1. This Report concerns a petition lodged with the Inter-American Commission on Human Rights (hereinafter "the Commission") on June 21, 1999 by the law firm of Campbell Chambers (hereinafter "the Petitioners") against the State of Jamaica (hereinafter "Jamaica" or "the State"). The petition was filed on behalf of Joseph Thomas, an inmate on death row at St. Catherine District Prison, and alleges violations of Articles 4, 5 and 8 of the American Convention on Human Rights (hereinafter "the Convention") in connection with the criminal proceedings against Mr. Thomas. This report addresses the admissibility of the petition pursuant to Articles 46 and 47 of the American Convention, as well as the merits of the case.
2. Joseph Thomas was convicted and sentenced to death by hanging on October 11, 1996 for capital murder pursuant to Section 3(1) of Jamaica's Offences Against the Person Act, 1864, as amended by the Offences Against the Person (Amendment) Act 1992 (hereinafter referred to as "the Act"). The Act distinguishes between categories of "capital" and "non-capital" murder. In addition, section 3(1) of the Act prescribes the death penalty as the only punishment for persons convicted of capital murder.
3. The Petitioners allege that the State has violated Mr. Thomas' rights under the American Convention on each of the following grounds, particulars of which are provided in Part III.A of this Report:
4. The Commission had not previously made an admissibility determination pursuant to Articles 46 and 47 of the Convention in Mr. Thomas' case. After having considered the matter, the Commission decided to declare admissible the claims presented on behalf of Mr. Thomas.
5. In addition, upon consideration of the merits of Mr. Thomas' complaint, the Commission reached the following conclusions:
II. PROCEEDINGS BEFORE THE COMMISSION
A. Petition and Observations
6. Following the receipt of Mr. Thomas' petition on June 21, 1999, the Commission opened Case Nº 12.183 and transmitted the pertinent parts of the petition to the State on June 22, 1999, with a request that the State supply information with respect to the communication within 90 days as established in the Commission's Rules of Procedure.
7. By communication dated September 16, 1999, which was received by the Commission on September 20, 1999, the Commission received information from the State respecting Mr. Thomas' petition. By note dated September 22, 1999, the Commission transmitted the pertinent parts of the State's observations to the Petitioners, with response requested within 30 days. In a communication dated August 16, 2000, the Commission reiterated its request for information from the Petitioners.
8. By letter dated August 22, 2000 and received by the Commission on the same date, the Petitioners delivered a response to the State's observations on Mr. Thomas' petition. In a note dated August 24, 2000, the Commission transmitted the pertinent parts of the Petitioners' observations to the State, with a response requested within 30 days. In a communication dated January 12, 2001, the Commission reiterated its request for the State to provide information on the Petitioners' observations.
9. In a note dated February 21, 2001 and received by the Commission on the same date, the State provided a response to the Petitioners' observations of August 22, 2000. By communication dated February 22, 2001, the Commission transmitted the pertinent parts of the State's response to the Petitioners, with a response requested on or before March 2, 2001.
10. The Commission did not receive any observations from the Petitioners on the State's February 21, 2001 response on or before the specified date.
B. Precautionary Measures
11. Contemporaneously with the transmission of the pertinent parts of the petition in this case to the State, the Commission requested pursuant to Article 29(2) of its Rules of Procedure that the State take precautionary measures to stay Mr. Thomas' execution until such time as the Commission had an opportunity to examine his case and the threat of irreparable harm to Mr. Thomas no longer persists. This request was made on the basis that if the State was to execute Mr. Thomas before the Commission had an opportunity to examine his case, any eventual decision would be rendered moot in terms of available remedies and irreparable harm would be caused to Mr. Thomas.
C. Friendly Settlement
12. By communications dated February 12, 2001 to the Petitioners and to the State, the Commission placed itself at the disposal of the parties, with a view to reaching a friendly settlement pursuant to Article 48(1)(f) of the Convention on the basis of respect for the human rights recognized therein. The Commission also requested that the parties provide the Commission with a response to the Commission's offer within 7 days of receipt of the communication, in the absence of which the Commission would continue with consideration of the matter.
In a note dated February 16, 2001, the State indicated that, in its view,
there were no outstanding issues that necessitated friendly settlement
proceedings, and urged the Commission to continue with its consideration
of the case "with a view to delivering its views in a timely
manner." Based upon the State's position, the Commission considered
that a friendly settlement would not be possible in the case.
III. POSITIONS OF THE PARTIES
A. Position of the Petitioners
1. Background to the case
14. According to the record in this case, Joseph Thomas was arrested and charged with the murders of Arthur McFarlane and Junior Spencer on January 31, 1995. Mr. Thomas' preliminary inquiry took place on November 8, 1995, and he was subsequently tried for the murders in October 1996. On October 11, 1996, Mr. Thomas was convicted of two offenses of capital murder and sentenced to death by hanging. He subsequently appealed his conviction to the Court of Appeal of Jamaica, and his appeal was dismissed on December 17, 1997. Mr. Thomas then lodged a petition for Special Leave to Appeal as a Poor Person to the Judicial Committee of the Privy Council, and the Privy Council dismissed his petition on April 15, 1999.
15. The prosecution alleged that on the evening of May 29, 1993, Mr. Thomas was one of two gunmen who entered and robbed the premises at 41 Killarney Avenue, St. Andrew, Jamaica, during the course of which Mr. McFarlane and Mr. Spencer were killed. The prosecution's case was based in part upon the testimony of witnesses William Spencer and Rohan Spencer, who claimed that they were on or near the premises at the time of the incident and identified Mr. Thomas as one of the gunmen. Police witnesses confirmed during the trial that no identification parade had been provided for following Mr. Thomas' arrest.
16. In his defense, Mr. Thomas gave sworn evidence that his name was Clive Stewart, and not "Joe", Joseph" or "Joseph Thomas" as certain prosecution witnesses had claimed. He also contended that he only became aware of the May 1993 incident on December 26, 1994 when he was arrested by one Inspector Aires of the Special Anti-Crime Task Force. On that occasion Mr. Thomas claimed to have been detained for three days at the remand center before being released. He alleged that he was again arrested nine days later on January 7, 1995 and was detained at the Special Anti-Crime Task Force headquarters at Ruthren Road and kept in custody. Mr. Thomas also testified that while he was detained, items of his personal property including photographs and notebooks were taken from him. He also claimed that he had a discussion with one Sergeant Payne about an identification parade, but that none was held. Further, he denied knowing or even speaking to prosecution witnesses William Spencer and Rohan Spencer.
