CCPR/C/45/D/349/1989

Distr.

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CCPR/C/45/D/349/1989

18 August 1992

Original: ENGLISH

HUMAN RIGHTS COMMITTEE

Forty-fifth session

DECISIONS

Communication No. 349/1989

Submitted by :

Clifton Wright

[represented by counsel]

Alleged victim :

The author

State party :

Jamaica

Date of communication :

12 January 1989 (initial submission)

Documentation references

: Prior decisions-

CCPR/C/WG/35/D/349/1989

(Working Group

combined

rule 86/rule 91

decision, 17 March

1989)

-CCPR/C/40/D/249/1989

(decision on

admissibility, dated

17 October 1990)

Date of adoption of Views

: 27 July 1992

On 27 July 1992, the Human Rights Committee adopted its

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

respect of communication No. 349/1989. The text of the Views is

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annexed to the present document.

[Annex]

__________

*/

Made public by decision of the Human Rights Committee.

DEC349.45 cm

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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-fifth session -

concerning

Communication No. 349/1989

**/

Submitted by :

Clifton Wright

[represented by counsel]

Alleged victim :

The author

State party :

Jamaica

Date of communication :

12 January 1989

Date of decision on admissibility

: 17 October 1990

The Human Rights Committee

, established under article 28 of

the International Covenant on Civil and Political Rights,

Meeting on 27 July 1992,

Having concluded its consideration of communication No.

349/1989, submitted to the Human Rights Committee on behalf of

Mr. Clifton Wright 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 its Views under article 5, paragraph 4, of the

Optional Protocol.

__________

**/

An individual opinion formulated by Committee member

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Bertil Wennergren is reproduced in an Appendix to the present

document.

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The facts as presented by the author

:

1.

The author of the communication dated 12 January 1989 is

Clifton Wright, a Jamaican citizen currently awaiting execution

at St. Catherine District Prison, Jamaica. He claims to be a

victim of violations by Jamaica of article 14, paragraphs 1 and

3(b) and (e), of the International Covenant on Civil and

Political Rights. He is represented by counsel.

2.1

The author was convicted and sentenced to death on 29 March

1983, in the Home Circuit Court of Kingston, for the murder of

Louis McDonald. The prosecution's case was that the deceased was

last seen by his family in the afternoon of 28 August 1981. That

evening, one Silvester Cole, a witness in the case, was trying to

obtain a lift at a road junction in Kingston. The author and his

co-defendant, Winston Phillips, were similarly waiting for a lift

at the same junction. All three were picked up by a yellow Ford

Cortina motor car; Mr. Cole and Mr. Phillips stopped after

approximately two miles and left the vehicle. In court, Mr. Cole

testified that after they left the car, Mr. Phillips remained in

the vicinity of the vehicle, looking up and down the road, while

the author stayed in the car and held a gun to the driver's neck.

Realizing that he was witnessing a hold-up, he first walked

casually away from the scene, and only then began running. From a

distance, he saw the car driving away with its lights turned off.

2.2

The author was arrested on 29 August 1981 at about 6 p.m.,

together with Winston Phillips. He had been seen driving Mr.

McDonald's car by a friend of the latter; the car had been

reported stolen on the same day. Both the author and Mr. Phillips

were brought to the Waterford police station, where they were

searched and found to be in possession of pieces of jewellery

that the wife of the deceased later identified as belonging to

her husband. The author submits that when they were arrested, the

police could not possibly have known about the murder, since the

deceased's body was recovered only in the afternoon of the next

day, in a canefield close to where he had dropped off Messrs.

Cole and Phillips.

2.3

No identification parade was held after the arrest of the

accused on 29 August 1981, allegedly because a mob had sought to

attack them at the police station when it became known that the

deceased's jewellery had been found on them. The authors were

moved to the Spanish Town police station thereafter, and Mr.

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Phillips was admitted to the hospital. No identification parade

was conducted in Spanish Town, either, as the police officers

conducting the investigation felt that because of the events at

the Waterford police station, a parade would be unnecessary or

even suspect.

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2.4

A post-mortem was performed on 1 September 1981 at about 1

p.m. by Dr. Lawrence Richards. According to his evidence during

the trial, which remained unchallenged, death had occurred an

estimated 47 hours before, at around 2 p.m. on 30 August 1981, as

a result of gunshot injuries inflicted no more than 10 to 20

minutes before death. Thus, it is submitted that death occurred

only shortly before the body was recovered, and when the author

had already been in custody for about 20 hours.

