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PUBLIC AFFAIRS - Gun Court under heavy strain
published: Sunday | June 13, 2004

By Barbara Gayle, Staff Reporter

Nicholson and Wolfe

THE MASSIVE backlog of cases in the Gun Court in downtown Kingston is a clear indication that the court is not serving the main purpose for which it was established 28 years ago.

After the Gun Court Act was passed in 1974 establishing the Gun Court, the authorities had promised that cases which were brought before it would be disposed of within seven days.

The sentence for illegal possession of firearm and ammunition was indefinite detention and even illegal possession of a bullet attracted the same penalty. The authorities had hoped that the Gun Court would be a deterrent to gun crimes but statistics have shown over the years that it is not.

During the first several months of the court's existence, cases were disposed of speedily.

But ever since the mandatory sentence of indefinite detention was struck down by the United Kingdom Privy Council in 1975 as unconstitutional, the court has been faced with a huge backlog of cases.

The court was moved to the Supreme Court building, downtown Kingston, in September 1998 after being at Camp Road for 24 years. In 1998 the court had a backlog of almost 1,000 cases. The main reason for the removal was that when cases in the other courts did not get off the ground, the judges could assist in disposing of Gun Court cases. However, that has not helped in anyway to reduce the backlog of cases or reduce the large number of accused persons languishing in custody.

"I can't understand why there is this massive backlog of cases and nothing is being done"' a judge is reported to have said while presiding in the Gun Court earlier this year. The Resident Magistrate Division of the Gun Court which deals with preliminary enquires is also faced with a huge backlog of cases because witnesses are not attending court.

Chief Justice Lensley Wolfe is also annoyed with what he called a "terrible" backlog of Gun Court cases. In a notice published two weeks ago on the notice board at the Supreme Court, the Chief Justice said Supreme Court judges have decided to pay special attention to clearing the backlog from August 9 to September 10. He added there will be five additional courts dealing with gun-related matters instead of the usual two courts.

Chief Justice Wolfe, in the notice, appealed to lawyers to arrange their holiday schedule to ensure they attend court and are ready to proceed in all matters set down for hearing during the specified period. He insisted that adjournments will be granted only in exceptional circumstances.

But in response, attorney-at-law George Soutar, president of the Advocates' Association of Jamaica, told The Sunday Gleaner that some of the lawyers had already made plans to go overseas during the legal vacation which usually runs from August 1 to mid-September. He said he believes the additional courts should only sit for a part of the vacation. Mr. Soutar says focus should be to try and establish a system where old Gun Court cases that for one reason or another are not going anywhere can be examined and reviewed and where appropriate taken out of the list. This would reduce the heavy backlog in the Gun Court, he added.

Mr. Soutar said some years ago such an exercise was done in the Gun Court and had the effect of reducing the backlog.

Members of the public, particularly jurors, have been complaining for several years now over the long delay in disposing of cases in the courts. The attempt by the judges during the legal vacation to clear the "terrible" backlog will leave many citizens heartened at the news. After all it should not be forgotten that justice delayed is justice denied and all accused persons are entitled to a fair trial within a reasonable time and a reasonable time should not be several years as exists in many of the cases in the courts particularly the Gun Court.

In 1993, former Director of Public Prosecutions, Glen Andrade, QC took the decision to weed out Gun Court cases that had been on the trial list for years because witnesses were not attending court. Mr. Andrade announced then that in weeding out the cases priority would be given to accused persons who were languishing in custody.

Another attempt was made in 1999 to reduce the backlog when Chief Justice Lensley Wolfe and Mr. Justice Howard Cooke presided in the Gun Court for a term. The situation was so frightening then with the large number of cases and the large number young men in custody that the Chief Justice was reported to have said several times "we must take back the country from the gunmen."

The Chief Justice expressed concerns about the plight of the young men and was reported to have said that if they continued to face the Gun Court at the current rate there would not be many left for the nation's young women in the future.

The Gun Court has the highest number of cases, the highest rate of acquittal and the highest number of cases with no evidence being offered.

Legal experts have said over the years that one of the reasons for the high acquittal rate is that the mere complaint from a witness that someone pointed a gun or fired a gun at them, without thorough investigation, will result in an arrest.

