CCPR/C/47/D/334/1988

Communication No. 334/1988, Michael Bailey v. Jamaica

(views adopted on 31 March 1993, forty-seventh

session)*

Submitted by:

Michael Bailey (represented by

counsel)

Alleged victim:

The author

State party:

Jamaica

Date of communication:

22 February 1988 (initial submission)

The Human Rights Committee, established under article 28 of the

International Covenant on Civil and Political Rights,

Meeting on 31 March 1993,

Having concluded its consideration of communication No. 334/1988,

submitted to the Human Rights Committee by Mr. Michael Bailey 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, his counsel and the State party,

Adopts its views under article 5, paragraph 4, of the Optional Protocol.

1.

The author of the communication is Michael Bailey, a Jamaican citizen

born in September 1963, currently awaiting execution at St. Catherine

District Prison, Jamaica. He claims to be a victim of violations by Jamaica

of articles 7 and 14, paragraph 1, of the International Covenant on Civil and

Political Rights. He is represented by counsel.

Facts as submitted

2.1 Michael Bailey was arrested on 27 August 1984 and charged with the

murder, on 21 June 1984, of Maxine Gordon, a 19-year-old woman. He was tried

in the Home Circuit Court of Kingston, found guilty as charged and sentenced

to death on 30 July 1985. The Court of Appeal dismissed his appeal on 30

July 1986, issuing its written judgement on 13 November 1986. The Judicial

Committee of the Privy Council denied special leave to appeal on 24 March

1988. With this, it is submitted, available and effective domestic remedies

have been exhausted.

2.2 During the trial, the prosecution relied primarily upon a written

deposition made shortly after the murder by Pauline Ellis, the mother of

Maxine Gordon; Mrs. Ellis herself died before the beginning of the trial, but

the judge admitted her written deposition as evidence, according to which

Maxine and her mother had been in the latter's bedroom at approximately 8

p.m. on 21 June 1984. Upon hearing noises, Maxine looked out of the window

and walked out on the verandah of the house. Mrs. Ellis then heard two

shots, upon which

________________________

*

Pursuant to rule 85 of the Committee's rules of procedure,

Committee member Mr. Laurel Francis did not take part in the adoption of the

Committee's views.

her daughter rushed back into the bedroom and hid beneath the bed.

Michael Bailey followed her, armed with a gun, broke into the bedroom and

fired several shots under the bed, despite Mrs. Ellis' attempts to intervene.

2.3 The prosecution further contended that upon his arrest and after being

cautioned, the author admitted having shot Maxine Gordon, invoking as motive

a long-standing argument with her. During the trial, in an unsworn statement

from the dock, the author denied any involvement in the crime; he affirmed

that at the time in question he had been at home with his brother and sister.

In this connection, he submits that when cross-examined by defence counsel

during the trial, the arresting officer admitted that the diary in which he

had recorded the author's alleged confession was not in his possession

anymore, and that he could not remember what he had done with it.

Complaint

3.1 The author contends that he was denied a fair trial, in violation of

article 14, paragraph 1, of the Covenant; he explains that after the summing

up of the case by the judge and after consideration of the verdict by the

jury, the foreman of the jury told the judge that no unanimous verdict had

been reached and that he wished to raise a particular issue. The judge

inquired as to whether this concerned an issue of fact or of law; as it

referred to a matter extraneous to the conduct of the case, the judge refused

to allow the question and directed the jury to retire and to reconsider their

verdict without further delay. After another 45 minutes, the jury returned a

guilty verdict.

3.2 It is submitted that the judge should have allowed the foreman's

question and that he failed to properly instruct the jury. The author

further contends that the judge exerted undue pressure on the jurors to

return a verdict without delay, which is deemed to be contrary to the

principles laid down by the Court of Appeal in the case of McKenna. In this

context, counsel submits that in the circumstances, it was particularly

important to let the jury consider its verdict freely and carefully, as the

evidence against the author was based primarily upon the deposition by a

witness whose veracity could not be tested by cross-examination.

3.3 The author affirms, without giving further details, that his legal

representation was inadequate, that his court-appointed lawyer was

inexperienced and that the judge unjustly objected to several questions asked

and points raised by this lawyer.

