CCPR/C/61/D/615/1995/Rev.1

NATIONS CCPR

Distr.

\) international Covenant RESTRICTED*

NY Y oe

Weer on Civil

SO CCPR/C/61/D/615/1995/Rev.1

and Political Rights 17 June 1998

Original: ENGLISH

HUMAN RIGHTS COMMITTEE

Sixty-first session

20 October - 7 November 1997

VIEWS

Communication No. 615/1995

Submitted by: Byron Young [represented by Kingsley Napley,

a London law firm]

Victim: The author

State party: Jamaica

Date of communication: 13 January 1995 (initial submission)

Date of adonvtion of Views: 4 November 1997

On 4 November 1997, the Human Rights Committee adopted its Views under

article 5, paragraph 4, of the Optional Protocol in respect of communication

No. 615/1995. The text of the Views is appended to the present document.

(ANNEX ]

* Made public by decision of the Human Rights Committee.

VWS615/Rev.1

GE.98-16598

CCPR/C/61/D/615/1995/Rev.1

Page 2 .

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

~ Sixty-first session -

concerning

Communi ion No. 615/1 ™

Submitted by: Byron Young

[represented by Kingsley Napley,

a London law firm]

Victim: The author

State party: Jamaica

Date of communication: 13 January 1995 (initial submission)

The Human Rights Committee, established under article 28 of the

International Covenant on Civil and Political Rights,

Meeting on 4 November 1997,

Having concluded its consideration of communication No. 615/1995

submitted to the Human Rights Committee on behalf of Mr. Byron Young 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 the following:

The following Committee members participated in the adoption of the

present Views: Mr. Nisuke Ando, Mr. Prafullachandra N. Bhagwati, Mr. Thomas

Buergenthal, Ms. Christine Chanet, Lord Colville, Mr. Omran El Shafei,

Ms. Elizabeth Evatt, Ms. Pilar Gaitan de Pombo, Mr. Eckart Klein, Mr. David

Kretzmer, Mr. Rajsoomer Lallah, Ms. Cecilia Medina Quiroga, Mr. Fausto Pocar,

Mr. Julio Prado Vallejo, Mr. Martin Scheinin, Mr. Danilo Turk, Mr. Maxwell

Yalden and Mr. Abdallah Zakhia.

™ The text of an individual opinion signed by one Committee member is

appended to the present document.

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Views under article paragraph 4 f the Optional Protocol

1. The author of the communication is Byron Young, a Jamaican citizen who

at the time of submission of the communication was awaiting execution at St.

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

by Jamaica of articles 6, 7, 14 and 15 of the International Covenant on Civil

and Political Rights. He is represented by Mr. David Smythe of the London law

firm of Kingsley Napley. On 8 September 1995, counsel informed the Committee

that the death sentence against his client had been commuted to life

imprisonment.

Facts as submitted

2.1 On 25 April 1990, the author and three co-defendants were convicted of

the murder, on 24 January 1989, of one Elijah McLean, and sentenced to death.

Their appeals were dismissed by the Court of Appeal of Jamaica on

16 March 1992. On 11 January 1995, the Judicial Committee of the Privy

Council dismissed the author’s petition for special leave to appeal. It is

submitted that with this, all available remedies have been exhausted.

Subsequently, the offence of which the author was convicted was classified as

a capital offence under the Offences against the Person (Amendment) Act, 1992.

2.2 At the trial, the prosecution argued that the four accused were among

seven men who entered the house of the deceased in the early morning of

24 January 1989, dragged him out of his bed, took him out of the house into

the yard and slashed him several times with their machetes, thereby causing

his death.

2.3 The prosecution relied primarily on the evidence of three relatives of

the deceased, aged 11, 14 and 17 at the time of the crime, and who lived in

the deceased’s house. They testified that they were woken up by sounds

emanating from the room in which the deceased and his common law wife were

sleeping. They went to the doorway and saw the author - whom they knew -

holding a flashlight in one hand and a gun in the other, pointed at the

deceased. Six other men carrying machetes were also standing by the bed of

the deceased, and one of them hit him on the forehead. All seven then pulled

the deceased from his bed and carried him outside. The deceased held onto one

of the doors and was hit on his hand by one of the men. The witnesses further

testified that, once in the yard, he was slashed several times by six of the

men, while the author stood in their midst, with the gun still in his hand.

