desmond by liuhongmeiyes


									                             .   -,   .. ""


                             REPORT ON THE CRIMINAL JUSnCE SYSTEM
                                    IN TRINIDAD AND TOBAGO


       1.   We have been asked by lhe lawyers for the al1eged victims whose cases have been referred to lhe
            Inter American Court on Human Rights (lhe "Court") to prepare a Report on lhe law and
            procedure in the criminal justice system in Trinidad and Tobago (which is referred to hereafter as

 f ' 2,.    The purpose of lhe Report is to assist the Court by describing lhe criminal justice process in
            Trinidad as it applies to lhose accused of murder. As criminal defence and constitutional law
            attorneys in Trinidad, we have been asked to address, in particular, sorne. of lhe shortcomings
            apparent in the Trinidadian criminal justice system and certain related constitutional issues.

       3.   We are both attorneys at law practicing in Trinity Chambers, Port of Spain, Trinidad and Tobago.
            We have been assisted in the preparation of tbis report by Rajiv Persad, an attorney at law, at
            Trinity Chambers in Port of Spain. Copies of our currículum vitae containing details of our
            careers and respective expertise, and that of Mr Persad, are appended to this Report as Appendix
            l. The facts and matters contained in this Report are true to the best of our knowledge and belief.

       4.   The Report deals with the fol1owing issues:

            a.      The constitutional history and sources oflaw in Trinidad;

            b.      The law of murder in Trinidad;

            c.      An overview of criminal procedure;
            d.      The stages of the criminal process in murder cases;

            e.      The mandatory dealh penalty;

            f.      The prerogative of merey.

       5.   Where appropriate, we have included in this report references to important decisions of the
            Trinidadian and English courts.

       6.   Before considering these topics, it is important to have an understanding of Trinidad' s political
            history and the sources of its laws.



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    7.     The early history of Trinidad is briefly set out here for inforrnation. Trinidad was elaimed for
           Spain in 1492 by Columbus and-beeame a Spanish Colony under the rule of the Governor of
           Venezuela in 1552. It was ceded to Britain by treaty in 1797. Tobago was eolonized by the
           Duteh in 1632. Tobago ehanged hands severa! times between the Freneh, Duteh and English as a
           result of European wars with the English finally administering the eolony jointly with Trinidad in
           1888. Thereafter Trinidad and Tobago was part of the British Empire and was ruled in the name
           of the Queen by a Governor.

    8.     During the 1960s many of the British eolonies in the Caribbean aehieved independenee. On 31 st
           August 1962 Trinidad aequired fully responsible status as a member of the British
           Commonwealth, remaining within Her Majesty's dominions (seetion 1(1), Trinidad and Tobago
           Independenee Aet 1962). A Constitution ofTrinidad and Tobago was seheduled to the Trinidad
           and Tobago (Constitution) Order in Couneil1962 (SI 196211875).

~9.        On 1st August 1976 Trinidad eeased to be a part of Her Majesty's dominions and beeame a

           republie within the Cornmonwealth. The Queen was replaeed as Head of State by a President.
           A new Constitution was eontained in the Constitution of the Republie of Trinidad and Tobago
           Aet 1976 (1976/4) (Trinidad and Tobago), and eonsequential provísions were made for the law of
           the United Kingdom by the Trinidad and Tobago Republie Aet 1976.

    la.    As a result of its colonial heritage, Trinidad's laws eonsist of a mixture of English eornmon law
           and statute law. Many criminal statutes were enaeted in colonial times and remain in force. In
           particular, the mandatory death penalty for the offenee of murder was inherited from the English
           eommon law ando eodified in the Offenees Against the Person Aet 1925 (c. 11:08), as the Privy
          oCouneil noted in the case of de Freitas v. Benny [1976] A.e. 239 at 243. These statutes are
           overlaid by the eommon law, that is, deeisions of judges in whieh these statutes have been
           interpreted and other principies of law have been enuneiated and developed.


    11.    Before eonsidering Trinidad criminal proeedure in detail, it is useful to have an overview of the
           substantive law of murder.

    12.    In Trinidad murder is defmed by seetion 3 of the Offenees Against the Person Aet 1925 (c.
           11:08), whieh eodified the eommon law definition ofmurder (see Cunningham [1982] A.e. 566).
           Seetion 3 provides that a defendant may be eonvieted of murder if it is established that he
           un!awfully killed another person with the intent to kill or to cause serious bodily injury. It is thus
           not neeessary to intend to kill a person before a eonvietion for murder results. There are no
           degrees of homieide in the eornmon law as applied in Trinidad, merely a single punishment for a
           wide variety of aets or omissions from whieh death may result as a signifieant eontributing cause.

    13.    Further, in order to be eonvieted of murder in Trinidad, it is not neeessary for the defendant to
           have aetually struek the fatal or indeed any blow himself. The law of Trinidad applies two inter -
           eonneeted doctrines to attribute the criminal responsibility of the person who inflieted the harrn
           from whieh death resulted to all those who aeted in eoncert with him or her in the enterprise.
                                                                                                 ,.. --" ....   ~   ,~,   ._-o

              First, rhere is the. felony murder rule, whereby anybody who participates in a violent felony is
              gUllty of murder If a death occurs in rhe joint enterprise, whether rhey foresaw or contemplated
              rhe fatal act rhat caused death or not. The felony murder rule entered the law ofTrinidad via the
              English common law. The rule was rightly criticized for its harshness, in that it could lead to rhe
              condemnation of dearh of a defendant who neirher intended death nor even foresaw that dearh
              might result. Consequently, the relony murder rule in England was abolished by section 1 ofrhe
              Homicide Act 1957, however no equivalent legislation was enacted for Trinidad and rhe rule
              remained in place. In lhe case of Moses v. The State [1997] A.C. 53, however, lhe Privy Council
              held that the felony murder rule had been implicitly abolished when the distinction between
              felonies and murders in Trinidad was removed by section 2(1)(a) and Schedule 1 of lhe Law
              Reform (Miscel!aneous Amendments) (No. 1) Aet 1979.

        14.   It was hoped that this anaehronistic mechanism for attributing "eonstruetive maliee" would
              disappear from lhe law of Trinidad and every orher Caribbean society,. where belated
              modemization of lhe arehaie c!assification of offenees had taken place. In 1997 however lhe
              Government enaeted lhe Criminal Law (Amendment) Aet, restoring amended form of lhe felony
              murder rule for offenees cornrnitted after 29 July 1997. "Ibis is arare example ofpositive steps
              being taken to rejeet a sensible advanee. fol!owed by legislation returning lhe law to lhe arbitrarY
              inhumanities of lhe felony murder rule.

        15.    Apart from lhis rule, there is lhe doctrine of joint enterprise, whieh is again parl of lhe cornrnon
               law and thus applies in Trinidad and throughout lhe English speaking Caribbean. A defendant
               may also be convieted of murder ifhe aeted with anolher person or persons in a 'eornmon design'
               whereby lhe inflietion of death or grievous bodily harm to anolher person was either intended or
               eontemplated as a possible eonsequence and cornmitted an aet in fi.¡rlheranee of that eornmon
               designo Chan Wing Siu v Queen [1985] 1 A.e. 169. The doctrine ofjoint enterprise in the field of
               murder was recent1y reviewed by the House of Lords on appeal from lhe Court of Appeal in
               England and despite recognition of powerful eritieisrns against the attribution of malice to a
               persono who may not personally intend the harm to be inflicted, tbeir Lordships eoncluded tbat it
               stil! formed part oflhe law and maintained and refined ir in Powell and English [1999] 1 A.C.!.
               Aeeordingly, for example, lhe man who keeps look out during a robbery where he knows lhat his
               aeeompliees are armed and might use force if neeessary, wil! be guilty of murder if the eashier is
               shot alrhough sueh a death was not lhe purpose of lhe enterprise and not intended.         Similarly
               people who partieipate in a brawl, may be liable for murder if death results from lhe fight even
               though they themselves did not strike a fatal blow and may not have intended death. In Powell
               and English the House of Lords held that lhe real need for reform in the law of murdér was in
r.1            distinguishing different degrees of harm by revisiting lhe mandatory sentenee of life
               imprisonment for murder. We understand that the compatibility of the life sentenee for murder
               with the human rights of lhe defendant is to be reviewed by the House of Lords in the case of
               Lichniak, see Appendix 2 for Court of Appeal deeision. There is little sign rhat in Trinidad
               differing degrees of moral eulpability are being reflected in whether or not the death sentenee is
              .earried. In 1999 a number of defendants were executed who had been eonvicted on the basis of
               lhe eornrnon design doctrine: see Boodram v. Baptiste [1999]1 W.L.R. 1709.

        16.   The sentence of dealh is provided for by seetion 4 of rhe Offenees Against rhe Person Aet. This
              provides: 'Every person eonvieted of murder shall sUffer dealh'. In Trinidad executions are
              earried out by hanging. In reeent times all exeeutions have been earried out in tbe State Prison in
              Port of Spain. The procedure for carrying out executions is speeified in the Criminal Proeedure
              Aet (c. 12:02), section 57 ofwhich provides:


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                  57(1) Every warrant for the execution of any prisoner under sentence of death shall be
                  under the hand and seal of the President, and shall be directed to the Marshal, and shall
                  be carried into execution by such Marshal or his assistant at such time and place as
                  mentioned in the warrant; and the warrant shall be in the form set out as Form A in
                  Schedule 2 ...

