The government is looking for a consultant to help it craft a bill that will end time-consuming preliminary inquiries (PIs) in what will be a major reform of the criminal justice system here.
“We are now moving in the direction of drafting legislation to abolish PIs at criminal trials. This initiative has already been taken in England and in various countries in the Caribbean…It is public knowledge that a Preliminary Inquiry takes years to determine, and has caused a tremendous backlog in the criminal justice system, hence the movement to abolish it across the Commonwealth,” Attorney General Anil Nandlall SC told Stabroek News yesterday.
In a procurement notice published in the Guyana Chronicle yesterday, the Ministry made the request for applications for the project which is funded through a loan from the Inter-American Development Bank (IDB).
“The Government of Guyana through the Minis-try of Legal Affairs and the Inter-American Development Bank recently signed a loan for an intervention in the Justice Sector of Guyana. The Support for the Criminal Justice Programme seeks to address institutional issues which affect Guyana’s criminal justice system,” the notice stated as it invited eligible “individual consultants” to indicate their interest in providing services.
The duration of the consultancy is 60 consulting days over a three-month period but within that period there are deliverable timelines and payment schedules.
The advertisement states that prospective consultants should provide information demonstrating that they have the required qualifications and relevant experience to “Draft a bill to Abolish Preliminary Inquiries in Criminal Proceedings in Guyana and to review and provide recommendations on the Criminal Procedure (Plea Bar-gaining and Plea Agreement) Act, Cap.10:09.
The issue of abolishing preliminary inquiries has been a topic of public concern for years. In 2001 it had been recommended by visiting judicial experts that its abolition be looked into as it was a significant cause for judicial delays.
“It is a well-known legal aphorism that justice delayed is justice denied. The effect on victims, defendants, witnesses and those close to all these people can be very serious. People who are kept in gaol for years awaiting trial may be shown to be innocent. People who have valid claims for damages may be kept out of their money so that they are ruined,” British Judge Mark Stephens QC had said.
However, then Chancellor of the Judiciary Desiree Bernard who had responded to the recommendations made by the visiting team, said that while abolishing the preliminary inquiry would speed up the hearing of criminal trials, she could not act arbitrarily on the issue and had to work with the Guyana Bar Association.
Step already taken
Nandlall said that this was a step already taken. “I have taken the liberty of consulting with both the bar and the judiciary and they have expressed their full support for the measure.”
According to the Minis-try of Legal Affairs, the project seeks to address the general problem of the overcrowding in Guyana’s penitentiary.
The terms of reference (TOR) seen by Stabroek News state that recent research has shown that Guyana’s prison population rate of 256 per 100,000 of national population significantly surpasses the world average of 146 per 100,000 and exceeds the country’s housing capacity with an overcrowding rate of 118.5%, as at March 2019.
It is why the programme addresses the challenge of overcrowding by focusing on two specific problems: the over-reliance by the criminal justice system on custodial sentences and the overuse of pre-trial detention.
“The tendency for stricter law enforcement and sentencing results in significant increases in prison population by detaining persons charged with minor and non-violent offences. According to some observers, when compared to figures from a decade ago, there is currently a worldwide propensity to sentence more offenders to imprisonment and for the imposition of longer sentences. In the Guyana context, this problem is compounded by the insufficient use of alternative sentencing options and the absence of sufficient alternatives to pre-trial detention,” the TOR document explains.
On the overuse of pre-trial detention, it adds, “Although the universal principle of presumption of innocence implies that the detention of alleged offenders prior to the commencement of trial should be minimal or virtually nonexistent, the detention of alleged offenders seems to have become the default measure within many criminal justice systems worldwide. Guyana is no exception to this alarming trend. In fact, 35.6% of Guyana’s inmates are pre-trial detainees, which suggests that the overuse of pre-trial detention is a contributing factor to the overcrowding conditions of Guyana’s penitentiary.”
The document said that overuse of pre-trial detention is further compounded by a number of factors, including “Detainees’ lack of legal representation; delays owing to prosecutors’ lack of training and resources; and cumbersome criminal justice procedures caused by outdated rules and regulations.”
Guyana’s Attorney General posited that the abolition of PIs in the criminal justice process will ease the case backlog while simultaneously preserving the interests of both the defence and the prosecution.
Noted too in the TOR is that the consultant will have to conduct initial research on the law with a view to the drafting of a Bill to abolish preliminary inquiries, providing in its place, a process of “Paper Committals” in the manner and form currently in jurisdictions such as Jamaica, Trinidad & Tobago and other territories in the English-speaking Caribbean.
The consultant will work closely with the Project Implementation Unit (PIU), Law Reform Commission and the Attorney General and Minister of Legal Affairs; and submit to the PIU all documentation required for the successful completion of this assignment for pre-approval; and complete the Inception Report and Draft Bill/ Final Report.
There is also a plan to increase the complement of judges at the Court of Appeal from its current no less than two but no more than five to now no less than five but not more than nine.
Nandlall pointed out that during his 2011 to 2015 tenure as Attorney General, the complement of judges in the High Court was increased from 12 to 20.
“All of these changes are intended to create the modern and efficient system that we aspire to build,” he said.
He noted that his PPP/C government’s 2020 manifesto promise was to modernize the legal sector, enact modern legislation , remove anachronistic legislation and procedures, and to create the relevant legal infrastructure that will ensure an efficient and competent justice system.
“So we have already begun the process, and many new modern and innovative legislative changes have already been made and will continue to be made in the near future. I have already spoken at length about a Bail Bill that is pending, a Hire Purchase Bill, a Mental Health Bill, an Organ Transplant law… we are working on a new Public Health Act and a series of legislation in the health sector. We are also working on a series of Bills in the agro sector, for example, a Food Safety Bill, a Food Security Bill, Plants Tracing legislation…,” Nandlall said.
“In the local government sector we are working on a solid waste management bill, that will take into account the new and emerging oil and gas sector. In the commercial sector we have an anti-dumping bill that is to be taken to the National Assembly, a new arbitration bill that is already drafted and then of course, the Motor Manslaughter Bill to address the question of drunken driving”, he added.