17. The Petitioners raise four principal allegations on behalf of Mr. Thomas: (a) violations of Articles 4(1), 4(2), and 5 of the Convention, relating to the mandatory nature of the death penalty imposed upon Mr. Thomas; (b) a violation of Article 4(6) of the Convention, relating to the process available to Mr. Thomas to seek amnesty, pardon or commutation of sentence in Jamaica; (c) violations of Article 5 of the Convention, relating to Mr. Thomas' conditions of detention and the method of execution in Jamaica; and (d) violations of Article 8 of the Convention, relating to the absence of an identification parade following Mr. Thomas' arrest and the directions given by the trial judge to the jury during Mr. Thomas' criminal proceedings.
2. Position of the Petitioners on Admissibility
18. The Petitioners in Mr. Thomas’ case submit that his petition is admissible in accordance with Articles 46 and 47 of the American Convention.
19. The Petitioners first claim that Mr. Thomas has exhausted all available domestic remedies as required under Article 46(1)(a) of the Convention. They contend that Mr. Thomas unsuccessfully appealed his conviction to the Court of Appeal of Jamaica, and sought Leave to Appeal as a Poor Person to the Judicial Committee of the Privy Council, the highest appellate body in Jamaica, which was denied on April 15, 1999.
20. In addition, the Petitioners indicate that Mr. Thomas has not pursued a Constitutional Motion in the domestic courts of Jamaica, because he is indigent and legal aid is not available for proceedings of this nature. As a consequence, the Petitioners claim that Mr. Thomas has been denied access to and has been prevented from exhausting domestic remedies, as provided for under Article 46(2)(b) of the Convention. In support of their position, the Petitioners rely upon decisions of the United Nations Human Rights Committee, in which the Committee has rejected the State's argument that Constitutional Motions must be pursued in order to exhaust domestic remedies.
21. The Petitioners have also indicated in respect of their challenge to the mandatory death penalty in Jamaica that sections 17 and 26 of the Constitution of Jamaica are drafted so as to immunize from attack laws and punishment that were lawful before Independence, which include the mandatory death penalty. Therefore, according to the Petitioners it is not possible to argue before any domestic court that the death penalty is unconstitutional because of its mandatory nature or because it is cruel, unless the way in which it is to be carried out would not have been lawful before Independence.
22. Further, according to the Petitioners, the subject matter of Mr. Thomas’ case has not been submitted for examination under any other procedure of international investigation or settlement.
3. Position of the Petitioners on the Merits
a. Articles 4 and 5 of the Convention - Mandatory Nature of the Death Penalty
23. The Petitioners allege that the State acted contrary to Articles 4(1), 4(2), and 5(2) of the American Convention by sentencing Mr. Thomas to a mandatory death penalty for the crime of capital murder. In particular, the Petitioners argue that the imposition of the death penalty in Mr. Thomas’ case violates the Convention because it is not reserved for the most serious offenses as required by Article 4(2) of the Convention, and because executing an individual without an individualized sentencing hearing is cruel and violates his rights under Article 5(2) of the Convention.
24. In making these submissions, the Petitioners emphasize that, while the Convention does not prohibit the death penalty, the conditions governing the use of the death penalty must be read strictly as against the countries seeking to use capital punishment and so as to confer the greatest possible protection on the Applicant.
25. The Petitioners first argue that the requirement under Article 4(2) of the Convention that the death penalty be imposed only for the most “serious offenses” should be interpreted so as to encompass more than the elements of a criminal offense, and in particular should be interpreted to require consideration of all factors of a criminal offense, including those referable to an individual applicant.
26. The Petitioners submit further that as matter of common sense, it is not possible to say that the murder of a prison officer is more serious than and will always be more serious than, for example, the murder of a child. It therefore follows, argue the Petitioners, that the mandatory death penalty produces arbitrary results contrary to Article 4(1) of the Convention, as there is no mechanism whereby like cases are treated alike and unlike cases distinguished.
27. In addition, it is argued on behalf of Mr. Thomas that the mandatory death penalty violates the prohibition against cruel and unusual punishment or treatment under Article 5 of the Convention. They suggest in this respect that the standards underlying Article 5 of the Convention require the consideration of the character and record of an individual offender and the circumstances of the particular offense as an indispensable part of the process of implementing the death penalty.
28. In support of their position that the mandatory death penalty for capital murder contravenes the American Convention, the Petitioners refer to decisions of the highest courts of several common law countries, including the United States of America and India, where the death penalty has been retained. According to the Petitioners, these authorities support the proposition that States that wish to retain the death penalty must provide for some form of "individualized sentencing," where defendants are permitted to present mitigating factors concerning the particular circumstances of the case and the personal characteristics of the offender in determining whether the death penalty is an appropriate punishment. They also suggest that the death sentence should be imposed only in the most exceptional cases where there is no reasonable prospect of reformation and the objects of punishment would not be achieved by any other sentence.
29. The Petitioners therefore argue that the sentence of death imposed upon Mr. Thomas is cruel, inhuman and degrading and an arbitrary and disproportionate punishment which cannot be a justification for depriving some one of their life, and therefore violates Articles 4 and 5 of the Convention.
30. In response to the State’s observations of September 16, 1999 respecting the mandatory nature of the death penalty, the Petitioners contend that the cases of Pratt v. Attorney General of Jamaica and Jones v. Attorney General of the Commonwealth of The Bahamas cited by the State do not address the Petitioners' argument regarding the mandatory nature of the death penalty, as these cases concerned the provisions of the domestic constitutions that do not contain any provisions similar to Article 4(2) of the Convention. They also emphasize that Article 4(2) of the Convention provides that the death penalty is only lawful under the Convention if the conditions under the article are fulfilled, and it is for the Government that seeks to justify a death sentence to establish that all of those conditions have been satisfied.
b. Article 4(6) of the Convention – Prerogative of Mercy
31. The Petitioners submit that Mr. Thomas’ right contained in Article 4(6) of the Convention to apply for mercy has been violated, as he has no right to a fair hearing before the Jamaican Privy Council. In this respect, the Petitioners explain that the power of the Executive in Jamaica to commute death sentences through the exercise of the Prerogative of Mercy is regulated by Sections 90 and 91 of the Constitution of Jamaica. According to the Petitioners, the Governor-General of Jamaica has the power to commute any death sentence under Section 90(1) of the Constitution, but must act in accordance with the advice and recommendation of the Jamaican Privy Council pursuant to Section 90(2) of the Constitution.
32. The Petitioners further assert in their June 21, 1999 petition that under Jamaican domestic law, a prisoner has no right to a fair hearing before the Jamaican Privy Council. They allege that the Jamaican Privy Council is free to regulate its own procedure, and in so doing does not have to afford the prisoner a fair hearing, and does not have regard to any procedural protections for the prisoner such as the right to make written or oral submissions, or the right to be supplied with the material on which the Jamaican Privy Council will make its decision. The Petitioners state further than the functions of the Jamaican Privy Council under sections 90 and 91 of the Constitution are not susceptible to judicial supervision or control.