3.4 The author further claims to have been beaten and ill-treated during

detention on death row, in violation of article 7 of the Covenant. He states

that, on 29 May 1990, several prison warders took him out of his cell; two

warders, whom he names, began to beat him all over his body with batons, an

iron pipe and with clubs, in the presence of an overseer. When he implored

the overseer to stop the warders, the overseer allegedly told him to keep

quiet. The author complains that he suffered bruises, slashes and cuts, and

that he was so severely injured that he had to crawl back into his cell. In

a letter dated 14 March 1991, which was confirmed by counsel on 25 September

1991, he notes that in spite of injuries to his head and his hands, he has

not been seen by a prison doctor, in spite of repeated requests. He contends

that it would not be possible now to obtain a report on his injuries from the

prison's Pharmaceutical Department.

3.5 Concerning the requirement of exhaustion of domestic remedies, the

author submits, with respect to his claim under article 7, that he wrote to

the Parliamentary Ombudsman, asking that someone visit him in the prison to

take a statement from him. Following this request, he was allegedly

threatened by prison warders and now has to fear for his life.

3.6 As to the claims under article 14 of the Covenant, the author contends

that a constitutional motion would not be an effective remedy within the

meaning of the Optional Protocol. He notes that he cannot afford to

privately retain counsel for the purpose and adds that the State party does

not provide legal aid for constitutional motions. Counsel in London observes

that there is no tradition in Jamaica for lawyers to offer free legal

services and points out that there has been only one instance in which

Jamaican lawyers agreed to act on a pro bono basis for purposes of a

constitutional motion, i.e. in the cases of Pratt and Morgan. a/ Even if

counsel in London were to accept to appear on such a basis on the author's

behalf, he would have no locus standi before the Constitutional Court.

State party's comments and observations on admissibility

4.1 In a submission dated 7 July 1989, the State party contends that the

communication is inadmissible on the grounds of the author's failure to

petition the Judicial Committee of the Privy Council for special leave to

appeal. Although the author's petition to the Judicial Committee had been

dismissed on 24 March 1988, no further comments were received from the State

party in this respect prior to the consideration of the admissibility of the

communication.

4.2 The State party did not provide information in respect of the

admissibility of the author's claims under article 7, in spite of two

specific requests addressed to it on 8 May and 20 August 1991.

Committee's decision on admissibility

5.1 During its forty-third session, the Committee considered the

admissibility of the communication. It noted that the State party had failed

to provide detailed information in respect of the admissibility of the

author's claims under articles 7 and 14 of the Covenant and decided, on the

basis of the information before it, that it was not precluded from

considering the communication under article 5, paragraph 2 (b), of the

Optional Protocol.

5.2 The Committee further noted that part of the author's allegations

concerned the judge's conduct of the trial. It reaffirmed its jurisprudence

that it is not in principle for the Committee to review specific instructions

to the jury by the judge or the judge's reluctance to entertain a question

posed by the foreman of the jury, unless it can be ascertained that the

instructions to the jury or the judge's conduct are clearly arbitrary or

amount to a denial of justice. As the Committee lacked evidence that the

judge's instructions suffered from such defects, it concluded that the

author's claims under article 14 of the Covenant were inadmissible as

incompatible with the provisions of the Covenant, pursuant to article 3 of

the Optional Protocol.

5.3 On 18 October 1991, the Committee declared the communication admissible

in so far as it appeared to raise issues under articles 7 and 10 of the

Covenant.

State party's objections to the decision on admissibility and counsel's

further comments

6.1 In a submission dated 30 April 1992, the State party contends that the

communication remains inadmissible because the author has failed to avail

himself of constitutional remedies. Thus, Section 17, paragraph 1, of the

Constitution prohibits inhuman and degrading treatment, and where a breach of

this right is alleged, Section 25 of the Constitution provides for an

application to the Supreme (Constitutional) Court for redress.

6.2 In addition, the State party contends, the author would have other

remedies in respect of ill-treatment by prison officials. Apart from

complaining to the Ombudsman, he could complain to the Department of

Corrections. Moreover, he could file an action for damages for assault in

respect of the alleged breaches.

6.3 The State party notes that "investigations are in fact being undertaken

by the Inspectorate of the Ministry of Justice in respect of the applicant's

complaint and a report on the matter is pending. In the circumstances, it

would be improper for the Committee to make a finding on the merits of the

case".

7.1 In his comments, counsel reaffirms that a constitutional motion would

not be an effective remedy for Mr. Bailey, due to the unavailability of legal

aid for the purpose. With respect to the possibility of filing complaints

with the Ombudsman and the Inspectorate of the Department of Corrections,

counsel notes that the author did notify the Ombudsman of his grievances and

that, as a result, he was subjected to threats and intimidation by prison

warders. It is submitted that in the circumstances, such a complaint is

unlikely to yield concrete results; furthermore, counsel notes that the State

party has failed to point out how an inquiry by the Department of Corrections

would be conducted, what its powers would be, what the author's rights in

such an inquiry would be, and what type of redress or remedy could be ordered

upon conclusion of such an inquiry. Counsel dismisses the suggestion that an

"official report could compensate Mr. Bailey for the injuries sustained or in

any way supply him with an adequate remedy".

