Chapter 7 • The Right to a Fair Trial: Part II – From Trial to Final Judgement 3.5.1 The right to effective legal assistance in death penalty cases As consistently held by the Human Rights Committee, it is “axiomatic that legal representation must be made available in capital cases”, and this not only “at the trial in the court of first instance, but also in appellate proceedings”. Moreover, the “legal assistance to the accused in a capital case must be provided in ways that adequately and effectively ensure justice”.103 According to the Committee’s jurisprudence under article 14(3)(d): “The court should ensure that the conduct of a case by a lawyer is not incompatible with the interests of justice. While it is not for the Committee to question counsel’s professional judgement, the Committee considers that in a capital case, when counsel for the accused concedes that there is no merit in the appeal, the Court should ascertain whether counsel has consulted with the accused and informed him accordingly. If not, the Court must ensure that the accused is so informed and given an opportunity to engage other counsel.”104 In the case of Morrison, the author should consequently “have been informed that legal aid counsel was not going to argue any grounds in support of the appeal, so that he could have considered any remaining options open to him”. Since this was not done, article 14(3)(d) was violated.105 Article 14(3)(d) was violated in the similar Reid case where the author had a court-appointed lawyer but had indicated that he wanted to be present himself during the appeal proceedings. This possibility was denied him since he had a lawyer; however, his lawyer subsequently decided that there was no merit in the author’s appeal and advanced no legal arguments in favour of it being granted, “thus effectively leaving him without legal representation”.106 In the view of the Committee, and considering that this was “a case involving the death penalty”, the State party “should have appointed another lawyer for [the author’s] defence or allowed him to represent himself at the appeal proceedings”.107 In the McLeod case, the legal aid representative had in fact consulted with the author prior to the appeal, but, unbeknown to him, had decided that he would argue no grounds of appeal. There was no indication in this case that the Appeal Court had taken any steps to ensure that the author’s right to be duly informed was respected, and the Committee therefore concluded that his rights under both article 14(3)(b) and article 14(3)(d) had been violated.108 103 Communication No. 232/1987, D. Pinto v. Trinidad and Tobago (Views adopted on 20 July 1990), in UN doc. GAOR, A/45/40, p. 73, para.12.5. 104 Communication No. 663/1995, M. Morrison v. Jamaica (Views adopted on 3 November 1998), in UN doc. GAOR, A/54/40 (vol. II), p. 155, para. 8.6. 105 Ibid., loc. cit. For a similar case, see also Communication No. 572/1994, H. Price v. Jamaica (Views adopted on 6 November 1996), in UN doc. GAOR, A/52/40 (vol. II), pp. 155-156, para. 9.2. 106 Communication No. 250/1987, C. Reid v. Jamaica (Views adopted on 20 July 1990), in UN doc. GAOR, A/45/40 (vol. II), p. 91, para. 11.4. 107 Ibid., loc. cit. 108 Communication No. 734/1997, A. McLeod v. Jamaica (Views adopted on 31 March 1998), in UN doc. GAOR, A/53/40 (vol. II), pp. 216-217, para. 6.3. See also e.g. Communication No. 528/1993, M. Steadman v. Jamaica (Views adopted on 2 April 1997), in UN doc. GAOR, A/52/40 (vol. II), pp. 26-27, para. 10.3. 274 Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers