Preliminary enquiries: misunderstood, maligned
David Batts, Guest Columnist
The Jamaican Bar Association is reported in The Gleaner of April 24, 2012 as advocating for the abolition of the preliminary enquiry. This, it is said, will speed up the trial process and avoid witnesses being exposed to two trials.
I believe the Jamaican Bar Association is quite wrong on this and that some fundamentals on the issue are being ignored.
The abolition of the preliminary enquiry will open the gateway for grave injustice and will lead to greater, not fewer, clogs and delays in the justice system. I invite consideration of the following:
(a) In the 1970s, preliminary enquiries were abandoned for Gun Court matters and the written statement taken by the police substituted for the 'deposition'. This resulted in a system overload and the Gun Court became the most clogged court in Jamaica. Those who practised there in the 1980s will remember the conditions at Camp Road. Adjournments were the order of the day.
(b) There is legislation in the form of an Amendment to the Evidence Act, which allows a written statement to be tendered in evidence where a witness has died or cannot be located. In the absence of sworn depositions taken at a preliminary enquiry, police statements will, therefore, be the evidence adduced to prove guilt where a witness is said to be dead or unavailable. Right-minded members of society should be concerned at such a prospect given the general unreliability of police statements.
(c) The preliminary enquiry is designed to achieve two things:
(i) First, it ensures that before someone is tried for treason, felony or other indictable offence, the investigating authorities have evidence sufficient to establish a prima facie case. A judicial officer is, therefore, detailed to make this determination before the citizen is subjected to a trial for serious offences. A preliminary enquiry which is properly conducted allows for the elimination of weak or unmeritorious cases and, hence, actually reduces backlog.
(ii) Second, it provides a reliable permanent recording of the admissible evidence so that in the absence of a witness, the deposition sworn to before a judicial officer can be used at trial. A sworn deposition taken by a judicial officer is obviously far more credible and reliable than a witness statement taken by a constable. Note that an accused person can have his witnesses depone at the Preliminary Enquiry (Section 37 Justice of the Peace Jurisdiction Act).
(d) Over the decades, weak magistrates and strong counsel have combined to convert the preliminary enquiry into a 'mini trial'. Magistrates ought not to allow the enquiry to go on indefinitely or be part heard over long periods. It may be that the time has come to legislate for a preliminary enquiry in which the accused must remain silent and "reserve his defence". The role of his counsel is then restricted to making submissions on law at the end, to taking objections to inadmissible evidence and to taking notes of the proceeding.
Alternatively, restrictions could be placed on the time allowed for cross-examination, or on the number of questions allowed at a preliminary enquiry. Such legislation should state clearly that the preliminary enquiry is not to be adjourned because of defence counsel's absence. The reforms suggested would allow the preliminary enquiry to return to its core purposes stated above.
(e) It is a fact that other factors delay the holding of the preliminary enquiry, not the least of which is the attendance of investigating officers and whether they obtain the forensic reports and whether they present the Crown witnesses. The physical condition in which the resident magistrate is expected to conduct the preliminary hearing tends to be far less than desirable.
(f) It has been my experience that there is too long a delay in the reproduction of the official record of proceedings and its transfer to the Circuit Courts. In this technological era, one wonders why the proceedings are not electronically recorded for reproduction if needed at the circuit trial.
(g) Justice cannot be achieved if its safeguards are jettisoned in the interest of perceived expedition. The problems of delay and the steps needed to reduce that delay have been the subject of many studies and reports. I reference some of which I am aware in no particular order of importance:
(i) Report on Issue Working Group on Court Administration and Court Management (Jamaican Justice System Reform Task Force) 2007.
(ii) Case Flow Management in the Court (April 2007).
(iii) Reforming the Justice System - What Do We Need to Do? (26 June 2000).
(iv) Final Report of the Subcommittee of the Consultative Committee of Bench and Bar on the Criminal Justice System (1986).
(v) Jamaica Court Efficiency Study - USAID/GOJ (1992).
(vi) A Note on Required Improvements to the Jamaican Justice System (2006).
(vii) Delays in the Justice System Civil Jurisdiction (1995).
(viii) Report of Special Committee of the Bar Association to Consider the Problem of Backlog and Delay in the Civil Jurisdiction of the Supreme Court of Judicature of Jamaica (1994).
(ix) Recommendations for Dealing with the Backlog Cases in the Courts - Glen Andrade, QC, DPP.
(x) Delays in the Justice System and some Suggestions for the Alleviation thereof.
(xi) Report on Delays in the Admin-istration of Justice prepared by the CARICOM Secretariat (1994).
(xii) Recommendations to solve clogs in the justice system. USAID/GOJ Sustainable Justice Reform Project (1996).