33. In this respect, the Petitioners cite the decisions of the Judicial Committee of the Privy Council in the cases Reckley v. Minister of Public Safety (Nº 2)  2 W.L.R. 281 and de Freitas v. Benny  A.C. for the proposition that the exercise of the power of pardon involves an act of mercy that is not the subject of legal rights and therefore is not subject to judicial review, and observe that these decisions have been heavily criticized by a number of distinguished commentators.
34. In this context, the Petitioners submit that the right to apply for mercy under Article 4(6) of the Convention must be interpreted so as to be an effective right, which in turn requires the State to afford a condemned individual certain procedural rights, including the right to be notified of the period during which the Jamaican Privy Council considers his or her case, the right to be supplied with the materials before the Privy Council and the right to submit materials and representations prior to the hearing. The Petitioners also claim that condemned prisoners should be afforded the right to an oral hearing before the Privy Council, and to place before the Privy Council and to have it consider the decisions and recommendations of international human rights bodies. According to the Petitioners, these requirements follow from the plain wording of Article 4(6) of the Convention, and are consistent with the requirement under Article 4(2) that the death penalty should be imposed "only for the most serious crimes."
35. Based upon these submissions, the Petitioners contend that Mr. Thomas’ right to apply for mercy under Article 4(6) of the Convention is violated under Jamaican domestic law.
36. In response to the State's observations of September 16, 1999 on the Prerogative of Mercy, the Petitioners point out that Mr. Thomas’ final avenue of appeal in the domestic courts was rejected by the Judicial Committee of the Privy Council on April 15, 1999, and that in May 1999, before it was even possible for Mr. Thomas to be notified of the decision, a warrant of execution was signed. Accordingly, they say that Mr. Thomas was precluded from making representations to the Jamaican Privy Council and that he was given no information as to when the Jamaican Privy Council was considering his case.
(i) Conditions of Detention
37. The Petitioners allege that the conditions in which Mr. Thomas has been detained by the State constitute a violation of his rights under Article 5 of the Convention to be free from cruel, inhuman or degrading punishment or treatment. In their submissions, the Petitioners provide information as to the general conditions of detention facilities in Jamaica, as well as information regarding the particular conditions of detention experienced by Mr. Thomas.
(a) Factual Allegations Regarding Conditions of Detention
38. With respect to the conditions of detention facilities in Jamaica generally, the Petitioners refer to reports prepared by various governmental and non-governmental organizations respecting the State's prison conditions. These include Americas Watch: Prison Conditions in Jamaica (1990); Jamaica Prison Ombudsman: Prison and Lock Ups (1983); Americas Watch: Death Penalty, Prison Conditions and Prison Violence (1993); Jamaica Council for Human Rights: A Report on the Role of the Parliamentary Ombudsman in Jamaica (Summer 1994); and Amnesty International: Proposal for an Inquiry into Death and Ill-treatment of Prisoners in St. Catherine's District Prison (1993). These reports provide information regarding the physical conditions of the prisons and prisoners, the treatment of prisoners by prison staff, and the status of medical, educational and work facilities and programs in various prisons and lock up facilities in Jamaica.
39. According to the Petitioners, these reports indicate that detention facilities in Jamaica are poor, and in many instances fall short of the standards prescribed by the United Nations Minimum Standards for the Treatment of Prisoners. They cite, for example, Amnesty International’s 1993 conclusion that “the general conditions prevailing in St, Catherine’s District Prison constitute cruel, inhuman and degrading treatment. The conditions and facilities in prisons fall far short of the standards set out in the United Nations Standard Minimum Rules for the Treatment of Prisons, particularly those sections relating to the provision of adequate cell space, bedding, lighting, sanitary installations, and medical services.”
40. The Petitioners further report that all death row inmates in Jamaica are situated on death row in St. Catherine’s District Prison, which was built in the 18th Century and was formerly a slave market. The Petitioners submit that generally speaking, death row inmates are deprived of a mattress or other bedding, that inmates’ cells suffer from inadequate sanitation, ventilation and light, and that prisoners experience poor standards of personal hygiene. In addition, the Petitioners claim that inadequate medical and psychiatric care is available to prisoners, and that inmates condemned to death spend long periods in their cells, have no work or education facilities, and are often the subject of ill-treatment by prison guards.
41. With respect to the conditions of detention alleged to have been experienced by Mr. Thomas personally, the Petitioners claim, based in part on an affidavit sworn by Mr. Thomas, that his conditions of pre-trial and post-conviction detention both constitute violations of Article 5 of the Convention. In relation to Mr. Thomas’ pre-trial detention conditions from his arrest on January 20, 1997 until his conviction on July 25, 1997, the Petitioners quote from a February 22, 1997 letter written by Mr. Thomas to his attorney, which read in part:
42. With respect to Mr. Thomas’ post-conviction conditions of detention, the Petitioners claim that Mr. Thomas is locked in his cell for 23 hours per day. They also allege that he is deprived of a mattress or other bedding and sleeps on a concrete bunk, and must use a bucket for sanitation. According to the Petitioners, Mr. Thomas’ cell has inadequate ventilation and does not have any electric light, and the food provided to prisoners is inadequate. Further, the Petitioners allege that no medical or psychiatric care is provided to prisoners, and there is no adequate complaints mechanism to address prisoner complaints.
(b) Legal Allegations Regarding Conditions of Detention
43. In respect of the legal standards that should be considered in determining whether prison conditions constitute violations of Article 5 of the Convention, the Petitioners rely upon several provisions of the United Nations Standard Minimum Rules for the Treatment of Prisoners. These include Article 10, which states that all accommodation provided for the use of prisoners shall "meet all requirements of health, due regard being paid to climatic conditions and particularly cubic content of air, minimum floor space, lighting, heating and ventilation." The petitioners also cite several comments and decisions of the UN Human Rights Committee and the European Court of Human Rights regarding humane treatment in the context of prison conditions. These include the UN Human Rights Committee’s General Comment on Article 10(1) of the International Covenant on Civil and Political Rights, which states that the “humane treatment and respect for the dignity of all persons deprived of their liberty is a basic standard of universal application which cannot depend entirely on material resources. While the Committee is aware in other respects the modalities and conditions of detention may vary with the available resources they must always be applied without discrimination.” The Petitioners also refer to the Greek Case, in which the European Court of Human Rights found that prison conditions may amount to inhuman treatment, where those conditions involve overcrowding, inadequate toilet and sleeping arrangements, inadequate food and recreation, and incommunicado detention.
