The Justice Game

by Geoffrey Robertson

  Among the first to benefit from the new approach were five of my clients condemned to death after convictions based on the most unreliable evidence of all – identification by a single eyewitness, after a fleeting glance at the face of the murderer. Jamaican judges had not warned their juries that eyewitness evidence was inherently unreliable and prone to cause wrongful convictions. The Privy Council ruled that this failure was a fundamental error which had made the trials miscarry, and the condemned men were set free. Bernard Simons, Denis Muirhead’s partner who now handled most of the pauper petitions, was inspired by this decision to decide the time had come to invite the Privy Council to reconsider in the cases of Michael X and Noel Riley. Our first task was to find a hard case to make good law.

  For test-case litigation of this most difficult kind, where a court is being asked not only to make a progressive decision but to make it by overruling its own previous judgments, it is important to select a set of facts which overwhelmingly justifies a volte face. We discovered that the Jamaican authorities were trying to execute two men – Earl Pratt and Ivan Morgan – for a murder committed in 1977. By 1993, when their appeal reached the Privy Council, they had spent almost fifteen years on death row – the equivalent of a sentence of life imprisonment. So determined was the State to hang them that its Governor General had on three occasions signed their death warrants, causing their removal to the special ‘condemned cell’ where they were weighed to ascertain the length of their ‘drop’ and heard the sounds of the gallows being prepared and tested for their execution. Each time – in 1987, 1988, and 1991 – they were reprieved by last-minute court action, once only forty-five minutes before they were due to hang. It was incredible that the State should persist in its wish to kill them, especially as the murder had not been for gain and there were many mitigating factors. But they had become, like Noel Riley and his colleagues before them, a target for State revenge because of the embarrassment they had caused by asserting their rights: their deaths would serve to discourage others, not from murder, but from taking legal action against the State. Our principal hope in bringing the case was to save the lives of hundreds of prisoners who had languished for years on Commonwealth death rows, but we knew for certain that Earl Pratt and Ivan Morgan would hang if their case was lost.

  We did not want any new ruling to be limited to similar cases where the delay was obviously indefensible, i.e. where prisoners had spent more than ten years on death row. If that were the chosen cut-off point, the lives of twenty-three condemned Jamaicans who had by 1993 spent more than a decade in prison would be saved, but it would give the State ample time to execute the several hundred other inmates who had been there for over five years. Our purpose, since we could not abolish executions, was to make them as difficult as possible, in the hope that retentionist governments would eventually conclude that the struggle to hang was not worth the effort. For example, if the period chosen was as short as two years then executions would become virtually impossible, because delays of this length were endemic in the appeal systems of most Commonwealth countries. The Privy Council would have to choose the cut-off point, and my job as advocate was to marshal the arguments in favour of a period as short as possible.

  The court had to fix a deadline which would allow a reasonable time for appeal and clemency consideration, yet which would not be so long as to permit the accumulating stress and anxiety to have taken such a toll that the prisoner may be said to have suffered inhuman or degrading treatment. The task, in Pratt and Morgan, was to identify that metaphysical moment by a process of reasoning which would make the choice appear neither artificial nor arbitrary. The Privy Council was, after all, making a decision which would mean the difference between life and death for hundreds of men in Trinidad and Jamaica, and in Mauritius and Barbados, and in Hong Kong and Belize: moreover, its ruling would be influential – of ‘persuasive authority’, albeit not binding – in other Commonwealth countries. The judgment could affect the treatment of thousands of prisoners in the future. It had to be wise and humane, but it also had to be plausible – for those unwise and inhumane States which insist on retaining capital punishment. It could not, in other words, be designed to appeal to progressive thinkers in England or Europe. It had to appeal to regressive thinkers, or at least to those whose thinking had advanced only as far as English penal policy in the late fifties, at a time when these independence constitutions were being drafted. So I had to present a proposal which I privately believed was a contradiction in terms: a civilised way to carry out the death penalty.

