Concerns still exist in legal circles over court of appeal amendment

The furore, which had erupted in opposition camps close to two years ago when the Court of Appeal Amendment Bill was introduced, has intensified as a result of its recent passage in Parliament, but disquiet about the legislation also runs in the legal fraternity.

The opposition has been unequivocal in its rejection of the bill, arguing since in 2008 that it is flawed with grave implications for the local judicial system, which is litigious and clogged with a backlog of cases dating back years. Specifically, the opposition attacked the right of the Director of Public Prosecutions (DPP) to appeal in criminal matters saying the legislation effectively translates into longer jail terms for prisoners.

Prior to it being passed by way of a government majority in the National Assembly, parliamentary opposition parties condemned the Select Committee process as a “sham” saying it was devoid of any input outside the government benches. The opposition charged that the bill was sneaked into Parliament for passage.

Criticism in the legal community had focused on the lack of consultations in drafting the bill as well as the powers now extended to the DPP. Importantly, legal practitioners have questioned whether the reforms are appropriate for this jurisdiction where human rights and constitutional issues involving prisoners are many, and the delivery of justice is largely viewed as slothful.

The debate resembles typical courtroom drama. The Guyana Association of Women Lawyers (GAWL) questioned which advanced jurisdiction the legislation has been ripped from since it appeared ignorant of the constraints of the local judicial system. The group pointedly asked in a submission earlier this year whether the public had expressed a need for such a law and why there were no countrywide consultations on it.

But attorney-at-law Anil Nandlall argued that the changes are to favour the public; a public, which he said, sometimes questions acquittals and often demands answers when justice appears not to have been served.

Nandlall said the scales of justice had always been tilted in favour of the accused if the law is carefully examined and he referred to the right of an accused to appeal his conviction; the fact that the accused is presumed innocent and the burden of proof being solely on the prosecution. He sees no problem with the provisions as set out in the law, but he is of the opinion that time has come for the prosecution to be conferred with a right to appeal.  According to him, people need to understand whose interest the prosecution represents in a criminal trial. “In a criminal trial it is the usually the state and Tom Jones which means that it is 750,000 citizens against Tom Jones,” he added.

What the new legislation essentially does is empower the DPP to file an appeal in a string of criminal cases where a person has been set free. Under the bill, the Court of Appeal can dismiss the prosecution’s appeal or allow the appeal, set aside the verdict and order a new trial. Based on what the legislation also states, the Attorney General can add or delete from the offences identified in the bill. Proponents of the legislation have strongly argued one point, which is that the prosecution, prior to this legislation, had been denied a “critical” right of appeal at an indictable trial.


Fundamental rights

Senior Counsel Miles Fitzpatrick has no objection in principle to the state being afforded an opportunity to appeal, on “carefully stated grounds of appeal”. He said judges have erred in law in different cases against both the prosecution and the accused. However, he emphasized that the right of the prosecution to appeal must also take cognisance of the judicial system in Guyana and the situation of protracted pre-trial detention which it engenders.

The constitutional rights of a prisoner must be respected, Fitzpatrick contends, saying that the right of an accused person to a fair trial within a reasonable time is a fundamental one. He referred to specific parts of Section 34 (C) of the bill, which spells out the right of the DPP to appeal a verdict, and he opined that the provisions can hurt prisoners by keeping them within the system for an inordinately long time.

Section 34 (C) (4) of the bill says; “An appeal made under this section shall have the effect of suspending the execution of the decision, judgment or other order appealed from until the final determination by the appeal proceedings, except that the court may, having regard to the gravity of the offence, release the accused on conditions that shall ensure that the accused attend the appeal proceedings and abide by the proceedings”. Fitzpatrick referenced this saying there is no clear provision for an accused person, who would already have served a certain length of time in prison – that it is left to the discretion of the court.

Fitzpatrick pointed to the fresh nature of the legislation, noting that it ought to have expressly reflected constitutional and established international law principles as regards the rights of prisoners, which were shaped out of respect for human rights. “I hope this is changed to reflect such rights positively in the new law,” he added. The government should remember the trials of Arnold Rampersaud, he said.

