Justice at the brink

The execution of Timothy Mcveigh has concentrated fresh attention on the death penalty.

Paula Rohan talks to the solicitors seeking justice for those on death row in the Caribbean

Last month, the world looked to the US once again when Timothy McVeigh, the Oklahoma bomber, faced his death by lethal injection.Although the practice is what President George Bush termed 'the will of the American people', McVeigh's death sentence was contrary to what the American Bar Association has been calling for since 1997 - a moratorium on executions until it is certain that cases are administered fairly and impartially, and that the risk of executing innocent people is minimised.

According to the human rights organisation Amnesty International, 1,457 executions occurred worldwide last year and a further 3,058 prisoners were sentenced to death.

Although capital punishment has not been practised in the UK since 1964, some lawyers over here still see their clients look death in the face on a regular basis.Even though more than half the countries in the world have now abolished the death penalty in law or practice, it is still prevalent in the Caribbean.

There are two pro bono death row panels made up of City lawyers - one catering for prisoners in Jamaica, the other representing those in Trinidad and Tobago - while London firm Simons Muirhead & Burton's runs a renowned Commonwealth Caribbean death penalty project, which is co-funded by the European Commission.The work is not always easy, and could be getting more difficult; many people in the Caribbean are up in arms, as they regard the British as a soft touch on the death penalty issue.This would not be a problem were it not for the fact that the Privy Council in London is the final court of appeal for Caribbean death-row cases.

For a region with strong support for the death penalty, there is resentment over what is viewed as a throwback to colonial times, stepping on their judicial toes.The issue stems back to 1993, when, in the cases of death-row prisoners Pratt and Morgan, the Privy Council put a five-year time limit on performing executions.

This is now being seen as the first step towards getting rid of the death penalty altogether.

It is not a popular trend.'Many people [in the Caribbean] see the Privy Council as an outdated relic of colonial times,' says project director Saul Lehrfreund, who, though not a qualified solicitor - he has a masters in international human rights law - is one half of the Simons Muirhead team.Mr Lehrfreund and his colleague, Parvais Jabbar, a human rights executive, are no strangers to those on death row, working on up to 60 cases at any one time.

Mr Lehrfreund is the first to admit that the death penalty, which may be a touchy subject in the UK, has widespread approval in the Caribbean.'The death penalty is very popular with the electorate, and any attempt to restrict or quash it does not go down well,' he explains.

'I don't foresee any change in legislation, unless there is a change in human rights obligations.'It has been left to the courts and the Privy Council to impose restrictions on the use of the death penalty, and they have done this in two major cases.Last September, the Privy Council reviewed the workings of the Jamaican Mercy Committee - the body which ultimately decides who should hang and who should be granted mercy - and ruled that the death sentences handed out to Neville Lewis and five other prisoners would have to be commuted.

The Privy Council added that all the warrants of execution issued in recent years were invalid, and that safeguards will have to be established to ensure prisoners have a fair hearing.It was a boost to the death-row prisoners and their lawyers, as the Mercy Committee was a body which did not seem to live up to its name, according to Yasmin Waljee, pro bono officer at City firm Lovells.

'In circumstances where you were applying to the committee for a commuted death sentence and to have it reduced to imprisonment, the whole procedure would take place behind closed doors - and invariably, the committee decided against you,' she says.'This decision [Neville Lewis] has meant that all Caribbean countries have had to review their procedures - they realise that they can't just arbitrarily go ahead with an execution, but must have procedures in place to let the prisoner make representations.

Prisoners can also call upon "soft factors" like their family history and employment history in mitigation.'The death row pro bono lawyers were still celebrating the decision in Lewis when, in April this year, Simons Muirhead - which has blocked 11 executions in the Caribbean since September - claimed one of its biggest victories.

Representing Newton Spence, of St Vincent, and Peter Hughes, of St Lucia, in the Eastern Caribbean Court of Appeal, the firm argued that the automatic imposition of the death penalty in murder cases was unconstitutional.The court agreed.

And the fact that it took a domestic court to reduce the application of the death penalty has also been taken as a sign of a move towards the restriction - and the ultimate abolition - of the death penalty.

It is the first and only ruling affecting the imposition of the death penalty in the first instance; others have been concerned with the situation after the sentencing.'This decision is the most important decision of the Eastern Caribbean Court of Appeal and will affect every single prisoner on death row, whose death sentence will now have to be reviewed,' Mr Lehrfreund says.

'By introducing a degree of discretion and fairness in the sentencing process at trial, it goes some way towards ensuring that the law and practice in a number of countries in the Commonwealth Caribbean conform with the international human rights standards in the application of the death penalty.'The pro-death penalty lobby is feeling the pressure coming at it from all angles, and has taken steps to hit back.

Last month, the Trinidad government produced a draft bill to limit the effect of the Pratt and Morgan five-year rule.The legislation reflects the fact that some politicians maintain that lawyers, the courts, and the Privy Council, are using recent moves to filibuster their way to preventing the death penalty.

The result has been a backlash.

Last month, national newspaper Trinidad Newsday complained in its editorial that '73 convicted murderers have had their life sentences commuted, with another 19 waiting to join them'.

It fumed: 'The attempt by the law lords to impose their abolitionist outlook on Trinidad and Tobago is both transparent and ridiculous.

Public consultations hosted by the Attorney General last year revealed an overwhelming wish among the Trinidad and Tobago population to retain the death penalty.

We expect that the new Constitution Amendment Bill, aimed at removing these obstacles, will be given the majority it requires.'Pro bono death row lawyers over here are hoping it will not.

'The bill is unnecessary,' says Mr Lehrfreund.

'It is based on a number of assumptions: that the death penalty will deter crime, when it will not; that the Pratt and Morgan decision deadline will be impossible to meet, when it won't be; that the international process is too slow, when it isn't; and that the Privy Council allows too many appeals, when it doesn't.

The proof of the pudding is that Jamaica executed ten people in 1999, and the law didn't hinder any of those cases.'Another idea currently being mooted is the creation of a single central Caribbean final court of appeal.

In light of the Eastern Caribbean Appeal Court decision in the cases of Hughes and Spence, it is difficult for the British lawyers to have too much opposition to the idea.'They are discussing it among themselves and I think this is fine,' says Karen Aston, the litigation specialist who represents Allen & Overy on the Jamaican panel.

'I see no reason to oppose it, as long as the governments give adequate funding to provide proper legal representation and run the court properly.'Mr Lehrfreund agrees that much of the issue comes down to funding.

'If countries want to have the death penalty, they have to pay the price,' he says.

'That price is money, which is needed to provide effective legal representation for people charged with these offences, proper access to international human rights law, and making sure that the process is fair at all levels.'The lawyers will not be opposing demonstrations against the Constitution Amendment Bill.

Ms Aston says: 'I'm personally against the death penalty, but the real reason we take on this kind of work is that if we don't do it, no one will.

We don't campaign against the death penalty - we are there to ensure that prisoners can have their final say.'Or, as Mr Lehrfreund puts it: 'This job is not about banging the moral drum, it is about banging the practical drum.'With the Caribbean politicians, electorate and media increasingly baying for death row prisoners' blood, it seems that lawyers in the UK will have to carry on making a lot of noise.