Life or death, long distance

Thanks to an ancient legal quirk, London Law Lords decide whether death row prisoners in the Caribbean should live or die. Heather Mills reports

George Pollard spends 23 hours a day locked alone in his bare 5ft-by-8ft cell on St Vincent's death row, concealed within Kingstown Prison, a grand colonial building overlooked by lush, rugged hills and whitewashed houses. He possesses just a blanket, a slop bucket and a Bible. He sleeps and eats on the floor, his diet an unrelenting mixture of bread, rice and cocoa tea. The light bulb swinging above him burns night and day.

Pollard is permitted one visit a month. On these rare visits, this frail, grey-haired man in his mid-fifties is led, trembling, from his cell, his thin wrists clamped in manacles. Such superfluous bodily restriction is seen by his lawyers as a deliberate ploy to humiliate a man whose existence has already been reduced to sub-human degradation. Apart from one recent visit from his English lawyer and rare visits from distant relatives, Pollard's only contact with humanity is with the prison guards on his brief "exercise" in the concrete yard.

This has been the pattern of Pollard's life for the past two years. His mood swings between despair and hysteria. He lives with a growing fear that his only way out will be via the hangman's noose, a grave possibility brutally underlined three months ago, when three of his death row neighbours were taken out and hanged.

After a four-year lull in the fulfilment of St Vincent's capital punishment programme, these sudden hangings, surrounded as they were by secrecy, provoked international outrage. Two of the three, Franklin Thomas and David Thomas, both convicted of murder, had not been given a chance to lodge a final appeal and there were serious concerns about the guilt of the third, Douglas Hamlet. He was apparently convicted of murder solely on the basis of a 14-year-old witness who was 150 to 200 yards away, looking on through pouring rain.

Amnesty International and the Caribbean Human Rights Network protested that due process - the full fairness of the law - had been ignored. With the men's death the due process could never be restored.

That George Pollard is almost certainly innocent makes his plight even more desperate. In June 1993, he and a man called Nathanial John were both convicted of battering to death a man whose decomposed body was fished from the sea.

The only evidence against them was the word of the dead man's brother - a self-confessed crack addict who had himself originally been arrested for the murder. He admitted he had taken five "rocks" before he said he witnessed the attack. What's more, Pollard had an alibi. He was with a friend.

But his lawyer failed to call any evidence on his behalf - including the vital alibi witness. Worse was to come. The lawyer also failed to lodge his appeal papers in time. So in March 1994 when his co-defendant walked free from death row - cleared by the Eastern Caribbean Court of Appeal - Pollard remained behind bars. On the same day the appeal court refused to hear his appeal out of time. He had missed the boat.

The St Vincent government, which could have exercised its prerogative of mercy, has failed to do so.

Across the Caribbean, another man languishes on death row at the mercy of lawyers and an injust legal system. Alfred Codrington, 34, sits in his small cell in the concrete block that is Belize's death row.

Plagued by flies and mosquitoes attracted by the open sewer that runs outside the open bars of his cell, his existence is as gruesome as Pollard's. And, like his eight companions on the row, he relies upon family and visiting charity to supplement a basic bread-and-water prison diet. Convicted two years ago of shooting Winston Moguel dead in the street, he was served with a death warrant last December. But Codrington's version of events led to three possible defences - provocation, self-defence and accidental death. He says he was set upon and threatened by Moguel as he cycled past him in the street. As they struggled the gun went off. Codrington was not called to give evidence and none of the three defences was offered by his lawyer.

Most of those on death row in the Caribbean, Pollard and Codrington included, rely upon state-aided defence, which means little or no payment to defence lawyers so there is little incentive for good lawyers to take up the death row cases or to put in a lot of effort on their behalf. The result is often injustice; a recent study in Jamaica estimated that between 10 and 20 per cent of those on death row were innocent.

