1994 PLP 1405 (SCMR)

The committee gave the following reasons for their decision: `13.4. The State party has contended that the time span of three years and nine months between the dismissal of the (appellants') appeal and the delivery of the Court of Appeal's written judgment was attributable to an oversight and that the (appellants) should have asserted their right to receive earlier the written judgment. The Committee considers that the responsibility for the delay of 45 months lies with the judicial authorities of Jamaica. This responsibility is neither dependant on a request for production by the accused in a trial nor is non‑fulfilment of this responsibility excused by the absence of a request from the accused. The Committee further observes that the Privy Council itself described the delay as inexcusable (see para. 2.3 above). 13.5. In the absence of a written judgment of the Court of Appeal, the (appellants) were not able to proceed to appeal before the Privy Council, thus entailing a 'violation of Article 14, paragraph 3 (c), and Article 14, paragraph

5. In reaching this conclusion it matters not that in the event the Privy Council affirmed the conviction of the (appellants). The Committee notes that in all cases, and especially in capital cases, accused persons are entitled to trial and appeal without undue delay, whatever the outcome of those judicial proceedings turn out to be: It seems to their Lordships unlikely that the committee would have made this finding if they had not been misled into believing that the delay in giving reasons prevented an appeal to the Privy Council. The committee also found a violation of Art. 7, which provides: `No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.' The committee gave their reasons as follows: `13.6. There are two issues concerning Article 7 before the Committee: the first is whether the excessive delays in judicial proceedings constituted not only a violation of Article 14, but "cruel, inhuman and degrading treatment". The possibility that such a delay as occurred in this case could constitute cruel and inhuman treatment was referred to by the Privy Council. In principle prolonged judicial proceedings do not per se constitute cruel, inhuman or degrading treatment even if they can be a source of mental strain for the convicted prisoners. However, the situation could be otherwise in cases involving capital punishment and an assessment of the circumstances of each case would be necessary. In the present cases the Committee does not find that the authors have' sufficiently substantiated their claim that delay in judicial proceedings constituted for them cruel, inhuman and degrading treatment under Article 7. 13.7. The second issue under Article 7 concerns the issue of warrants for execution and the notification of the stay of execution. The issue of a warrant for execution necessarily causes intense anguish to the individual concerned. In the (appellants') case, death warrants were issued twice by the Governor‑General, first on 13th February 1987 and again on 23rd February 1988. It is uncontested that the decision to grant a first stay of execution, taken at noon on 23rd February 1987, was not notified to the (appellants) until 45 minutes before the scheduled time of the execution on 24th February 1987. The Committee considers that a delay of close to 10 hours from the time the stay of execution was granted to the time the (appellants) were removed from their death cell constitutes cruel and inhuman treatment within the meaning of Article 7.' The Committee did not know that this allegation was strenuously denied by the Jamaican government. The Solicitor‑General has told their Lordships that the Jamaican government did not know that this allegation had been made to the committee on behalf of Pratt and Morgan and that if the government had known of it they would have put in affidavit evidence denying it. If that had been done their Lordships surmise that the committee, like their Lordships, might have found it difficult to resolve the conflict of evidence and thus to find a violation of Art. 7 on the ground of delay of notification in the stay of execution. The committee made the following recommendation: `It is the view of the Committee that, in capital punishment cases, States parties have an imperative duty to observe rigorously all the guarantees for a fair trial set out in Article 14 of the Covenant. Although in this case Article 6 is not directly at issue, in that capital punishment is not per se unlawful under the Covenant, it should not be imposed in circumstances where there have been violations by the State party of any of its obligations under the Covenant. The Committee is of the view that the victims of the violations of Article 14, paragraph 3(c), and 7 are entitled to a remedy; the necessary prerequisite in the particular circumstances is the commutation of the sentence.' Eighteen months then passed before a decision was taken by the JPC on this recommendation of the UNHRC. Press reports of parliamentary proceedings show that in June 1990 the question of the death penalty was under review by the Cabinet but that no conclusions had yet been reached on commuting sentences. On 17th September 1990 the JPC again reconsidered the appellants' case. They rejected the recommendations made 18 months earlier by the UNHRC. On 18th February 1991 the warrant of execution was issued for execution