Editorial | Watson ruling right signal

It is surprising that Paula Llewellyn, director of public prosecutions (DPP), would see emerging unfairness in appeal judges throwing the convictions of people whose appeal suffers overlong delays because transcripts of their cases are not available.

Rather than whingeing over such rulings, this deepening signal by the judiciary of its intention to protect the constitutional rights of Jamaicans, of whatever social status, should be celebrated. It is what is expected of a liberal democracy founded on the rule of law.

It is now for people like Ms Llewellyn to pressure the lower courts to improve their efficiency, including in the production of case records so that potentially guilty people do not squeeze through loopholes. They must also insist that the political administration make available to the courts the resources with which to effectively do their jobs.

The trigger of Ms Llewellyn’s concern was last week’s ruling by the Court of Appeal in the case of Orville Watson, who, in 2016, was convicted for the illegal possession of a firearm and two counts of wounding with intent.

Mr Watson was sentenced to five years for the gun charge and 12 years each for the wounding convictions. Since the sentences were to run concurrently, he effectively would serve a dozen years in jail. The judge was inclined to imprison him for 15 years but said she took into account the three years he spent in detention before his trial.

Mr Watson’s lawyers filed an early notice of appeal. In May last year, the Court of Appeal formally granted him leave to pursue the matter.

GAVE GREEN LIGHT

But before the case was argued, the appeal judges gave the lawyers the green light to abandon their previous grounds of appeal and to substitute them with three new ones, of which two were constitutional claims:

• That Mr Watson’s right, under Section 16(8) of the Constitution, to have his conviction and sentence reviewed by a superior court within a reasonable time has been breached by the excessive delay between his conviction and the hearing of his appeal; and

• That his right, under Section 16(7), to be given a copy of the record of the proceedings made by, or on behalf of, the court has been breached.

The appeal judges agreed. Critical portions of the transcript were, after seven years, not available to the Court of Appeal.

Writing the unanimous decision, Justice David Fraser said:

“The second striking feature of this case is the length of the delay in the appeal coming on for hearing. The appellant has effectively served seven years of a 12 years’ sentence (though technically, his sentence had not commenced as he was an appellant) after having spent three years on pretrial remand, which was deducted from the 15 years’ sentence that was deemed appropriate by the LTJ (learned trial judge). As the court when dismissing an appeal invariably orders that any sentence of imprisonment should be reckoned from the date it was imposed, the appellant would soon have been eligible for early release, if there was no impediment thereto, had his appeal been heard within a reasonable time and dismissed. However, due to the unavailability of the complete transcript of the appellant’s trial to date, there cannot be a fair determination of whether his conviction was sound. Accordingly, there has been a clear breach of the appellant’s constitutional rights under Section 16(8) of the Constitution of Jamaica … .

“Given these two striking features, the submissions of counsel for the appellant concerning the constitutional breaches complained of are well-founded and appropriately conceded by counsel for the Crown. The long delay, the long period the appellant has spent imprisoned awaiting his appeal relative to the sentence imposed and the unavailability of the Crown’s witnesses also correctly inform the united view of counsel that a retrial in these circumstances would be inappropriate.”

INCREASINGLY INTOLERANT

The Court of Appeal has become increasingly intolerant of delays of this type and in recent times, has made other rulings in the same vein. But Ms Llewellyn is worried that the court’s posture could lead, as she told this newspaper, to “unfairness” to victims of crime and witnesses “who have been courageous in coming forward to give evidence”.

We do not share the DPP’s argument that this is a case of the pendulum of justice weighing too far to one side. In criminal matters, it is the State that is in command, by far, of the greater amount of resources. Indeed, it is the State that has the greater obligation to ensure that the justice system is even-handed, working to the benefit of all citizens.

The justice minister, Delroy Chuck, suggested that the problem was due to a shortage of court stenographers –­ which is a long-standing complaint.

We concede the improvement in the efficiency in the courts in recent years. Indeed, at the end of 2022, the 170 being waited by the Court of Appeal was 32 per cent below the 251 of the previous years. But the 170 went back as far as 2002 – two decades.

Last week, the number was 165. Some could be in danger of ending like Mr Watson’s. That is not the fault of the appeal judges. Their action in Watson was in protection of the rights of all Jamaicans, notwithstanding that we may not like some of the people whose rights are being upheld. Those rights belong to all Jamaicans. Their protection enures to all of us.