(ii) Method of Execution in Jamaica
44. The Petitioners argue that the execution of the death sentence by hanging, as provided for under Jamaican law, constitutes cruel and inhuman treatment or punishment per se in violation of Articles 5(1) and 5(2) of the Convention. In this regard, the Petitioners submit that whereas Article 4 of the Convention allows for the imposition of the death penalty under certain limited circumstances, any method of execution provided by law must be designed in such a way as to avoid conflict with Article 5 of the Convention.
45. In support of their arguments, the Petitioners provided detailed accounts of the physical, physiological and psychological effects of hanging upon a condemned prisoner, as described in the affidavits of Dr. Albert Hunt dated July 1, 1997 and Dr. Francis Smith dated March 24, 1996. Based upon this evidence, the Petitioners allege that the execution of Mr. Thomas’ death sentence by hanging would violate Article 5(2) of the Convention because:
46. In the Petitioners’ submission, the execution of Mr. Thomas by hanging in these circumstances would not meet the test of “least possible physical and mental suffering,” and would therefore constitute cruel and inhuman treatment, in violation of Article 5 of the Convention.
d. Article 8 of the Convention - Right to a Fair Trial
47. The Petitioners contend further that the State has violated Mr. Thomas’ rights under Article 8 of the Convention on the ground that the trial judge’s directions to the jury violated Mr. Thomas’ right to be presumed innocent until and unless proven guilty according to law after a fair trial before an impartial tribunal.
48. The Petitioners point in particular to the following portion of the trial judge’s direction to the jury:
Now as I said, the prosecution has to prove the death of the deceased. Well, I do not anticipate you have any problem there that it was the accused who killed him and perhaps here, I should indicate to you the principle of what is known as, design.
49. The Petitioners argue that this direction violated Mr. Thomas’ right to be presumed innocent, and that this together with the failure to hold any identification procedure prior to the holding of a preliminary inquiry resulted in violations of Mr. Thomas’ rights under Article 8 of the Convention. In relation to the latter omission, the Petitioners complain that the trial judge directed the jury as follows:
50. Based upon these aspects of Mr. Thomas'
criminal proceedings, the Petitioners allege that the State is responsible
for infringing his rights under Article 8 of the Convention.
B. Position of the State
1. Position of the State on Admissibility
51. In its September 16, 1999 observations in this matter, the State made the following statement in relation to the admissibility of Mr. Thomas’ petition:
52. The State has not subsequently provided the Commission with any further observations on the admissibility of Mr. Thomas’ complaint.
2. Position of the State on the Merits
a. Articles 4 and 5 of the Convention - Mandatory Nature of the Death Penalty
53. The State does not deny that the death penalty in Jamaica is mandatory for capital murder under the Jamaican Offenses Against the Person Act for capital murder. Nonetheless, the State points out that section 17(2) of the Constitution of Jamaica preserves punishments that pre-date independence as lawful and shields them from constitutional challenge as constituting torture or inhuman or degrading treatment or punishment. Section 17 of the Constitution of Jamaica states:
54. In this connection, the State refers to several decisions of the Judicial Committee of the Privy Council, including Pratt and others v. Attorney General for Jamaica and others  4 All E.R. 769, in which, according to the State, the Privy Council held that the purpose of section 17(2) of the Jamaican Constitution is to preserve all descriptions of punishment lawful immediately before Independence and to prevent them from being attacked under section 17(1) as inhumane or degrading punishment. The State also notes that in the case Larry Raymond Jones and others v. Attorney General of the Commonwealth of the Bahamas  1 W.L.R. 892, where the Bahamian Penal Code provided the death penalty as the mandatory punishment for murder, it was held that to hang the applicants in that case in accordance with the sentence of death that was imposed on them would not infringe their constitutional rights.
55. The State indicated in its submissions to the Commission that it adopts the rulings of the Judicial Committee of the Privy Council in these cases, and consequently, that, as Mr. Thomas was duly convicted of capital murder and sentenced to death, the mandatory nature of the death penalty is not arbitrary, cruel, inhuman, degrading or a breach of Mr. Thomas’ right not to be arbitrarily deprived of his life.
56. Furthermore, the State submits that the existence of Article 4(2) of the Convention and Article 6 of the Optional Protocol to the UN International Covenant on Civil and Political Rights are further evidence that the international community does not regard the death penalty as inhuman or degrading punishment. With respect to Article 4(2) of the Convention in particular, the State denies that the imposition of the death penalty in Jamaica is not reserved for the most serious offenses. Rather, the State argues that a conviction for murder is one of the most serious crimes and is precisely the reason why it attracts one of the most serious penalties.
57. The State also contends that the death penalty for murder has long been recognized in countries that imposed that penalty both before the Convention and after, and represents a “classic” example of the most serious crimes under Article 4(2) of the Convention. The State therefore characterizes the Petitioners’ argument in this regard as, at best, a “specious” attempt to challenge the validity of capital punishment in Jamaica. The State emphasizes that it is the elements of the offense that attract the penalty and clearly refers to the circumstances in which the offender committed the offense. According to the State, in this context the characterization of murder as a serious crime is even more clearly demonstrated and its individualized application manifest.
58. In conclusion, the State submits that once an offender has been given an opportunity to prove his or her innocence and fails, then the person should face the full circumstances of the law.
b. Article 4(6) of the Convention – Prerogative of Mercy
59. In relation to the right to seek amnesty, pardon or commutation of sentence under Article 4(6) of the Convention, the State denies that the right to apply for mercy in Jamaica under Articles 90 and 91 of the Jamaican Constitution is illusory or ineffective. Rather, the State argues that the Constitution prescribes principles that guide the Governor General in the exercise of discretion and refers in this regard to section 90(1)(c) and 91(1) and (2) of the Constitution of Jamaica.
60. The State argues in particular that there is nothing in the procedures of the Jamaican Privy Council that precludes Mr. Thomas from making all of the submissions that form the basis of the present case before the Commission, and in fact applicants and international organizations frequently make representations on behalf of condemned men. According to the State, this opportunity remains available and will be fairly considered and the fact that the procedures do not provide for an oral hearing does not constitute a violation of any fundamental rule of fairness. The State bases its submissions in this regard on the proposition that the Prerogative of Mercy is a purely discretionary act exercised by the Governor General, to which no legal rights attach. The State cites the decision of the Judicial Committee of the Privy Council in de Freitas v. Benny, in which Lord Diplock stated in dictum that "[m]ercy is not the subject of legal rights. It begins where legal rights end." The State also refers to the case Reckley v. Ministry of Public Safety and Immigration and others Nº 2  1 All E.R. 562, in which, according to the State, the Judicial Committee of the Privy Council held that the constitutional provisions under which the Advisory Committee in the Bahamas was established and its functions regulated were such that the principles of fairness did not give condemned men the right to make representations or to be supplied with the material that was before the Advisory Committee.
