‘GROW UP!’

Criminal defence lawyers weary of Parliament granting powers of appeal to the country’s main prosecutorial body need to “grow up” and enter the 21st century, Paula Llewellyn, the state’s chief prosecutor, has argued.

“The pendulum of justice must swing in both directions, not only for the accused but also for the victim,” she insisted on Thursday at a virtual Gleaner Editors’ Forum.

Lawmakers are debating a bill to empower the Office of the Director of Public Prosecutions (ODPP) with the right to appeal low sentences and questionable decisions in the Supreme and Parish courts.

But some defence lawyers have strongly objected, arguing that the Government undertaking to try a person twice for the same crime is in breach of the double-jeopardy principle enshrined in the Constitution.

The Jamaican Bar Association doesn’t yet have an official position, explaining that the proposed legislation is being reviewed by its criminal law and practice subcommittee.

Jason Hamilton, a defence lawyer of more than 20 years in St Kitts and Nevis, where prosecutors have the right of appeal, said out of fairness, lawyers shouldn’t be bothered by the provision.

“We would have a problem if they started to appeal on conviction because clearly, the jury has spoken and said the person is not guilty. That’s an understanding that we go through,” said the former attorney general.

“If you’re being fair in the balance, it shouldn’t be too much of a problem.”

However, Bert Samuels, a local defence lawyer, is against the move, claiming that there is a “hidden hand” in the “haste” to give new powers to the ODPP.

“We have a very, very overworked Court of Appeal already, which has found itself unable to deliver judgments at times before two to three years, and we are prioritising another tier of litigation in the Court of Appeal,” Samuels told The Gleaner.

The strengthening of the prosecution and the State is being done “without giving any kind of innovation for the rights of a defendant”, he added.

The lawyer charged that in Jamaica, the pendulum of justice was swinging “way in favour of the prosecution” and could endanger protections against persons being tried twice for the same offence.

JUSTICE NOT ONLY FOR ACCUSED

Two cases from Belize – Jacinto Roches decided by the Belize Court of Appeal and the Calaney Flowers matter, which went up to the Caribbean Court of Justice (CCJ) – have affirmed that justice was not only for accused persons.

The CCJ also ruled that the principle of double jeopardy was “not absolute” and does “not protect an accused from facing the appellate process as it was part and parcel of criminal proceedings”.

“Justice is not only for the convict and the accused; justice must also be for the victim,” Llewellyn said, questioning what would happen if an acquittal, for example, came about through fraud or corruption involving a judge or juror.

“If you have credible evidence for some malfeasance such as perverting the course of justice, where would it leave the complainant?”

This view is supported by Valston Graham, director of public prosecutions for St Kitts-Nevis.

Five years on the job, Graham has never filed an appeal against an acquittal, and only on three occasions has he challenged sentences he felt were too lenient.

“That’s another misconception by defence counsel, that if that right is given to the prosecution, that it will somehow open this flood gate. That’s really poor thinking,” he said in a Gleaner interview.

“You just do not appeal because you have a right of appeal. You exercise that right with a mindset of the fact that the verdict of the jury is sacred.”

Speaking at the forum, Adley Duncan, deputy director of public prosecutions, said the arguments of critics do not appear well thought out and could be viewed as “potentially disrespectful” of judges.

“I’m not sure that their objections have been fully or articulately developed to a standard where they have really raised any kind of weighty considerations,” he said.

“It’s not every acquittal we can appeal. There has to be a very strong case put forward by the DPP or by her officers and senior judges have to make that assessment, and so there are safeguards in place that militate against the free-for-all that seems to be feared,” he said.

Some other countries where prosecutors have the right of the appeal are Trinidad and Tobago, Belize, Antigua and Barbuda, the Cayman Islands, and England.

Last month, Justice Minister Delroy Chuck tabled two bills in Parliament to amend the law to allow the ODPP to appeal court decisions on any point of law, fact, or sentence deemed inadequate.

It will also create a new offence called the ‘administration of justice offence’, which covers bribery, perjury, or perverting the course of justice.

The bills also propose to give the DPP the right to apply for a retrial of an accused person if “new and compelling” evidence emerges or if it is in the public interest.

jovan.johnson@gleanerjm.com