          Form A expressly recites that the person involved has been sentenced to be 'hanged by lhe neck
          until he be dead.' The President of the Republic in signing the warrant lherefore aulhorises
          execution by hanging.

    17.   AlI attempts to try and reform what many see as a very cruel melhod of execution have failed. In
          the case of Boodram v. Baptiste [1999] l W.L.R. 1709 the Privy Council rejected an argument
          that execution by hanging violates the prohibition on cruel and unusual punishments in the Bill of
          Rights 1689 despite compelling evidence lhat hanging ofien involves unnecessary pain and
          suffering for lhe prisoner. The court held that the fact lhat the penalty was provided for by statute
          was sufficient to override the more general guarantee in lhe BiIl of Rights. Because of the
          wording of lhe Trinidadian Constitution, which prevents constitutional attack on forms of
          punishment lhat were lawful at the time of independence (see below), it is not possible to attack
          lhe sentence of hanging on constitutional grounds, as happened in the United States wilh lhe gas
          chamber in the case of Fierro v. Gomez 790 F.Supp. 966. There has been sorne debate in
          Trinidad about whether lhe method of execution should be changed. In particular, on 27 th
          January 1999 lhe Caribbean Attorneys - General issued a joint statement re - affirming their
          commitment to the death penalty which concluded:

                  Consideration should be given to classif'ying the crime of murder into capital and non -
                  capital murder and empowering judges to determine cases in which the death penalty
                  should be applied. Finally, as an alternative to hanging, humane melhods of execution
                  should be explored.

          No concrete proposals have been forthcoming, however, and in 1999 nine prisoners were
          hanged in Trinidad over a four day period in June and a further prisoner was hanged in July:
          Nankissoon Boodram, Joe! Ramsingh, Joey Ramiah, Ramkalawan Singh, Russell Sankeralli,
          Bhagwandeen Singh, Clive Thomas, Robin Gopaul, Stephen Eversley, and Anthony Briggs.
          Prior to these executions, the last execution in Trinidad was that of Glen Ashby in July 1994.

    18.   Although the use of capital punishment in the United Kingdom had been restricted to certain
r         forms of aggravated murder by the Homicide Act 1957, and was effectively abolished in 1965
          following intense political debate, similar debates about the appropriateness of retaining the death
          penalty did not feature greatly in the political transition to independence in the Caribbean region.
          Without exception, lhe colonial statutes and penal codes providing for a mandatory sentence of
          death continued in operation and executions continued to be carried out on a regular basis
          throughout the 1960s and 1970s. It was not until 1992, when Jamaica enacted the Offences
          Against the Person (Amendment) Act 1992, which restricted the death penalty to certain types of
          aggravated murder, that the first statutory restriction on the use of capital punishment in the
          region occurred. Since then, similar statutory schemes have been introduced or proposed in
          Belize and Trinidad providing for a mandatory death sentences only where aggravating features
          are present. As explained further below, however, the Trinidadian statute has not yet been
          brought into force.



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      19.   This seclion of lhe Report surnrnarises lhe criminal procedure applicable in Trinidad lO lhose
            accused of murder and Ihen deals in detail wilh each stage of lhe process.

      20.   In Trinidad a criminal case begins wilh lhe arresl of lhe SuspeCl by lhe police. In serious cases,
            Ihe SUspeCl is invariably detained in cuslody pending further enquiries and inlerview by tbe
            police. Once tbe police are satisfied !hal sufficient evidence exists, tbe suspect is charged witb
            Ihe offence. An arrest ought to take place at the outset of tbe process when a person loses bis
            liberty and is required to attend Ihe police station. Practices have crept up in recent years whereby
            a person is detained on reasonable suspicion witbout forrnally being informed tbat he is under
            arres!. This can cause confusion as lo !he status of tbe detained man, bis legal rights, and also
            delay tbe period when he is first broughl before a court. There has been no statutory codification
            of tbe procedure on frrst arres!, as tbere has been in England wilh tbe Police and Criminal
            Evidence Acl 1984, and accordingly lhere is no statutory duty for tbere to be a custody officer
            wilh responsibility for supervising lhe welfare of Ihe detained person, to ensure lhat he is aware
            of his legal rights, to review custody time Iimits, and maintain a full custody record detailing all
            relevant events and detaHs of all who have access lo tbe detained persan wbilst he is held al the
            police station.

      21.   Following charge, the suspecl must be brought befare the magistrate who remands him or her in
            custody. Murder is a non - bailable offence pursuant to tbe BaH Acl 1994 (Act 18 of 1994). The
            Bail Act excludes murder from lhose cases for which baH may be granted. Accordingly tbe Court
            does not have the jurisdiction to grant bailo In the absence ofjurisdiction defence counsel canoot
            make a habeas corpus application on tbe basis tbai the detention is unlawful because the BaH Act
            restricts the court's power to grant bail on any murder case. The only remedy pre - commillal
            where there is undue delay is lo apply to have the case slruck out for want of prosecution. This
            application is very rarely successful. It is not unknown that persons may be held in custody for
            up to 18 months befare cornrnillal proceedings are even begun (eg The State v Junior
            Granderson, 2000). Post cornrnittal the only remedy is to make an application to have the
            indictrnenl quashed on the basis of Ihe abuse of process. The Bail Acl frustrates the ability of tbe
            court to deal with legitimale issues of delay. There are no exceptions lo Ihe "no baH" posilion in
            Trinidad. Accordingly Trinidad would nol comply witb decisions of olher inlemalional courts,
            see or example Caballero v UK (2000) 30 EHRR 643 and SBC v UK (Application 39360/98), 19
            June 200 I at Appendix 3 and 4 respectively.

,           The first substantive court hearing in Trinidad is the Preliminary Inquiry (cornrnonly referred to
            as Ihe 'PI') which is conducted by the magistrate. As explained in more detail below, the purpose
            of a PI is lO determine whether there is sufficient evidence to send the defendant for trial by jury
            in the High Court. The prosecution mUSl adduce sufficient evidence lo show lhal there is a case
            for the defendant lO answer. The first time that a defendanl is able to apply for legal aid is before
            Ihe magistrate. This means that defendants are almosl invariably unrepresented at the police
            station. This has two principal consequences. First, there is no guarantee Ihat the defendanl will
            be aware of his rights. Secondly, there is no protection for him against oppressive or unfair
            police queslioning. Lack of adequate legal representation in the early stages of a criminal case
            remains a very serious problem in Trinidad.

      23.   Provided that sufficient evidence exists, lhe defendant is sent for trial in the High Court before a
            judge and jury. It is very common for there lO be long delays befare the defendant's trial in Ihe
            High Court. Further details of such delays are provided below. Such delay inevitably resulls in
                                         .-". ,   .--   --~--   .                                            ..
                                                                                                             ,    ~~,.,   .'   -'.'~.'   .

            unfairness and prejudice lO an accused person who finds himself or herself arresled on a capital
            charge unable lo apprecilite lhe seriousness of lhe charge, 10taBy unfamiliar wilh lhe procedure lo
            be adopted and more often lhan nol in fear of lhose person around lhem. The accused will often
            have no access lo either legal advice or to lhe assislance of someone capable of investigaling
            matters which are relevanl to their innocence or the particular circumstances of lhe offence at lhe
            earliest opportunity. This is pafticularly acute for lhose accuseds who are iIliterate and iIl-
            informed and who have no access to legal advice unlil they first giving instructions some 2-3
            years after arrest. It is also noled !hat in lhe absence of legal assistance on arrest lhe only source
            of information as to what the charge relates to and details of the criminal justice system comes
            from the police. In lhese circumstances lhe equality of arms is inherently undermined in lhe
            process where lhe accused person, at this critical stage of lhe process is so iIl equipped to deal
            with the matter. Further a further effect of delay is seen by an accused's failure lo identify
            witnesses at an early stage. If an accused identifies witnesses helpful to his case for lhe frrst time
            when first giving instructions 2-3 years after arrest, the court is invariably criticar of lhe fact that
            lhis was nol raised at lhe firsl opportunity in the Magistrates Court. In cases where the witness
            can no longer be found and the accused seeks to rely on this lhe courts are not usuaBy prepared to
            find in favour of accuseds unless there is sorne evidence on the Preliminary Inquiry record !hat
            the accused had identified !hat he had witnesses to call at lhat stage.
'.    24.   AH murder trials are presided over by a judge of lhe High Court sitting togelher wilh a jury of
            twelve citizens. The jury's role is to decide lhe facts, while lhe judge's role is to make rulings of
            law and lo explain lhe law to the jury.

      25.   After the evidence has been caHed and the judge has summed - up lhe case, the jury then retires to
            consider its verdict. In murder cases, in order to convict the defendant, the jury is required lO .
            return a unanimous verdict. As explained aboye, if lhe defendant is convicted of murder then the
            only sentence the judge can pass is that of death.