61. With respect to the Petitioners’ contention that Mr. Thomas has a right to place before the Jamaican Privy Council and have it consider the findings and recommendations of international human rights organizations, the State submits that in the case of Thomas and Hilaire v. Attorney General of Trinidad and Tobago, the Judicial Committee of the Privy Council held that there is a general right accorded to all litigants not to have the outcome of any pending appeal or legal process preempted by executive action and that the execution of a condemned person when the matter is being considered by a human rights body would be in breach of due process or the common law right to constitutional protection provided by the principle of procedural fairness. The State emphasizes, however, that this issue can only be considered in the context of the length of time it takes for the Commission to submit its recommendations, such that applicants will not be entitled to sustain that position if the determination of the Commission is delayed for an indefinite period. The State further submits that Mr. Thomas‘ contention is premature, as no steps have been taken to execute him.
In addition, the State points out that in the case Patrick Taylor et
al. v. Attorney General of Jamaica, Sup. Ct. Civil Appeal Nos. 13, 15,
16/99, the appellants failed in their attempt before the Court of Appeal
of Jamaica to prove that they had the same procedural rights which Mr.
Thomas now claims by virtue of the American Convention. According to
the State, the Court of Appeal essentially found that the dictum of Lord
Diplock in the de Freitas v. Benny case, supra, placed the
appellant’s procedural rights on the matter of the Prerogative of Mercy
beyond argument. The State indicates in its observations that it
adopts this jurisprudence for the purposes of the case before the
Commission, and reiterates that the right to apply for mercy in Jamaica is
not illusory or ineffective.
c. Article 5 of the Convention - Conditions of Detention and Method of Execution in Jamaica
63. The State raises several arguments in relation to the Petitioners’ allegations regarding Mr. Thomas’ conditions of detention. First, the State contends that notwithstanding the contents of the reports from international and domestic monitoring bodies, a generalized position cannot be adopted each time a complaint is lodged by an inmate. Rather, complaints must be dealt with individually and each case must be considered on its individual merits.
64. Further, the State argues that even if the Petitioners’ allegations are proven to be true, they could not by themselves result in the commutation of Mr. Thomas’ death sentence. The State relies in this regard on the decision of the Judicial Committee of the Privy Council in the Thomas and Hilaire Case, supra, in which the applicants alleged that they had been detained in cramped and foul smelling cells and deprived of exercise or access to the open air for long periods of time. According to the State, the Judicial Committee of the Privy Council held in this case that even if the conditions of detention alleged by those applicants constituted cruel and unusual treatment or punishment, commutation of sentence would not be the appropriate remedy. The Privy Council also held that it would be otherwise if the condemned men had been subjected to solitary confinement, shackled, flogged or tortured.
65. Also on the issue of prison conditions, the State relies upon the decision of the Jamaican Court of Appeal in the Patrick Taylor et al. Case, supra, in which the applicant is said to have alleged the following conditions of detention: when he was first arrested he was assaulted; when he was re-arrested he remained in handcuffs for three days; he was beaten while in lock up; while awaiting trial he shared a cell with 25 other men; there was no light in his cell and his exercise each day was limited to 42 minutes; although he was supplied with soap and toilet tissue, neither toothbrush nor toothpaste was provided for use; he was given food and drink in plastic bags; and the food consisted of very small rations and was poorly cooked.
66. According to the State, the Jamaican Court of Appeal held that Mr. Taylor's conditions "did not amount to torture, or to the infliction of punishment or other treatment," and therefore that the prison conditions as alleged did not present any matter for argument to secure a commutation of death sentence.
67. The State similarly relies upon the views of the UN Human Rights Committee in the case F. Deidrick v. Jamaica, Communication Nº 619/1995, in which the Committee is said to have determined that the conditions of detention alleged by the complainant did not raise an issue under Article 7 or 10(1) of the International Covenant on Civil and Political Rights and were therefore inadmissible. According to the State, the conditions of detention alleged by the applicant in that case included the fact that he was held on death row for 8 years, confined to his cell for 22 hours per day, spent most of his waking hours isolated from other men with nothing whatsoever to keep him occupied, and was forced to spend much of his time in enforced darkness.
68. Finally, with respect to specific allegations by the Petitioners regarding Mr. Thomas’ access to medical treatment, the State claims that St. Catherine District Prison houses a medical center that is staffed with two registered medical practitioners, a general practitioner and a psychiatrist. There is also a registered dentist, and a matron who is a registered nurse, a qualified social worker and several medical orderlies who assist the doctors. The general practitioner attends at the medical center daily and when he is not on duty he is on call. The dentist attends the medical center three days every week.
69. The State claims that when a prisoner makes a complaint of a medical nature, arrangements are made with a medical orderly for that prisoner to be taken to see a doctor at the very earliest opportunity. If the complaint is serious and a doctor is not on duty at the time or cannot be located, the prisoner is immediately dispatched to the Spanish Town General Hospital, which is located close to the prison.
70. Based upon these submissions, the State denies that St. Catherine District Prison has no medical or psychiatric care for prisoners.
71. In its observations of February 21, 2001, the State provided further submissions on the issue of prison conditions. In particular, the State referred to and relied upon three affidavits, one dated November 11, 1998 by Zepheniah Page, a warder employed at St. Catherine District Prison, a second dated November 11, 1998 by Melbourne Jones, a Superintendent employed at the same prison, and a third dated November 26, 1998 by Dr. Raymoth Notice, a medical doctor also employed at the prison. The contents of the affidavits indicate that they were prepared for use in litigation before the Supreme Court of Jamaica in the matter of Neville Lewis v. The Attorney General of Jamaica and the Superintendent of the St. Catherine District Prison. The affidavits provide information concerning the conditions of detention of the applicant in that case, Neville Lewis, on death row at St. Catherine District Prison in Jamaica.