2.5

On 3 September 1981, Mr. Cole was taken to the Spanish Town

police station, where the author was then in custody. The author

was brought out of a cell and identified by Mr. Cole as the man

who had held the gun and threatened the driver of the yellow

Cortina. He was not asked to identify Mr. Phillips before the

trial and indicated that he would have been unable to identify

him; during the trial, he could not identify Mr. Phillips.

2.6

During the trial, the author made an unsworn statement from

the dock. He asserted that he had borrowed the deceased's car

from a friend, to give his girlfriend a ride to Spanish Town. He

denied having obtained a lift in this car on 28 August 1981, and

affirmed that he was unaware that it had been stolen. He further

claimed that he had been working at the garage where he was

employed as a battery repairman until about midnight on the day

of the crime. Finally, he denied having been in possession of any

of the deceased's jewellery.

2.7

The author was tried with Winston Phillips. At the

conclusion of the trial, the jury failed to return a unanimous

verdict in respect of Mr. Phillips, who was released on bail and

ordered to be retried. The author was found guilty as charged,

convicted and sentenced to death. He appealed to the Court of

Appeal of Jamaica which, on 11 July 1986, dismissed his appeal.

On 24 September 1986 the court issued a written judgment. On 8

October 1987, the Judicial Committee of the Privy Council

dismissed the author's petition for special leave to appeal.

2.8

On 13 February 1984, the author submitted a complaint to the

Inter-American Commission on Human Rights, claiming that he had

been the victim of a miscarriage of justice. The Commission

registered the case under No. 9260 and held a hearing on 24 March

1988. The State party argued that the author had not exhausted

domestic remedies because he had failed to avail himself of

constitutional remedies in Jamaica. The Commission requested

further information as to whether such remedies were effective

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within the meaning of article 46 of the American Convention on

Human Rights; the State party did not reply. On 14 September

1988, the Commission approved resolution No. 29/88, declaring

"that since the conviction and sentence are undermined by the

record in this case, and that the appeals process did not permit

for a correction, that the Government of Jamaica has violated the

petitioner's fundamental rights" under article 25 of the American

Convention on Human Rights. The State party challenged this

resolution by submission of 4 November 1988.

The complaint :

3.1

Counsel contends that the State party violated several of

the author's rights under the Covenant. First, he claims that the

author was subjected to ill-treatment by the police, which

allegedly included the squirting of a corrosive liquid (Ajax)

into his eyes, and that, as a result, he sustained injuries.

3.2

Counsel further claims that the author was not afforded a

fair hearing within the meaning of article 14, paragraph 1, of

the Covenant. More specifically, the trial transcript reveals

that the pathologist's uncontested evidence, which had been

produced by the prosecution, was overlooked by the defence and

either overlooked or deliberately glossed over by the trial

judge. This meant that the jury was not afforded an opportunity

to properly evaluate this evidence which, if properly put, should

have resulted in the author's acquittal. In fact, according to

the pathologist's report, death occurred on 30 August 1981 at

around 2 p.m., whereas Mr. Wright had been in police custody

since approximately 6 p.m. on 29 August. It is submitted that no

trial in which the significance of such crucial evidence was

overlooked or ignored can be deemed to be fair, and that the

author has suffered a grave and substantial denial of justice.

3.3

It is further alleged that throughout the trial, the judge

displayed a hostile and unfair attitude towards the author as

well as his representatives. Thus, the judge's observations are

said to have been partial and frequently veined with malice, his

directions on identification and on recent possession of stolen

property biased. In this context, it is pointed out that no

identification parade was held in the case and that the judge, in

his summing up, endorsed the prosecution's contention that it was

inappropriate to conduct an identification parade in the

circumstances of the case. The judge also allegedly made highly

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prejudicial comments on the author's previous character and

emphatically criticized the way in which the defence conducted

the cross-examination of prosecution witnesses. Counsel maintains

that the judge's disparaging manner vis-à-vis the defence,

coupled with the fact that he refused a brief adjournment of 10

minutes and thereby deprived the defence of the opportunity of

calling a potentially important witness, points to a violation of

article 14, paragraph 3(e), of the Covenant, in that the author

was unable to obtain the examination of defence witnesses under

the same conditions as witnesses against him.

3.4

Finally, the author alleges a violation of article 14,

paragraph 3(b), because he, or his representative, were denied

adequate time for the preparation of the defence. In particular,

it is submitted that the trial transcript reveals that the

attorney assigned to the case was instructed on the very day on

which the trial began. Accordingly, he had less than one day to

prepare the case. This, according to counsel, is wholly

insufficient to prepare adequately the defence in a capital case.