      26.   FoHowing conviction the defendant may appeal to the Court of Appeal. Iflhe appeal is dismissed
            the defendant may lhen seek leave to appeal to the Judicial Committee of the Privy Council in
            London (lhe Privy Council), which is Trinidad's highesl court.


      27.   This section ofthe Report describes in more detail the principal stages ofthe Trinidadiancriminal
            process as it applies to lhose accused or convicted ofmurder.

      i.    Arrest

      28.   In Trinidad an individual may be arrested if the police officer has reasonable grounds to suspect
            the individual has committed or is about lO commit an arrestable offence allhough, as explained
            aboye, suspects are commonly detained without formally being arrested despite the questionable
            legality of this practice. Murder is an arrestable offence. The law relating to the arrest of
            criminal suspects is govemed both by common law and legislation. A summary of the powers of
            arrest is conlained in the Police Manual compiled by Slater and Demas in 1960 for the use of the
            Trinidad and Tobago Police Force. A copy of lhe Chapler titled 'Summons and Arrest' is
            attached to this Report as Appendix 5.

      29.   Upon arrest the police officer is required to caution the suspect. He is required to teH him that he

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                  is entitled to remain silent, but thal anything he does say may be taken down and used in
                  evidence, The precise text ofthe caution is as folIows:

                          Do you wish to say ~nything in answer to the charge? You are not obliged lo say
                          anythmg unless you wlsh to do so, but whatever you say will be taken down in writing
                          and may be given in evideñce

            30.   The requirement to caution a suspect aríses from the English Judges' Rules of 1964, which were
                  adopted in Trinidad in 1965. A copy of the Rules is contained in Appendix 6. The Rules lay
                  down certain procedural protections for accused persons and were intended to protect suspects
                  from police oppression whilst in custody. A failure to observe the Rules may, in the judge's
                  discretion, lead to evidence being excluded. The Rules are not always observed, however, and
                  failures by the police to fol1ow them have given rise to a number of decisions in the Privy Council
                  including Thornhill v. Attorney - General of Trinidad and Tobago [1981] A.C. 61 (refusal to let
                  suspect see a lawyer), Attorney - General ofTrinidad and Tobago v. Whileman [1991]2 A.C. 240
                  (failure to tell suspect of entitlement to see lawyer), Mohammed v. Slale [1999] 2 A.C. 111
                  (failure to teH suspect of right to see lawyer).

r---,       31.   Although not mentioned in the Rules themselves, there is now a recognised practice in the
                  Trinidad Police Service to use what is sometimes called the "short" caution:

                          y ou are not obliged to say anything but anything you say may be given in evidence.

            32.   The issue of whether or not a caution has been given often aríses in capital cases. Defendants
                  frequently assert that the police failed to explain why they were being arrested, or that they were
                  not cautioned before they were questioned and tltat they made damaging admissions, or
                  confessed, without realising that they were not obliged to say anything. Frequently, these disputes
                  lUro upon the credibility of the arresting police officer and the defendanl, and in my experience
                  judges incline to believe the police's version of events in the absence of strong corroborative
                  evidence lo lhe contrary,

            33,   There are no rules goveming the length of time which an accused can be held in police custody
                  before charge. However, although the practice varíes between police stations, as a general rule
                  accused persons are detained in cuslody without charge for in excess of 48 hours.

            34.   Once the accused has been taken inlo cuslody the police will seek to obtain a stalemenl from him.
                  One of lhe most common issues arísing al trial is whelher or not statements taken by the police in
                  custody were obtained by oppressive means. As explained aboye, although lhe Judges' Rules are
                  supposed to protecl suspects from oppression by ensuring lhal lhey are aware of their righl lo see
                  a lawyer, the Rules are frequently not observed and complaints of i11 - trealmenl of suspects in
                  delention are commonplace and, in many cases, are justified. In lhe majority of capital cases lhe
                  prosecution will rely on a stalement allegedly provided by lhe defendant voluntarily whilsl the
                  defendant maintains it was obtained as a result of i11 - trealmenl. Not infrequently, our clients
                  have asserted with good reason lhal statements relied on by the prosecution were fabricated by
                  the police.

            35.   It is a fundamental principie of lhe cornmon law that statements which have not been given
                  voluntarily may nol be adduced as evidence in trial (R. v. Baldry (1852) 2 Den. 430 al 444).
                  Consequently, in many cases the question as to whether the defendant gave his statement
                  volunlarily is raised. As noled aboye, many defendants charged wilh murder fiercely contest the


          voluntariness of statements tendered by the prosecution on lhe basis lhat they were obtained
          eilher as a result of coercion or as a result of deception or trickery by the police. If this issue is
          raised the trial judge will hear evidence tendered by lhe prosecution and defence in the absence of
          the jury in order to determine whether or not lhe evidence was given voluntarily. This process is
          known as a voir dire. As wilh the issue of whelher or not a caution was given, most voirs dire
          turo on the issue of credibility,· and judges in Trinidad are prone to rule in favour of lhe
          prosecution. They are generally disinclined to believe lhat the police mistreat suspects. The
          absence of a custody record, medical examination, and the lack of any opportunity for
          contemporaneous complaint makes all lhis more difficult to raise an issue.

    36.   Frequently, the prosecution rely on oral statements allegedly made by lhe defendanl. In many
          cases lhe officer giving evidence of the oral statements will have failed to make a written record
          statement or alleges that a record was made but has been losl. This process is known in England
          as 'verballing the accused' and largely died out lhere when lhe Police and Criminal Evidence Act
          1984 carne into force, which required written records of an oral statements made by a defendant
          to be kept, and made lhe absence of such a record a discretionary ground of exclusion. There is
          no equivalent legislation in Trinidad, and lhe problem of 'verballing' has been a source of
          concem for sorne time. A previous Chief Justice of Trinidad and Tobago, Sir Isaac Hyatali at a
          Magistrates' Workshop held at the Convention Centre, Chaguaramas on 22"d October 1978, said
          in an address entitled 'Confession Statements as a Form of Proof of Criminal Conduct'
          (Appendix 7):

                  1 come finally to the grave concem caused by recent experiences with confessional
                  statements and possible reforms of the law which might be considered 'to dispel lhe .
                  suspicion and mistrust with which this area of police action is presently cluttered' ... It is
                  remarkable that so many cases have come to trial in recent times in which the only
                  evidence against an accused was a confessional statement. Whenever as a trial judge 1
                  was confronted with such a situation, 1 always reminded myself for the purposes of
                  coming to a just ruling on lhe admissibility of a confessional statement, lhe famous
                  dictumofCave J.inR. v. Thompson(1893) 17CoxC.C. at647:

                          1 would add that for my part, 1 always suspect these confessions which are
                          supposed to be the offspring of penitence and remorse and which nevertheless are
                          repudiated by the prisoner at the tria!. lt is remarkable that it is of very rare
                          occurrence for evidence of a confession to be given when proof of the prisoner's
                          guilt is olherwise clear and satisfactory but when it is not clear and satisfactory
                          the prisoner is not infrequently alleged to have been seized with the desire bom
                          of penitence and remorse to supplement it wilh a confession, and this desire again
                          vanishes as soon as he appears in a Court of Justice.

    37.   The prosecution frequently rely on the presence of a justice of the peace (JP) as evidence of the
          voluntariness of confession statements. Once a statement has been taken from the defendant, it
          must be certified by a JP lhat it was taken voluntarily. The JP will witness the statement and
          verifY that it has been freely given by the accused and that lhe accused understands the content of
          the statement.

    38.   The effectiveness of this procedure is, however, open to doubt. Defendants frequently complain
          that either the JP who authenticated his statement was not present during the taking of his
          statement ,or that he never spoke to the accused, or that he did not explain the statement and the
          meaning of the matters outlined on the certificate. Until very recently there was a shortage of JPs

        ,-,   ,.,   .. __. --- ..,..."._-,'..•._'-.,...... ....


                                      and frequently police officers were not able to lacate a JP to aulhenticate the staternent.

                39.                  Over the last few years questions have arisen as to lhe character of many JPs. Several JPs who
                                     have authenticated statements in capital cases have been arrested and prosecuted for corruption or
                                     have been implicated in corrupt activities. The state has been understandably reluctant to provide
                                     details of corrupt JPs.

