Editorial | Powerful signal from Court of Appeal
CHIEF JUSTICE Bryan Sykes may have faced the first round of the incoming. However, Delroy Chuck, the justice minister, must not believe that he, too, is not a target of what Director of Public Prosecutions (DPP) Paula Llewellyn called the Court of Appeal’s “shot across the bow” of its growing intolerance with inefficiencies and incompetence that delay hearing of appeals in breach of people’s constitutional rights to speedy trials.
The higher court’s concern was sharply signalled in two rulings last week that turned on the Supreme Court’s snail-pace delivery of transcripts and record of proceedings for cases at appeal. But given the appeal court’s new mood, it would be surprising if its justices did not soon move on to other humbugs of the system. In that event, Justice Patrick Brooks, the new president of the court, will also take aim at his own shop. If he does not, or waits too long to act, he might lose the moment and opportunity to really make a difference.
More immediately, though, the pressure is on Chief Justice Sykes to get his house in order, which includes holding his staff to account – and publicly so. At the same time, Mr Chuck is wrong that the job is only Justice Sykes’ and that his role is merely to “highlight inefficiencies and delays in the court’s output”.
A far more important role, in our political system of separation of powers, where the executive controls the Treasury, is to campaign for, and deliver, the funding required for the efficient operation of a modern court system. Mr Chuck is not ignorant of these needs. He is privy to the many studies and analyses of the system’s shortcomings and how, and at what cost, they can be put right.
The matter, which, we hope, is concentrating minds, is the Court of Appeal’s ruling in the cases of Evon Jack and Omar Anderson. Both had to wait at least five years for their transcripts from the Supreme Court to proceed with their appeals. With respect to Mr Jack, the court voided his conviction for the rape and buggery of an 11-year-old girl.
Mr Anderson’s conviction for robbery was upheld. However, the appeal justices, in a verbal ruling, ordered that his sentence end at the point where he was entitled to early release from prison. For any period after that, up to the time his appeal was heard on July 30, he was entitled, they suggested, to compensation from the State. It is likely that both men, who shared the same lawyers, will now pursue these claims.
Jamaica’s Constitution requires that people charged with criminal offences “be afforded a fair hearing within a reasonable time by an independent and impartial court established by law”. Anyone who is tried for an offence, on paying a “reasonable fee as may be prescribed by law, is entitled within a reasonable time after judgment, a copy of any record of the proceedings made by or on behalf of the court”. Additionally, a person convicted of a crime has the right “to have his conviction and sentence reviewed by a court the jurisdiction of which is superior to the court in which he was convicted and sentenced”.
Mr Jack and Mr Anderson waited seven and five years, respectively, for their transcripts. And in Mr Jack’s case, not the entire thing. Essentially, they argued that these delays breached their right to have the convictions reviewed, which also infringed the principle of fair hearing within a reasonable time.
While the Court of Appeal seemingly adopted a more muscular posture, at least with respect to Mr Jack’s matter, the principles enunciated in both cases, combined, were not new. In the Melanie Tapper cases of 2009, for example, the appeal court reduced her sentence in a fraud conviction because of long delay in the case being tried. That decision was upheld at the Privy Council when Ms Tapper attempted to have her entire conviction thrown out.
More recently, the Court of Appeal has complained about the backlog in transcripts from the Supreme Court and how this slowed its work. Indeed, in March when they threw out Michael Francis’ fraud conviction, in part because a Parish Court judge’s case notes could not be found, this newspaper used the opportunity to highlight the Court of Appeal’s deeper worry about the tardiness of the courts below, especially with slow delivery of transcripts in criminal cases and records of proceedings in civil ones.
In 2019, the Court of Appeal, according to the court’s then president, Dennis Morrison, “had 839 outstanding transcripts” which, he said, negatively affected the court’s capacity to complete cases, and, therefore, distorted “our disposal rate figures. But more significantly, particularly so in relation to criminal appeals, it signifies an ongoing departure from the explicit constitutional guarantee of fair hearings within a reasonable time’, Justice Morrison said. The Jack and Anderson transcripts were among those that were unavailable.
The backlog worsened in 2020 as the new figures now show. We told Chief Justice Sykes then that the situation would derail his wish to make Jamaica’s justice system the best in the Caribbean in three years among the globally rated. Unless the Supreme Court gets its act together. That will require simple things like having stenographers in the Parish Courts, training more court reporters for the courts of record – and paying them well. There also has to be greater use of digital technology in the court system. This business of the judges recording whole proceedings in three-quire notebooks is nonsense in the 21st century.
The bottom line: a court of record has to be able to produce its records as the Court of Appeal – which itself is one such court – has so forcefully noted. Justice demands it. For the accused and victim.