on 7th March 1991, the delay in issuing the warrant of execution from 17 September 1990 to 18th February 1991 apparently being accounted for by the wish of the Governor‑General to obtain the Attorney‑General's advice on the legal status of decisions of human rights bodies. This is advice which it would have been appropriate to place before the members of the JPC at a much earlier date, and before they considered any recommendations of such bodies. Their Lordships have not seen the Attorney‑General's advice but do not doubt that it correctly advised that, Jamaica being a signatory to the International Covenant on Civil and Political Rights and to the Optional Protocol, the views of the UNHRC should be afforded weight and respect but were not of legally binding effect; and that the like considerations applied to the IACHR. On 28th February 1991 the appellants commenced these proceedings pursuant to section 25 of the Constitution and as a result the execution set for 7th March was stayed. On 14th June the Supreme Court dismissed their application. On 8th June 1992 the Court of Appeal dismissed their appeal and on 18th January 1993 gave leave to appeal to the Judicial Committee of the Privy Council. The primary submission of the appellants is that to hang them after they have been held in prison under sentence of death for so many years would be inhuman punishment or other treatment and thus in breach of section 17(1) of the Constitution. Section 17 of the Constitution provides: `(1) No person shall be subjected to torture or to inhuman or degrading punishment or other treatment. (2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question authorises the infliction of any description of punishment which was lawful in Jamaica immediately before the appointed day.' This submission cannot succeed unless their Lordships are persuaded to prefer the construction of section 17(2) adopted by the minority in Racy v. A‑G of Jamaica (1982) 3 All ER 469, (1983) 1 AC 719 to that of the majority. The five appellants in Riley v. A‑G had been sentenced to death and held in custody for between six and seven years before their appeal was heard by the Privy Council. They submitted that to execute them after such a prolonged delay would contravene their rights under section 17(1) of the Constitution. By a majority the Privy Council rejected this submission because they construed section 17(2) as authorising execution by hanging for murder no matter how long the delay between the passing of the sentence and the execution. Lord Bridge of Harwich said (1982) 3 All ER 469 at 472‑473, (1983) 1 AC 719 at 726]: `The question, therefore, is whether the delayed execution of a sentence of death by hanging, assuming it could otherwise be described as "inhuman or degrading punishment or other treatment", a question on which their Lordships need express no opinion, can escape the unambiguous prohibition imposed by the words in section 17(2) emphasised as follows: "Nothing contained in or done under the authority of any law shall be held to 6e inconsistent with or in contravention of this section to the extent that the law in question authorises the infliction of any description of punishment which was lawful in Jamaica immediately before the appointed day." An act will fall within this prohibition if it satisfies three related conditions, viz. (a) it must be an act done under the authority of law; (b) it must be an act involving the infliction of punishment of a description authorised by the law in question, being a description of punishment which was lawful in Jamaica immediately before the appointed day; (c) it must not exceed in extent the description of punishment so authorised. There can be no doubt whatever that a delayed execution would satisfy conditions (a) and (b). The only words in section 17(2) that are even arguably ambiguous are the words "to the extent that". It seems to their Lordships that in their context these words pose the question: to, what extent did the law in Jamaica before independence authorise the description of punishment which is under challenge? This question can only be answered by asking in turn the further question: if the like description, of punishment had been inflicted in the like circumstances before independence, would this have been authorised by law? An obvious instance of a description of punishment exceeding in extent that authorised by law would be the execution of a death sentence by burning at the stake. But since the legality of a delayed execution by hanging of a sentence of death lawfully imposed under section 3(1) of the Offences against the Person Act could never have been questioned before independence, their Lordships entertain no doubt that it satisfies condition (c). Accordingly, whatever the reasons for, or length of, delay in executing a sentence of death lawfully imposed, the delay can afford no ground for holding the execution to be a contravention of section 17(1).' This construction of section 17(2) focuses on the act of punishment, and proceeds upon the assumption that the legality of a long delayed execution could never have been questioned before independence. Their Lordships, having had the benefit of much fuller argument, cannot accept that there could have been no challenge to a long delayed execution before independence and for the reasons already given are satisfied that such an execution could have been stayed as an abuse of process. The due process of law does not end with pronouncement of sentence: see Abbott v. A‑G of Trinidad and Tobago (1979) 1 WLR 1342. The minority, who would have allowed the appeal, adopted a narrower construction of section 17(2) which limited the scope of the subsection to authorising the passing of a judicial sentence of a description of punishment lawful in Jamaica before independence and they held it was not concerned with the act of the executive in carrying out the punishment. Their Lordships are satisfied that the construction of section. 