72. Based upon these affidavits, the State contends that the conditions of detention of death row prisoners at St. Catherine's District Prison include the following:
73. With respect to the Petitioners' contentions regarding the method of execution in Jamaica, the State argues that the inclusion of Article 4(2) in the American Convention, which provides for the imposition of the death penalty under certain conditions, demonstrates that the Convention must contemplate that persons will suffer some form of ill treatment when carrying out a sentence of death, but that this cannot per se be considered inhuman. In particular, the State indicates that it is unaware of any form of execution that does not involve some form of treatment that could not be arguably considered by some to be inhuman. The State suggests further that the physical effects of carrying out of a sentence of death by hanging is thought to cause immediate loss of consciousness which in turn "minimizes the discomfort" to the prisoner. The State therefore denies that this form of execution is contrary to Article 5 of the Convention.
d. Articles 4 and 8 - Right to a Fair Trial
74. In respect of the Petitioners’ allegations of violations of Mr. Thomas’ rights under Article 8 of the Convention based upon the trial judge’s directions to the jury, the State submits that where the conduct of a trial is in question, such questions should be left for examination by the appellate courts. The State relies in this regard on the decision of the UN Human Rights Committee in the case of Trevor Walker and Lawson Richards, in which, according to the State, the Committee held that it is generally for the appellate courts of states parties to the Covenant to evaluate the facts and evidence in any particular case, and that it is for the appellate courts and not the Committee to review specific instructions to the jury by the judge in a trial by jury unless it can be ascertained that the instructions to the jury were clearly arbitrary or amounted to a denial of justice, or that the judge manifestly violated his obligations of impartiality.
Accordingly, the State argues that decisions taken in criminal trials must
be left to the appellate courts and not to the Commission, unless it can
be proven that the conduct during the trial led to a denial of
justice. In Mr. Thomas’ case, the State indicates that the
directions of the trial judge to the jury were already considered and
dismissed by the Court of Appeal, that the conduct of Mr. Thomas’ trial
did not lead to a denial of justice, and therefore there has been no
breach of Article 8 of the Convention.
A. Competence of the Commission
76. The State deposited its instrument of accession to the American Convention on August 7, 1978, and the Petitioners allege that the State has violated Articles 4, 5, and 8 of the Convention, in respect of acts or omissions that transpired after the State's accession to the Convention. Mr. Thomas is a natural person, and the Petitioners were authorized under Article 44 of the Convention to lodge a petition on his behalf with the Commission. The Commission therefore finds that it is competent to consider the Petitioners’ complaint.
77. The Commission has considered the admissibility of the present complaint pursuant to Articles 46 and 47 of the Convention and makes the following determinations.
78. As noted in Part III.B.1 of this Report, the State in its observations of September 16, 1999 indicated that it would "defer" its right to address the issue of admissibility, and would proceed to address the merits of the petition "in the interest of time." The State has subsequently made no submissions respecting the admissibility of Mr. Thomas' complaint.
79. According to Articles 46(1)(c) and 47(d) of the Convention, the admissibility of a petition is subject to the requirement that the subject of the petition is not pending in another international proceeding for settlement and is not substantially the same as one previously studied by the Commission or by another international organization. The Petitioners in Mr. Thomas’ case have indicated that the subject of their complaint has not been submitted for examination by any other procedure of international investigation or settlement. The State has not contested the issue of duplication. The Commission therefore finds no bar to consideration of this case under Articles 46(1)(c) or 47(d) of the Convention.
2. Exhaustion of Domestic Remedies
80. Article 46(1)(a) of the Convention specifies that, in order for a case to be admitted, “remedies under domestic law [must] have been pursued and exhausted in accordance with generally accepted principles of international law.” When domestic remedies are unavailable as a matter of fact or law, however, the requirement that they be exhausted may be excused. Article 46(2) of the Convention specifies that this exception to exhaustion applies if: (1) the legislation of the state concerned fails to afford due process for the protection of the right allegedly violated; (2) the party alleging the violation has been denied access to remedies under domestic law or has been prevented from exhausting them; or (3) where there has been unwarranted delay in rendering a final judgment. When a victim alleges that he or she is unable to prove exhaustion as provided for in Article 46(2) of the Convention, Article 37(3) of the Commission’s Rules of Procedure provides that the burden shifts to the State to demonstrate that the remedies under domestic law have not been previously exhausted.
81. Exhaustion of domestic remedies also need not be demonstrated by a victim in the event that the State against which the complaint is lodged waives this requirement. In this regard, the Inter-American Court of Human Rights has held that the rule which requires the prior exhaustion of domestic remedies is designed for the benefit of the State, because the rule seeks to excuse the State from having to respond to charges before an international body for acts imputed to it before it has had an opportunity to remedy them by internal means. According to the Court, the requirement is thus considered a means of defense and, as such, waivable, even tacitly. Further, a waiver, once effected, is irrevocable.
82. Given the absence of any observations from the State on the issue of exhaustion of domestic remedies in this case, the Commission finds that the State explicitly or tacitly waived any challenge with regard to the exhaustion of remedies by Mr. Thomas in domestic proceedings. The Commission therefore does not consider the present case to be inadmissible by reason of Article 46(1)(a) of the Convention.
3. Timeliness of the Petition
83. Article 46(1)(b) of the Convention provides that the admission of a petition is subject to the requirement that the petition be lodged with the Commission in a timely manner, namely within a period of six months from the date on which the party alleging violations of his rights was notified of the final judgment.
84. The record before the Commission indicates that the Judicial Committee of the Privy Council dismissed Mr. Thomas’ petition for Special Leave to Appeal on April 15, 1999 and that the Petitioners’ lodged the present petition with the Commission on June 21, 1999 and therefore within 6 months from the date of final judgment. The State has not contested the issue of timeliness. Accordingly, the Commission finds no bar to consideration of this case by reason of Article 46(1)(b) of the Convention.
4. Colorable Claim
85. Article 47(b) of the Convention requires a petition to be declared inadmissible if it does not state facts that tend to establish a violation of the rights guaranteed by the Convention. Article 47(d) of the Convention deems inadmissible any communication where the statements of the petitioner or the State indicate that the petition is manifestly groundless or out of order.
86. The Petitioners in the present case have alleged that the State has violated Mr. Thomas’ rights under Articles 4, 5 and 8 of the Convention. In addition, the Petitioners have provided factual allegations, described in Part III.A.1 of this Report, that, in the Commission’s view, tend to establish that these alleged violations may be well-founded.
87. The Commission therefore finds that the Petitioners have presented colorable claims of violations of Mr. Thomas’ rights under the Convention for the purposes of Articles 47(b) and 47(c) of the Convention.
5. Conclusions on Admissibility
88. In accordance with the foregoing analysis of the requirements of Articles 46 and 47 of the Convention, and without prejudging the merits of the matter, the Commission decides to declare as admissible the claims presented on behalf of Joseph Thomas in the present case.
