Problems with new rules

According to an overview of the new rules, issued by the Judiciary’s Protocol and Information Unit via its website, it is aimed at speeding up the administration of criminal justice. The overview also describes the news rules as a robust case management system developed to deal with cases justly and expeditiously.

“The adjudication process within the Criminal Justice System has historically been beset by procedural and tactical delays both at the Magistrates’ Court and at the High Court. An accused person has a right to a fair trial and more broadly, both the accused person and society have a right to an expeditious and cost efficient disposition process,” the publication noted.

The new rules set out requirements for the prosecution and defence before a trial can proceed. It also talks about sanctions for attorneys who fail to adhere to the time-lines set, as well as the assigning of a case progression officer to each case to assist the court with the management of a trial. “The overall effect of these changes is a longer term culture shift within the system,” the Judiciary’s publication also noted.

IMPORTED RULES? But not all attorneys who practice in the criminal courts share the same optimism as the Judiciary.

A lawyer said it appears the new rules were imported from the United Kingdom’s criminal procedure rules without adapting it to the local court system.

While admitting it will ‘tighten the laces of the prosecution’, the attorney pointed out that the Office of the Director of Public Prosecutions depends on other agencies such as police investigators and the Forensic Sciences Centre, to progress their cases. “Theoretically it looks good but the practical reality is a different story,” the attorney said.

Several criminal defence attorneys also questioned whether the new rules applied to preliminary inquiries in the magistrates court.

“These rules cannot apply to preliminary inquiries although magistrates are under the impression it does. These rules are only to give the appearance that something is being done to the criminal justice system,” the attorney noted.

“You do not need rules to manage cases in the magistrates court or the High Court...just strong magistrates and judges do to so.” President of the Criminal Bar Association Pamela Elder SC, also expressed concern with the new rules.

NOT HELPING AT ALL “I respectfully feel these (new rules) are just adding an extra layer of delay and complexity to the system,” Elder said. She questioned the provision of Case Progression Officers who will be assigned to each case to assist with the management of the trial. “Will the court tell me who the case progression officer is? Who is going to pay for one? What are their qualifications,” Elder asked.

“I do not see how this is going to ensure my clients who are languishing in jail for three and four years, will receive an early indictment.

How are these rules going to cure the fundamental issues plaguing the criminal justice system?” What is there to expedite matters in the High Court? Don’t make false assurances and promises to people, she advised.

Speaking at a recent Joint Select Committee, DPP Roger Gaspard noted that there were currently 800 murder indictments pending for trial in the High Court. Elder also expressed concern about the nature of sufficiency hearings to replace preliminary inquiries and requirements for the defence according to the new rules. “How can the defence be mandated to state its case from the outset if I do not know what the prosecution’s case is,” she asked.

WON’T CHANGE A THING Attorney Jagdeo Singh said the new rules will assist in streamlining cases and will allow for better management and a more efficient use of the court’s time. But he too expressed concern with the number of outstanding indictments in the criminal courts and how the new rules are expected to treat with this issue.

“My concern is how do these new rules apply to the magistrates court and the power of the Rules Committee to set out the conduct of criminal trials in the magistrates court where the procedure is already spelt out in statute that is the Summary Courts Act,” Singh said.

Criminal defence attorney Larry Williams, while applauding the efforts of the Chief Justice and his team, said he does not see the new rules making a difference.

“It won’t make magistrates’ court start on time. It won’t ensure all magistrate courts operate till 4 pm and not end at 12 noon. It won’t make the understaffed DPP’s Office ready in matters before two to three years of charging a person and it certainly won’t make magistrates dismiss murders when the State isn’t ready,” Williams said.

According to Williams, it may assist in summary court matters such as the use of obscene language, to not drag on for years. Another criminal defence attorney agreed that there should be rules to govern criminal cases, but noted the ‘roll out’ of the new rules was not proper. “It is not equitable because the training required for all parties has not been done,” attorney Mario Merritt said.

NO HELP TO DEFENCE “It seems there is a greater burden on the defence to disclose more and there is no greater burden on the State to do the same,” he added.

“I find that this is an unfair situation.

The playing field has never been level. The State has always had the freedom to withhold information they think we (the defence) don’t need and I think that is unfair especially in light of them saying there is no ambush anymore.

“In the United Kingdom, you just don’t get what they (the prosecution) wants, they give you everything they have in their armoury,” he said. “Right now with the rules.

They want to know your defence,” he said, a point also raised by Elder.

“How is the defence mandated to state its case from the outset? What is from the outset,” Elder asked.

Merritt said he did not believe the defence should be made to reveal every single aspect of its strategy beforehand. “They say it will speed up the process but to me it will do the opposite and slow it down because if you put another cog in place before you get to actual trial, the bureaucracy will naturally slow down the actual even (trial) happening,” he noted.

“It feels like things are being shoved down our throats,” Merritt said. He also noted that there were a few criminal attorneys with three or four cases at a time in different districts and the new rules will only serve to put additional pressure on them. “I have enormous problems with the rules,” he said.