17(2) adopted by the minority is to be preferred. The purpose of section 17(2) is to preserve all descriptions of punishment lawful immediately before independence and to prevent them from being attacked under section 17(1) as inhuman or degrading forms of punishment or treatment. Thus, as hanging was the description of punishment for murder provided by Jamaican law immediately before independence, the death sentence for murder cannot be held to be an inhuman description of punishment for murder. Section 17(2) does not address the question of delay and is not dealing with the problem that arises from delay in carrying out the sentence. The primary purpose of the Constitution was to entrench and enhance pre‑existing rights and freedoms, not to curtail them. Before independence the law would have protected a Jamaican citizen from being executed after an unconscionable delay, and their Lordships are unwilling to adopt a construction of the Constitution that results in depriving Jamaican citizens of that protection. The majority also relied upon the judgment of the Board in de Freitas v. Benny (1976) AC

239. In that case which concerned the construction of the Constitution of Trinidad and Tobago the time scale was wholly different from the present case. The appellant had been sentenced to death in August 1972 and his constitutional appeal was heard and determined by the Privy Council in May 1975. Their Lordships in de Freitas v. Benny said that they had difficulty in formulating the appellants' argument based on delay: but it appears to have been founded upon a submission that as the time between sentence and execution was before independence on average five months, an execution that involved a delay longer than this was open to attack as cruel and unusual punishment. Their Lordships dismissed this argument without calling on the respondents. Both the argument and the extent of the delay are so different from the present appeal that their Lordships are unable to gain any assistance from this decision. Their Lordships will therefore depart from Riley v. A‑G of Jamaica and hold that section 17(2) is confined to authorising descriptions of punishment for which the Court may pass sentence and does not prevent the appellant from arguing that the circumstances in 'which the executive intend to be carry out a sentence are in breach of section 17(1). The Court of Appeal rightly held that they were bound by the majority decision in Riley v. A‑G of Jamaica and did not therefore consider whether the appellants had been subjected to inhuman or degrading punishment or treatment within the meaning of section 17(1). It is however to this question which is central to this appeal that their Lordships must now turn. 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 instinctive revulsion? The answer can only be our humanity' we regard it as an inhuman act to keep a man facing the agony of execution over a long extended period of time. But before their Lordships condemn the act of execution as `inhuman or degrading punishment or other treatment' within the meaning of section 17(1) there are a number of factors that have to be balanced in weighing the delay. If delay is due entirely to the fault of the accused such as an escape from custody or frivolous and time wasting resort to legal procedures which amount to an abuse of process the accused cannot be allowed to take advantage of that delay for to do so would be to permit the accused to use illegitimate means to escape the punishment inflicted upon him in the interest of protecting society against crime. A much more difficult question is whether the delay occasioned by the legitimate resort of the accused to all available appellate procedures should be taken into account, or whether it is only delay that can be attributed to the shortcomings of the state that should be taken into account. There is a powerful argument that it cannot be inhuman or degrading to allow an accused every opportunity to prolong his life by resort to appellate procedures however extended may be, the eventual time between sentence and execution. This is the view that currently prevails in some States in the United States of America and has resulted in what has become known as the `death row phenomenon', where men are held under sentence of death for many years while their lawyers pursue a multiplicity of appellate procedures. Powerful statements in support of this point of view appear in the opinion of Circuit Judge O' Scannlain in Richmond v. Lewis (1990) 948 F 2d 1473, a decision of the United States Court of Appeals for the Ninth Circuit, and in the judgment of La Forest, J in Kindler v. Canada (Minister of Justice) (1991) 84 DLR (4th) 438, a decision of the Supreme Court of Canada. A further valuable analysis of the decisions in the United States courts appears in the judgment of the Supreme