C. The Merits
89. As detailed in Part III.A.1 of this Report, the Petitioners in the present case have alleged the following violations of the Convention in respect of Mr. Thomas:
1. Standard of Review
90. In response to the various standards that the parties have suggested should guide the Commission in determining the issues before it, the Commission wishes to clarify that it will undertake its review of the merits of the Petitioners' claims in accordance with the Commission's heightened scrutiny test. According to this standard of review, the Commission will subject the parties' allegations to an enhanced level of scrutiny in order to ensure that any deprivation of life effected by a State Party pursuant to a death sentence complies strictly with the provisions of the Convention, including in particular Articles 4, 5 and 8 of the Convention. This heightened scrutiny test is, as the Commission has previously recognized, consistent with the restrictive approach to the death penalty provisions of human rights treaties taken by the Commission and other international authorities. The heightened scrutiny test is also not precluded by the Commission's fourth instance formula, according to which the Commission in principle will not review the judgments issued by the domestic courts acting within their competence and with due judicial guarantees, unless a petitioner’s allegations entail a possible violation of any of the rights set forth in the Convention. The Commission will therefore apply the heightened scrutiny standard in determining the complaints in the present case.
2. Articles 4, 5 and 8 of the Convention - The Mandatory Nature of the Death Penalty
a. Mr. Thomas has been Sentenced to a Mandatory Death Penalty
91. The record in the present case indicates that Mr. Thomas was convicted of capital murder and sentenced to death. It also indicates that the death sentence was imposed pursuant to legislation in Jamaica that prescribes the death penalty as the only punishment available when a defendant is found guilty of capital murder.
92. More particularly, as indicated in Part I of this Report, Mr. Thomas was convicted of two offenses of capital murder under Jamaica's Offences Against the Person Act, as amended by the Offences Against the Person (Amendment) Act, 1992. Section 2(1) of this Act defines capital murder as follows:
or the murder of any such member of the security forces, correctional officer, judicial officer or person for any reason directly attributable to the nature of his occupation;
as consideration for that other person causing or assisting in causing the death of any person or counselling or procuring any person to do any act causing or assisting in causing that death;
93. Section 3(1) of the Act in turn prescribes the death penalty as the mandatory punishment for any person convicted of a capital offence as defined under Section 2 the Act:
Where by virtue of this section a person is sentenced to death, the form of the sentence shall be to the effect only that he is to "suffer death in the manner authorized by law."
94. The Act therefore prescribes death as the mandatory punishment for all individuals convicted of capital murder. Capital murder in turn includes murder committed in the course or furtherance of certain other offences, including robbery, burglary, housebreaking, and arson in relation to a dwelling house. Accordingly, once the jury found Mr. Thomas guilty of capital murder, the death penalty was the only available punishment. The State has not denied the mandatory nature of Mr. Thomas’ punishment.
95. Therefore, as the Commission has determined in previous cases, the crimes of capital murder in Jamaica can be regarded as being subject to a “mandatory death penalty”, namely a death sentence that the law compels the sentencing authority to impose based solely upon the category of crime for which the defendant is found responsible. Once a defendant is found guilty of the crime of capital murder, the death penalty must be imposed. Accordingly, mitigating circumstances cannot be taken into account by a court in sentencing an individual to death once a conviction for capital murder has been rendered. This is subject to one exception, however. Section 3(2) of the Act specifically exempts from the death penalty female offenders who are convicted of offenses punishable with death, but who are found by a jury to be pregnant.
96. Therefore, the penalty for a female offender who is convicted of capital murder, but who is found by a jury to be pregnant, is a sentence of imprisonment with or without hard labor for life rather than a sentence of death.
97. As indicated in III.A.3.a of this Report, the Petitioners have alleged that Mr. Thomas’ sentencing to a mandatory death penalty violates one or more of Articles 4(1), 4(2), and 5(2) of the American Convention, principally because the sentencing process in Jamaica does not provide an opportunity for offenders to present mitigating factors concerning their personal circumstances or those of their offense in determining whether the death penalty is an appropriate punishment.
 Section 2(1) of the Act defines "capital murder" as including murder committed against certain persons by virtue of their employment, position or status, for example law enforcement officials and judicial officers. It also includes murder committed in the course or furtherance of certain other crimes, including robbery, burglary, housebreaking, and arson in relation to a dwelling house. Section 2(3) defines non-capital murder as murder not falling within section 2(1) of the Act. The text of these provisions is set out in Part IV.C.1.a of this Report.
 Section 3(1) of the Act provides that "[e]very person who is convicted of capital murder shall be sentenced to death and upon every such conviction the court shall pronounce sentence of death, and the same may be carried into execution as heretofore has been the practice; and every person so convicted or sentenced pursuant to subsection (1A), shall, after sentence, be confined in some safe place within the prison, apart from all other prisoners. Where by virtue of this section a person is sentenced to death, the form of the sentence shall be to the effect only that he is to 'suffer death in the manner authorized by law.'"
 The Petitioners cite the decisions of the U.N. Human Rights Committee in Little v. Jamaica, Communication Nº 283/1988, U.N. Doc. Nº CCPR/C/43/D/283/1988, Reid v. Jamaica, Communication Nº 725/1987, U.N. Doc. Nº CCPR/PR/C/39/D/725/1987; Collins v. Jamaica, Communication Nº 356/1989, U.N. Doc. Nº CCPR/C/47/D/356/1989, Smith v. Jamaica, Communication Nº 282/1988, U.N. Doc. CCPR/C/47/D/282/1988, Campbell v. Jamaica, Communication Nº 248/1987, U.N. Doc. Nº CCPR/C/44/D/248/1987, and Kelly v. Jamaica, Communication Nº 253/1987, U.N. Doc. Nº CCPR/C/41/D/253/1987.
 The Constitution of Jamaica, 23 July 1962, enacted as the Jamaica (Constitution) Order in Council, Second Schedule, Ch. III , Section 17(2) (providing in respect of protection from inhuman treatment that "[n]othing 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 authorizes the infliction of any description of punishment which was lawful in Jamaica immediately before the appointed day"); Section 26(8) (providing that "[n]othing contained in any law in force immediately before the appointed day shall be held to be inconsistent with any of the provisions of this Chapter [including the right to life and protection from inhuman treatment]; and nothing done under the authority of any such law shall be held to be done in contravention of any of these provisions.").
 Woodson V. North Carolina, 428 U.S. 280 (1976) (U.S. Supreme Court).
 Bachan Singh V. State of Punjab, (1980) S.C.C. 475 (Supreme Court of India).
 Sections 90 and 91 of the Constitution of Jamaica provide as follows:
90(1)The Governor General may, in Her Majesty's name and on Her Majesty's behalf-
(a) grant to any person convicted of any offence against the law of Jamaica a pardon, either free or subject to lawful conditions;
(b) grant to any person a respite, either indefinite or for a specified period, from the execution of any punishment imposed on that person for such an offence;
(c) substitute a less severe form of punishment for that imposed on any person for such an offence; or
(d) remit the whole or part of any punishment imposed on any person for such an offence or any penalty or forfeiture otherwise due to the Crown on account of such an offence.