Deficiencies in the author's defence are said to be attributable

partly to lack of time for the preparation for the trial, and

partly to the lack of experience of one of the author's two

court-appointed lawyers.

3.5

With regard to the issue of domestic remedies, counsel

rebuts the State party's contention that the communication is

inadmissible on the ground of non-exhaustion of domestic remedies

on grounds of a presumed right to apply for constitutional

redress to the Supreme (Constitutional) Court. He adds that this

argument is advanced without detailed consideration of the

Constitution. He points out that chapter III of the Jamaican

Constitution deals with individual rights, and section 20(5)

deals with the right to a fair trial. In particular, section 25

makes provision for enforcement; section 25(2) stipulates that

the Supreme Court has jurisdiction to "hear and determine

applications", but adds the qualification that the Court shall

not exercise its jurisdiction if it is satisfied that adequate

means of redress have been available under any other law. The

author's case is said to fall within the scope of the

qualification of section 25(2) of the Jamaican Constitution: if

it were not covered by this proviso, every convicted criminal in

Jamaica alleging an unfair trial would have the right to pursue

parallel or sequential remedies to the Court of Appeal and the

Privy Council, both under criminal law and under the

Constitution.

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3.6

Counsel finally notes that the State party has failed to

show that legal aid is available to the author for the purpose of

constitutional motions. If the State party were correct in

asserting that a constitutional remedy was indeed available, at

least in theory, it would not be available to the author in

practice because of his lack of financial means and the

unavailability of legal aid. Counsel concludes that a remedy

which cannot be pursued in practice is not an available remedy.

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The State party's information and observations

:

4.

The State party contends that the communication is

inadmissible under article 5, paragraph 2(b), of the Optional

Protocol. It argues that the author's rights under article 14 of

the Covenant are coterminous with the fundamental rights

guaranteed by section 20 of the Jamaican Constitution.

Accordingly, under the Constitution, anyone who alleges that a

fundamental right has been, is being or is likely to be infringed

in relation to him may apply to the Supreme Constitutional Court

for redress. Since the author failed to take any action to pursue

his constitutional remedies in the Supreme Court, the

communication is deemed inadmissible.

The Committee's admissibility considerations and decision

:

5.1

Before considering any claims contained in a communication,

the Human Rights Committee must, in accordance with rule 87 of

its rules of procedure, decide whether or not it is admissible

under the Optional Protocol to the Covenant.

5.2

During its fortieth session, in October 1990, the Committee

considered the admissibility of the communication. With regard to

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

Committee ascertained that the case submitted by the author to

the Inter-American Commission on Human Rights was no longer under

examination by that body.

5.3

The Committee took note of the State party's contention that

the communication was inadmissible because of the author's

failure to pursue constitutional remedies available to him under

the Jamaican Constitution. It observed that section 20, paragraph

1, of the Jamaican Constitution guarantees the right to a fair

trial, while section 25 provides for the implementation of the

provisions guaranteeing the rights of the individual. Section 25,

paragraph 2, stipulates that the Supreme (Constitutional) Court

may "hear and determine" applications with regard to the alleged

non-observance of constitutional guarantees, but limits its

jurisdiction to such cases where the applicants have not already

been afforded "adequate means of redress for the contraventions

alleged" (section 25, paragraph 2,

in fine). The Committee

further noted that the State party had been requested to clarify,

in several interlocutory decisions, whether the Supreme

(Constitutional) Court had had an opportunity to determine the

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question whether an appeal to the Court of Appeal and the

Judicial Committee of the Privy Council constitute "adequate

means of redress" within the meaning of section 25, paragraph 2,

of the Jamaican Constitution. The State party had replied that

the Supreme Court had not had said opportunity. In the

circumstances, the Committee found that recourse to the

Constitutional Court under section 25 of the Jamaican

Constitution was not a remedy available to the author within the

meaning of article 5, paragraph 2(b), of the Optional Protocol.

5.4

The Committee also noted that part of the author's

allegations concerned claims of bias on the part of the judge, as

well as the alleged inadequacy of the judge's instructions to the

jury. The Committee reaffirmed that it is generally beyond its

competence to evaluate the adequacy of the judge's instructions

to the jury, unless it can be ascertained that these instructions

were clearly arbitrary or amounted to a denial of justice, or

unless it can be demonstrated that the judge manifestly violated

his obligation of impartiality. In the case under consideration,

the Committee considered that the circumstances which led to the

author's conviction merited further examination in respect of his

claims relating to article 14, paragraphs 1 and 3(b) and (e), of

the Covenant.

