Timely hearings in criminal proceedings

Dec 17, 2023 Letters

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Dear Editor,

The importance of timely hearings in criminal hearings prevents public confidence in the administration of justice from being undermined and allows an accused to access to justice. This article will seek to discuss that a hearing within a reasonable time is guaranteed in Guyana as a human right by international conventions which Guyana has ratified and set out in its Constitution.

The reasonable time guaranteed for criminal hearings has been consistently infringed in Guyana. This right is guaranteed by Article 5(1) of the 1961 Constitution, Article 10(1) of the 1966 Constitution and to date Article 144(1) of the Constitution.

Further, Guyana ratified the ICCPR in 1977 and the Convention on the rights of the child in 1991 both of which guarantees this right. One of the oldest cases that dealt with this right in Guyana was R v Ogle, where the accused was committed to trial and awaited over three years for it to commence. The Court held this was an inordinate delay. The Court stated that a reasonable time will always be a question for each Court to decide by listening to explanations offered by the prosecution for the delay in the hearing and by exercising its discretion thereafter. There were no explanations offered by the prosecution for the delay in this case.

Ogle was followed in Gordon Sandiford v DPP. The question there was whether a period of fourteen months for the hearing of the preliminary inquiry was unreasonable. The prosecution blamed the lack of a Magistrate in the district. The Court was of the view that such as excuse could not ever be offered for a delay in the hearing. The Court held that such a delay was inordinate and ordered the preliminary inquiry to commence.

The decision of Guyana’s final Appellate Court; the Caribbean Court of Justice (CCJ) in Singh v Harrychan, was instructive, more than nine years from conviction of a simple offence had elapsed. The prosecution offered no plausible explanation the delay. The Court ordered the matter to be remitted to the Court of Appeal and for the record of appeal to be prepared expeditiously.

In Bridgelall v Hariprashad, the accused was charged with two counts of possession of cocaine he was convicted and appealed. The accused matter had been languishing over a decade in various Courts. The CCJ approved the decision of the English Courts thereby laying down the test for the breach of this right. The Court held that the overall period that has been elapsed must be first considered, if on the face of the lapse there is an overly lengthy lapse of time, then the Court will interrogate all of the circumstances and facts of the case with a view in determining whether the explanation from the prosecution is justified. The Court held that administrative staffing of the Court of Appeal was no excuse that can be offered by the prosecution. Consequently, inordinate delay was found, and the accused was not required to go back to prison.

Finally, in Inderjali (as next friend of Bisram) v DPP, the Court stated that the right is not an absolute right and must be balanced against the public interests in attainment of justice. The CCJ considered the America decision of Barker v Wingo and formed the view that delays caused by the judiciary should be weighed less.

The prosecution in Inderjali admitted that there was a larger systemic issue in Guyana as it relates to hearings. The challenges are:

2017. a) An overburdened legal system. The Judicial Service Commission (JSC) is primarily responsible for appointment of Judges and Magistrates in Guyana has not been constituted since 2017. On the 14th July, 2023, the JSC was constituted. To date the JSC has not appointed more Judges and Magistrates;
2018. b) Insufficient resources; and c) Procedural Challenges. Statute requires Magistrates to take notes in writing of testimonies and lengthy preliminary inquiries creates backlogs.

5)         Consequences of Prolonged Delays

1. a) Impact on the accused and society. The accused in having a prosecution hanging over his/her heading for a protracted period can lead to psychological and emotional distress; and
2. b) Prolonged pre-trial detention. This makes up 27% of the prison population. Further, the average length of time for a prisoner to await his trial is three years.

The decisions of Ogle, Sandiford and Harrychan made it clear that the ‘reasonable time guarantee’ is applicable to hearings of a preliminary inquiry trials and appeals.

The CCJ in Bridgelall’s adopted the English test on whether there is a fair hearing within a reasonable time. The CCJ considered the American test in Barker v Wingo. The test adopted in Guyana is far less onerous on an accused than the American test.

Guyana’s position has evolved considerably from Ogle to Inderjali. There were initially one party at fault for the delay; the prosecution. It can be reasonable inferred that in Sandiford the prosecution’s blame of the judicial system and its constraints could not be any excuse for a breach. However, Harrychan and Bridgelall’s decision changed that position and named two liable parties to that delay: the prosecution and the judiciary.

The constitution created remedies for the breach of this right through redress in the High Court of Guyana and via the Human Rights Commission of Guyana. The remedies available through the High Court is tailored made to the circumstances of each case. This reflects the English and the Canadian positions.

The writer posits that the lack of financial resources in Guyana is the root of the systemic problem which has led to the consistent breach of this right. However, recently Guyana’s real GDP is estimated to have increased by 63.4 percent in 2022 due to Guyana recently discovered vast oil wealth. The root cause may be cured by this wealth.

The writer recommends the following to deal with the systemic issues:

1. a) Changes to legislation: by repealing section 28(5) , in place of a system to institute in the Magistrate Court audio recordings and stenographer in place so that the Magistrate would be free from recording written testimonies. Further the abolition of preliminary inquiries, which requires evidence in chief of witnesses to be led and the mandatory imposition of hybrid paper committals;
2. b) Establishment of Criminal Procedure Rules, which in effect would require case management and case flow management; and
3. c) Appointment of more Magistrates and Judges in Guyana, efficient resource allocation to the judiciary and advocating for increased resources in the justice system.

The right to a hearing within a reasonable time has been infringed in the criminal justice system throughout the history of Guyana. This right has its genesis from European colonization of Guyana which was enshrined in Guyana’s constitution and reaffirmed by international conventions.

The old test of the breach of this right has evolved from Ogle to Harrychan to Inderjali. The burden of proving that the delay was justified has always remained on the prosecution. However, it was Bridgelall which laid down the true test to be applied in breach of this right, thereby adopting the English approach and rejecting the American approach, irrespective that the term ‘reasonable time’ has never been defined. It was until Inderjali which perfected the law and considered ‘all’ of the delays experienced by the accused.

The Guyanese position took on the English approach as it relates to this human right and went further by adopting the American’s view on the weight attached to the delays caused by the judiciary.

The systemic issues in Guyana range from statues and procedural rules that are either lengthy or archaic, to lack of resources. The recommendations proposed requires a large quantity of resources. However, based on the potential economic wealth in Guyana, the judiciary would be aptly financed in years to come, thereby curbing this future breaches of this right.

Donavon A. Rangiah, LLB

Attorney-at-Law

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• aribbean Court of Justice (CCJ), Attorney-at-Law, Constitution, Donavon A. Rangiah, LLB

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