The push to implement paper committals in the legal system, effectively abolishing Preliminary Inquiry (PI) hearings, has been stymied by the apparent lack of procedural guidelines in the legislation.
In a ruling last week on the first known court application for the alternative use of paper committals, Magistrate Dale Kingston denied the state’s request, noting that full and detailed guidelines were required for the procedure to be adopted. “…The court at this time could not embark on a paper committal process in the instant preliminary inquiry. The traditional old preliminary inquiry process for which guidelines as to procedure are set out in the Criminal Law (Procedure) Act Cap 10:01 ss.62-68 inclusive ought to be applied,” the Magistrate said in her judgment, in an ongoing sexual offence case that had initially involved five young boys, upholding the argument that guidelines ought to be set out as part of the process.
Attorney General Charles Ramson told Stabroek News that the issue had not been brought to his attention. However, he said that unless the act requires guidelines to be given by the Chancellor, it would be an “abdication” of the magistrate’s responsibility to refuse to function within the law as laid down by the act. “The opinion of a magistrate does not override the plain and natural meaning of any provision of a court,” he said, “The magistrate would be in dereliction of his or her duty if she or he were to choose to await guidelines unless the act requires it.”
The Criminal Law (Procedure) (Amendment) Act was passed by the National Assembly last October and was subsequently enacted when President Bharrat Jagdeo gave his assent shortly after. The paper committal law vests in magistrates the power to commit accused persons to stand trial in the High Court if a prima facie case is made out based on statements, documents and other articles tendered to the court, in the absence of a witness. If a sufficient case is not made out, magistrates are also empowered to discharge accused persons.
The law was put in place with the intention of making the committal procedure more efficient, saving the court time and costs by creating an alternative to protracted PIs. It was also felt that the paper committals would obviate the need for witnesses to attend and recite evidence. In this regard, it was expected that the law would address longstanding concern about victims − particularly women and children in sexual offences cases − having to relive their experiences in a hostile courtroom environment, thereby victimising them once again.
According to the explanatory memorandum that accompanied the law, the court’s function would not be substantially altered, as the magistrate would sill have to consider the evidence and determine whether it warranted committal.
However, the issue, as noted by the Magistrate, was what guidelines should be adopted for the reception of evidence − the statements, documents, writings and other articles − before they were inventorised in paper committal proceedings. In her ruling, Magistrate Kingston disagreed with the argument advanced by the state that the new law had some gaps which she had to fill, saying that as a creature of statute she could only act in accordance with the powers given to her by the statute.
And the visible gaps in the legislation have not gone unnoticed. Defence counsel like Neil Boston are pointing to the lack of regulations and arguing against any implementation of the law as it is currently enacted. Boston told Stabroek News that while the law was good because “it eliminates considerable time,” it was deficient. He said that the amendment failed to address various critical questions as it related to the conditions required for statements being admitted into evidence, while adding that parliament ought to legislate the regulations. “I want to support the law but not in its current form,” Boston added.
The state, through the office of the Director of Public Prosecution (DPP), had argued that the new law empowered a magistrate to determine whether a prima facie case had been made out on the basis of bare statement or documents submitted, rather than oral testimony. “The overall effect of this amendment it seems is that the procedure can only be in the interest of the public and more particularly, to protect the public… the object of the legislation is not to penalize anyone,” State Counsel Sonia Joseph contended in her submission before Magistrate Kingston.
But Boston observed that there were no provisions in the amendment regarding a number of issues, pointing to instances involving statements taken from children and whether the magistrate should comply with Sections 49 and 71 of the Evidence Act.
He said that there were no provisions that the statement should contain a declaration by the witness who had made it that it was true to the best of their knowledge, and questioned what would happen in instances when a statement was taken on behalf of someone who could not read. He also asked what happened if the magistrate found that a part of the statement was inadmissible. Further, he said, there were too many unanswered questions regarding the process.
Magistrate Kingston was also apprehensive about importing legislation or procedure from other jurisdictions, noting that there was no law which permitted a magistrate to incorporate any other legislation or common law principles and to do so would be in excess of jurisdiction.
Since the position of paper committals in Trinidad and Tobago had been raised in the submissions before her, the Magistrate referred to it in her ruling. She noted that Section 4 of Trinidad and Tobago’s Indictable Offences (Preliminary Inquiry) (Amendment) Act No 23 of 2005 provided for the admissibility of written statements and outlined the conditions to be satisfied before admittance of the statement, such as the statement being sworn before a Justice of the Peace and containing a declaration by the witness that it was true and to the best of his knowledge or belief.
For his part, Ramson also lamented the fact that junior magisterial functionaries seemed reluctant to act with initiative. “That has been the bane of our legal system,” he said, “Very few people are acting with the requisite initiative in order to move the system.”
However, PNCR-1G MP and attorney Clarissa Riehl described the legislation as “very bald,” arguing that it failed to stipulate the steps a magistrate needed to follow. She was supportive of Kingston’s position, noting when the Administration of Justice Act was introduced it was specific in stipulating all the steps to be taken by members of the magistracy. “It was not done properly,” Riehl said of the new law, while emphasising that magistrates were creatures of statute having very little room for manoeuvering within the confines of the law. She noted that Trinidad had been faced with a similar problem and subsequently sought to remedy the problem − a move she advocated that legislators should follow.
Riehl was also critical of what she described as a practice by the government to introduce legislation without the concomitant regulations necessary for enforcement. She had originally raised the issue in the National Assembly during her contribution to the 2009 Budget debate.