5.5

The Committee finally noted the author's allegation

concerning ill-treatment by the police, and observed that the

State party had remained silent on the issue whether this part of

the communication should be deemed admissible.

5.6

On 17 October 1990, the Committee declared the communication

admissible in so far as it appeared to raise issues under

articles 10 and 14, paragraphs 1 and 3(b) and (e), of the

Covenant.

The State party's objections to the admissibility decision:

6.1

The State party, in a submission dated 12 February 1991,

challenges the Committee's findings on admissibility and objects

to the reasoning described in paragraph 5.3 above. It argues, in

particular, that the Committee's reasoning reflects a "grave

misunderstanding" of the relevant Jamaican law, especially the

operation of section 25, paragraphs 1 and 2, of the Jamaican

Constitution. The right to apply for redress under section 25(1)

is, in the terms of the provision itself, "without prejudice to

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any other action with respect to the same matter which is

lawfully available". The only limitation is to be found in

section 25(2) which, in the State party's opinion, does not apply

in the case, since the alleged breach of the right to a fair

trial was not at issue in the criminal law appeal to the Court of

Appeal and the Judicial Committee:

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"... If the contravention alleged was not the subject of

criminal law appeals,

ex hypothesi, those appeals could

hardly constitute an adequate remedy for that contravention.

The decision of the Committee would render meaningless and

nugatory the hard-earned constitutional rights of Jamaicans

..., 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 rights" to apply for

constitutional redress granted in 1962".

6.2

The State party submits that the admissibility decision

attaches undue significance to the fact that the Jamaican courts

have not yet had occasion to rule on the application of the

proviso to section 25(2) of the Constitution in circumstances

where the appellant has already exhausted his criminal law

appellate remedies. It notes that in the case of

Noel Riley and

others v. the Queen [A.G. (1982) 3 AER 469], Mr. Riley was able

to apply, after the dismissal of his criminal appeal to the Court

of Appeal and the Judicial Committee, to the Supreme

(Constitutional) Court and thereafter to the Court of Appeal and

the Privy Council, albeit unsuccessfully. In the State party's

opinion, this precedent illustrates that recourse to criminal law

appellate remedies does not render the proviso of section 25(2)

applicable in situations where, following criminal law appeals,

an individual files for constitutional redress.

6.3

As to the absence of legal aid for the filing of

constitutional motions, the State party submits that nothing in

the Optional Protocol or in customary international law supports

the contention that an individual is relieved of the obligation

to exhaust domestic remedies on the mere ground that there is no

provision for legal aid and that his indigence has prevented him

from resorting to an available remedy. It is submitted that the

Covenant only imposes a duty to provide legal aid in respect of

criminal offences (article 14, paragraph 3(d)). Moreover,

international conventions dealing with economic, social and

cultural rights do not impose an unqualified obligation on States

to implement such rights: article 2 of the International Covenant

on Economic, Social and Cultural Rights provides for the

progressive realization of economic rights and relates to the

"capacity of implementation of States". In the circumstances, the

State party argues that it is incorrect to infer from the

author's indigence and the absence of legal aid in respect of the

right to apply for constitutional redress that the remedy is

necessarily non-existent or unavailable.

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6.4

As to the author's claim of ill-treatment by the police, the

State party observes that this issue was not brought to its

attention in the initial submission, and that the Committee

should not have declared the communication admissible in respect

of article 10 without previously having apprised the State party

of this claim. It adds that, in any event, the communication is

also inadmissible in this respect, as the author did not avail

himself of the constitutional remedies available to him under

sections 17(1) and 25(1) of the Jamaican Constitution: any person

alleging torture or inhuman and degrading treatment or other

punishment may apply to the Supreme Court for constitutional

redress.

6.5

In the light of the above, the State party requests the

Committee to review its decision on admissibility.

Post-admissibility considerations and examination of merits

:

7.1

The Committee has taken note of the State party's request,

dated 12 February 1991, to review its decision on admissibility,

as well as its criticism of the reasoning leading to the decision

of 17 October 1990.

7.2

The same issues concerning admissibility have already been

examined by the Committee in its Views on communications Nos.

230/1987 (Raphael Henry v. Jamaica

) and 283/1988 (Aston Little v.