Thereafter, all seven men left.

2.4 The author’s defence was based on alibi. He made an unsworn statement

from the dock, simply indicating that he had no knowledge of the murder.

Therefore, the issue was one of identification and the defence was solely

directed at the eyewitnesses’ credibility and their ability, given the

lighting conditions in the room and the yard at the time of the incident, to

identify the author and the co-accused correctly. On trial, the author was

represented by a legal aid attorney. No witnesses were called to testify on

the author's behalf.

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2.5 Upon conclusion of the judge’s summing-up; the jury retired, at

2:31 p.m. It returned at 3:14 p.m. to inform the judge that it had been

unable to arrive at a unanimous verdict. The judge replied that he could not,

at that stage, accept anything but a unanimous verdict, and the jury once

again retired at 3:16 p.m. The jury returned at 4:27 p.m., and the foreman

once again announced that no unanimous verdict had been arrived at. The judge

thereupon stated: "I am afraid that this is not a case in which I can accept

a majority verdict, this is a murder case and your verdict must be unanimous

one way or another. [...] None must be false to the oath he has taken to

return a true verdict, but in order to arrive at a collective verdict, a

verdict upon which you all agree, there must necessarily be some giving and

taking. There will be arguments [...], but at the same time there must be

[...] certain adjustment of views. Each of you must listen to the voices of

the other and don’t be dogmatic about it [...]. None of you should be

unwilling to listen to the argument of the other. If any of you have a strong

view, or you are in a state of uncertainty, you are not obliged or entitled

to sink your view and agree with the majority, but what I tell you to do is

to argue out and discuss the matter together and see whether or not you can

arrive at a unanimous verdict." The foreman then asked the judge a question

related to evaluation of evidence, and after this had been explained, the jury

retired a third time at 4:41 p.m. It returned at 5:30 p.m., and the foreman

announced that the jury had reached a unanimous verdict, finding all four

accused guilty as charged.

2.6 Counsel forwards the sworn affidavits from Terence Douglas and Daphne

Harrison, two jury members who sat throughout the trial and were present

during the deliberations of the jury.

2.7 In his affidavit of 3 May 1990, Mr. Douglas states: "[...] On the last

day of the trial - out of twelve jurors - only three jurors found the men

guilty. Because it was getting late and the foreman was pressuring us, we just

told him to do what he wants. The foreman then stood up [...] and said he

found all four men guilty. [...] I was inside talking to the three jurors when

the foreman turned to me and said he was going to tell the judge that I got

money to let the men go. I then told him to go ahead and tell the judge

because I can talk for myself. After the case was dismissed I went outside

and started to cry because I know that the four men are innocent {...]. I

would like the [Jamaica] Council [for Human Rights] to get a re-trial for

these men because they did not get a fair trial.”

2.8 In her affidavit of 12 June 1990, Ms. Harrison states: "{...] On our

first deliberation, nine of us nad come to the decision that the quality of

the evidence was so poor and conflicting, that we saw no reason why the men

should not be acquitted. After the foreman had informed the court that we

could not arrive at a unanimous verdict, we were further addressed by the

trial judge. However, on our second deliberation, the situation remained the

same. On our final deliberation, the nine - eight others and myself - held

steadfast to our decision as we genuinely believed that the evidence was poor.

However, as it was getting late and we all wanted to go home, and the fact

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that we were becoming frustrated, we all turned to the foreman and two jurors

and said: 'Alright, you can do whatever you want to do, but remember, we are

not a party to any guilty verdict.' The foreman then remarked ‘I can only

hope that when I get out there none of you say anything'." Ms. Harrison

further states that she is willing to attest to her statement in any court at

any time.

2.9 The author’s appeal was based on the trial judge’s alleged failure, in

his directions to the jury, to highlight certain discrepancies in the evidence

of prosecution witnesses, his directions to the jury that their verdict must

be unanimous one way or the other, the effect of which is said to have

“cajoled” the jury into a verdict of guilty, and his directions to the jurors

on the issue of the unsworn statements made by the author and his co-

defendants. The appeal was dismissed on all grounds.

2.10 Mr. Young’s subsequent petition for special leave to appeal to the

Judicial Committee of the Privy Council was based inter alia on the following

grounds:

* that the trial judge had erred, in his summing up to the jury, by

over-emphasizing the requirement of unanimity and by failing to advise

the jurors appropriately on their right and duty to disagree;

* that there had been a material irregularity in the course of the

trial, in that although nine out of the twelve jurors had intended to

acquit the author and his co-defendants, the foreman wrongly and

improperly announced to the court that a unanimous verdict had been

reached against the author.

