Delayed justice

It is perhaps surprising why it hasn’t happened before. Former murder accused Cloyd Harris recently filed a $100 million lawsuit against the state for loss of liberty after spending six years on remand without trial. There must be quite a few who over the years could make a similar allegation, and if, hypothetically speaking, they were all to bring cases and judgement were to be found in their favour, the state could find itself in an embarrassing position.

The amount of time prisoners on remand have to wait for trial is something of a scandal, and in most instances, contravenes Article 144 of the Constitution which requires that anyone charged with an offence “shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.” The matter of personal liberties aside, the large number of prisoners held on remand for lengthy periods has contributed to the problem of overcrowding in the jails, one of the underlying causes of the disturbances in the Georgetown prison in particular.

Mr Harris’s case is different from that of most of those incarcerated on remand in so far as he was never brought to trial. He was in detention from 2012-19, and after his arrest for murder on Christmas Day of 2012, he was committed to stand trial at a preliminary inquiry which concluded in October 2013. As we reported, three years later the case files were still with the clerk of courts and had not been prepared for the High Court trial.

Subsequent to that, the Director of Public Prosecutions instructed that the preliminary inquiry be reopened, primarily in order to admit additional evidence from the main witness, who had not previously testified. When it was reopened in December 2018, this witness gave evidence that he had not seen Mr Harris at the scene of the crime. As such, the magistrate discharged him in July 2019 on the grounds of insufficient evidence to commit him to trial.

As we also reported, in a case which had not dissimilar echoes, High Court Judge Sandil Kissoon threw out a murder charge against two men five days ago after finding that there was insufficient evidence against them. In that instance, they had spent almost ten years in prison awaiting trial. Most significant, the prosecutor had agreed there was insufficient evidence for the men to be put on trial, and as such raised no objections to the motion-to-quash brought by the defence.

There are many problems in the court system which are responsible for the unconscionable delays in bringing cases to trial, but what stands out in the latter instance is the matter of the apparent lack of evidence to support the charges in court. How can a case get that far, the public must want to know, when even the prosecutor raised no objection to it being dismissed? Was it that the DPP’s office was remiss in some respect, or that key witnesses were no longer available, or even that some critical item of evidence had disappeared? In Mr Harris’s case, it is known that for some reason the main witness did not appear at all at the initial preliminary inquiry, which led to his prolonged incarceration.

It is true sections of Guyana’s population are peripatetic, and may not stay at the same address for long. Considering in addition that cases take so long to come to trial, even if the authorities are quite conscientious, they may have difficulty locating key witnesses, who might have moved or even migrated. This in itself could potentially scuttle a case from the prosecution’s point of view. Of course if witnesses have moved to the interior, even if they can be contacted, in current circumstances they may not be able to reach any coastal courts if they are not given sufficient notice.

Then there is the notorious matter of the disappearance of evidence as a consequence of the bribery of officials of one kind or another, something which the public is only too well aware of.  That of course does not delay justice so much as derail it altogether. Exactly what measures have been taken to ensure the safety of files and documents by the relevant authorities from the police upwards, is not entirely apparent.

It has to be presumed, given the delays in cases coming to trial, that part of the reason (certainly not all of it) is the fact that the DPP’s Chambers are undermanned. In addition, it may be that they lack the concentration of skills necessary to discharge their functions with the requisite dispatch, more especially given the large volume of cases with which they have to deal. As with every other institution in this country, one presumes they too lose qualified personnel through migration, depleting the number of experienced prosecutors available.

Issues with police prosecutors specifically have come to public notice in the past, and training programmes for them were put in place to address their shortcomings. How successful these have been is not known.

There are no doubt other personnel deficits at various levels in the court system, such as possibly in the case of court clerks, which do not normally come to public notice, but which have an impact on the expedition with which matters are handled. The one which has been given exposure, however, is the shortage of judges and by extension, magistrates. President David Granger was very dilatory at an earlier stage about taking the measures necessary for judicial appointments to be made, and these it should be said only related to existing vacancies, not additional posts.

Speaking as though he were not a caretaker president and would be in office for the next ten years, Mr Granger told the Police Officers Annual Conference last week that the Force needed to be reorganised and expanded. It is not that he is wrong. It is simply that even if the police hierarchy succeeded in radical reform and enlargement and began solving crimes with efficiency, making a slew of arrests, the court system in its present unreconstructed state couldn’t handle it. The number of cases like those cited above would potentially rise, and the general issue of delays would not be solved, aggravating the problem of denial of citizens’ rights under the Constitution.

There is, however, hope on the horizon. In one important development, the judiciary in partnership with UNICEF is setting up a programme to enable remote court participation, so witnesses will be able to testify without actually having to appear physically in court. In order to facilitate this arrangement, specialised areas are being set up in hospitals, police stations and prisons. The primary target at the moment is for cases involving domestic violence and trafficking in persons, but Chancellor Cummings-Edwards seemed to suggest that this was an initial move in what she called a transformative journey to dispense justice.

“We have so many young members of the judiciary who are technology efficient,” she said at the launch of the project last week, “and it is only fitting that we get with the programme and we too [can] be technology efficient and advance as well … We have virtual courtrooms, but we are not going there yet [as] we want to see our magistrates and judges, but what we would like to have is the means in which we can make justice more efficient.”

Significantly, she added that with the existence of Skype and other facilities, magistrates and judges would be in a position to take evidence from people from different locations, including the police who might be stationed in the interior, and that this should result in a reduction in the number of cases which were dismissed because a witness was absent.

“Initiatives like these would help us to deliver judgment in [a] faster and efficient manner,” she told the gathering. It certainly would, provided it can be implemented. If it can, then we can avoid the kind of situation in which Mr Harris found himself.