PENALTY

gross incompetence or a cynical dereliction of the most elementary
professional duties.” 56 That this is not an isolated example is revealed
by the number of cases across the Caribbean where appeals have been
allowed because of inadequate representation. 57
Another problem with legal aid in most Caribbean countries is that
it is often provided for trials and appeals in capital cases, but only for
criminal and not constitutional proceedings, 58 and never for nontrial
necessities like preparing and
filing documents for an appeal. 59
This results in several injustices.
Criminal defendants—often poorly
educated and sometimes illiterate—
are unable to prepare a Notice of
Appeal. When they do, appeals are
usually confined to the deficiencies
of the first trial, and only rarely is
fresh evidence forthcoming. With
assignments occurring at the time
“THE BULK OF
KILLINGS GO
UNSOLVED, THE
MAJORITY OF
CONVICTIONS
ARE OVERTURNED
ON APPEAL…”
—Arif Bulkan
of trial, appellate lawyers frequently have little time to prepare the
case. 60 Moreover, the state has no obligation to facilitate appeals to
the Privy Council in London, and although a number of English
solicitors provide pro bono assistance in death penalty cases, where
the paperwork is not done in advance, this can be the end of the line
for poor appellants, as happened to the last person to be executed in
the Commonwealth Caribbean.
Charles Laplace was executed on 19 December 2008 in Saint Kitts and
Nevis, shortly after the Eastern Caribbean Court of Appeal upheld his
conviction for the murder of his wife. Laplace would have been entitled
to a further appeal to the Privy Council, but no appeal was filed—presumably
because he did not have the means or ability to do so. Laplace
was executed after four years on death row. It remains unclear whether
the pardon guidelines established by the Privy Council 61 were faithfully
followed in his case—such as affording him the opportunity to see the
documents being presented to the Mercy Committee or to make representations
to it. That he was executed when he had not exhausted all
appeals is a graphic illustration of the disadvantages faced by the poor
and the inequalities of the system.
This situation is partly attributable to the breakdown in regional
policing systems, where inadequate training, unrealistic remuneration,
lack of effective oversight and high levels of corruption combine to
produce a toxic brew of incompetence and dishonesty. 62 Instead of
conducting proper analytical and forensic work, police investigators
in the Caribbean often rely solely on confessions, a practice that has
long been criticised. 63 Such deficiencies inexorably affect the fairness
of trials, as demonstrated by the number of convictions overturned
for breaches of rights to due process and fair trial.
Arbitrary application
Recent studies of the death penalty in Trinidad and Tobago reveal
not just its utter inefficacy as a deterrent but also the arbitrary nature
of its application. An analysis of recorded homicides in Trinidad and
Tobago between 1998 and 2002 established that the probability of
a killing resulting in a conviction for murder is extremely low, with
only 5 per cent of murders recorded by the police over this period
resulting in a conviction for murder by the end of 2002. 64 Over the
five-year period examined, 633 deaths were recorded by the police as
murders, of which 280 (44.2 per cent) remained unsolved.
Of the 353 murders classified as solved by the police during this
period, only 33 resulted in a conviction for murder by the end of
2005. Moreover, the clear-up rate varies with the type of murder. The
authors adopted the categorisation of murders employed by the police:
56 Ibid., paragraph 40.
57 For examples, see Bethel v. the State (1998) 55 WIR 394 and Bernard v. the State (2007) UKPC
34 (PC, T&T).
58 Inter-American Commission on Human Rights, The Death Penalty in the Inter-American
Human Rights System, pp. 139-146.
59 Allum and Delzin, Report on the Criminal Justice System in Trinidad and Tobago, paragraph 86.
60 Ibid.
61 Lewis et al v. AG of Jamaica [2000] 3 WLR 1785.
62 Carolyn Gomes, “Police accountability in the Caribbean: where are the people?”, paper presented
at a Workshop on Police Accountability at the Civicus World Assembly, 23-27 May 2007,
Glasgow, Scotland.
63 Allum and Delzin, Report on the Criminal Justice System in Trinidad and Tobago, paragraph 36.
64 Roger Hood and Florence Seemungal, A Rare and Arbitrary Fate: Conviction for Murder, the
Mandatory Death Penalty and the Reality of Homicide in Trinidad and Tobago, report to the
Death Penalty Project (Oxford, Centre for Criminology, University of Oxford, 2006).
146 147