2.11 Counsel further explains that the issue of the alleged material

irregularity during the course of the jury’s deliberations was not raised

before the Court of Appeal of Jamaica, apparently because the author’s lawyer

for the appeal was of the opinion that the judgment of the Judicial Committee

of the Privy Council in chan Nanan v. The State’ prevented the Court of

Appeal from questioning and investigating the jury’s deliberations. He also

explains that while the issue was raised in the petition for special leave to

appeal to the Privy Council, the Privy Council refused to examine the matter

on account of the precedent in Nanan.

The complaint

3.1 Counsel argues that the irregularities in the course of the jury’s

deliberations, as outlined above, constitute a violation of the author’s

rights under article 14 of the Covenant, notwithstanding the restrictions

which are placed upon the State party’s courts by established case law and

judicial precedents.

2 [1986] 3 AER 248.

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3.2 Counsel alleges a violation of article 14, ° paragraph 3(e), of the

Covenant, since the author’s legal aid lawyer for the trial failed to call any

witnesses for the defence. In that context, he forwards a sworn affidavit

dated 22 October 1993, signed by three individuals who state that they had

been with the author in a bar from 11:00 p.m. to 4:00 a.m., some seven miles

away from the place where the murder occurred, on the night in question.

These individuals emphasize that the author had been with them all the time

and is thus innocent of the crime he was tried for; they confirm that they

were not called to testify during the author’s trial.

3.3 Counsel indicates that at the time of the author’s trial, only one

category of murder resulted in the mandatory imposition of capital punishment.

After Mr. Young’s conviction, Jamaica passed the Offences against the Person

(Amendment) Act 1992, which creates two categories of murder, capital and non-

capital. Section 7(4) of the Act provides for the classification of sentences

that were passed before the entry into force of the Act as capital or non-

capital. Murder must be classified as capital if it is committed, inter alia,

in the furtherance of robbery, burglary or housebreaking. According to

counsel, none of these additional grounds had been invoked by the prosecution

at the author’s trial and, since the issue was irrelevant at the time of the

trial, no determination of fact was made as to whether these additional facts

had occurred.

3.4 Section 2(2) of the Act requires, for an individual to be found guilty

of capital murder, that he, by his cwn act, caused the death of, or inflicted

or attempted to inflict grievous bodily harm on the victim, or himself used

violence. The issue of whether the cerson identified as Mr. Young had himself

inflicted any injury or used direct force against the victim was not

considered during the trial, being legally irrelevant then. Counsel contends

that under the Act, a convicted prisoner is not allowed to adduce fresh

evidence, or to have witnesses examined, when the review concerns a conviction

handed down prior to the entry into force of the Amendment Act.

3.5 Counsel submits that to classify the author’s conviction as capital

murder nearly five years after the trial and to deny hima trial on the above-

mentioned issues deprives him of the protection afforded to a person charged

with murder after the entry into force of the Act. Moreover, the author was

classified as guilty of capital murder on the basis of witness testimony only,

and the issue of capital/non-capital murder was not explored at any point

prior to or during the trial. it is therefore argued that, under the

Amendment Act, the author was denied the opportunity to examine effectively

any of the witnesses whose evidence may have had a bearing on the additional

grounds now required under the Amendment Act for capital murder. Counsel also

submits that the author was deprived of the right to be presumed innocent in

respect of the (under the new definition of capital murder) required

additional acts/offences. Counsel argues that the above is not only contrary

to article 14, but also to article 15.

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3.6 Counsel alleges that the author is a victim ofa violation of article 7

because of the conditions of his detention. Thus, the author is allowed few

visitors, is not permitted to work or to educate himself, and remained (while

on death row) confined to a cell measuring 2 square metres. He allegedly

suffered ill-treatment at the hands of prison warders, which included theft

of personal effects, assault and continued/repeated soaking of his bedding.

3.7 After the commutation of the author’s death sentence in mid~-1995,

counsel abandoned his claims related to alleged violations of article 6

(arbitrary deprivation of life), article 7 (length of detention on death row),

and article 15 of the Covenant.

