeeded in securing legal representation in Jamaica

to argue a constitutional motion on a

pro bono basis.

The State party's observations

:

4. The State party, in a submission of 21 June 1989, contends

that the communication is inadmissible because of the author's

failure to pursue remedies available to him under the Jamaican

Constitution. It notes that the provisions of the Covenant

invoked by the author are co-terminous with the rights

protected by Sections 14, 17 and 20 of the Jamaican

Constitution. Under Section 25 of the Constitution, anyone

who alleges that any of his fundamental rights has been, is

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being or is likely to be contravened in relation to him, may,

without prejudice to any other available action with respect

to the same matter, apply for constitutional redress.

The Committee's admissibility considerations and decision

:

5.1 At its 36th session, the Committee considered the

admissibility of the communication. It noted the State

party's contention that the communication was inadmissible

because of the author's failure to apply for constitutional

redress. In the circumstances of the case, the Committee

found that recourse to the Constitutional Court under Section

25 of the Constitution was not a remedy available to the

author within the meaning of article 5, paragraph 2(b), of the

Optional Protocol.

5.2 On 24 July 1989, the Committee declared the communication

admissible in so far as it appeared to raise issues under

article 14 of the Covenant.

The State party's objections to the admissibility decision and

the Committee's request for further clarifications

:

6.1 The State party, by submission of 10 January 1990,

rejects the Committee's findings on admissibility and

challenges the reasoning described in paragraph 5.1 above. It

argues, in particular, that the Committee's arguments reflect

a misunderstanding of the relevant Jamaican law, especially

the operation of Section 25(1) and (2) of the Constitution.

In its opinion, the proviso to Section 25(2) cannot apply to

the case, as the constitutional remedy under Section 25 is

distinct from and independent of any appellate remedies

pertaining to a criminal charge. The State party refers to

the case of Noel Riley v. Attorney General

(see paragraph

3.7), in which the appellant, after exhausting his criminal

appeals, filed a constitutional motion alleging violations of

certain of his constitutionally guaranteed rights. The

decision of the Supreme Court was in turn appealed to the

Court of Appeal and to the Judicial Committee of the Privy

Council.

6.2 In a further submission dated 10 October 1990, the State

party argues that the proviso to Section 25 (2) would only be

applicable to a person whose criminal appeal had been

adjudicated by the Judicial Committee of the Privy Council if

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See CCPR/C/37/D/369/1989 (

G.S. v. Jamaica), decisio n

5

of 8 November 1989, paragraph 3.2.

On 6 April 1989, the Human

Rights Committee had adopte

d

6

its Views under article 5, paragraph 4,

of the Optional Protocol

in respect of these cases: see CCPR/C/35/D/210/1986 an

d

225/1987.

the right whose violation has been alleged, has been the

subject of judicial determination by the Judicial Committee.

In Mr. Little's case, the State party notes, the issue of a

violation of the right to a fair trial was not determined by

the Judicial Committee. In the State party's opinion, the

Committee's admissibility decision

"would render meaningless and nugatory the hard earned

constitutional rights of Jamaicans and persons in Jamaica

by its failure to distinguish between the right to appeal

against the verdict and sentence of the court in a

criminal case and the "brand new right" to apply for

constitutional redress granted in 1962."

6.3 As to the author's claim concerning inadequate

preparation of his defence, the State party notes that article

14, paragraph 3(b), of the Covenant is co-terminous with

Section 20, paragraph 6(b), of the Jamaican Constitution, and

adds that the author should have seized the Supreme Court of

the alleged violation of his rights under this provision.

6.4 As to the author's allegation that he was denied a fair

trial because the judge misdirected the jury on the issue of

"corroborative evidence", the State party, by reference to the

Committee's jurisprudence,

submits that this claim seeks to

5

raise issues of evaluation of facts and evidence in the case,

which the Committee has no competence to evaluate.

6.5

In June 1991, counsel informed the Committee that the

Supreme (Constitutional) Court had rendered its judgment in

the cases of Earl Pratt and Ivan Morgan, on whose behalf

constitutional motions had been filed earlier in 1991.