Court of Zimbabwe in Catholic Commission for Justice and Peace in Zimbabwe v. A‑G (24th June 1993, unreported). Support for this view is also to be found in previous decisions of the Privy Council. In Abbot v. A‑G of Trinidad and Tobago (1979) 1 WLR 1342 an unsuccessful appeal against the death sentence was made upon the ground that the period of eight months taken to reject the petition for deprive infringed the appellant's constitutional rights. The appeal was heard by the Privy Council on 4th April 1979, nearly six years after the conviction on 16th July 1973. In delivering the judgment of the Board, Lord Diplock said (at 1345): `That so long a total period should have been allowed to elapse between the passing of a death sentence and its being carried out is, in their Lordships' view, greatly to be deplored. It brings the administration of criminal justice into disrepute among law‑abiding citizens. Nevertheless their Lordships doubt whether it is realistic to suggest that from the point of view of the condemned man himself he would wish to expedite the final decision as to whether he was to die or not if he thought that there was a serious risk that the decision would be un-favourable. While there's life, there's hope. At any rate, as in de Feitas v. Benny (1976) AC 239, it has to be conceded that the applicant cannot complain about the delay totalling three years preceding his petition for pardon caused by his own action in appealing against his conviction or about the delay totalling two years subsequent to the rejection of his petition caused by his own action in appealing against the sentence on constitutional grounds. His case as advanced before their Lordships has depended solely on the period of somewhat less than eight months sandwiched between the two longer periods, which was allowed by the state to elapse between the lodging of his petition for pardon and its rejection by the President. This it is claimed amounted to delay so inordinate as to involve a contravention of his constitutional rights.' In Riley v. A‑G of Jamaica (1982) 3 All ER 469 at 471, (1983) ‑1 AC 719 at 724 Lord Bridge of Harwich said: `Apart from the delays necessarily occasioned by the appellate procedures pursued by the appellants (of which it could hardly lie in any appellant's mouth to complain) ...' Lord Scarman and Lord Brightman concluded their dissenting judgment by saying (1982) 3 All ER 469 at 480, (1983) 1 AC 719 at 736): `Prolonged delay when it arises from factors outside the control of the condemned man can render a decision to carry‑out the sentence of death an inhuman and degrading punishment. It is, of course, for the applicant for constitutional protection to show that the delay was inordinate, arose from no act of his, and was likely to cause such acute suffering that the infliction of the death penalty would be in the circumstances which had arisen inhuman or degrading.' However, in an earlier passage of their judgment Lord Scarman and Lord Brightman said (1982) 3 All ER 469 at 479, (1983) 1 AC 719 at 735): `It is, of course, true that a period of anguish and suffering is an inevitable consequence of sentence of death. But a prolongation of it beyond the time necessary for appeal and consideration of reprieve is not. And it is no answer to say that the man will struggle to stay alive. In truth, it is this ineradicable human desire which makes prolongation inhuman and degrading.' Their Lordships are therefore doubtful whether Lord Scarman and Lord Brightman would have regarded delay caused by appeals made within the time scale permitted by the State as time to be left out of account in computing the total period of delay. There are other authorities which do not accept that delay occasioned by use of appeal procedures is to be disregarded. In Catholic Commission for Justice and Peace in Zimbabwe v. A‑G. Gubbay CJ said: `It seems to me highly artificial and unrealistic to discount the mental agony and torment experienced on death row on the basis that by not making the maximum use of the judicial process available the condemned prisoner would have shortened and not lengthened his suffering. The situation could be otherwise if he had resorted to a series of untenable and vexatious proceedings which, in consequence, had the effect of delaying the ends of justice: And he expressed his dissent from the contrary view contained in Abbot v. A‑G of Trinidad and Tobago (1979) 1 WLR 1342. In Soering v. UK (1989) EHRR 439 the applicant, a West German national, alleged that the decision by the Home Secretary to extradite him to the United States of America to face trial in Virginia on a charge of capital murder would, if implemented, give rise to a breach by the United Kingdom of Art. 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4th November 1950; TS 71 (1953); Cmd 8969), which provides that no one should be subjected to torture or to inhuman or degrading treatment or punishment. The United States had applied to the United Kingdom to extradite the applicant to stand trial in the State of Virginia on a charge of capital murder. The European Court of Human Rights recognised that the death row phenomenon in Virginia where prisoners were held for a period of six to eight years before execution arose from repeated applications by the prisoner for a stay of execution but nevertheless held that such a long period of delay might go beyond the threshold set by Art.