He also referred to Section 34 (C) (6), which empowers the Minister of Legal Affairs by order, subject to affirmative resolution of the National Assembly, to amend by adding or deleting from the list of criminal offences which the DPP can now appeal. Fitzpatrick said this particular provision was undesirable and “should not be there” because he believes the tendency is usually to add. “This is a substantial serious amendment of the normal law as it regards serious crime,” he said of the specific provision. He concluded that the bill can be legitimately “attacked and questioned”, but felt that any opposition to it should not extend to the subject of the DPP’s right to appeal but to the manner and form of its exercise.


Stressful workload

GAWL said the legislation has a lot of implications for the already stressful workload of judges; there has not been a full complement of High Court and Court of Appeal judges for years. It pointed to other considerations that go with the lack of a full complement of the Court of Appeal citing statistical work and the output of the Appeal Court with respect to the hearings of all appeals filed and in particular criminal appeals. “Can the Court of Appeal efficiently handle appeals by the DPP of the High Court cases in addition to appeals by the police and the DPP from decisions by magistrates acquitting accused and by convicted persons from the Magistrate’s Court both with respect to indictable matters taken summarily?” the group questioned.

The association questioned how an accused person could be placed on bail when he/she has been acquitted and pointed to the constitutional rights which prisoners are guaranteed. “Why include such provisions where the DPP appeals and there is no guarantee the appeal would be successful or how long the process will take, including a possible appeal to the CCJ on a so far vague provision?”

GAWL tied this with the success rates of appeals and charged that the DPP should reveal what the statistics are as it relates to appeals. It said too that the DPP should issue a public statement on the legislation to inform the public of the reason why such legislation is necessary.

However, Nandlall referred to the legislation as necessary in the interest of justice being served both sides – the defence and the prosecution. He said the DDP previously referenced cases to the Appeal Court for an opinion in criminal cases which had ended in acquittals but stressed that the provision merely amounted to an “opinion” from the higher court. He said that in all four of the known cases which went before the Appeal Court, the court ruled that the decision of the High Court in acquitting the accused persons were wrong. “Often times, it is believed that justice is only about the interest of the accused person. This is a grave misconception and a myopic perception of justice. The state at all times has an interest in a criminal trial; justice is about balancing the accused’s interest on the one hand and the public or the state interest on the other,” Nandlall said.
Lip service

President of the Guyana Bar Association  Teni Housty commented on three elements of the bill, which he cited as critical: process, content and impact of the process on the content of the bill. Regarding the process, he said the Select Committee process allowed for further comment, noting that several members of the bar and counterpart organisations utilized this process. He said the effectiveness of the process to “truly and genuinely influence” the content of legislation must be maintained, noting that lip service to a process must always be avoided.

With regard to the content of the bill, he underscored that as with any legislation views on the content will vary among practitioners. “The bill is no different,” he said, noting that several concerns were expressed by some in support of and others against the content of the bill. The association’s views according to Housty, is that the Constitution is the supreme law of Guyana and the courts are empowered to provide effective remedies in the event that the rights enshrined in the Constitution are infringed. He added that the courts should not be the vehicle of infringement.

“Regarding the merger of the process and content it is hoped that the contributions provided during the process have in fact influenced the content of the bill. As noted above lip service to a process must be avoided as that practice ultimately undermines the efficacy of the processes and the results of the process,” Housty stated. He quoted Albert Einstein, “The road to perdition has ever been accompanied by lip service to an ideal.”

Miscarriages of justice

According to Nandlall, the Court of Appeal had issued a call for Parliament to confer a right of appeal on the prosecution since 1984 and he cited the case of the State v Alvin Mitchell. Speaking on the four cases which went before the Appeal Court, Nandllall said, “The result is that we had four cases of manifest miscarriages of justice, where four guilty persons – 3 murderers and one rapist – were allowed to walk free because the state does not have a right of appeal. This bill seeks to address this.”

He argued that the bill does not allow for an appeal against the decision of the jury, stressing that the province of the jury remains untouched. He noted that it is the judge’s decision which will be the subject of appeals. “We must recognise that judges are human beings and therefore fallible,” he added.