Indictable Offences Act

Justice delayed is justice denied, goes the old saying. But justice hastened can also deny justice, unless proper safeguards are put in place. And this s the core problem with the amendment to the Indictable Offences (Preliminary Enquiry) Act, which was presented by Attorney General John Jeremie in the Lower House on Friday. The amendment does two things: it allows for digital recordings of proceedings in the Magistrates Court and it allows the Director of Public Prosecutions to bypass preliminary enquiries at his discretion. Both these measures are intended to streamline the hearing of cases in the lower court. The Government is certainly right to make this a priority. The Magistrates Court is where the bulk of the country’s legal matters are heard. Thus, when ordinary citizens experience the shortcomings of the system there, it creates both disrespect for and anger with the law. Such a mindset surely helps contribute to the disorder of our society. So improving the lower court is an indirect but crucial part of fighting crime.

But what is the best method for improving the court? The digital recording, which will do away with the time-wasting and laborious taking of handwritten notes, is certainly a necessary measure. But doing away with preliminary enquiries is a more controversial measure. The Government’s proposal is that the DPP will be given the discretion to send criminal matters straight to the High Court. The present procedure gives the magistrate sole discretion to decide whether a prima facie case has been made out, although former Attorney General Ramesh Lawrence Maharaj created a law which now allows the State to challenge such decisions (as has occurred in the Brad Boyce case).

The new amendment brought by Mr Jeremie makes the DPP essentially the decision-maker in his own interest, inasmuch as no criminal matter can reach the lower court in the first place without his say-so. In other words, the DPP, having decided that the police should go ahead and press charges against someone, is hardly likely to reverse himself. The question is, how will he decide which cases don’t need to be heard by a magistrate? This rather important issue has been ignored by the Attorney General, who in his contribution on Friday did not list any criteria that the DPP will be using to decide which cases should and should not be subject to a preliminary enquiry. But such details can no doubt be worked out before the Bill becomes law. But then we come to the next question — will the DPP’s new power really help the lower courts to process cases faster?

The core fact is, there are too many cases and too few magistrates. Before the Government goes about giving the DPP powers which can be subject to abuse, and which certainly contravene Constitutional rights, they should do an audit of the systems of the lower court. Some of these procedures have been in place since the colonial days. Putting technology in place, as well as additional personnel, may do far more to unclog the court than bypassing preliminary enquiries. And a major bugbear is certainly scheduling, which is a key contributor to the backlog. If a lawyer has a matter in both the Magistrates Court and the High Court at the same time, for example, the latter must take precedence.

This happens partly because some lawyers take on more cases than they can handle, but it also happens because court matters get postponed and throws the lawyer’s schedule into disarray. And there are, of course, those lawyers who actually hire touts to lurk by the lower courts and rope in clients, who pay the lawyer just to get their matter postponed. These are difficult issues, but not insurmountable ones. And, if the Government really wants to streamline the court system, this is the kind of analysis they must do in tandem with legislative changes.