State party’s observations

4.1 By submission of 16 June 1995, the State party concedes the

admissibility of the communication and provides comments on the merits of the

author’s claims. It refutes the allegation of the author that he was denied

the benefit of the classification process under the Offences against the

Person (Amendment) Act 1992, and that but for the failure to address evidence

about certain circumstances of the offence of which he was convicted, he would

have been entitled to a lighter sentence, in accordance with article 15. In

this context, it points out that Section 2(4) of the Act enables convicted

prisoners to apply for a review of the classification within 21 days of the

notice of classification. That review is conducted by three judges of the

Court of Appeal, and the applicant may appear himself or be represented by

counsel. The State party notes that Mr. Young failed to avail himself of this

possibility of review of the classification; failure to do so cannot be

attributed to the State party. In any event, the State party adds, the

evidence upon which the author was convicted included evidence of

housebreaking, and under Section 2 of the Act, capital murder includes murder

committed in the course of burglary or housebreaking. Therefore, under the

Amendment Act, the author’s conviction was properly classified as a capital

crime, and article 15 of the Covenant does not apply.

4.2 The State party asserts that there can be no question of a violation of

article 14, paragraph 3(e), because it is not for State party authorities to

interfere with the conduct of a case by counsel for the defence. Issues

related to the conduct of the defence must be left to the accused and his

legal representative, and the fact that Mr. Young’s representative did not

call any defence witnesses thus cannot be attributed to the State party.

Decision on admissibili nd nsideration on the meri

5.1 The Committee has considered the present communication in the light of

all the information provided by the parties, as required by article 5,

paragraph 1, of the Optional Protocol. It notes that the State party has

conceded the admissibility of the communication; it considers that the

author’s claims relating to article 7 and to article 14 of the Covenant are

admissible, and the Committee therefore proceeds directly with their

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examination on the merits. As counsel for the author no longer relies on the

initial claims under articles 6, 7 (concerning the length of the author’s

detention on death row) and 15, the Committee need not address these issues.

5.2 Counsel claims that Mr. Young is a victim of violation of article 7, in

that he was subjected to ill-treatment by prison warders, including assault

and repeated soaking of his bedding. The State party has not replied to this

allegation, although it had an opportunity to do so. In the circumstances,

the Committee concludes that Mr. Young was subjected to degrading treatment,

in violation of article 7.

5.3 Concerning article 14, two issues are before the Committee: (a) whether

the judge’s insistence that the jury must reach a unanimous verdict and the

alleged material irregularities in the jury’s deliberations constituted a

violation of article 14, paragraph 1, and (hb) whether defence counsel’s

failure to call witnesses on the author’s behalf during the trial constitutes

a violation of article 14, paragraph 3(e).

5.4 The Committee observes that issue of the judge’s summing up to the jury

and his emphasis that the jury reach a unanimous verdict was examined by the

Court of Appeal of Jamaica and the Judicial Committee of the Privy Council,

and that both instances found the instructions to be acceptable. It is not

for the Committee to review the findings of these bodies in the absence of any

indication that their conclusions were arbitrary or otherwise amounted to a

denial of justice. As to the alleged irregularities in the jury’s

deliberations, the Committee notes the sworn affidavits of the two jurors

referred to in paragraphs 2.7 and 2.8 above. There is no indication in the

present case that the trial itself was unfair, or that jurors made any

objection, at the conclusion of the trial, to the instructions which the judge

gave the jury at around 4:30 p.m., on 25 April 1990; nor did the jurors object

to the jury foreman’s announcement that the jury had arrived at a unanimous

verdict of "guilty". As these possibilities would have been available, the

Committee cannot find that the refusal of the Judicial Committee of the Privy

Council to reconsider its conclusions in the case of Nanan v. The State would

constitute a violation of article 14 of the Covenant, although the Committee

is in no way bound by a State party’s jurisprudence.

5.5 As to article 14, paragraph 3(e), it is uncontested that no effort was

made to have three potential alibi witnesses testify on the author’s behalf

during the trial. It cannot be assumed that the judge would have disallowed

such a request, had it been made. However, it is not apparent from the

material before the Committee and the trial transcript that counsel's decision

not to call witnesses was not made in the exercise of his professional

judgment. In these circumstances, the failure to examine witnesses on the

author’s behalf cannot be attributed to the State party, and there is no basis

for a finding of a violation of article 14, paragraph 3(e).

