Sun | May 22, 2022

Advocates head says trial date certainty inadequate to dispose of court cases speedily

Published:Friday | January 21, 2022 | 12:06 AMBarbara Gayle/Contributor

The Advocates’ Association of Jamaica wants to see a significant improvement this year to the snail’s pace disposal of cases in the Jamaican court system.

“On the criminal side, I would certainly like to see the matters dealt with more expeditiously as it relates to persons who are held in custody,” said attorney-at-law Leonard Green, who is president of the advocates group.

He said he certainly would want the matter of the constitutional rights of persons detained under states of emergency to be addressed since it is grossly unfair and a breach of citizens’ rights to be detained without any reasonable cause, save and except the bald assertion of investigators that they are acting under Regulation 30 of the Emergency Powers Regulation. “It is unfair that a citizen can be detained and deprived of their constitutional rights by the officer’s assertion that he or she is acting under the Emergency Regulations,” Green said.

“Quite often the wrong is done before the matter reaches the Emergency Powers Tribunal,” he added.

Further, the advocates association president pointed out that when people are kept in custody and their properties, like motor vehicles and telephones, are taken and kept by the police, the defence of the attorney general when civil claims are filed is that the police are acting under Section 30 of the regulations. Green argued that the unfortunate situation should be addressed immediately. He said the effect of the Emergency Powers Regulation is to deprive people of their constitutional rights.

Commenting on the cases that have been dragging on for years in the court system, Green said Chief Justice Bryan Sykes has given some assurance that these matters will be addressed.

OBJECTIVE OF TRIAL DATE CERTAINTY

“But in reality, the objective of trial date certainty is not being felt by members of the public,” Green argued.

He said trial date certainty pushes justice farther away from the reach of the ordinary litigants in the Supreme Court.

He referred to the case of the three soldiers charged with the murder of chartered accountant Keith Clarke at his home in Kirkland Heights, St Andrew, on May 27, 2010. Clarke was shot 21 times during a police-military operation aimed at capturing then fugitive drug kingpin, Christopher ‘Dudus’ Coke, with whom Clarke had no connection.

Green said the case which involves both criminal and constitutional issues has been before the court for 11 years. He said he is hoping those matters will be addressed in the new year.

The soldiers have appealed against the February 2020 ruling by the Constitutional Court that the immunity from prosecution certificates granted to them in 2016 by then National Security Minister Peter Bunting after they were charged were not valid. They have appealed the ruling and the Court of Appeal heard legal arguments in February 2021 but reserved its decision.

Questioned if staff shortage could be the problem for the delays, Green said: “That could only explain a part of the problem because the bigger problem is the systemic strictures which prevent the modernisation of a system which is clearly not equipped to deal with the present-day realities and the volume of matters which comes before our courts.”

Accused persons who opt for jury trials during 2021 have been getting trial dates as far away as 2023 . In April 2021, fishermen Rohan McCarthy and Ricardo Britton, who are charged with the murder of three children in Portmore, St Catherine, had their case set for trial in November 2023. They are accused of throwing bottle bombs in September 2004 in a house in which the children were sleeping. The children perished in the fire. The men were convicted in 2006 but they appealed and the Court of Appeal ordered a retrial. The second trial was in October 2014, but the jury failed to arrive at a verdict and a retrial was ordered. The men are on bail.

Jury trials have been put on hold because of the coronavirus pandemic. Green said special arrangements should be made for matters that are of public interest to be dealt with expeditiously.

CONCERNS

Queen’s Counsel Valerie Neita Robertson is concerned about accused persons languishing in custody in light of the fact that they are now looking at trial dates in 2024 . She is calling for more courtrooms to be retrofitted for jury trials, noting that even one trial per month will help to reduce the backlog.

The chief justice said in September 2021 that redesigning jury boxes to accommodate the recommended social-distancing protocols mandated by the Ministry of Health and Wellness was on the agenda. He said so far only four courtrooms in the island were equipped to operate within the recommended health guidelines without significant alterations. Two of the facilities were at the Home Circuit Court and the other two were in Westmoreland and Portland.

The Home Circuit Court list shows that 991 cases were traversed from the Michaelmas term last year to the Hilary term, which began on January 7. The Michaelmas term is from September 18 to December 20, and 77 cases were disposed of during the term.

Director of Public Prosecutions Paula Llewellyn said in keeping with the trial date certainly, the majority of cases on the traversed list have trial dates set within the next two years. She said the cases were kept on the traversed list as a matter of record, “because you have to account for them”.

The cases disposed of last term were those tried by judge alone, cases in which accused persons pleaded guilty or cases in which no evidence was offered, Llewellyn said.

She explained that 90 per cent of the cases that were set for trial in 2020 and 2021 had to be traversed because those were the cases in which the lawyers said that their clients wanted jury trials. The other traversed cases are those in which accused persons have not settled legal representation and cases for plea and case management hearings.

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