3. In India, where the death penalty is trot mandatory, the appellate Court takes into account delay when deciding whether the death sentence should be imposed. In Vatheeswaran v. State of Tamil Nadu (1983) 2 SCR 348 at 353 Chinnappa Reddy J said: `While we entirely agree with Lord Scarman and Lord Brightman about the dehumanising effect of prolonged delay after the sentence of death, we enter a little caveat, but only that we may go further. We think that the cause of the delay is immaterial when the sentence is death. Be the cause for the delay, the time necessary for appeal and consideration of reprieve or some other cause for which the accused himself may be responsible, it would not alter the dehumanising character of the delay. The Court held that delay exceeding two years in the execution of a' sentence s of death should be sufficient to entitle a person under sentence of death to demand the quashing of his sentence on the ground that it offended against Art.21 of the Indian Constitution, which provides: `No person shall be deprived of his life or personal liberty except according to procedure established by law.' In Sher Singh v. State of Punjab (1983) 2 SCR 582 the Court held: `Prolonged delay in the execution of a death sentence .is unquestionably an important consideration for determining whether the sentence should be allowed to be executed. But no hard and fast rule that "delay exceeding two years in the execution of a sentence of death should be considered sufficient to entitle the person under sentence of death to invoke Art. 21 and demand the quashing of the sentence of death" can be laid down as has been in Vatheeswaran.' The court pointed out that to impose a strict time limit of two years would enable a prisoner to defeat the ends of justice by pursuing a series of frivolous and untenable proceedings. Iii Smt. Triveniben v. State of Gujarat (1989) 1 SO 383 the Supreme Court of India approved the judgment in Sher Singh v. State of Punjab and held that a sentence of death imposed by the `Apex Court', which will itself have taken into account delay when imposing the death sentence, can only be set aside thereafter upon petition to the Supreme Court upon grounds of delay occurring after that date. Oza, J said (at 410): `If, therefore, there is inordinate delay in execution, the condemned prisoner is entitled to come to the court requesting to examine whether, it is just and fair to allow the sentence of death to be executed.' In their Lordships' ‑view a state that wishes to retain capital punishment must accept the responsibility of ensuring that execution follows as swiftly as practicable after sentence, allowing a reasonable time for appeal and consideration of reprieve. It is part of the human condition that a condemned man will take every opportunity to save his life through 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. Appellate procedures that echo down the years are not compatible with capital punishment. The death row phenomenon must not become established as a part of our jurisprudence. The application of the appellants to appeal to the Judicial Committee of the Privy Council and their petitions to the two human rights bodies do not fall within the category of frivolous procedures disentitling them to ask the Board to look at the whole period of delay in this case. The total period of delay is shocking and now amounts to almost 14 years. It is double the time that the European Court of Human Rights considered would be an infringement of Art. 3 of the European Convention and their Lordships can have no doubt that an execution would now be an infringement of section 17(1) of the Jamaican Constitution. To execute these men now after holding them in custody in an agony of suspense for so many years would be inhuman punishment within the meaning of section 17(1). In the last resort the courts have to accept the responsibility of saying whether the threshold has been passed in any given case and there may be difficult borderline decisions to be made. This, however, is not a borderline case. The delay in this case is wholly unacceptable and this appeal must be allowed. In arriving at this conclusion their Lordships do not overlook the reliance placed by the Solicitor‑General on the dissenting judgment of Judge Sir Gerald Fitzmaurice in Republic of Ireland v UK (1978) 2 EHRR 25 at 120 but prefer an interpretation of the Constitution of Jamaica that accepts civilised standards of behaviour which will outlaw acts of inhumanity, albeit they fall short of the barbarity of genocide. Section 25(2) of the Constitution provides: `The Supreme Court shall have original jurisdiction to hear and determine any application made by any person in pursuance of subsection (1) of this section and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing, or securing the enforcement of, any of the provisions of the said sections 14 to 24 (inclusive) to the protection of which the person concerned is entitled.' The width of the language of this subsection enables the court to substitute for the sentence of death such order as it considers appropriate. The appropriate order in the present case is that the sentence of death of each appellant should be commuted to life imprisonment. Their Lordships are very conscious that many other prisoners under sentence of death are awaiting the outcome of this appeal. In an attempt to assist the Jamaican authorities who may be faced with a large number of appeals their Lordships wish to make some general observations. The delay in this case would never have reached anything like its present dimensions if the Governor General arid the JPC had reviewed the case pursuant to sections 90 and 91 of the Constitution early in 1981 after the Court of Appeal had dismissed the appellants' application for leave to appeal, As has already been pointed out, there was no reason why the case should not have been reviewed at that time and it appears inevitable in the light of after events that the JPC would have advised that the execution should proceed and a date would have been