PENALTY

a result of some form of domestic violence.” 48 Whether or not this is
still true, the multiple failings that existed in the Ramjattan case indicate
that gender bias in the criminal justice system is an overlooked
problem. One organisation, Equality Now, has suggested that the
discriminatory treatment of women works in the opposite direction
as well—that when they are murder victims, their perpetrators are
treated far more leniently than Indravani Ramjattan was. 49
Poverty and due process
In 2012 Amnesty International commented:
The criminal justice systems in many ESC countries are
struggling with caseloads that far exceed their capacity.
This often results in violation of due process and prolonged
delays. Factors contributing to delays include inadequate
staffing levels, resources and legal representation; insufficient
jurors; inadequate witness protection programmes; and high
and increasing crime rates. Weaknesses in forensic analysis
and delays in processing evidence in crime laboratories also
contribute to systemic delays and errors in trial proceedings
and scheduling. 50
These deficiencies are intensified where defendants are poor and
unrepresented, a reality of many capital cases across the Caribbean.
Even though legal aid is provided by the state, the quality obtained
often reflects the paltry remuneration offered. Moreover, legal aid is
activated for the first time only at the preliminary inquiry, and after
that may not be consistent or structured. This means that at the crucial
pretrial and investigative stage, suspects are at the mercy of the state’s
powerful machinery. Violations thus flourish during this period when
suspects are likely to be held incommunicado, without access even to
relatives or friends, much less a lawyer. At this time, when a suspect is
48 Leonard Birdsong, “In quest of gender-bias in death penalty cases: analyzing the English speaking
Caribbean experience”, Indiana International & Comparative Law Review, vol. 10, no. 317
(2000), p. 324 ff.
49 See Equality Now, “Trinidad and Tobago: the imminent execution of a battered woman and
her defenders” (1 October1998), available from www.equalitynow.org/node/188.
50 Amnesty International, Caribbean: Death Penalty in the English-Speaking Caribbean.
at his or her most vulnerable, it is easier to obtain signed confessions,
but the possibility that such confessions might be unreliable or just
plain fabricated is suggested by the number of convictions that are
challenged, often successfully, on this ground alone. 51
Even after legal aid is provided, it is by no means assured that criminal
defendants will have meaningful access to their advisers, who
tend to change multiple times throughout the process. There have
been several cases in which counsel was appointed on the day of the
trial and either forced to go on immediately or given only a short
adjournment 52 —or even for no counsel to be appointed, leaving the
defendant unrepresented. 53 It is also not unusual for very junior counsel
to be appointed—in one case, a lawyer of three months’ standing
was appointed for a defendant on the morning of the trial. 54 Predictably,
in these situations the quality of representation is far below the
standard required for a proper defence in any criminal case, much less
one in which the possible outcome is a death sentence.
These failings are powerfully exemplified in Ann Marie Boodram v. the State,
another case from Trinidad and Tobago. 55 The appellant had been
assigned several lawyers before one was finally secured to represent
her during her retrial. The court-appointed defence counsel failed to
object to deposition evidence of a dead witness, failed to object to a
confession despite doubts as to its voluntary nature, including an allegation
that the appellant was raped by a senior police officer involved
in the investigation, and most astonishing of all, conducted the majority
of the defence unaware that it was a retrial. When he became
aware of this, he failed to obtain the transcript of the earlier proceedings.
In quashing the conviction, the Privy Council concluded that
“Mr. Sawh’s multiple failures, and in particular his extraordinary failure
. . . to enquire into what happened at the first trial, reveal either
51 The Ramjattan case is a good example of a common situation, but the findings of the HRC
substantiate this failing in many cases. See Christopher Brown v. Jamaica (775/97); Kennedy v.
Trinidad and Tobago CCPR/C/67/D/845/1999; Errol Johnson v. Jamaica (588/94); Pennant
v. Jamaica (647/95); and the cases discussed by the Inter-American Commission on Human
Rights in The Death Penalty in the Inter-American Human Rights System: From Restrictions to
Abolition (OEA/Ser.L/V/II., Doc. 68, 31 December 2011), pp. 130-138.
52 Desmond Allum and Gregory Delzin, Report on the Criminal Justice System in Trinidad and
Tobago (2003), paragraph 88.
53 Frank Robinson v. Jamaica, U.N. Doc. CCPR/C/35/D/223/1987 (1989).
54 Bernard v. the State (2007) UKPC 34 (PC, T&T).
55 [2001] UKPC 20 (PC, T&T).
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