               40.                   It is fair to point out that the issue of corruption in the Trinidad police has been a source of
                                     concern for sorne years. In 1993 an inquiry by detectives from lhe English Metropolitan Police
                                     found evidence of widespread corruption in lhe Trinidad police service. They found evidence that
                                     members of the police service were responsible for extrajudicial killings and olher human rights
                                     abuses, usually cornmitted with impunity.

               ji.                   Provision oí Legal Aid al Preliminary Inguiry

               41.                   This section addresses lhe issue of legal aid in Trinidad. Legal aid is essential in murder cases
                                     because those charged with murder rarely have lhe resources to instruct lawyers privately.
                                     There has been a real problern with lhe quality of representation of lhose accused of murder in
f                                    Trinidad which is linked directly to lhe low levels of legal aid rernuneration. The problem was
,                                    succinctly surnmarised in Bethel v. The State, Umeported, 23'" March 2000 (Cr.App. No. 31 of
                                     1996) where the Court of Appeal said:

                                                         ... It was inappropriate and unfair to expect a counsel of sorne four years' call to
                                                         undertake this defence. It would not have occurred to [counsel] to have refused the brief,
                                                         because regrettably, in our jurisdiction there is a shortage of experienced counsel willing
                                                         to accept a retainer from lhe Legal Aid Authority especially in murder cases. This has no
                                                         doubt to do with the ridiculously low fee which is payable to defence counsel under lhe
                                                         legal aid legislation. As a result, it is by no means unusual for relatively inexperienced
                                                         counsel to be given lhe responsibility of defending persons charged wilh a capital

              42.                    The first opportunity for an accused to request lhe assistance of a legal aid attorney is when he is
                                     brought before the magistrate who presides over lhe PI. Unfortunately, there are no provisions
                                     allowing for representation at the police station before lhe accused person is charged. This
                                     results in defendants being coerced into making admissions in the absence of legal representation.
                                     As criminal defence practitioners, we can say lhat the first few hours after arrest or detention are
    f\                               among the most important in a criminal case.
              43.                    At lhe magistrates' court lhe accused will tell the presiding magistrate that he \vishes to have
                                     someone appointed on his behalf or that he wishes to write to the Legal Aid Authority for legal
                                     representalion. Following a written request by the accused, he will generally be represented by
                                     an attorney appointed by the Legal Aid and Advice Aulhority at the PI and tria!.

              44.                    The most expeditious way of having an appointrnent made is by asking the court to appoint
                                     counsel directly. The difficulty, of course, is finding counsel \\illing to represent lhe accused at
                                     lhe prevailing level of remuneration. This is the problem highlighted in lhe Berhel case cited
                                     aboye. Prior to 1999 legal aid for murder trials was a base rate of$TT1500 for a six week tria!.
                                     The rate has now been increased to a range of $TT7,500 lO $TTIO,OOO depending on Ihe length
                                     and complexity of the case.

                      ,."'   ... _._" ...,   .. ,..,'''..,..,..,.,...,...._--.-.,.. ..   _'   "".,   ..

          45.    The Legal Aid and Adviee Aet 1976 (c. 7:07) established a Legal Aid and Advisory Aulhority
                 eonsisting of eight members appointed by the Presiden!. The Director of the Authority is required
                 under the Aet to maintain panels of attomeys-at law willing to aet for persons reeeiving legal aid.

         . 46.   In 1999 the legal aid system in Trinidad was subjeet to substantial amendments. Prior to lhese
                 amendments lhere were signifieañt shorteomings in lhe system of legal aid. These shortcomings
                 are set out in a paper which was prepared on behalf of lhe Criminal Bar Assoeiation outlining
                 proposals for reform whieh is enclosed at Appendix 8. The principal cause for concern was the
                 low level of fees, whieh were wholly inadequate and did not provide any incentive for
                 experieneed eounsel to aeeept capital cases and did not provide adequate resources to enable
                 those aeeused of capital erimes to be effectively represented. AIlhough, as explained below, lhe
                 1999 reforms increased the level of fees, many of lhose who are eurrently on dealh row were
                 eonvicted prior to 1999 when the old system was in force.

         47.     The amendments which have taken place are surnmarised at pp43 - 45 of the Third and Fourth
                 Periodic Report of lhe Republic of Trinidad and Tobago, a doeument whieh was prepared and
                 published in November 1999 by lhe Ministry of lhe Attorney General and Legal Affairs in
                 eompliance wilh its obligations under the International Covenant on Civil and Politieal Rights.
,        48.     The legal aid system in Trinidad is now regulated by lhe 1976 Aet, as amended by lhe Bail Aet
                 1994 and lhe Legal Aid (Amendment) Aet 1999. Copies of lhe original Act and lhe amended Aet
                 are enclosed at Appendix 9.

         49.     The Legal Aid (Amendment) Act was enaeted in July 1999 and introduced a substantial number
                 of reforms in the Legal Aid Seheme. Legal' aid is now available in respeet of criminal
                 proeeedings in respeet of:

                 a.               indictable offenees whether or not determined surnmarily;

                 b.               all offences, except motor vehiele offenees charged in a court of summary jurisdiction;

                 e.               eontempt proeeeding in the magistrates' eourt;

                 d.               applieations for bail by a person who is eharged with an offenee before a Court of
                                  summary jurisdietion and who is brought before the Court in pursuanee of a remand

                 e.               proeeedings in lhe Supreme Court of Justiee;

                 f.               proeeedings before any person to whom a case is referred in whole or part by the High

         50.     The effeet of the 1999 Aet has been to widen the eategories of defendant eligible for legal aid.
                 This is beeause the qualifying income limit under the 1976 Aet has been raised. Previously a
                 person whose disposable capital exeeeded T$l 000, or whose disposable income exceeded
                 T$2500 per annum, did not qualifY for legal aid, although the Director retained a discretion to
                 grant a legal aid to persons wilh a disposal capital or income not exceeding T$4 500. Under the
                 new Act the disposable capitallimit has been increased to T$2 000 and the disposable income to
                 T$3 500. Further, the Director now has the discretion to grant legal aid to persons with a
                                                                                        .,   ..   - ...   _~   ..
                                                                                                                _~- ... _
                                                                                                                      ",.....   ~        '_
                                                                                                                                    ........ ... -,..   _---.-. . .


                    disposable capital up to TS5 000 and disposable ¡ncome up to T$7 000 per year.

             5 I.   The 1999 Act also provides for lhe grant of an Emergency Certificate of Legal Aid where a
                    person desires legal aid as a matter of urgency in respect of proceedings for and in relation to an
                    application made under the Domestic Violence Act.

            52.     The fees payable to attomeys have been inereased under the 1999 Act. The fees and expenses to
                    an anomey-at law assigned to an applicant in the Supreme Court has been inereased from TS750
                    to T$2 500, but a presiding judge now has a discretion after the conclusion of a tria! to increase
                    the attomey's fee to a sum not exceeding TS7 500, in a matter of unusuallength or difficulty.
                    Previously, ajudge could inerease this fee only up to a lirnit ofTSI 500.

            53.     In the past complaints have been levied by attorneys against the low remuneration under the 1976
                    Act. This increase in the fee payrnent schedule was designed to attract more experienced legal
                    practitioners to represent legal aid c1ients. It should be emphasised, however, that the new rates
                    are stilJ far from generous and lack of experienced representation in murder cases continues to be
                    a serious problem.

r--.        54.     A major failing of the current legal aid system is the absence of any provisions allowing for the
                    funding of experts. Expert evidence can be vital in murder cases where issues relating to forensic
"                   evidence or psychiatric evidence frequent1y arise. Application can, however, be made to the
                    Legal Aid Authority for disbursements.

            55.     Prior to 1999, legal aid attomeys were ofien appointed only days before the trial was due to start,
                    and adjournments were not always granted. A new system of lisling has been introduced in
                    capital cases with the aim of avoiding the problem of counsel not being available at the last
                    minute. This problem has not been eliminated, however, and it is not uncornmon for counsel to
                    be appointed in capital cases a short time before the trial is due to start. There is now a system in
                    place which is supposed to ensure that only those with a mínimum degree of competency appear
                    in capital murder trials. However, as Lord Steyn remarked in the Bahamian case of Higgs \/.
                    Minister ofNational Security (2000)2 A.C. 228 at 260 in words that are applicable to Trinidad:

                            The Privy Council regularly hears petitions and appeals in criminal cases from Caribbean
                            countries, notably in cases where the death sentence was imposed. The stark fact is that
                            ofien the cases have been inadequately investigated by prosecution and defence alike and
                            sometimes the quality of the representation of the defendants in the Caribbean courts
                            leaves much to be desired. Occasionally serious questions arise about the fairness of the
    •                       tria!.

            56.     The 1976 Act, as amended, in theory allows for legal aid to be granted for constitutional motions
                    (see further below). However, responsibility for making the application lies with the prisoner and
                    the criteria for granting legal aid for these type of proceedings are stringent1y applied. In my
                    experience the grant oflegal aid for this type of proceeding is rareo
            lll.    Charging of snspects and al!Pearance at the PI

            57.     This section deals in more delail with the PI stage of the criminal process.

            58.     When the police consider that there is sufficient evidence upon which to prosecute, the suspect
                    wilJ be formally charged.
 "',   ...   '"     ,.   '~'_""".'     ''',   "',   _.'.   -   "0   ._ . . . . . . . . , , " ' .   ",.'   ~   ,,~   ,
                                                                                                                        •   •

                  59.          The Director of Public Prosecutions (OPP) then assumes responsibility for pursuing the
                               indictment and subsequent prosecution of lhe accused. Murder in is an indictable offence. AIJ
                               trials on indictment in Trinidad are preceded by a PI. The PI is a process by which lhe magistrate
                              wilJ hear lhe evidence on which the charge is based and dete, mine whether or not lhere is a prima
                              facie case lhat the accused has cOlfunitted lhe offence. He must be satisfied that there is evidence
                               upon which a jury could (not would) convict the defendant. The rules and procedures governing
                              the conduct of the PI is governed by the Indictable Offences (Preliminary Inquiry) Act (12 of

              60.             Whilst (as its name suggests) lhe PI is no more !han an interlocutory process, administrative
                              difficulties including lhe absence of magistrates, difficulties in transporting prisoners,. and non _
                              availability of defence or prosecution counsel mean lhat lhe PI can ofien take many months to
                              complete. The defendant is accordingly surnmoned before lhe magistrate every ten days and once
                              lhe court and both sides are ready to proceed lhe PI will cornmence.

