PENALTY

The Court of Appeal of Trinidad and Tobago dismissed an appeal,
even while describing the outcome as unfortunate. Reinforcing the
incongruity of the decision was the majority’s concluding passage:
It is unfortunate that the application of clear legal [principles]
should result in the imposition of the death penalty on
an individual who, on the evidence, has a long outstanding
mental disability. The apparent harshness of the result of
our decision might best be ameliorated, not by a distortion
of the law, but rather by petitioning the appropriate authorities,
that is, the Mercy Committee. 32
There is something profoundly amiss with a justice system that
regards the outcome in a case as approximating an injustice but
shunts the responsibility for addressing that injustice to extralegal
means. Part of the reason for this outcome was that the legal
principles described as clear by the court are in actuality archaic
and repeatedly misapplied and misunderstood, so the matter
was more appropriate for resolution by the court rather than the
Mercy Committee.
Practical concerns also exist in relation to the institutional capacity
in many Caribbean states. A recent report of the World Health
Organisation disclosed several deficiencies in mental health systems
across the Caribbean, including insufficient facilities, outdated practices
and lack of treatment protocols. 33 Some of this could probably
be traced to weak legislative frameworks, insofar as the majority of
countries have mental health legislation predating independence,
as well as to the under-resourcing of this sector, with an average of
only 3.8 per cent of health budgets in the region being devoted to
mental health. 34 Where mental health facilities are nonexistent or
substandard, criminal defendants may go undiagnosed and untreated.
Once caught up in criminal proceedings, it is not uncommon for
people to undergo trial, conviction and sentencing without any
32 Ibid., p. 25.
33 World Health Organization, WHO-AIMS Report on Mental Health Systems in the Caribbean
Region (2011), available from www.who.int/mental_health/evidence/WHO-AIMS/en.
34 Ibid., p. 13.
recognition that legal liability may be absent due to a lack of
mental capacity. 35
The appellant in Nigel Brown v. the State 36 had been convicted of
murder and sentenced to death; after conviction, fresh evidence was
obtained from a psychiatrist that he was suffering from a mental
disorder that called into question his capacity to plead and understand
the nature of a trial. In allowing his appeal, the Privy Council
criticized the failure of the system to detect this issue earlier:
There is no doubt that the appellant’s legal advisers should
have been alert to the question of his fitness to plead. Yet
no medical evidence was adduced on his behalf nor was
this issue canvassed either on the trial or before the Court
of Appeal. This is a matter of obvious and grave concern.
The Board has been greatly exercised by the fact that these
reports have been produced ex post facto and without any
explanation as to why medical evidence on the issue of
fitness to plead has not been produced before now. 37
A recent report by the Death Penalty Project concluded that
“the death penalty [in the Caribbean] is regularly being imposed
on persons with significant mental illness and/or intellectual
disability.” 38
Expert evidence
Closely linked to the issue of mental incapacity are concerns about
the use and availability of expert evidence generally, in which criminal
defendants face a recurring disadvantage. This problem was
highlighted in a case from Barbados in which the prosecution relied
on the evidence of a forensic odontologist to establish that bite marks
35 Several of these cases are mentioned in Amnesty International, Caribbean: Death Penalty in the
English-Speaking Caribbean, pp. 18-21.
36 [2012] UKPC 2 (PC, T&T).
37 Ibid., paragraph 68.
38 Saul Lehrfreund, “The systemic failure to grant special protection and all guarantees to ensure
a fair trial in capital cases in the Caribbean, Africa and Asia”, presentation at the Office of the
High Commissioner for Human Rights panel Moving Away from the Death Penalty—Wrongful
Convictions, United Nations Headquarters, New York, 28 June 2013.
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