The statistics for last year show that 621 new cases were brought before the Gun Court and the cases involved 779 persons. No evidence was offered in 115 cases involving 176 persons. There were 162 cases of acquittals which 223 persons were charged. In six of the cases brought before the court, 13 accused persons died. No order was made in two cases involving two accused persons. The Director of Public Prosecutions entered nolle prosequi (no prosecution) in seven cases in which 12 persons were charged.

There were 177 cases of convictions in respect of 190 persons brought before the court. Cases transferred to the Resident Magistrate's Courts totalled 15, which involved 16 persons charged. There were 16 cases involving 20 persons which were transferred to the Circuit Court.

The weekly court list shows that on a daily basis there are at least eight cases listed for trial in each of the two divisions of the Gun Court.

On January 4 this year, Court 4, one of the two divisions of the Gun Court had seven cases for trial. A bench warrant was issued in one case. One of the cases was adjourned to locate a witness. In another case, the witness was present but was adjourned because the lawyer representing the accused said he was not properly provoked (not paid for his services). The witnesses were absent in the other four cases.

On February 13, court 4 had 13 cases. The lawyer withdrew from one case and a new assignment was ordered for another lawyer. The police witness was absent in one case. Another case was sent to another court. Legal representation was not settled in one case; in one case the accused men were discharged; another case was part-heard for another date, an accused was sentenced in one case, a case involving three accused men was tried and they were found guilty and sentenced to 10 years imprisonment each at hard labour. In the other four cases the witnesses were absent.

On March 18 this year, Court 5 had 11 cases. In three of the cases, the witnesses were absent and the cases had to be put off. In one case the accused was not brought, the Crown was not ready in one case, the lawyer in one of the cases was appearing in the Circuit Court, the lawyer was absent in one case and the investigating officer was absent in one case. Two cases were started and in a third case the accused was sentenced to 12 years imprisonment.

Court 4 had seven cases listed for trial on March 18. The investigating officer was ill in one case. There were no witnesses in three of the cases, the lawyer was absent in one case and trial proceeded in one of the cases.

On a weekly basis that is how the Gun Court operates and those who do business in those courts are fed up with the slow pace at which the Gun Court operates. The absence of witnesses plays a major role in the backlog of cases.

Attorney-at-law Lloyd McFarlane who practises in the Gun Court regularly says with the growing backlog of cases in he Gun Court there is the need for more judges and more staff to get rid of the backlog. He bemoaned the fact that many accused persons were languishing in custody.

"The original idea of Parliament when the Gun Court Act was passed was to have speedy trials and that was used as the justification for refusing bail. There is now no speedy trials and prisoners are left to languish in custody," he added. He says the judges are working hard to get rid of the cases but without the witnesses attending then the judges cannot dispose of the cases expeditiously.

Attorney-at-law Bert Samuels is of the view that there should be more than two courts trying gun cases. "The statistics will demonstrate that the new case intake on Fridays means that the two judges assign to the Gun Court cannot dispose of the cases by themselves on a timely basis. He said in the early days when the court was established there were two courts disposing of the cases therefore now that the number of cases have quadrupled it means that there is the need for more than two divisions of the Gun Court.

Attorney-at-law Patrick Atkinson is concerned about the backlog in the courts especially the Gun Court. He says what we need to do is to arrive at an effective way to co-ordinate the trials in each court days ahead of the trial date. He said further that "what is happening is that many cases come before the courts on a daily basis and in many of them we have some of the witnesses present. So you end up with a series of part ready cases".

Mr. Atkinson is optimistic that "if we co-ordinate our trials days before the actual trial date, the judge, the defence attorneys and prosecutors will know which cases are going to start ahead of time and those that are not going to start for whatever reason would be known ahead of time so that the judges would not waste their time in enquiring into the readiness status of each case. The time has arrived to set up a master calendar court which is separate from the trial court."

The master calendar court would deal with cases that would not be tried for whatever reasons and deal with bail applications. He said the whole backlog of criminal case require we should have the actual players in the justice system discuss ways and means to reduce the backlog.

Minister of Justice and Attorney-General A. J. Nicholson pointed out that witnesses turned up in the Regional Gun Court and there was no backlog of cases in that court as exists in the Gun Court in Kingston. He said the real problem in the Gun Court was witnesses not attending court and not an inadequate number of judges assigned to preside at the trials.

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