Pollard, with the help of Caribbean and British lawyers who give their work free for death row appeals, has now turned in desperation to London. His last hope is with the Law Lords who sit on the Privy Council, the final court of appeal for 16 Commonwealth countries. They have only very recently agreed to hear Pollard's appeal, and it will take several long months before they decide his fate.

Founded at the time of the Norman Conquest, the Privy Council became the most powerful court in the world at the height of the British Empire. Those powers, executed in Downing Street, have been waning ever since. Now removed from the reality of life in the Commonwealth territories, it is resented by many who see it as a form of colonial interference and there is a movement within several countries to sever links.

But that, according to human rights groups and lawyers, would be disastrous for the hundreds of prisoners on death row throughout the Commonwealth and, arguably, the world. The Law Lords who sit on the Privy Council have saved the lives of many of them. Only yesterday the Privy Council saved two more men - this time on Barbados, ruling that it was inhuman to execute them after nine years on death row. The Privy Council is now viewed by some as a kind of court of human rights for the Commonwealth in the same way that the European Court in Strasbourg sits in judgment on the UK government.

Last year, for example, it was due to hear more than 120 criminal and civil appeals. Almost all of those from the Caribbean related to death row inmates.

Saul Lehrfreund, human rights adviser to Simons, Muirhead and Burton, which represents free about 70 death row inmates, including Pollard, has just returned from the Caribbean. Yesterday he gave testimony to the "atrocious" conditions in which they are held and the apparent injustice in their cases.

"If the state takes upon itself the power of life and death over its own citizens, its own conduct must be above reproach and based on unwavering respect for both the letter and the spirit of both national and international law," he said. "With no other alternative, the Privy Council provides the only opportunity to challenge the state's conduct."

That conduct was successfully challenged in a spectacular way two years ago when, in a landmark judgment, the Privy Council reprieved hundreds at a stroke. It ruled in the case of three Jamaicans that those who have languished for more than five years in death cells should not be executed: to hang someone after holding them in an agony of suspense for such a long time amounted to cruel, inhumane and degrading punishment. The three Jamaicanshad each spent more than 14 years on death row, had each had the death warrant read to them three times, and three times they were moved to the condemned person's cell in sight and sound of the prison gallows.

The impact of that ruling has spread much farther than the Caribbean. The Indian Supreme Court and the Supreme Court of Zimbabwe, both with experience of the death penalty, have adopted similar law. Judges in Zimbabwe said that to hold people so long before executing them "would shock the conscience of the people". It is now difficult to execute people after lengthy detention in Malaysia, India, Pakistan, Nigeria, Malawi, New Guinea and Singapore, which recognise Privy Council decisions.

But as the execution in April of the British-born Nick Ingram, who had spent 12 years on death row, demonstrates, the ruling has yet to influence the US, which has about 3,000 men and women on death row and executes most after more than five years, and after the added agonies of vain 11th-hour stays, appeals and pleas. However, that may yet change. In March a US Supreme Court justice urged state courts to consider the Privy Council ruling.

However, its ruling has not always been obeyed. Last year Trinidad and Tobago attracted international condemnation for executing Glen Ashby - as a Privy Council order for stay of execution was being faxed from London. He had served just one month short of five years on death row, leading to suspicion that the Trinidadian authorities were seeking to circumvent the five-year ruling. A recent commission of inquiry concluded he had been unlawfully hanged.

Geoffrey Robertson QC, who has steered most of the influential death row cases through the Privy Council during the past 20 years, applauds the "new generation of Law Lords who have infused vital international human rights standards into local law". He believes that to confine its jurisdiction to human rights cases would go a long way to defeating arguments that it is a colonial anachronism.

Margaret Hughes Ferrari, who is now Pollard's barrister on St Vincent, shares his view. "People do see the Privy Council as a safeguard. There is a feeling that local judges can be influenced by the prevailing political climate. But more importantly this is a small place and there is a belief that it is almost impossible to get a fair trial. There is usually so much publicity that juries come into a case in a mindset."

And without it Pollard would probably be dead.