A matter of life and death for City lawyers

Fiona Bawdon meets the solicitors who are the last hope for death row prisoners
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The Independent Online
Next month, five appeal court judges sitting in an elegant wood- panelled room in Downing Street - just up the road from John Major's residence - will decide whether two convicted murderers in Jamaica are to live or die. The men, Leroy Morgan and Samuel Williams, were convicted by the Jamaican courts in 1991 of the murder of Earl Chambers. After the failure of their first appeal, their only hope of staying alive rests with what one English lawyer describes as "the last vestige of colonialism".

Morgan and Williams are just two of around 300 prisoners on death row in former British colonies whose life is in the hands of the judicial committee of the Privy Council.

The Privy Council - the origins of which can be traced back to the Norman Conquest - once claimed jurisdiction over "one-fourth of the world". Today it is retained as the final court of appeal by a host of Commonwealth states such as Jamaica, Belize, Trinidad and Tobago, and the Bahamas, which still retain the death penalty.

At Morgan and Williams's Privy Council hearing next month, the appeal judges will be asked to rule on the interpretation of Jamaican legislation introduced in 1992. The men's lawyers will argue that the killing of Earl Chambers was not a terrorist murder and should not, therefore, attract the death penalty under the new law. "We will be trying to get a clear definition of terrorism, otherwise there's a danger it could become a catch-all phrase," says Saul Lehrfreund, Morgan and Williams's lawyer. The ruling in this case will also determine the fate of other prisoners.

Having English judges - who may never have even been to Jamaica - decide how that country's domestic legislation should be applied is just one of the curiosities thrown up by the Privy Council's continued jurisdiction over former colonies.

Another curiosity is that it has led to a rare example of partnership between big City solicitors and small legal aid firms. Privy Council work is unpaid and, therefore, done on a voluntary basis by English lawyers. Although Mr Lehrfreund's firm, Simons Muirhead & Burton, is well known for its civil liberties work, many of the other 35 firms handling death row appeals are big names in the City. Solicitors at these firms will take time out from, say, a merger or acquisition to apply for the odd stay of execution. As a result, many death row prisoners are represented at what is their last hope of avoiding execution by a City solicitor who may never have done a criminal case before.

Despite the unlikely nature of the system, Mr Lehrfreund - the only lawyer who does the work full time and who is recognised as an expert in this field - insists that it serves the clients well.

Perhaps too well. There are moves among some islands to dump the Privy Council and set up a Caribbean-wide final court of appeal instead. In Belize, for example, attempts are being made to try to muster the three- quarters parliamentary majority needed for such a move. Mr Lehrfreund blames such moves on "sour grapes". In the main, when the Privy Council upholds sentences, its continued role is supported; when sentences are overturned, countries complain and want to scrap it, he claims.

Mr Lehrfreund also rejects suggestions that the Privy Council simply rubber-stamps the granting of appeals. Only a third of cases going before the judges get leave to appeal and only a third of those are ultimately successful, he says.

Karen Anderson, a solicitor at the City firm Clifford Chance, works for death row clients. Although she did some prosecuting in her native Australia, Ms Anderson says acting in death row cases is not really so different from the banking law she practices the rest of the time. "One trained solicitor asked me how I could act for someone when I know they are a murderer. But I don't see the difference between acting for someone who may have committed a criminal offence and acting for a commercial client whose story you may or may not believe."

However, what the Privy Council has quaintly described as the "uniquely irreversible" nature of capital punishment does set the work apart. Anthony Burton, a Simons Muirhead senior partner, says it is the closest English lawyers can get to the pressures faced by their predecessors before the abolition of hanging in this country.

Sometimes the process of getting a last-minute stay of execution can leave even experienced lawyers gasping for breath. "It only happens infrequently, but it's horrible when it does," says Mr Burton. Apart from the continued anxiety that someone will hang because an appeal will be lost, lawyers may unexpectedly get a phone call in the middle of the night saying the execution date has been set. Although the lawyers are supposed to get four days' notice of an execution date, this doesn't always happen.

Even the full four days may barely be enough. Karen Anderson tells of a warrant being issued on the Friday before a bank holiday, with execution set for the following Tuesday. "We hadn't realised it was also a civil service holiday on the Tuesday. That was particularly nerve-wracking," she says. The stay was eventually granted about an hour and a half before the time scheduled for the execution - although she heard afterwards that the prisoner wasn't told of the stay until 30 minutes before he was due to die.

Once, when the Privy Council had been convened in the middle of the night, the validity of the stay was queried as it had been signed by an official on the judges' behalf. Mr Burton describes this kind of 11th- hour experience as harrowing. "You feel quite ill afterwards," he says.

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