In the

6

light of this judgment and in order better to appreciate

whether recourse to the Supreme (Constitutional) Court was a

remedy which the author had to exhaust for purposes of the

Optional Protocol, the Committee adopted an interlocutory

decision during its 42nd session, on 24 July 1991. In this

decision, the State party was requested to provide detailed

information on the availability of legal aid or free legal

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representation for the purpose of constitutional motions, as

well as examples of such cases in which legal aid might have

been granted or free legal representation might have been

procured by applicants. The State party did not forward this

information within the deadline set by the Committee, that is,

26 September 1991. By submission of 10 October 1991, the

State party replied that no provision for legal aid in respect

of constitutional motions exists under Jamaican law, and that

the Covenant does not require the States parties to provide

legal aid for this purpose.

Post-admissibility proceedings and examination of merits

:

7.1 In the light of the above, the Committee decides to

proceed with its consideration of the communication. It has

taken note of the State party's arguments on admissibility

formulated after the Committee's decision declaring the

communication admissible insofar as it raised issues under

article 14 of the Covenant, and the author's further claims

concerning violations of articles 7 and 10 of the Covenant,

which were only substantiated after the Committee's

admissibility decision.

7.2 The State party argues that the provision to Section

25(2) of the Jamaican Constitution cannot apply in the case,

as the alleged breach of the right to a fair trial was not

placed before the Judicial Committee of the Privy Council and

thus not subject to judicial determination by that body.

Based on the material placed before the Committee by the

author, this statement would appear to be misleading. The

author's petition to the Judicial Committee, dated 23 January

1989, submits that he was the victim of a miscarriage of

justice. The Committee observes that the issue of whether or

not a particular claim was the subject of a criminal appeal

should not necessarily depend upon the semantic expression

given to a claim, but on its underlying reasons. From this

broader perspective, Mr. Little was in fact also complaining

to the Judicial Committee of the Privy Council that his trial

was unfair, in violation of Section 20 of the Jamaican

Constitution. Furthermore, the courts of every State party

should ex officio test whether the lower court proceedings

observed all the guarantees of a fair trial,

a fortiori in

capital punishment cases.

7.3 The Committee recalls that by submission of 10 October

1991, the State party indicated that legal aid is not provided

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for constitutional motions. In the view of the Committee,

this supports the finding, made in its decision on

admissibility, that a constitutional motion is not an

available remedy which must be exhausted for purposes of the

Optional Protocol. In this context, the Committee observes

that it is not the author's indigence which absolves him from

pursuing constitutional remedies, but the State party's

unwillingness or inability to provide legal aid for this

purpose.

7.4

The State party claims that it has no obligation under

the Covenant to make legal aid available in respect of

constitutional motions, as such motions do not involve the

determination of a criminal charge, as required by article 14,

paragraph 3(d), of the Covenant. But the issue before the

Committee has not been raised in the context of article 14,

paragraph 3(d), but only in the context of whether domestic

remedies have been exhausted.

7.5

The Committee further notes that the author was arrested

in 1982, tried and convicted in 1984, and that his appeal was

dismissed in 1986. The Committee deems that for purposes of

article 5, paragraph 2(b), of the Optional Protocol, a further

appeal to the Supreme (Constitutional) Court would, in the

circumstances of this case, entail an unreasonable

prolongation of the application of domestic remedies.

7.6 For the above reasons, the Committee maintains that a

constitutional motion does not constitute a remedy which is

both available and effective within the meaning of article 5,

paragraph 2(b), of the Optional Protocol. Accordingly, there

is no reason to reverse its decision on admissibility of 24

July 1989, as far as article 14 is concerned.

7.7 With regard to the author's allegations of ill-treatment

during detention, the Committee notes that the substantiation

thereof was not submitted by the author until after the

Committee's decision declaring the communication admissible

with respect to article 14 of the Covenant. Moreover, the

Committee observes that the issues concerning the conditions

of detention on death row and the question whether prolonged

detention on death row constitutes inhuman and degrading

treatment were not placed before the Jamaican courts, nor

brought before any other competent Jamaican authority. Since

domestic remedies in this respect have not been exhausted, the

Committee is precluded from considering these allegations on

the merits.

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8.1 With respect to the alleged violation of article 14,

three issues are before the Committee: (a) whether the judge's

instructions to the jury violated the author's right to a fair

trial; (b) whether the author had adequate time and facilities

for the preparation of his defence, and (c) whether any

violation of the Covenant ensued from the Court of Appeal's

failure to issue a written judgment after dismissing his

appeal.