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”

6. 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 reveal a violation by Jamaica of

article 7 of the Covenant.

7. Under article 2, paragraph 3(a), of the Covenant, Mr. Byron Young is

entitled to an effective remedy. The Committee welcomes the commutation of

the author’s death sentence by the State party in the summer of 1995, but

considers that the author is entitled to compensation for the ill-treatment

he was subjected to during his detention on death row.

8. Bearing in mind that, by becoming a State party to the Optional Protocol,

the State party has recognized the competence of the Committee to determine

whether there has been a violation of the Covenant or not and that, pursuant

to article 2 of the Covenant, the State party has undertaken to ensure to all

individuals within its territory and subject to its jurisdiction the rights

recognized in the Covenant and to provide an effective and enforceable remedy

in case a violation has been established, the Committee wishes to receive from

the State party, within 90 days, information about the measures taken to give

effect to the Committee’s Views.

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

version. Subsequently to be issued also in Arabic, Chinese and Russian as part

of the Committee’s annual report to the General Assembly.]

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APPENDIX

Individual opinion by Mr. Prafullachandra N. Bhagwati

I am in agreement with the Views expressed by the Committee but I would

like to add my own reasons to what has been stated in the Views expressed by

the Committee.

The verdict of the jury was announced by the foreman on 25 April 1990.

The foreman announced that the jury had reached a unanimous verdict of guilty

against all the accused. Neither of the two jurors, who subsequently made

affidavits stating that in their view the accused were not guilty and that

they were not party to the guilty verdict, got up and contradicted the foreman

when he said that the verdict was unanimous. If their subsequent version in

the affidavits was correct, there is no reason why they should not have told

the judge that what the foreman was saying was not correct and that the jury

had not reached a unanimous verdict. The only reason given by the two jurors

for not contradicting the foreman was that they were pressurised by the

foreman and they wanted to go home as it was getting late. This reason can

hardly carry conviction. The jurors have to take oath when they are empanelled

and it is difficult to believe that the two jurors in question could have

violated their oath and allowed the foreman to announce that all the jurors

including them had reached the verdict of guilty when in fact they had not,

for the only reason that they were pressurised and wanted to go home. In any

event, how can the Committee believe the affidavits of persons who were

prepared to sanction death penalty for the accused, though in their view the

accused were not guilty, merely because they were getting late and wanted to

go home. It is therefore not possible for me to accept the affidavits of the

two jurors and no reliance can be placed on these affidavits.

It was however contended in the submission made by counsel for the

author, that since the State did not file an affidavit disputing the

correctness of the affidavits of the two jurors, what was stated in those

affidavits must be accepted as correct. In the first place, under the law of

Jamaica which is the same as the law in England and the other common law

countries where there is jury trial, the jurors cannot be required to disclose

which way they voted in the verdict. There is an obligation of confidentiality

on them. The State could not have therefore enquired from the other jurors as

to what was their verdict and filed an affidavit on the basis of such

information. No reference can therefore be drawn from the fact that the State

did not file an affidavit contradicting the statements in the affidavits of

the two jurors. Moreover, as pointed out by me above, even in the absence of

an affidavit from the State, the affidavits of the two jurors are, on account

of their inherent infirmity, unacceptable and the Committee cannot place any

reliance on them.

I may point out that according to the domestic law of Jamaica as laid

down by the Judicial Committee of the Privy Council in Nanan’s case, the Court

cannot enter the jury box and enquire into the deliberations of the jurors.

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The Court cannot go behind the verdict as announced-by the foreman on behalf

of the jurors. The decision in Nanan’s case is however not binding on the

Committee nor is the Committee governed by the domestic law of Jamaica. The

Committee has to test the validity of the verdict on the anvil of article 14

of the Covenant and examine whether the trial was fair and in accordance with

the standards and norms laid down in article 14. But, if the affidavits of the

two jurors cannot be relied upon, there is nothing on record to show that the

trial was unfair or not in compliance with the requirements of article 14.

The reasons given by me in this individual opinion for reaching the

conclusion that there was no violation of article 14 are by way elaboration

of the reasons set out in the Views expressed by the Committee to which I

fully subscribe. I am in agreement with the Committee in taking the view that

there was violation of article 7, for which the author is entitled to

compensation.

[Prafullachandra N. Bhagwati]

{signed]

[Original: English]