set. This would have provided the impetus for an immediate application to the Judicial Committee of the Privy Council which would have been disposed of in the summer of 1981 and a new execution date set within a matter of weeks. If this had occurred, the grounds upon which the two human rights bodies recommended commutation of sentence to life imprisonment would never have arisen, because the Court of Appeal would have been prompted to deliver their reasons by the application to the Judicial Committee of the Privy Council and the execution would have taken place years before the late reprieve of which the appellants have complained. There may of course be circumstances which will lead the JPC to recommend a respite in the carrying out of a death sentence, such as a political moratorium on the death sentence, or a petition on behalf of the appellants to IACHR or UNHRC or a constitutional appeal to the Supreme Court. But if these respites cumulatively result in delay running into several years an execution will be likely to infringe S. 17(1) and call for commutation of the death sentence to life imprisonment. Their Lordships are very conscious that the Jamaica Government faces great difficulties with a disturbing murder rate and limited financial resources at their disposal to administer the legal system. Nevertheless, if capital punishment is to be retained it must be carried out with all possible expedition. Capital appeals must be expedited and legal aid allocated to an. appellant at an early stage. The aim should be to hear a capital appeal within 12 months of conviction. The procedure contained in the. Governor‑General's Instructions should be reinstated so that the JPC consider the case shortly after the Court of Appeal hearing and if an execution date is set and there is to be an application to the Judicial Committee of the Privy Council it must be made as soon as possible, as both the rules of the Judicial Committee of the Privy Council and the Governor‑General's Instructions require, in which case it should be possible to dispose of it within six months of the Court of Appeal hearing or within a further six months if there is to be, a full hearing of the appeal. In this way it should be possible to complete the entire domestic appeal process within approximately two years. Their Lordships do not purport to set down any rigid timetable but to indicate what appear to them to be realistic targets which, if achieved, would entail very much shorter delay than has occurred in recent cases and could not be considered to involve inhuman or degrading punishment or other treatment. The final question concerns applications by prisoners to IACHR and UNIHRC. Their Lordships wish to say nothing to discourage Jamaica from continuing its membership of these bodies and from benefiting from the wisdom of their deliberations. It is reasonable to allow some period of delay for the decision of these bodies in individual cases but it should not be very prolonged. The UNHRC does not accept the complaint unless the complainant `has exhausted all available domestic remedies'. The UNHRC has decided in this case and in Carlton‑Reid v Jamaica 250/1987, Annual Report of the Human Rights Committee, 1990 Vol. 2 GAOR, 45th Session, Supplement No.40, p. 85 that a constitutional motion to the Supreme Court of Jamaica is not a remedy to which the complainant need resort before making an application to the Committee under the Optional Protocol. A complainant will therefore be able to lodge a complaint immediately after his case has been disposed of by the Judicial Committee of the Privy Council. If, however, Jamaica is able to revise its domestic procedures so that they are carried out with reasonable expedition no grounds will exist to make a complaint based upon delay. And it is to be remembered that the UNHRC does not consider its role to be that of a further appellate court: `The Committee observes that it is generally for the appellate Courts of States parties to the Covenant and not for the Committee to evaluate the facts and evidence placed before domestic Courts and to review the interpretation of domestic law by national Courts. Similarly, it is for the appellate courts and not for the Committee to review specific instructions to the jury by the judge, unless it is apparent from the author's submission that the instructions to the jury were clearly arbitrary or tantamount to a denial of justice, or that the judge manifestly violated his obligation of impartiality.' (See DS v Jamaica 304/1988, Annual Report of the Human Rights Committee, 1991 GAOR, 46th Session, Supplement No. 40, p. 281.) It therefore appears to their Lordships that provided there is in future no unacceptable delay in the domestic proceedings complaints to the UNHRC from Jamaica should be infrequent and when they do occur it should be possible for the Committee to dispose of them with reasonable dispatch and at most within eighteen months. These considerations lead their Lordships to the conclusion that in any case in which execution is to take place more than five years after sentence there will be strong, grounds for believing that the delay is such as to constitute `inhuman or degrading punishment or other treatment'. If, therefore, rather than waiting for all those prisoners who have been in death row under sentence of death for five years or more to commence. proceedings pursuant to section 25 of the Constitution, the Governor‑General now refers all such cases to the JPC who, in accordance with the guidance contained in this advice, recommend commutation to life imprisonment, substantial justice will be achieved swiftly and without provoking a flood of applications to the Supreme Court for constitutional relief pursuant to section 17(1). The appellants pursued alternative grounds of appeal upon which their Lordships find it unnecessary to express any conclusions. Their Lordships will accordingly humbly advise Her Majesty that this appeal ought to be allowed, and the sentences of the appellants be commuted to life imprisonment. M.B.A./498/F C Appeal allowed.