              61.             There has been quite a lot of criticism of lhe inefficient manner in which PIs are conducted, and
                              in an attempt to speed up lhis process (especialJy in lhose cases where lhere is compelJing
                              evidence) legislation was enacted removing the need to hear witnesses give live evidence. The
                              DPP, however, has been slow to take advantage of the new system and most PIs continue to
                              proceed under the old system.

              62.             If a prima facie case is made out against an accused person the magistrate is duty bound to
                              commit him to the High Court for trial. Since murder is a non - bailable offence lhe accused
                              person must be remanded in custody until trial. .

             iv.              Pre - trial delay

             63.              Under the Preliminary Inquiry Act alJ depositions taken during lhe PI must be transmitted to the
                              DPP, who is lhen entrusted with the task of issuing lhe indictment. The indictment .is then
                              transmitted to the High Court Registry Criminal Division and the case is listed on lhe High Court
                              Cause List by lhe Registrar of the Supreme Court.

             64.              There is no prescribed period in which this process must take place, and delays of over a year are
                              not uncommon. For example, in lhe case of Slale v. Birmal Roy Paria the accused was charged
                              with murder and was cornmitted for trial on 3 1" December 1998. His case did not comé into lhe
                              cause list until January 2000, and his trial was not completed until July 2000. In another case,
                              Stale v. Ricky Rogers, the accused was committed for trial on a charge of murder in October
                              1998, and his case was finalJy listed on the cause list for trial in November 2001.

             65.             The only remedy available for defendants whose trial has been delayed through no fault of their
                             own is to alJege that lhe fairness of their trial has been prejudiced by delay since the date of the
                             alleged offence (for example, because witnesses have disappeared or evidence has been lost) can
                             apply to lhe court for a stay of lhe proceedings against them if lhey can indeed show that they
                             have been prejudiced by the delay. There is no righuo a trial wilhin a reasonable period of time
                             in itself, there is only a right to a fair trial. The law holds lhat a delayed trial can still be a fair one
                             in the absence of prejudice (see further DPP v Tokai [1996] AC 856) Prejudice must be shown.
                             The cases show lhat such stays should only be granted in lhe most exceptional of cases: see
                             Allorney - General's Reference (No. 1 of 1990) [1992] Q.B. 630.


,       •   c~   . . . . ,_ ..............    ...
                                             _~     _,_"._.~,

                                                                                                          .'              .   .   "

                       v.                         Disclosure oí evidence by tbe prosecution prior to trial

                       66.                        The experience in England has been !hat faílure by the prosecution to disclose fully to the defence
                                                  aH relevant evidence in its possessíon can lead to serious míscarríages of justice: sec, for
                                                  example. Ward [1993] 1 WL.R 619; raylor and Taylor (1994) 98 Cr. App. R. 361. 11 ís fairto
                                                  say that at present there ís not as yet a culture of dísclosure ín prosecution service ín Trinídad,
                                                  although there has becn sorne ímprovement over the last five years as a result of several decísíons
                                                  from our local courts which have had to deal with matters being remitted by the Prívy Councíl on
                                                  account of material non - dísclosure by the prosecution.

                       67.                        The cornmon law princíples establíshed in the Englísh cases cíted aboye clearly establish lhat
                                                  there is a duty on the prosecution to disclose a11 material in íts possession which eíther does or
                                                  may assíst the defence. This duty extends to 'unused material', !hat ís, evídence gathered by the
                                                  prosecution which does not form part of its case but which is relevant to íssues in the case or of
                                                  assistance to the defence. The problem in Trinidad ís !hat there ís no formal procedure in place
                                                  to ensure that proper disclosure is made. Instead, the system operates on an ad hoc basís with the
                                                  result that relevant evidence is ofien not disclosed whích causes prejudice to the defendant.
    \                  68.                        Although the principies are we11 settled, a number of cases have híghlighted the problems which
                                                  defence attomeys ín Trinídad face. For example, ín the case of Winston Solomon v. Iñe State
                                                  the Court of Appeal held that the faílure by the prosecutíon to ínform the defence that an accused
                                                  person on a murder tríal had an extensíve mental history was a material non - dísclosure. The
                                                  Court of Appeal confirmed that the duty to dísclose extends to aH ínformation withín the
                                                  knowledge of any arm of the state. It was therefote no answer for the police to assert that because
                                                  ínformation was held in the records of the prison servíce they were not under a duty to dísclose ít.
                                                  In Herbert Ferguson V. Attorney General unreported, Republíc of Trinidad and Tobago Court of
                                                  Appeal, 24 January 2001, the Court of Appeal held that faimess requíred that dísclosure be made
                                                  in indictable matters at or before the PI stage, see Appendíx 10.
                       69.                        In other malters questions have arísen as to whether there was non - disclosure of statements of
                                                  wítnesses nol relied upon at tríal where those statements íncluded informatíon which was
                                                  supportive of the appeHant's defence.

                       70.                        Responsíbílíty for breaches of the duty to dísclose líes ultimately with prosecution counsel. Thcy
                                                  tend to take a very narrow view of what evidence is likely to assist the defence; for example,
                                                  where a wítness has made statements that are ínconsisteni because of omíssion (e.g. ín the first
                                                  statement the witness says 'X' but not 'Y', and in the second statement says 'X and Y') they do
                                                  not regard this as beíng matcríal despíte the fact that such ínconsístencies can very ofien be very
                                                  helpful to defence counsel in the course of cross - examination.

                       71.                        There are also regular problems with the disclosure of documentary evidence which ís ofien of
                                                  vital ímportance. Station diary extracts and other documents in the possessíon ofthe políce ofien
                                                  have the potential to corroborate malters critical to the defence. In the recent case of Kelvin Dial
                                                  and Andrew Dottin v. Iñe State the Courr oí Appeal cornmented on lhe destruction of a staiion
                                                  diary afier repeated requests were made for its productíon. The Courr observed that records of
                                                  that type are not preserved as they should be and that the deficiency needed to be remedied.

                       72.                        Documents such as pocket diaries, personal diaries of officers investigating murders are hardly
                                                  ever disclosed and for the most part are usua11y 'Iost' or 'destroyed' by the time the malter comes
                                                                                           o   ,_   "."   •• , '   ,   .'   '0'0 ..,.,   •   '   _ _ .• ;,•••_   ..,.   _'p   ,."oy" ....,•.   _   .,"" .. _


                up for trial, especially where specific requests have been made by lhe defence for tbeir
                production. For examplé lhe Standing Orders of the Trinidad and Tobago Police Force issued in
                1963 provides !hat Police Pocket Diaries may be destroyed after tbe expiration of 2 years after lhe
                date of last entry.

          73.   Tltere is a real need for proper procedures to be put in place whereby lhe prosecution makes
                available to lhe defence at or before lhe PI a schedule or list of a1l used and unused material.
                This list should inc1ude: all forensic materials not being relied upon by tbe state, statements of
                persons not being called by lhe state, criminal records if any, of prosecution witnesses including
                police officers on disciplinary charges, all relevant station diary extracts as well as all police
                entries in lheir diaries relevant to tbe investigations into lhe mallero

          74.   The present practice is !hat unless specific requests are made for unused material by lhe defence,
                such material is not disclosed as a matter of course. For example, in cases where a first
                description of a suspect arises lhe practice is not to provide it unless requested; indeed, more
                ofien lhan not tbe 'flTSt description' is extracted from lhe witness statement taken severa1 days
                afier lhe event. The investigating officer more ofien tban not has taken no notes of tbe frrst
                interview with the accused and has not made an entry in lhe station diary. TIte vital importance
, .             of tbis type of evidence is illustrated by the case of Taylor and Taylor cited aboye, where two
\               white girls were convicted of murder after a trial in which tbe first description of the suspect as
                being black had not been disclosed to the defence.

          75.   There is a real need for police and prosecution counsel in Trinidad to be trained in lhe need for
                proper disc10sure and for there to be culture of fairness in criminal· proceedings. Only when
                these are achieved will we be able to assert tbat oile of the fundamental prerequisites for fairness
                in criminal proceedings is in place.

          vi.   Juries
          76.   Defendants accused of murder stand trial before a judge and jury in the High Court. TIte jury
                comprises 12 people randomly selected from lhe electoral register. The jury must reach a
                unanimous verdict as to lhe guilt of the accused.