(2) In the exercise of the powers conferred on him by this section the Governor-General shall act on the recommendation of the Privy Council.
91(1) Where any person has been sentenced to death for an offence against the law of Jamaica, the Governor-General shall cause a written report of the case from the trial judge, together with such other information derived from the record of the case or elsewhere as the Governor-General may require, to be forwarded to the Privy Council so that the Privy Council may advise him in accordance with the provisions of section 90 of this Constitution.
(2) The power of requiring information conferred on the Governor-General by subsection (1) of this section shall be exercised by him on the recommendation of the Privy Council or, in any case in which in his judgement the matter is too urgent to admit of such recommendation being obtained by the time within which it may be necessary for him to act, in his discretion.
 The Petitioners additionally allege violations of Articles 11(a), 11(b), 12, 13, 15, 19, 22(1), 22(2), 22(3), 24, 25(1), 25(2), 26(1), 26(2), 35(1), 36(1), 36(2), 36(3), 36(4), 57, 71(2), 72(3) and 77 of the United Nations Standard Minimum Rule for the Treatment of Prisoners.
 Eur. Court H.R., Greek Case 12 Y.B. 1 (1969).
 The Petitioners cite in this regard the decision of the UN Human Rights Committee in the case Ng v. Canada, Communication Nº 469/1991, in which the Committee stated that when imposing capital punishment in accordance with Article 7 of the International Covenant on Civil and Political Rights, the execution of the sentence “must be carried out in such a way as to cause the least possible physical and mental suffering.”
 See supra, note 7.
 de Freitas v. Benny  2 A.C. 239.
 Darren Roger Thomas and Haniff Hilaire v. Cipriani Baptiste and others, Privy Council Appeal Nº 60 of 1998 (21 January 1999).
 Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V/II.92 doc.31 rev.3 (3 May 1996), p. 53.
 See similarly I/A Court H.R., Velásquez Rodríguez Case, Merits, Judgment of July 29, 1988, Ser. C Nº 4, para. 59.
 I/A Court H.R., Loayza Tamayo Case, Preliminary Objections, Judgment of January 31, 1996, Series C Nº 25, para. 40.
 See Baptiste v. Grenada, Report Nº 38/00, Annual Report of the IACHR 1999, p. 721, at p. 738; McKenzie et al. v. Jamaica, Report Nº 41/00, Annual Report of the IACHR 1999, p. 918, at p. 967.
 See e.g. McKenzie et al. Case, supra, para. 169.
 See Santiago Marzioni v. Argentina, Report Nº 39/96, Annual Report of the IACHR 1996, p. 76, paras. 48-52. See also Clifton Wright v. Jamaica, Case Nº 9260 , Annual Report of the IACHR 1987-88, p. 154.
 Offences Against the Person Act, as amended by the Offences Against the Person (Amendment) Act, 1992 (13 October 1992), Nº 14.
 Section 2(5) of the Act defines the various officials referred to in Section 2(1) as follows:
2(5) In this section-
"correctional officer" has the same meaning as in the Corrections Act;
"judicial officer" means-
(a) a Judge of the Supreme Court or the Court of Appeal, the Master in Chambers or any person for the time being performing the functions of a Judge of the Supreme Court or the Court of Appeal or of the Master in Chambers;
(b) the Registrar or Deputy Registrar of the Supreme Court, the Revenue Court or the Court of Appeal or any person for the time being performing the function of Registrar or Deputy Registrar;
(c) a Resident Magistrate or any person for the time being performing the functions of a Resident Magistrate;
(d) a person employed in a court's office who carries out prosecution of offences or in the Office of the Director of Public Prosecutions or engaged to carry out functions on behalf of the Director of Public Prosecutions;
"member of the security forces" means a member of-
(a) the Jamaica Constabulary Force;
(b) the Jamaica Defense Force to the extent that such member has been assigned to act in aid of the Police;
(c) the Island Special Constabulary Force;
(d) the Rural Police.
 In addition, Section 3(1A) of the Act prescribes the death penalty as the mandatory punishment for an individual who has been convicted of more than one non-capital murder on the same or a different occasion, as follows:
3(1A) Subject to subsection (5) of section 3B, a person who is convicted of non-capital murder shall be sentenced to death if before that conviction he has-
(a) whether before or after the 14th October, 1992, been convicted in Jamaica of another murder done on a different occasion; or
(b) been convicted of another murder done on the same occasion.
 See McKenzie et al. Case, supra, para. 178.
 Sections 3(2) to 3(6) of the Act prescribe a specific procedure by which a jury is to determine whether a defendant is pregnant for the purposes of section 3(1)of the Act:
3(2) Where a woman convicted of an offence punishable with death is found in accordance with the provisions of this section to be pregnant, the sentence to be passed on her shall be a sentence of imprisonment with or without hard labour for life instead of sentence of death.
(3) Where a woman convicted of an offence punishable with death alleges that she is pregnant, or where the court before whom a woman is so convicted thinks fit to order, the question whether or not the woman is pregnant shall, before sentence is passed on her, be determined by a jury.
(4) Subject to the provisions of this subsection, the said jury shall be the trial jury, that is to say the jury to whom she was given in charge to be tried for the offence, and the members of the jury need not be re-sworn:
(a) if any member of the trial jury, after the conviction, dies or is discharged by the court as being through illness incapable of continuing to act for any other cause, the inquiry as to whether or not the woman is pregnant shall proceed without him; and
(b) where there is no trial jury, or where a jury have disagreed as to whether the women is or is not pregnant, or have been discharged by the court without giving a verdict on that question, the jury shall be constituted as if to try whether or not she was fit to plead, and shall be sworn in such manner as the court may direct.
(5) The question whether the woman is pregnant or not shall be determined by the jury on such evidence as may be laid before them either on the part of the woman or on the part of the Crown, and the jury shall find that the woman is not pregnant unless it is proved affirmatively to their satisfaction that she is pregnant.
(6) Where in proceedings under this section the jury finds that the woman in question is not pregnant the woman may appeal under the Judicature (Appellate Jurisdiction) Act, to the Court of Appeal and that Court, if satisfied that for any reason the finding should be set aside, shall quash the sentence passed on her and instead thereof pass on her a sentence of imprisonment with or without hard labour for life:
Provided that the operation of the provisions of this subsection shall be deemed to be coincident with the operation of the Judicature (Appellate Jurisdiction) Act.