  There was only one way to do this: to step inside a time machine and to travel back to the days and to the minds of the men who administered the British Empire. They had drafted a Constitution for Jamaica which seemed, at least to the judges in Riley’s case, to enshrine the death penalty forever. The key to unlock this inflexible interpretation was to make their assumptions and to follow through their logic. These imperialists thought they were bequeathing their civilisation to the natives. As they packed up at independence, they naturally had misgivings: could the black chaps really be trusted with self-government? Their notion of ‘human rights’, which they left behind embedded in constitutions, was really meant as a promise, especially to the whites who remained, that the locals would not abuse their new power. Viewed from this perspective, what appeared to be a clause protecting the death penalty from challenge was in fact a clause protecting citizens from suffering execution in any manner which would have been regarded as unseemly or ‘just not on’ by an Empire loyalist. So I argued that the object of this provision was to preserve the standards of penal administration set by the British Crown as they had evolved by the time of Jamaican independence in 1962. It set out irreducible minimum standards, guaranteeing to the people of the former colony that while their elected representatives might not succeed in raising those standards, they were prohibited by the Constitution from lowering them.

  Our research showed that there never had been a delay of more than two years in the carrying out of a death sentence in the history of British colonial administration, in Jamaica or anywhere else. Indeed, when just such a delay had occurred in hanging men convicted of murder in the Gold Coast in 1947, it caused a major scandal in the UK Parliament with Winston Churchill (then leader of the opposition) roundly condemning the ‘cat and mousing of men to the scaffold’ and the Colonial Secretary promising that it would never happen again. This proved that colonial governors in 1962 would have balked at hanging anyone who, like Earl Pratt or Ivan Morgan, had been convicted fifteen years before. The mistake made by the judges in Riley was to infer from the acceptability of hanging a murderer in 1962 that the constitution preserved hanging for all purposes and in any circumstances. But what was in fact preserved was death by hanging as it had been carried out in 1962: any cruelty additional to the ritual which had by then been settled (e.g. if men were hanged by barbed wire, or in public, or after a prolonged delay) was not constitutionally protected at all. Riley was wrong.

  It was sad to have to condemn modern black politicians for falling below the standards of decency of white colonialists thirty years before, and ironic to do so by reference not to the barbarity of hanging, but to the barbarity of keeping men waiting before they were hanged. I could truly identify with Portia, her arguments about the quality of mercy having failed (as ours did for Michael X), resorting to a safe, legalistic approach. She upheld the validity of Shylock’s contractual right to cut his pound of flesh, so long as he cut not a fraction more or less of the appointed weight, or shed one drop of blood. The Shylocks of Jamaica wanted their pound of flesh, as preserved by the Constitution. Fine, they could have it. Provided they took it as the Constitution required – without an ounce of additional delay, a drop more of cruelty, than was practised by their white masters in 1962 when the Constitution came into force. This was an argument warped in time and logic but not in law: as Shakespeare realised, bad laws can only be circumvented by bad arguments. It is the death penalty, wh
ich defies the logic of human rights, which sets the level of the argument.

  Having thus swept away Riley, the Privy Council Could move on to consider the real issue: did a prolonged stay on death row amount to ‘inhumane and degrading treatment’? The institution of death row originated in 1752, by ‘An Act for Better Preventing the Horrid Crime of Murder’: felons had to be placed immediately after conviction in solitary confinement; where they could do no work and receive no visitors other than the priest, their only solace during the ritual preparation for their death. This is the regime which is still followed on Commonwealth death rows, to the extent that condemned men are not allowed to mix with ordinary prisoners, or engage in any form of prison work, or join in educational courses or sports. The death house is a hot-house, in which mental derangement runs riot in doomed men who do not have a kill-by date. Time is measured by the days on which death warrants are read and executed. All minds are concentrated on their own extinction, not by way of contemplation of forgiveness of sin but by the ever-presence of the sordid machinery of despatch: the weighing, the greasing and testing of the trap, the shrouding and the last hooded walk of the fellow inmate. Each execution-time brings a collective terror, a crazed apprehension: some American prisons, for this reason, arrange executions at midnight and show pornographic movies to the other inmates in order that they might masturbate their mental anguish away. It is facile to say, with Lord Diplock in Michael’s case, ‘while there’s life, there’s hope’: the quality of a life which constantly envisages its end, and emotionally fluctuates between optimism and despair, is so reduced by mental torture that it cannot be permitted to continue, year in and year out. At some point, either the torture or the life must be stopped.