          77.   TIte law relating to juries is principally contained in the Jury Act (c. 6:53), as amended. Potential
                jurors are selected from the voters registration list and are required to attend tbe High Court in
                order to serve on a jury. A pool of potential jurors is then made available for each case from
r-'\            which lhe actual jury is selected.

          78.   Criticism can legitimately be made of the deficiencies of lhe electorallist as a means of randomly
                selecting a pool of persons which reflects a cross - section of Trinidadian society. Moreover,
                certain categories of person are exempt from jury service by virtue of their occupation or other
                status. During 2000 controversy arose in the San Fernando Assizes when lawyers appearing at
                the Bar voiced lheir objection lhat lhe great majority ofjurors were women. They argued lhat lhe
                respective numbers of men and women were so disproportionate that the faimess of proceedings
                in lhose courts was in question.

          79.   Whilst jury selection procedures in Trinidad are not as elaborate as in the United States, where
                jury selection can last many days, both the defence and the prosecution are entitled to challenge a
                juror for cause at the time of jury selection or any time during the tria\. Although not expressly
                provided for in the legislation, it is possible in appropriate cases to cross - examine potential

    "   ,.'   "."      ,.   """""',~"''''.,.' ,',   ',    ,,~   . ..,.   ,,~   ..
                                                                               ~    -   .,-


                                    jurors in order to detelllline whether or not they can try the case in an impartial manner. This
                                    procedure was used in the case of Dale Chadee and others v. 1ñe State, which concemed a very
                                    notorious alleged criminal gang which was accused oC carrying out several brutal murders.

              80.                   Perhaps as a consequence oC !he small population oC Trinidad, it is not uncornmon Cor jurors to
                                    know the parties, witnesses or cóurt officials. Concern regarding jwy bias has consequently
                                    arisen in a number oC cases.

              81.                  In recent years steps have been taken to try and ensure lhat jurors are more aware of their
                                   responsibilities and duties. In 1995 a flyer entitled "Information for Jurors" was produced and
                                   since then this has been handed to all jurors on their arrival at cour!. The flyer provides potenlial
                                   jurors with guidance as to their role and infonns thero of their duty to disclose any association
                                   with the parties to the proceedings.

              82.                  As noted aboye, murder trials are heard by a judge sitting with a jwy of twelve. The procedure
                                   which govems the manner in which criminal trials are conducted is to be found in Criminal
 ~.                                Procedure Act (c. 12:02), annexed at Appendix 11. The principal stages of a typical trial for
!  .
                                   murder in Trinidad are as follows:

                                   a.                    Preliminary points of law are argued and ruled upon by the judge before the jury is

                                   b.                    The jury is sworn;

                                   c.                    Prosecution counsel makes his opening speech to the jwy;

                                   d.                    The prosecution calls its evidence;

                                   e.                    The defence presents its case. The defendant can give evidence on oath or roake an
                                                         unsworn statement froro the dock or remain silent. He can also eall witnesses in support
                                                         ofhis case;

                                   f.                    Prosecution and defenee eounsel make their closing speeches;

(',                                g.                    The judge suros up the case for the jury;

                                   h.                    The jury retires and eonsiders its verdiet;

                                   i.                    The jury delivers its verdiet. If the defendant is convicted he is asked whether he has
                                                         anything to say, and then the death sentenee is passed.

              83.                  Under the Jury Aet (c. 6:53) a guilty verdict in a murder trial must be unanimous, however a
                                   verdict of manslaughter can be aceepted at the judge's diseretion if at any time even afler me jwy
                                   has relired and before they have reaehed a verdict. Otherwise the judge may, ifhe is satisfied mat
                                   there is no reasonable probability mal the jury will arrive al a verdict, discharge lhe jury al any
                                   time afler lhe expiration of tbree hours from the moment of their retirement.



                                                                                ,   ,~   .    ,   ,.   • (,   . "" C.I   'Of   a • .", ee;(   pe p   ¡   e; .• e: •


                  viii.   weals to the Court of AJUleal aud problems of avaiJability of couDsel

                  84.     If tbe defendant is convicted he has tbe right lo apply lO lhe Court of Appeal for leave lo appeal
                          againsl his conviction. Obviously, because tbe sentence of death is mandalory il is nol open lo
                          him lo appeaJ againsl tbe senlence.

                  85.     In recenl years appeals lo lhe Court of Appeal have lypically been heard witbin six lo nine
                          monlhs of tbe conviclion.

                  86.     There is a continuing problem wilh securing adequale represenlalion for appeals in murder cases.
                          In lhe majority of cases where tbe defendanl was represented under tbe Legal Aid Scheme bis
                          altomey ceases lo acl once tbe trial is concluded because legal aid does nol exlend lo preparing
                          lhe appeal. Therefore, in lhe majority of cases, lhe defendanl himself has lo prepare and file tbe
                          Notice of Appeal. BJan!< Notice of Appeal forms are distributed lo condemned prisoners on tbeir
                          arrival al lhe Stale Prison. Many defendants are simply nol equipped lO draft Notices of Appeal.
                          The problem is nol merely a lack of legal training: many defendants are poorly - educaled and
                          have problems reading and wriling and sorne suffer from mental healtb problems.

    ,             87.     Once lhe appeal has been listed lhe Notice of Appeal is senl lo tbe defendanl, and where lbal
,   ,                     person has applied for a lawyer through tbe Legal Aid and Advisory Autbority a copy oC tbe
                          Notice is usually senl lo lhe appointed lawyer.

                  88.     Whetber (and when) a lawyer is appoinled depends largely on how soon lhe Legal Aid and
                          Advisory Authority receive a requesl from tbe convicted persono It is difficult to lay down any
                          general rules as to tbe timing of tbe appointmenl of appeal lawyers, however it is nol uncommon
                          for lhem lo be appoinled only a malter of days before lhe appeal. In lhe short period before the
                          appeal lhe altorney is expecled lo oblain tbe record of tbe trial; review il; consider tbe grounds of
                          appeal lodged by tbe prisoner; identify, develop and draft further and/or supplementary grounds
                          of appeal; obtain additional evidence; meel tbe clienl and take bis instructions; and research tbe
                          law and prepare for tbe hearing in tbe Court of Appeal.

                  89.     It is obvious that in sorne cases the syslem for appointing appellale altomeys does nol allow for
                          sufficienl preparalion time unless the Court of Appeal is prepared lO grant an adjournment.
                          Appeals againsl conviction in Trinidad are usually restricled to complainls of errors made al tbe
                          trial by ¡he judge in his summing - up; it is very rare indeed for tbere to be fresh evidence
                          presenled because defence attomeys are simply not given lhe resources lo re - investigale cases
    ,~                    even where lhe defendanl asserts actual factual innocence of the crime and potentially relevanl
    I,       !'
             ,            fresh evidence can be idenlified.

                  90.     Once lhe defendanl has filed his Notice of Appeal and lhe transcript of the trial and the summing
                          - up are available the Registrar of tbe Court of Appeal (Clerk of Appeals) lisIs lhe matter for
                          hearing. The defendanl' s counsel is expecled lo supply his grounds of appeal no laler lhan seven
                          days before the appeal along witb his Skeleton Argumenls and Summary of Evidence. An appeal
                          must be based on one or more of tbe following grounds pursuant lo section 44 of tbe Supreme
                          Courtof Judicature Acl (chap 4:01):

                                      •   Thal lhe verdict of tbe jury is unreasonable or cannol be supported having regard
                                          lo tbe evidence; or
                                      •   Thal the judgment of lhe court before whom tbe appellanl was convicted should
                                          be sel aside on ¡he ground of a wrong decision on any question of law; or
                                                                                                     .'. -'   '.'~...,-"._-~,~,,~    ,,-_.....

                             •   That on any ground there was a miscarriage ofjustice.

              The Court of Appeal retains lhe discretion to allow a conviction to stand if it considers lhat no
              substantial miscarriage ofjustice has actually occurred
        -     weals to the Privy Couocil in Loodoo

        91.   Defendants whose appeals are dismissed have tbe right to petition tbe Judicial Cornrnittee of tbe
              Privy Council (tbe "Privy Council") for special leave to appeal against tbeir conviction. Appeals
              to the Privy Council are governed by the Trinidad and Tobago (Procedure in Appeals to Privy
              Council) Order in Council 1962 and section 96 oftbe Suprerne CoW1 of Judicature Act (c.4:01).

        92.   The Privy Council is sparing in tbe grant of leave to appeal. It will frequently not interfere witb a
              decision that depends on its own facts even where tbe a1legation is lhat tbere was insufficient
              evidence to be left to lhe jury. The Privy Council is sensitive about imposing English standards
              of procedural rights on local courts, and tberefore relies on tbe local courts to assess questions
              dependent on local knowledge and conditions.

( ' 93.       As previously noted, invariably defendants convicted of murder are unable to pay privately, and,
              as a consequence, tbey are obliged to seek leave to appeal in forma pauperis, Le, lhey ask the
              Privy Council to relieve thern of tbe need to pay filing fees and other administrative expenses.

