Latest update April 19th, 2024 12:59 AM
Oct 28, 2022 Letters
Dear Editor,
On Tuesday, October 25, 2022, I read an article written by Rehanna Ramsay. The writer is to be congratulated for bringing to our attention such an important news item. The article dealt with preliminary inquiries undertaken in our criminal courts in The Kaieteur News at page 12 captioned ‘Need For Greater Reform of Criminal Justice System’. Editor, I have a British law degree earned through full-time studies in London, U.K., and practiced in all three Counties in Guyana since 2004, and then practiced law for four years in two cities, Chatham and Windsor in Ontario, representing well over fifty clients. I wish to comment. The issue is whether to scrap preliminary inquiries.
It is a very important issue. It ought not to be easily swept away under anyone’s carpet, particularly if there is a political agenda at hand. My understanding of this is that serious crimes must have a preliminary inquiry. Whether delays occur in Guyanese criminal courts at the lower level is another matter. The two issues should not be merged. I will deal with delay separately starting in the paragraph where I begin with the words ‘efficiency and expediency.’ Indictable offenses usually carry with them greater punishment. Here in Canada, five, seven, ten, fourteen, or life are applied. An accused must be allowed to test the prosecution witness(es) because, at the end of the day due to the substantial penalty involved, it is vital to give him or her that latitude. I suppose that the Canadians see compromising the principles of fundamental justice and battering procedural fairness of the criminal law on the same level as an accused not being treated fairly.
I, as a former Criminal Law Practitioner, argue that preliminary inquiries stay in the law books, since it allows persons charged to defend themselves fairly at the very outset of the prosecution’s case, on a level playing field, and with the current body of West Indian criminal law jurisprudence as a guide. Efficiency and expediency in the criminal justice sector are what matters. Is something amiss with the current statutory procedure that an accused must apply when facing a judicial officer? That is the question to ask. Is there empirical evidence to support that delay is due to the existence of P.I? A State must promote an efficient and expedient system. A criminal justice system must not impede on an accused right to a fair trial. A State must not employ people who are racists, bigots, misogynists, etc. as Magistrates and Judges sitting on the Bench. It must employ persons who show care tempered with concern for citizens appearing before them. A professional must not assist in any inordinate delay in bringing a trial or preliminary inquiry to completion by the proliferation of a lax prosecutorial system. A simple method of dealing with the delay would be to hire many more magistrates or let the current magistrates work until 9 p.m. with a premium payable to them for late hours. Another one is keeping night courts (2 p.m. to 9 p.m.) with its own crew of prosecutors and judicial officers. There is a recent batch of special prosecutors who have been hired, are sergeants (a high rank), and competent to do that evening work. In Canada, the current body of Canadian criminal law jurisprudence permits an accused to meander through a trial swiftly. The maxim Justice Delayed Is Justice Denied is vital.
Also build more courts serving all Municipalities, Regions, etc. {Each Region having an adult population below 25,000 should have at least 10 courts. If the adult population is over 25,000 and below 50,000 at least 20 courts, and if over 50,000 but below 75,000 at least 30 courts. Finally, where the population is over 75,000 at least 40courts}. Some Housing Schemes have tens of thousands of residents living. Courts should be available in their vicinities. Why? one may ask. There are mosques, mandirs, and churches existing, why not courts. In Guyana, there are over 156 masjids, one even in Albouystown. Why? Because the Muslim leaders saw it fit to have available for us to have a building to pray in and use for other communal purposes. A start in the right direction and the legal way is to set parameters to streamline and eradicate delays in Guyanese criminal courts. Does implementing legislative instrument to categorize all offenses into three or even four types suffice? This jurisdiction, we have Section 469 Offences (can only be tried in Superior Court, e.g. murder and sexual assault), Section 553 offenses (absolute jurisdiction of the lower court), and electable offenses (i.e. those not of s. 553 or s. 469 offenses). British and Australian jurisdictions are similar in their approaches. British Crown Prosecuting Service (CPS) promotes expediency. I witnessed it during the late nineties. United Kingdom courts’ preliminary inquiries are based on Practice Direction(s). Crown Attorneys can’t undertake a P.I. in such a manner in their advocacy job to last more than 42 days. Focus is on the severity of the facts and whether a complicated joint trial or a unique case. When delays are evident, Counsels in Australia, the United Kingdom, and Canada usually apply for a stay of proceedings which would get upheld as of right. An accused gets protected under Section 11(b) of the Canadian Charter of Rights and Freedoms. Section 11(b) deals with the right to be tried within a reasonable time. This section protects society’s interests mandating that criminal cases are ruled upon quickly: R. v. Jordan (2016). The case’s ratio limited the extent of the institutional delay, yet acknowledged that some delays existed in the system. R. v. MacDougall, Section 11(b) extended delay to sentencing, which the Supreme Court of Canada has been zealous in its application. One guideline used is prejudice must not be suffered by the accused. Another is delay is not an acceptable excuse. However, a delay of just under two years between the end of the preliminary hearing and the beginning of the trial seems acceptable. Can’t the Chancellor put benchmark Practice Direction in place to sort out the issue of delay? Why must the Government rush to change the entire scheme of things and make P.I. obsolete based on one variable, delay?
Yours faithfully,
Mr. M. Shabeer Zafar (barrister and solicitor retired)
New Brunswick, Canada
Please share this to every Guyanese including your house cats.
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