8.2 In as much as the alleged inadequacy of, and mistakes in,

the judge's instructions to the jury are concerned, the

Committee reiterates that it is generally for the appellate

courts of States parties to the Covenant to evaluate the facts

and evidence in any particular case. It is not in principle

for the Committee to make such an evaluation or to review

specific instructions to the jury, unless it can be

ascertained that said instructions were clearly arbitrary or

amounted to a denial of justice, or that the judge manifestly

violated his obligation of impartiality. On the basis of the

material placed before it, the Committee finds no evidence

that the author's trial suffered from such defects.

8.3 The right of an accused person to have adequate time and

facilities for the preparation of his defence is an important

element of the guarantee of a fair trial and a corollary of

the principle of equality of arms. In cases in which a

capital sentence may be pronounced, it is axiomatic that

sufficient time must be granted to the accused and his counsel

to prepare the defence for the trial; this requirement applies

to all the stages of the judicial proceedings. The

determination of what constitutes "adequate time" requires an

assessment of the individual circumstances of each case. In

the instant case, it is uncontested that the author did not

have more than half an hour for consultation with counsel

prior to the trial and approximately the same amount of time

for consultation during the trial; it is further unchallenged

that he was unable to consult with counsel prior to and during

the appeal, and that he was unable to instruct his

representative for the appeal.

8.4 On the basis of the material placed before it, and

bearing in mind particularly that this is a capital punishment

case and that the author was unable to review the statements

of the prosecution's witnesses with counsel, the Committee

considers that the time for consultation was insufficient to

ensure adequate preparation of the defence, in respect of both

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trial and appeal, and that the requirements of article 14,

paragraph 3(b), were not met. As a result, article 14,

paragraph 3(e), was also violated, since the author was unable

to obtain the testimony of a witness on his behalf under the

same conditions as testimony of witnesses against him. On the

other hand, the material before the Committee does not suffice

for a finding of a violation of article 14, paragraph 3(d), in

respect of the conduct of the appeal: this provision does not

entitle the accused to choose counsel provided to him free of

charge, and while counsel must ensure effective representation

in the interests of justice, there is no evidence that

author's counsel acted negligently in the conduct of the

appeal itself.

8.5 It remains for the Committee to decide whether the

failure of the Court of Appeal of Jamaica to issue a written

judgment violated any of the author's rights under the

Covenant. Article 14, paragraph 5, of the Covenant guarantees

the right of convicted persons to have the conviction and

sentence reviewed "by a higher tribunal according to law". In

order to enjoy the effective exercise of this right, a

convicted person is entitled to have, within a reasonable

time, access to written judgments, duly reasoned, for all

instances of appeal. To the extent that the Jamaican Court of

Appeal has not, more than five years after the dismissal of

Mr. Little's appeal, issued a reasoned judgment, he has been

denied the possibility of an effective appeal to the Judicial

Committee of the Privy Council, and is a victim of a violation

of article 14, paragraph 5, of the Covenant.

8.6 The Committee is of the opinion 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. As the

Committee noted in its General Comment 6(16), the provision

that a sentence of death may be imposed only in accordance

with the law and not contrary to the provisions of the

Covenant implies that "the procedural guarantees therein

prescribed must be observed, including the right to a fair

hearing by an independent tribunal, the presumption of

innocence, the minimum guarantees for the defence, and the

right to review of conviction and sentence by a higher

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See CCPR/C/21/Rev.1, page 7, paragraph 7.

7

tribunal". In the present case, since the final sentence of

7

death was passed without having met the requirements for a

fair trial set out in article 14, it must be concluded that

the right protected by article 6 of the Covenant has been

violated.

9. The Human Rights Committee, acting under article 5,

paragraph 4, of the Optional Protocol to the International

Covenant on Civil and Political Rights, is of the view that

the facts before the Committee disclose a violation of article

14, paragraphs 3(b), (e), and 5, the latter read in

conjunction with paragraph 3(c), and consequently of article 6

of the Covenant.

10. In capital punishment cases, the obligation of States

parties to observe rigorously all the guarantees for a fair

trial set out in article 14 of the Covenant admits of no

exception. The Committee is of the view that Mr. Aston

Little, a victim of violations of article 14, and consequently

of article 6, is entitled, according to article 2, paragraph

3(a), of the Covenant, to an effective remedy, in this case

entailing his release; the State party is under an obligation

to take measures to ensure that similar violations do not

occur in the future.

11. The Committee would wish to receive information, within

ninety days, on any relevant measures taken by the State party

in respect of the Committee's Views.

[Done in English, French, Russian and Spanish, the English

text being the original version.]

-*-