Law: Last appeal to a lost empire

The British Privy Council is the last hope for criminals on death row in Trinidad and Tobago. But how long until the island can decide the fate of its own citizens?
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The fate of nine death-row inmates from Trinidad and Tobago rests with a committee of Law Lords sitting in judgment 3,000 miles away in London. Unless tomorrow the Law Lords, acting as the Privy Council, order a stay of execution, the men will be hanged in groups of three, beginning this week.

They will be the first to be hanged in Trinidad and Tobago since 1994. For many years solicitors and barristers have been working on a pro bono basis to save the lives of Caribbean convicts. But now there is a growing desire to let these countries decide the fate of their own criminals. Instead of the Privy Council acting as a final court of appeal, a hangover from the days of the British Empire, some lawyers want to see a Caribbean Court of Appeal.

Leading the call is the senior Law Lord, Lord Browne-Wilkinson. In an interview with The Lawyer magazine last week, he said: "The ultimate court of appeal of state should be in that state and staffed by citizens of it, not outsiders. We are extremely unpopular."

This unpopularity stems from a culture clash in approaches to the punishment of murderers. The people of Trinidad and Tobago live in violent times. Gang warfare and shootings are commonplace. Ninety-five per cent of the population is in favour of capital punishment, and this has led to mandatory death sentences for anyone convicted of murder.

Few will shed a tear for the gang of nine men, led by Dole Chadee, who were all found guilty of murdering a family of four in southern Williamsville, Trinidad, in 1996. The Government of Trinidad and Tobago is committed to the hanging, and the only forum standing in its way is the Privy Council.

A fortnight ago the Prime Minister of Trinidad and Tobago, Basdeo Panday, insisted that the executions would be carried out. He told the Trinidad Express: "All I am doing is upholding the laws of Trinidad and Tobago. I neither like nor dislike. I have no personal feelings on the matter."

It would suit Trinidad and Tobago very well to eliminate the Privy Council from the appeal process. But the dilemma faced by the Caribbean countries is that if they remove the Privy Council's right to hear appeals in these cases they may also risk losing the House of Lords jurisdiction in commercial matters relating to business disputes there. They know that one of the attractions for British businesses that operate in the Caribbean is the safeguard of having the Law Lords as an appeal forum in commercial cases. It offers companies a degree of legal certainty in their transactions. But the governments of the West Indies know that they face an uphill struggle if they want to pick and choose the kind of cases over which the Law Lords have jurisdiction.

Neil O'May, a partner at the human rights law firm Bindmans and Partners, explains: "Because our Privy Council has been the final court of appeal, there has been enormous tension between the Caribbean domestic courts and the Privy Council over the ways to deal with the death sentence." He claims that the "very existence of the Privy Council" appeal route has inhibited the application of "human rights jurisprudence" in relation to death row cases. Mr O'May concludes that the right of appeal should now be taken away from the Privy Council and given to a final court of appeal in the Caribbean. And, he insists, only for the right reasons.

But Lord Browne-Wilkinson also told The Lawyer that the number of death row appeal cases now takes up 25 per cent of the judicial business of the Law Lords. He suggested that there was a financial and administrative case for allowing the West Indies to hear their own appeals. He said: "The only reason we are completely laden with Caribbean cases is because City firms have taken them and are ensuring the cases are well presented, and finding a great deal there that would otherwise not be observed."

This is not accepted by many lawyers who have acted for death row convicts. Saul Lehrfreund, a leading human rights lawyer at Simons Muirhead & Burton, described Lord Browne-Wilkinson's comments concerning the role of City law firms in promoting death row cases as "twaddle". He added: "We are duty-bound to run an argument; we can't play God."

He, too, accepts the need to allow national courts to hear cases concerning their own citizens. But he also notes that the Privy Council has played an important role in offering a last chance to convicts sentenced to death.

Geoffrey Bindman can see no reason why the judges of the Caribbean would not hear cases in a way that would be recognised as responsible and fair. He said that it was almost impossible to defend the position in which the judicial committee of the House of Lords was hearing appeals in respect of men and their crimes that had taken place 3,000 miles away.

Adds Mr O'May: "There is an unseemly scramble by the Government and senior judges to get rid of the Caribbean cases. These appeals - undoubtedly the most harrowing cases to come before our courts - concern the basic human rights and the circumstances in which a state can kill citizens. "Regrettably, the senior judges and Government want to remove the right of appeal to the Privy Council for death row prisoners for the wrong reasons."

These arguments are, for the moment, academic. This week legal minds will be concentrated on the fate of Dole Chadee and his gang. Caribbean Justice, an organisation based in Hampshire which is working for the abolition the death penalty, wrote to Mr Panday last week urging him to reconsider the death sentences. The co-ordinator, Shelagh Simmons, said in the letter: "There are alternative ways to protect the public which do not involve the taking of life and which do not have such brutalising effects on society." The Trinidad Express, the islands' local paper, has carried the debate to the public. Not everyone there supports the death penalty. A local human rights activist, Ishmael Samad, has been involved in a six-hour vigil outside the Port-of-Spain prison where the men are being kept. The paper reported that he carried a placard which read: "Slavery was legal but it was wrong; apartheid was legal but it was wrong; segregation was legal but it was wrong; the death penalty is legal but it is wrong.

There is some nervousness among UK lawyers over whether the local government will abide by the Privy Council's decision if it should rule against the local courts. The last time a hanging was carried out on the islands, it was done while the Privy Council was still sitting in London. However, David Smythe, of Kingsley Napley, the lawyer who is advising all nine men, points out that there has been a change of government since then. He believes that the authorities will now wait for tomorrow's decision by the Law Lords. Those opposed to the hangings have even used the fact that the islands will be hosting the Miss Universe contest, as an argument for delay on the grounds of bad taste.

But UK lawyers and local activists must first convince Trinidadians such as Rebecca Sandiford, who told the Trinidad Express: "I only sorry they ain't hanging them all on Tuesday, one behind the other."