  The chief curiosity of this case was why after fifteen years a civilised nation like Jamaica still wanted to kill Earl Pratt and Ivan Morgan. Their execution was urged by the Solicitor General, the Director of Public Prosecutions, the Senior Assistant Attorney General, the Assistant Attorney General, and the Senior Deputy Director of Public Prosecutions, who were all staying for many weeks at one of London’s more expensive hotels while arguing that Jamaica was an impoverished and under-developed country which could not afford the cost of close attention to human rights. Pratt and Morgan should be grateful for the delay in carrying out their sentence – it had prolonged their life, like a remission of cancer in the body of a terminally diseased patient. ‘Don’t blame us,’ these high officials said in effect, ‘Jamaica is just a poor country where life is hard and people are vengeful and delay in everything is endemic. Those who commit murder we can execute when we choose and how we choose: the government is merely carrying out the will of the people, the supreme law.’

  Kenneth Rattray, the Solicitor General, put the case for non-intervention in Jamaica’s domestic affairs as if he were addressing a UN assembly. He was using the sort of arguments which appeal to diplomats, who trade in State prestige and advantage, not in justice. Dressed up in decayed jurisprudence, it was simply a claim that independent countries were not to be held responsible by international bodies for any actions they took, short of genocide, towards their citizens. The argument sounds hollow enough these days at the United Nations: what made it irrelevant was that the Privy Council was not an ‘international body’ but a court, the highest in Jamaica, sitting off-shore but with a duty – not merely a power – to intervene if the law required. And the law of the Constitution plainly did require, once the error of Riley’s case had been exposed. On any view of the meaning of words, it is inhuman and degrading to force a man to contemplate his hanging for fifteen years and then to hang him. This did not, however, deter the Jamaican lawyers: they fastened onto another facile comment made by Lord Diplock in Michael X’s case – ‘Mercy begins where legal rights end’ – and argued that condemned prisoners were, in law, the living dead, mercifully permitted to pace their cages in limbo-land for a few more unmerited years before their sentence was implemented.

  Courts should have no truck with such metaphysical nonsense: once it had overruled Riley, the Privy Council was free to order that cruelty masquerading as mercy should end at once. And that is what it did. ‘Any person of normal sensitivity and compassion’, the Privy Council decided, would recognise the emotional and psychological suffering caused during a long stay on death row. The plainest statement was best and Lord Griffith (who twenty-two years before had granted bail to the Oz defendants), spoke for all seven judges: ‘There is an instinctive revulsion against the prospect of hanging a man after he has been held under sentence of death for many years. What gives rise to this revulsion? The answer can only be our humanity.’

  Amen to that. But still St Joan’s question – ‘How long, O Lord, how long?’ – had to be answered, first by refuting the fallacy of the Michael X decision, that ‘self-induced’ delay – i.e. delay caused by the exercise of rights of appeal – could not be the subject of complaint.

  It is part of the human condition that a condemned man will take every opportunity to save his life through the use of the appellate procedure. If the appellate procedure enables the prisoner to prolong the appellate hearings over a period of years, the fault is to be attributed to the appellate system that permits such delay and not to the prisoner who takes advantage of it.