Jamaica). In the circumstances of those cases, the Committee

concluded that a constitutional motion was not an available and

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

of the Optional Protocol, and that, accordingly, the Committee

was not precluded from examining the merits.

7.3

The Committee has taken due note of the fact that subsequent

to its decision on admissibility the Supreme (Constitutional)

Court of Jamaica has had an opportunity to determine the question

whether an appeal to the Court of Appeal of Jamaica and the

Judicial Committee of the Privy Council constitute "adequate

means of redress" within the meaning of section 25, paragraph 2,

of the Jamaican Constitution. The Supreme (Constitutional) Court

has since replied to this question in the negative by accepting

to consider the constitutional motion of Earl Pratt and Ivan

Morgan (judgment entered on 14 June 1991). The Committee observes

that whereas the issue is settled under Jamaican constitutional

law, different considerations govern the application of article

5, paragraph 2(b), of the Optional Protocol, such as the length

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of the judicial proceedings and the availability of legal aid.

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7.4

In the absence of legal aid for constitutional motions and

bearing in mind that the author was arrested in August 1981,

convicted in March 1983, and that his appeals were dismissed in

July 1986 by the Court of Appeal of Jamaica and in October 1987

by the Judicial Committee of the Privy Council, the Committee

finds that recourse to the Supreme (Constitutional) Court is not

required under article 5, paragraph 2(b), of the Optional

Protocol in this case, and that there is no reason to reverse the

Committee's decision on admissibility of 17 October 1990.

7.5

As to the allegation concerning the author's ill-treatment

by the police, the Committee notes that this claim was reproduced

in resolution 29/88 approved by the Inter-American Commission on

Human Rights, a copy of which was transmitted by the Committee to

the State party on 28 April 1989. Furthermore, while the

allegation of a violation of article 10 does not expressly figure

under the header "Alleged Breaches of the International Covenant

on Civil and Political Rights" (page 8 of the author's initial

communication), reference to ill-treatment by the police is made

on pages 51 and 52 of this communication, which was integrally

transmitted to the Government of Jamaica a year and a half before

the Committee's decision on admissibility. In the circumstances,

the State party cannot claim that it was not apprised of the

allegation of ill-treatment; nor is the Committee barred from

considering the author's submission in its integrity, or from

proceeding with its own evaluation as to whether the facts as

presented may raise issues under certain provisions of the

Covenant, even if these provisions have not been specifically

invoked.

8.1

With respect to the alleged violations of the Covenant, four

issues are before the Committee: (a) whether the judge showed

bias in his evaluation of the evidence or in his instructions to

the jury; (b) whether the overlooking of the significance of the

time of death amounted to a violation of the author's right to a

fair trial; (c) whether the author was afforded adequate time for

the preparation of his defence and could secure the examination

of witnesses on his behalf under the same conditions as witnesses

against him; and (d) whether the alleged ill-treatment by the

police violated his rights under article 10.

8.2

With respect to the first issue, the Committee reaffirms its

established jurisprudence that it is generally for the appellate

courts of States parties to the Covenant to evaluate facts and

evidence in a particular case. It is not in principle for the

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Committee to make such an evaluation or to review specific

instructions to the jury by the judge, unless it can be

ascertained that the instructions to the jury were clearly

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

manifestly violated his obligation of impartiality. In the

present case, the Committee has been requested to examine matters

belonging in the latter category.

8.3

In respect of the issue of the significance of the time of

death of the victim, the Committee begins by noting that the

post-mortem on the deceased was performed on 1 September 1981 at

approximately 1 p.m., and that the expert concluded that death

had occurred forty-seven hours before. His conclusion, which was

not challenged, implied that the author was already in police

custody when the deceased was shot. The information was available

to the Court; given the seriousness of its implications, the

Court should have brought it to the attention of the jury, even

though it was not mentioned by counsel. Furthermore, even if the

Judicial Committee of the Privy Council had chosen to rely on the

facts relating to the post-mortem evidence, it could not have

addressed the matter as it was introduced for the first time at

that stage. In all the circumstances, and especially given that

the trial of the author was for a capital offence, this omission

must, in the Committee's view, be deemed a denial of justice and

as such constitutes a violation of article 14, paragraph 1, of

the Covenant. This remains so even if the placing of this

evidence before the jury might not, in the event, have changed

their verdict and the outcome of the case.