        94.   Appeals to the Privy Council are presented by solicitors and barristers in London on a pro bono
              basis. Altbough the Privy Council has the power to recornmend that the state bear tbe costs of the
              appeal (and it invariably makes such recornmendations) tbe state does not follow tbese
              recommendations. By convention, the Privy Council does not award costs against the state in
              criminal matters save in exceptional circumstances and so it is not possible for work to be
              undertaken on a contingency basis.

        x.    AJ!plications for constitutional relief

        95.   In circumstances where an individual's constitutional rights may be or have been infringed, he or
              she is entitled to seek relief from tbe High Court by bringing a motion under the Constitution. The
              purpose of the motion is not to challenge the criminal appeal process or sentence of deatb, but
              rather to challenge the imposition and carrying out of lhe sentence. In practice where tbe Privy
              Council refuses leave to appeal, or tbe appeal is dismissed, tbe defendant can, where appropriate,
              apply to tbe High Court for relief under tbe Constitution. In recent years, defendants sentenced
              to death have argued that tbeir executions would be unconstitutional because of excessive delay
              since they were sentenced to death (Guerra v. Baptiste [1996] A.C. 397), because they were
              awaiting a decision from an intemational human rights body (Thomas v. Baptiste [2000] 2 A.C.
              1), and because hanging is an unnecessarily cruel method of execution (Boodram v. Baptiste
              [1999] l W.L.R. 1709).

        96.   Whilst such applicalions have been made, condemned defendants' right of access to court is
              severely restricted by tbe practical absence of legal aid. This is because whilst legal aid is in
              theory available, it is very rare indeed for legal aid to be granted. There are two principal reasons
              for tbis. First, a constitutional motion is a complex proceeding both in terms of the substantive
              law and the procedure. A defendant is expected to show that the application is sufficiently
              meritorious. There is no provision in the Legal Aid and Advice Act granting the Legal .-\id and
              Advisory Authority tbe power to determine whelher an applicant has a prima facie case that


                 warrants the grant of legal aid in a constitutional motion. It is of course lhe function of the courl
                 to detelllline lhe prima facie merits oflhe case. However, in practice lhe Legal Aid and Advisory
                 Authority insists !hat it must make a detcllllination on lhe prima facie merits of !he case before it
                 grants legal aid. If lhe merits are not sufficiently made out legal aid will be refused. To date lhe
                 Legal Aid and Advisory Aulhority has not granted legal aid to any applicant challenging lhe
                 carrying out of lhe dealh sentence: Accordingly, in lhe absence oflegal assistance, lhe defendant
                 is ofien unable to set out lhe rnerits of his case in a convincing way. Second, lhere is ofien
                 insufficient time lo apply for legal aid. This is because many constitutional motions are onIy
                 lodged afier a warrant for execution has been read and lhe execution is onIy days away.


         97.     The substantive law of murder and relevant provisions which provide for the mandatory dealh
                 sentence in Trinidad are described aboye. In surnmary, section 4 of lhe Offences oí Persons Act
                 provides for a mandatory sentence of death in all cases of murder. The judge has no discretion to
                 impose a lesser sentence, nor is it possible to appeal to lhe Courl of Appeal against a dealh
                 sentence. The sentencing judge cannot take into account any circumstances pertaining to lhe
                 individual case once lhe conviction of murder has been reached. He is not peullitted to take into
                 account factors relevant lo the gravity of lhe offence, the circumstances of lhe oífence, or lhe
                 demeanour of lhe deceased, or the personal circumstances of lhe accused including his past
                 criminal record or character or any olher subjective factors which may have motivated lhe
                 conduct of the accused. No regard can be had to lhe possibility for rehabilitation, reform or
                 social re- adaption. No consideration can be given to whelher death is the appropriate sentence
                 in any particular case. This practice reflects the traditional approach of the English common law.

         98.     This section addresses sorne of the anomalies which, from a practitioners' point of view, are
                 inherent in lhe mandatory death penalty.

         99.     Trinidadian law provides for a number oí defences to murder lhat require the jury to makea value
                 judgment about the reasonableness of lhe defendant's behaviour or the extent to which his moral
                 culpability may have been impaired by mental ilIness. For example, section 7 of the Offences
                 Against lhe Person Act (c. 11 :08) provides for the defence of self - defence:

                         "No punishment shall be incurred by any person who kills anolher person by misfortune
                         or in his own defence, or in any other manner wilhout criminality."         .
,    lOO.        Provision is made for olher statutory defences by Act No. 19 of 1985, which is entitied 'An Act to
                 amend the Offences against lhe Person Act'. This Acl introduced lhe defences of provocation
                 and diminished responsibility.

         10 1.   As praclitioners, we have known of many cases where it has been clear lhat lhe defendant was
                 acting (in layrnan's terms) in self - defence and/or was provoked when he killed the deceased, and
                 lhe issue has been whether he went too far, lhat is, acted unreasonably. In some ofthese cases the
                 jury convicted the defendant and he was sentenced lO death notwithstanding that his moral
                 culpability was plainIy less lhan that of a defendant who killed in cold blood. This type of case,
                 in particular, highlights the arbitrary nature of the mandatory death penalty. Equally, we are
                 aware of cases where it is clear the crime has been a crime of passion committed at a time of
                 extreme emotion by a defendant of good character who nonetheless has been sentenced to death.

                                                                                                                                                                                                                                                          · ..
•~   _   ~~.'~ ,r •• ~"   _ . "","."_,-,., ..,,'" " .•.... ,,,'   .0, o"   _"_o _ ' _ ' . . . - -   .'   •• ",.,."   ¡~•.. ".. . "'~O" _._.,,~••~,,~·••, _.• '_O""_'_ _O_O_ _ =_"._._""'~"'I""'.,. ..
                                                                                                                                     .•                _ ~"                 =_,                     4   •• _   "l.   ,~, ..   ~_,~, _
                                                                                                                            -                                                                                                 -,V·   '"

            102.            It is notable that recently legislation has been passed in Trinidad which is clearly intended to
                            ameliorate lhe obvious harshness of the mandatory death penalty. On the 24'h October 2000 the
                            Senate of Trinidad and Tobago passed the Offences against the Person BilI which categorised
                            murder into capital and non - capital murder. As soon as the BiJl had been passed in the Senate,
                            however, a decision was taken to "hold back" the new law. Newspaper 'reports at the time
                            suggested lhat the then Attom'ey-- General felt that there were certain technical areas lhat needed
                            to be looked at again, and for that reason a proclamation clause was put in. To date this piece of
                            JegisJation has not been proclaimed. Copies of the Bill, amendments and the Express Report of
                            25'" October 2000 are enclosed at Appendix 12.

          103.             A1though we are aware that mandatory death sentences were decJared to be unconslitutiona1 both
                           for aJl crimes of murder and for specitic types of murder by the Uniled States Supreme Court in
                            1976 (Woodsoll v. North Carolina 428 U.S. 280, Roberts (Harry) v. Louisialla 431 U.S. 633)
                           similar chaJlenges have failed in Trinidad because of lhe way in which lhe Constitution is drafted.
                           There are conslitutional provisions which deem any punishment which was lawful prior to
                           independence lo be in accordance with the Constitution. Because the mandalory dealh penalty
                           was 1awful at the time of independence (by virtue of section 4 of the Offences Against the Person
                           ACI), the case 1aw to dale suggesls that these provisions insu1ate the mandatory dealh penalty
                           from constitutional attack.

         104.              The problem created by savings clauses is typitied by the Rhodesian case of RunyolVa v. T71e
                           Queell [1967] 1 A.c. 26. The appeJlant was charged with two others with attempting to set on
                           tire a building or structure in contrayention of section 33A (1) of lhe Law and Order
                           (Maintenance) Act, 1960. The trial court held that the appellant's conduct in buyingand handing
                           a bottle of paratTin to the persons who actually threw lhat bottle into a house containing people,
                           he knowing that the bott1e would be so used, made him a socius criminis in the commission of the
                           crime. The appellant was accordingly convicted and sentenced to death. The appellant appealed
                           to the Priyy Counci1 inter alia on the ground that a death senlence for an offence which did nol
                           involve the loss of or lhreat to Jife was so disproportionate so as to vi01ate the Constitution. This
                           argument was rejected because ofthe saYings clause in section 60 ofthe Conslitulion ofRhodesia
                          .which effectively deemed such a punishment !O be lawful. The Privy Council's attitude !O
                           mandatory punishmems is c1early shown by a passage al p49 of the judgment:

                                             The provision contained in section 60 of the Constitulion enables the court lO adjudicate
                                             as to whether sorne form or type or descriplion of punishment new1y devised after the
                                             appoinled day or not previously recognised is inhuman or degrading but it does not
                                             enable the court to declare an enactrnent imposing a punishment to be u/tra vires on lhe
                                             ground that the court considers that the punishment laid down by the enactment is
                                             inapPropriate or excessive for the particular offence ....A legislature may have to consider
                                             questions of po1icy in regard to punishmenl for crime. For a particular offence a
                                             legislarure may merely decree lhe maximum punishment and may invest the COllrts with a
                                             complete discretion as to what sentence to impose - subject only to the fixed maximum.
                                            There may be cases, however, where a legislarure deems it necessary to decree that for a                                                                                                                      •
                                            particular offence a fixed sentence is lo follo\\". As an example a 1egislature might decide
                                             lhat upon conviction for murder a sentence of death is to be imposed. A legislature might
                                            decide Ihat upon conviction of sorne other otTence sorne other fixed sentence is to follow.
                                            A legíslature must assess the situ3tions which have arisen or which may arise and foml a
                                            judgment as to what laws are necessary and desirable for the purposes of mainlaining                                                                                                                      •
                                            peace. order and good govemmenl. It can hardly be for the courts unless clear1y so
                                            empowered or directed to rule as to the necessiry or propriety of particular legislation.
                                                                                 19                                                                                                                                                                   I

                                                   •                                                                                                                                                                                              . ,

                                                                                                                                                                                                                                             ..   "   ~

                                                                                                                                                                                                                                          . ,.:~ i
                                                   i ."   . ...,._ ••._   ••   ~ •. ~   , " - .._ _..   ~"~'_ ·AA_'.?"
                                                                                                                    .    _n   ,   "'2._ _'   .