  And so the highest court in the Commonwealth proceeded to extirpate the ‘death-row phenomenon’ from countries as far flung as Belize and Barbados and Brunei and Mauritius. It decided that any delay of more than two years between conviction and execution might arguably infringe constitutional guarantees against inhumane treatment, and this would certainly be so if the delay continued for a further three years. This result had an immediate and dramatic effect: the lives of 105 condemned prisoners who had languished on death row for more than five years in Jamaica, and sixty more in a comparable situation in Trinidad, were instantly reprieved. For the future, it meant that all men who could hold out on death row for more than two years would have an arguable case for having their sentence commuted: if they could last until five years had elapsed from the date of their conviction, they were entitled to commutation as a legal right. Earl Pratt and Ivan Morgan had gambled with their own fate in allowing us to bring this action, but in the event it saved hundreds of lives as well as their own. It is still saving them, as States usually fail to meet the five-year deadline thanks to their own inadequacies and to the alertness of lawyers locally and in London.

  An external court like the Privy Council, whose judges are not beholden to local politicians, is a priceless safeguard for citizens of small countries if they are to have an independent protection from abuses of power. This is the best – indeed the only – justification for the continuing jurisdiction of the Privy Council over sovereign States. Insulated from the pressures and politics of island societies, this court can offer an objective scrutiny in the same way that the European Court of Human Rights at Strasbourg affords a remedy to European citizens against abuses of power by their governments. The Privy Council would be less open to the criticism of being a white colonial elephant if more judges from the black Commonwealth were invited to sit alongside the British Law Lords. However, the struggle to protect human rights must make use of whatever instruments are available, and the Privy Council is at present the most potent of these for some sixteen Commonwealth countries. Its judgments are accorded considerable respect in all courts which share English common-law traditions, so its decision in Pratt and Morgan will influence the development of humanitarian law in nations as far removed in culture and geography as Kenya, Malaysia, India, and New Guinea. Most significantly, that case throws down a legal gauntlet to the United States.

  It is one of the great ironies of our time that the nation to which the world looks for a lead on human rights should be so obsessed with inflicting the death penalty. It is hardly a cure for violent crimes – this escalates most strikingly in those states (notably Texas and Florida) which conduct most executions, variously by firing squad, hanging, gas chambers
, electrocution, and lethal injection. No procedure is painless: ‘execution glitches’ occur in the electric chair, as flesh cooks or the wood flames, and in the quasi-hospital surroundings of the lethal injection theatre as ‘execution technicians’ struggle to find a workable vein in drug-abused bodies. In this open society, where every act of State must be witnessed by public representatives, a semicircle of politicians, journalists, and prison officials clusters around the one-way mirror into the gas chamber or the electric chair. Some states permit the ‘executee’ to invite guests, much as a theatre allows its star performers to reserve good seats for friends. (The first prisoner to be executed by lethal injection in Missouri was wheeled centre-stage, to mouth ‘I love you’ to his wife in the front row before writhing and choking on his last breath.) This is, at least, a more romantic ending than is possible in a gas chamber, and there are operatic depths to death by firing squad, since one of the gunmen – they do not know which – has been issued with a dummy bullet, so that each can entertain the comforting thought that maybe he fired the blank. The ingenuity expended on alleviating individuals from responsibility for killing a fellow human being is touching, if morally futile: all who assist are implicated.

  The death penalty does not deter murder. On the contrary, I believe that it tends to increase it by socially sanctioning violent revenge. America is an abiding testament to the objective futility of capital punishment: in the year Pratt and Morgan was decided, the country sustained 24,000 murders – a colossal level of deadly violence in a nation which believes that executions will have some effect on reducing it. All the executions in the U.S. can have no conceivable impact other than to contribute to a culture in which violence is perceived as a solution, or at least as an exercise which achieves something. What it has achieved is a perversion of the values of lawyers: prosecutors demand the death penalty with more vigour (and hence more publicity for themselves) as their re-election nears; defenders advise their clients, despite their protestations of innocence, to cop pleas of ‘guilty’ to second-degree murder in order to avoid the risk of a death sentence; judges owe advancement to their record in refusing stays of execution. You cannot blame politicians for taking actions which court popularity – that is their raison d’être – but the reason for the existence of courts is to stop those of their actions which infringe fundamental human rights. American judges, by permitting the execution of juveniles and mentally handicapped persons, have betrayed the very purpose of their office, which is to deny that the will of the people is the supreme law whenever that will inclines to barbarism.