8.4

The right of an accused person to have adequate time and

facilities for the preparation of his or her 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 or her

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. There

was considerable pressure to start the trial as scheduled on 17

March 1983, particularly because of the return of the deceased's

wife from the United States to give evidence; moreover, it is

uncontested that Mr. Wright's counsel was instructed only on the

very morning the trial was scheduled to start and, accordingly,

had less than one day to prepare Mr. Wright's defence and the

cross-examination of witnesses. However, it is equally

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uncontested that no adjournment of the trial was requested by

either of Mr. Wright's counsel. The Committee therefore does not

consider that the inadequate preparation of the defence may be

attributed to the judicial authorities of the State party; if

counsel had felt that they were not properly prepared, it was

incumbent upon them to request the adjournment of the trial.

Accordingly, the Committee finds no violation of article 14,

paragraph 3(b).

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

1

8.5

With respect to the alleged violation of article 14,

paragraph 3(e), it is uncontested that the trial judge refused a

request from counsel to call a witness on Mr. Wright's behalf. It

is not apparent, however, that the testimony sought from this

witness would have buttressed the defence in respect of the

charge of murder, as it merely concerned the nature of the

injuries allegedly inflicted on the author by a mob outside the

Waterford police station. In the circumstances, the Committee

finds no violation of this provision.

8.6

Finally, the Committee has considered the author's

allegation that he was ill-treated by the police. While this

claim has only been contested by the State party in so far as its

admissibility is concerned, the Committee is of the view that the

author has not corroborated his claim, by either documentary or

medical evidence. Indeed, the matter appears to have been raised

in the court of first instance, which was unable to make a

finding, and brought to the attention of the Court of Appeal. In

the circumstances and in the absence of further information, the

Committee is unable to find that article 10 has been violated.

8.7

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

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

1

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,

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paragraph 1, 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. Clifton Wright, 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, as so

many years have elapsed since his conviction.

11.

The Committee would wish to receive information, within 90

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

respect of the Committee's Views.

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APPENDIX

Individual opinion of Mr. Bertil Wennergren,

submitted pursuant to rule 94, paragraph 3,

of the Committee's rules of procedure,

concerning the Committee's Views

on communication No. 349/1989 (Clifton Wright v. Jamaica)

I agree with the Committee to the extent that the trial

judge should have brought the implications of the pathologist's

estimation that the victim's death had occurred forty-seven hours

before the post-mortem to the attention of the jury. I do not,

however, consider that these implications were such that they

could have influenced either verdict or sentence. I therefore

disagree with the finding that said omission must be deemed a

denial of justice and that this remains so even if the placing of

this evidence before the jury might not, in the event, have

changed the verdict and the outcome of the case. In my opinion,

the omission was a minor irregularity that did not affect the

conduct of the trial in as much as article 14 of the Covenant is

concerned. My reasons are the following:

The pathologist testified both in respect of how and when

death of the victim occurred. In the latter respect, he first

stated that the "post-mortem examination was performed at the

Spanish Town hospital morgue forty-seven hours after death". Upon

the judge's question "When you [said] the examination was forty-

seven hours after death you are estimating it?", he replied "That

is my estimation". This estimation was not questioned during the

trial, although death must have occurred ninety-one, and not

forty-seven, hours before the post-mortem examination, namely

when the victim's wife began to search him. The discrepancy was

also not addressed before or by the Court of Appeal. The first to

raise the point was counsel before the Judicial Committee of the

Privy Council, who made the point the central issue of the

author's petition for special leave to appeal, although as a

matter of law the Judicial Committee could not consider it. The

Human Rights Committee thus is the first instance to consider

this point on its merits.

I believe that an explanation for the situation described

above is easy to find. The pathologist's testimony contained no

more than a mere estimation, and it is known that it is

impossible to determine the time of death with exactitude in a

case such as the present one. Pathologist's estimations must

allow for a broad margin of uncertainty. This implies that the

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pathologist's estimation did not really conflict with the

remainder of the evidence against the author. I would on the

contrary say that it was consistent with it. However, I believe,

as the Committee, that the judge

should have told the jury not

only about how they must evaluate the testimony of the

pathologist in respect of the cause of death but also in respect

of the time of death. He could not reasonably assume that what he

knew about margins of uncertainty and errors of appreciation was

also known to the members of the jury. However, I do not think

that this omission affected the deliberations of the jury

negatively. As the estimation was not in conflict with the other

evidence, and this other evidence was indeed convincing, there is

in my view no reason to conclude that there has been a denial of

justice. I note in this context that the Court of Appeal, when

dismissing the author's appeal, stated that "this was in fact one

of the strongest cases against an accused that we have seen".

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

being the original version.]

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