Delays and protractions in our criminal justice system

Mar 13, 2014 Letters

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DEAR EDITOR,
Behold! Something or perhaps several things, may be wrong with our criminal justice system. Indeed, there is overwhelming evidence of infrastructural improvements, but the human factor seems to be lagging behind.
I recently learnt, from the Stabroek News of 08-03-2014, that in a matter of days of the commission of a crime, a man was convicted in a Magistrate’s court for attempting to break and enter the Brickdam Police Station. Shortly before that a young woman was speedily sentenced to five years imprisonment for a crime in which the victim was connected to the criminal justice system.
After all, the police are to be commended for the efficiency with which they prosecuted those two cases. But what about the scores of other cases which have been pending for years, many of which are yet to be brought on for trial?
As a matter of fact, it is to be noted that between August 13th, 2013 and March 6th, 2014 in response to petitions, Chief Justice Chang granted bail to a total of 26 persons, who obviously had been on remand for various periods for a variety of offences ranging from trafficking in narcotics, to robbery under arms, to abusive behaviour and even assault.
I couldn’t have imagined that I would have lived to see the day when someone – at great expense – would have had to seek the intervention of the Chief Justice to secure bail on a matter of assault. This certainly does not speak well about our criminal justice system.  It must be that it is broken.
When Justice Chang broke new ground in 2008 and granted bail to a murder accused who had been awaiting trial for eight years, the situation though shocking at the time, was nevertheless understandable. But it is unacceptable, if not frightening, to hold anyone on remand for an extended period on a matter of abusive behaviour and assault.
After 2008, other judges walked behind Justice Chang and granted bail to individuals who had been charged with murder and other serious offences and who had been on remand for several years. That was a positive development which seemed to have lost its momentum rather quickly.
In the ground-breaking case, Justice Chang was guided by Article 144 of the Constitution and precedence laid down by Justice Crane in the case of R. v. Edwin Ogle (1968). Both authorities endorsed the need for criminal trials to be conducted within a reasonable time and without undue delay.
Justice Crane seemed enthusiastic that he was putting to rest lengthy delays which may have been plaguing the system at that time when he said at Letter ‘D’ on page 443 of the Ogle judgment:
“Admittedly, the accused may be on bail throughout the period of waiting. But for one to have a prosecution hanging over one’s head for three years like the sword of ‘Damocles’ ,seems to strike at the roots of the judicial process….I believe that it is time for the  judges of this land to take as firm a stand as possible, in a matter of this sort.”
Justice Crane made that speech in 1968, but it was not until 40 years later that we took the firm stand of which he spoke.
Similar sentiments about protracted trials and delays were expressed by the Privy Council in the case of Felix Durity v. The AG of Trinidad and Tobago (2007). But what about Morgan and Pratt, which lead to death sentences being commuted to life sentences because of delays? Are we not learning from these judgments?
Just the other day, the CCJ held a historic sitting in Guyana and delivered a written judgment within 24 hours, much to the excitement and appreciation of many. But was a precedent set for us to follow? Would we learn from that exhibition of ‘speed of mind and speed of hand’? I guess that we just have to wait and see.
The importance of a criminal trial being held within a reasonable time is said to be a central ingredient of a fair trial. This is being manifested in the CCJ judgments.  One which readily comes to mind relates to the case of Frank Errol Gibson v. The AG of Barbados (2010). At para 48 thereof, Justice de la Bastide said:
“The public has a profound interest in criminal trials being heard within a reasonable time. Delay creates an increase to the backlog of cases, and tarnishing the image of the criminal justice system. Further, the more time it takes to bring a case to trial, the more difficult it may be to convict a guilty person.”
Truer words have never been spoken, yet we seem to have developed a proclivity for delays. In the Gibson case cited earlier, Justice de la Bastide underscored the need for timely trials especially in situations where innocence may be imperiled. He said:
“Even more telling than the societal interest at stake are the consequences to an accused of a breach of reasonable time guarantee. This is evident in a case of a defendant who is not guilty. The person is deprived of an early opportunity to have his name cleared, and is confronted with the stigma, loss of privacy, anxiety and stress that accompany exposure to criminal proceedings.”
Indeed, once a trial is going to be fair, an innocent accused or defendant will have no interest in a delay of any sort. He may even take to the roof of the prisons to pronounce his innocence and demand to be tried. On the contrary, where guilt abounds and a conviction is eminent, protractions and delays become the order of the day.
But delays may also be premised on the fact that the evidence to convict may not be available. It is against that background, that I would respectfully and most humbly, invite the police to treat all matters with the same efficiency that they attached to the man who attempted to break and enter the Brickdam police station and the young lady who was sentenced to five years.
Francis Carryl

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