3.5 The author submits that the beatings he was subjected to on death row in
May and September 1990, as well as the interference with his correspondence,
constitute violations of bis rights under articles 7 and 10/ paragraph 1, of
the Covenant. He adds that Detective G. is now in charge of crime prevention
in the parish of St. Catherine, where the prison is located, and expresses
fear that G. (nay use his position for further attacks on his integrity.
3.6 Finally, the author's detention in the death row section of St. Catherine
District Prison since 28 October 1983 is said to constitute a separate
violation of article 7, as the severe mental stress suffered by the author due
to the continued uncertainty about his situation is not a function of legal
but primarily political considerations.
3.7 As to the requirement of exhaustion of domestic remedies, counsel recalls
the Committee's established jurisprudence that remedies must be not only
available but also effective, and that the State party has an obligation to
provide some evidence that there would be a reasonable prospect that domestic
remedies would be effective. He submits that neither a petition for special
leave to appeal to the Judicial Committee of the Privy Council nor a
constitutional motion in the Supreme (Constitutional) Court of Jamaica would
provide effective remedies.
3.8 In this context, it is submitted that the case cannot be brought within
the ambit of section 110, paragraphs 1 and 2, of the Jamaican Constitution
governing the modalities under which the Court of Appeal may grant leave to
appeal to the Judicial Committee of the Privy Council. Firstly, at no stage
in the judicial proceedings did a question as to the interpretation of the
Jamaican Constitution arise, as required by section 110, paragraph 1 (c).
Secondly, the general criteria for granting leave to the Privy Council in
section 110, paragraph 2 (a) (a question of great general or public importance
or otherwise such that it ought to be submitted to the Privy Council) were not
met in the case.
3.9 As to the power of the Judicial Committee, under section 110,
paragraph 3, of the Constitution, to grant special leave to appeal from a
decision of the Court of Appeal, counsel affirms that any application for
special leave requires the submission of a legal opinion from Leading Counsel,
to the effect that there is merit in seeking leave. In the author's case.
Leading Counsel, the President of the Bar Council (United Kingdom of Great
Britain and Northern Ireland), has advised that the substantive issues
involved do not fall within the narrow jurisdiction of the Judicial
Committee. Leading Counsel considers that although there were weaknesses in
the evidence against the author during his retrial, as well as in the handling
of the defence case, the likelihood of the Judicial Committee to grant special
leave to appeal in respect of those matters would be remote.
3.10 To petition the Judicial Committee in the current circumstances would
involve discarding highly qualified legal advice that such an avenue would be
inappropriate; counsel submits that since the author has diligently considered
the possibility of petitioning the Judicial Committee, he should not now be
penalized for accepting the advice of Leading Counsel. Finally, it is
submitted that recourse to the Judicial Committee in instances in which an
application is likely to fail would involve the submission of a large number
of unmeritorious petitions to the Judicial Committee, with damaging
-223-