7.2 Counsel dismisses the possibility of a civil action for damages for

assault as "wholly unpractical and unrealistic" in the circumstances of the

case described above. Furthermore, he notes that Mr. Bailey would once again

depend on legal aid for the purpose, and the State party has not suggested

that legal aid would be available for a civil action for damages.

Post-admissibility proceedings and examination of merits

8.1 The Committee has taken note of the State party's arguments on

admissibility formulated after the Committee's decision declaring the

communication admissible, especially in respect of the availability of

constitutional remedies which the author may pursue, as well as of counsel's

further comments on this issue. It recalls that the Supreme Court of Jamaica

has, in recent cases, allowed applications for constitutional redress in

respect of breaches of fundamental rights, after the criminal appeals in

these cases had been dismissed.

8.2 However, the Committee also recalls that by submission of 10 October

1991 in a different case, b/ the State party indicated that legal aid is not

provided for constitutional motions, and that it has no obligation under the

Covenant to make legal aid available in respect of such motions, as they do

not involve the determination of a criminal charge, as required under article

14, paragraph 3 (d), of the Covenant. In the view of the Committee, this

supports the finding that a constitutional motion is not an available and

effective remedy for an author who has no means of his own to pursue it. In

this context, the Committee observes that the author does not claim that he

is absolved from pursuing constitutional remedies because of his indigence;

rather, it is the State party's unwillingness or inability to provide legal

aid for the purpose that renders the remedy one that need not be pursued for

purposes of the Optional Protocol. Similarly, in the circumstances of the

case, a complaint to the Department of Corrections is not a remedy which the

author is required to exhaust for purposes of the Optional Protocol.

Accordingly, there is no reason to revise the decision on admissibility of 18

October 1991.

9.1 The Committee notes that the State party has confined itself essentially

to issues of admissibility and that it considers it "improper" for the

Committee to make a finding on the merits of the author's allegations while

investigations into his alleged ill-treatment on death row are said to be

pending. Article 4, paragraph 2, of the Optional Protocol enjoins a State

party to investigate thoroughly, in good faith and within the imparted

deadlines, all the allegations of violations of the Covenant made against it

and against its judicial authorities, and to make available to the Committee

all the information at its disposal.

9.2 The author has alleged that he suffered beatings and injuries at the

hand of prison officers during an incident on 29 May 1990. This claim has

not been refuted by the State party, which has confined itself to the mere

statement that the claim is being investigated and that, in the

circumstances, it would be inappropriate for the Committee to make a finding

on the merits.

9.3 The Committee is unable to share the State party's reasoning. Firstly,

the author's claim that he was threatened by warders when he sought to pursue

his complaint with the Ombudsman has remained uncontested. Secondly, the

Committee has not been notified whether the investigation into the author's

allegations have been concluded some 35 months after the event or whether,

indeed, they are proceeding. In the circumstances, it is fully within the

Committee's competence to proceed with the examination of the author's claim,

and in the absence of any further information on such investigations, due

weight must be given to the author's allegations, to the extent that they

have been substantiated. The Committee considers that his claims have been

substantiated. In the Committee's opinion, the fact that Mr. Bailey was

beaten repeatedly with clubs, iron pipes and batons, and then left without

any medical attention in spite of injuries to head and hands, amounts to

cruel and inhuman treatment within the meaning of article 7 of the Covenant

and also entails a violation of article 10, paragraph 1.

10. 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 it disclose a violation of

articles 7 and 10, paragraph 1, of the Covenant.

11.1 In accordance with the provisions of article 2 of the Covenant, the

State party is under an obligation to take effective measures to remedy the

violations suffered by Mr. Bailey, including the award of appropriate

compensation, and to ensure that similar violations do not occur in the

future. In this context, the Committee observes that in other cases, similar

uncontested allegations have been the basis of findings, by the Committee, of

violations of the Covenant.

11.2 The Committee would wish to receive information, within 90 days, on any

relevant measures adopted by the State party in respect of the Committee's

views.

[Done in English, French and Spanish, the English text being the original

version.]

Notes

a/

Communications Nos. 210/1986 and 225/1987, views adopted on

6 April 1989.

b/

See communication No. 283/1988 (Aston Little v. Jamaica), views

adopted on 1 November 1991, para. 7.3.