         105.   NOl all Caribbean coi'lslilulions prevcnl conslilulional allack on lhe mandalory dealh penalty.
                Rcccnlly lhc Easlcm Caribbcan Court al' Appeal in lhe unreported decision al' Spellce alld
                lIno/her v. l1Je QlIeell, 2 April 2001, declared lhe mandalory dealh penalty lo be unconstitulional.
                The Court heId lhat because lhe mandalory penalty prevenled lhe scntencer from considering lhe
                defendanr's individual person characleristics ir was an arbitrary punishment and therefore in
                violalion al' [he Conslitution - see Appendix 13. We understand lhal an appeal lo the Privy
                Council againsl lhis decision by lhe slale is pending.

        G.      PREROGATIVE OF MERey

        106.    This seclion describes how lhe prerogative al' mercy operales in Trinidad.

        107.    The prerogalive al' mercy is deall wilh in seclions 87 • 89 al' lhe Conslitution. These seclions
                reqllire an Advisory Committee lo consider all senlences al' death and to advise the Minisler al'
                Naliona! Security as lo whelher or not clemency should be granled. He is free to accept or rejecl
                lheir advice, althollgh if lhe advice is negalive he invariably accepls il. The Minisler lhen advises
•   •
                the Presidenl who must act in accordance with this advice.

        108.    In our experience, in modern times it has been extremely rare for clemency to be granted excepl
                in cases where ir is clear lhe exeeulion eannol lawfully be camed oul, for example, because al'
                excessive delay. No doubt lhis paucity al' cases is due to the apparenl groundswell al' public
                support for capital punishmenl coupIed wilh lhe fael lhal lhe decision is ultimateIy taken by the
                Minister, who is an elccted politician. 11 is real source al' concem lhal where death sentences
                have been commuled lhey are invariably eommuled lO a sentence al' 75 years imprisonmenl.
                Such a senlence virtually guaranlees that lhe defendant will die in prison. Such commulalion
                lakes place wilhout any involvement al' lhe defendant who is not given lhe righl lO make
                representations as lO lhe appropriale lenglh al' senlenee.

        109.    Prior lO the decision al' lhe Privy Council in September 2000 in Neville Lewis v. Attomey -
                General oj Jamaica [2000] 3 WLR 1785 (in whieh Trinidad inlervened) afler lhe senlence al'
                dealh \Vas imposed the tria! judge, in compliance Wilh lhe Criminal Procedure Ael, wrole a seeret
                report lO the Minisler al' t\alional Securiry who was mandaled te place lhe reporl together wilh
                other infonnalion derived from lhe lriaI records and elsewhere before lhe Advisory Commitlee on
                lhe Power 01' Pardon. The prisoner was nol infonned 01' lhe meeling, was nol allowed lo pUl
,r--.           malerials befare the Committee, was nol entitled lo know whal malerials were considered by lhe
                Commillee, and nor was lhe prisoner entilled te address lhe Commitlee. In practice lhe prisoner
                was never infonned al' the advice al' lhe Commitlee. Invariably the first the defendanl knew thal
                he had been rejeeled for c1emeney \Vas when lhe warranl for his execution was read to him befare
                lhe exeeulion.

        110,    This praetiee was unsuceessfully ehallenged in a number al' cases before the Privy Couneil in lhe
                1970s and I 990s. In de Freilas v Bellll}' [1976] A.e. 239 the Privy Council hcld thal lhe
                defendanl had no legal righl lo have disc10sed lo him lhe material fumished lo lhe advisory
                eommillee and lO lhe Minister on which the Minisler lendered advice lo lhe Govemor . General
                as lo lhe exereise 01' lhe prerogalive al' mercy beeause lhe exercise 01' lhe royal prerogali\'e \Vas
                solely discrelionary and nol a qllasi - judicial ael. This decision was followed in relation lO The
                Bahamas in Reckley 1'. Millisrer oj?lIblic Saje/y (So.::) [1996] A.c. 527.

                                                                            _ _••_~,_. .~ .. . . .,~. ._ ,
                                                                                         .._ _               , _ ,._,_.,,~._       __
                                                                                                                          •. _._,_,.    ................ - .....   el   .....   ...,   • __._b._~~
~_   ,= ".'   I   _ , , - _ _ -_   "   ~.'"'.,.   _ .., ..;.#   '~_.~   ._'*' -..   _&4..           ~..                                                                                        - ".


                  l1 l.      These two decisions were overruled by the Privy Couneil in Neville Lewis v. AlIomey . General
                             01Jamaica. -nle effeet of this important deeision can be summarised as follows:
                             a.            There is a right to disclosure of doeuments before the Committee;

                             b.           There is a right to make"infonned written submissions based on this diselosed material:

                             e.           There is a right to have reasons given if Ihe deeision departs from a ruling or
                                          reeommendation of an intemational human rights body

                  112.       Since the deeision in Neville Lewis Ihere have been no death warrants issued in Trinidad and Ihe
                             extent lo which the governmenl intends to eomply with the ruling in Ne"ille Lewis is unclear. No
                             new proeedures appear to have been put in place to comply with the decision. A number of
                             praelical issues therefore remain to be addressed. In particular, so far as we are aware. Ihere are
                             no proposals to extend legal aid to ensure that representations to !he Advisory Committee are
                             properly and professiona1ly prepared, and lo ensure that expert evidence (in particular, psychiatric
                             evidenee) can be utilised where necessary. Nor has any timetable for the disclosure of documents
                             and the submission of representations been promulgated.
     . ,
     ,   /        113.      The Neville Lewis decision obviously means that a1l merey decisions taken prior lo September
                            2000 are unlawful, and every prisoner in respect of whom mercy was denied is entitled to have
                            Ihe deeision re - laken in accordanee with the judgment, see Appendix 14.

                  H.        CONCLUSION

                  114.      The criminal justice system in Trinidad continues to give cause for concern. As praetitioners, our
                            eoneerns are as follows:

                            a.         Refonns of the death penalty that have oecurred in England and in other Caribbean
                                       jurisdictions have nollaken place in Trinidad. Trinidad maintains an inflexible syslem of
                                       sentencing all defendants [Q death and, umil recently, there was no proeedural fairness in
                                       the exercise of the prerogative of merey which itself was open to criticisn, because of irs
                                       susceptibility lO political factors.

                            b.          Defence counsel are often inexperienced and are inadequately remunerated. This results
                                        in defendants being poorly represented and available defences nol being investigated 01'
                                        presented adequalely. This deftciency is espeeially apparent in the ear!v slages after
                                        arrest, \Vhen no la\vyers are presem and defendanls are coerced inlo making admi5sions.

                            c.         There are particular difftculties obtaining expert evidence even Ihough sUch evidenee is
                                       presenled by the prosecution wilh increasing frequeney;

                            d.         Non - disclosure and/or destruclion of relevant evidence by Ihe proseculion and!or the
                                       police is commonplace;
                            e.         There are still substantial delays inherent in lhe syslem, especially at the pre - Irial phase:

                            f.         The eXlenl lO whieh the mercy process \ViII be operaled fairly in lhe fulure i5 still unclear.
                                       1\loreover. even where Ihe.defendant's lite is spared he faces lhe prospect of -5 years

." ........       '48I,I1!l::"'J .. 'lIIIJ   . l.           ~,,. -,.....".._ - ,· ..."..-·Wt_ _-~_·~"' ••~· ·
                                                    ':A.",'. ro,.", ..._                                        ·q....
                                                                                                                .. lJ J¡   _'   *_i"'   ","!Ji", , -   _,         :
                                                                                                                                                                "..   _.,..         ,
                                                                                                                                                                          ,.,_'.,_ ..,",   _~ae~' ..

                                                    imprisonment in extrcmely harsh conditions. which effectively means he wil1 die in
                                                    prison. No account is taken ofhis individual case or circumstances.

                                                    \S) _. "                         ~.. j _
                                                    Dcsmond AI/um SC                                            :::-:;::Crcgory Dclzin
                                                    Trinity Chambers
                                                    Port 01" Spain
                                                    Trinidad and Tobago





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