Parliament listening to prosecution only?

Bert Samuels, Guest Columnist

Directives issued to legal draftsmen formulating legislation giving the prosecution the right to challenge the sentence of a judge, handed down in a criminal trial, represents yet another move by the executive, soon to be rubber-stamped by the legislature, in their lack of confidence in our judiciary.

This mistrust is being played out before our eyes as the rights of the defendant are being whittled away. The all-powerful arm of the State, supported by the prosecutorial machinery, is being consistently strengthened against the interest of the defendant.

In 2010, the Parliament launched an attack on the right of the accused to liberty when it sought to tie the hands of our judiciary in granting bail to those who were constitutionally guaranteed such right and the presumption of innocence. These bills, enacted under the misnomer 'anti-crime bills', were successfully challenged in a constitutional court, which fiercely defended the right of the defendant, and were consequently struck down and declared to have offended the fundamental rights of our citizenry to the presumption of innocence.

These bills, which were fully supported by the director of public prosecutions, are not to be seen as an isolated move of the legislative arm to encroach on hard-fought-for, settled principles of justice.

RIGHTS BEING TAKEN AWAY

Over the past five years, our Parliament has taken away time-honoured rights of the defendant. Rather than prioritising, after identifying the real issues prohibiting the delivery of fair play in the administration of justice, the State has been listening to, and consistently implementing, the interests of its prosecutorial arm. In so doing, the State has simultaneously ignored the features of our system, which continue to deny a defendant's right to a fair trial in the face of the Constitution's salient objective to safeguard it.

An example of this encroachment is to be found in Section 10 (2) of the Bail Act. This section grants the right to the prosecution only to petition the Court of Appeal regarding the grant of bail to a defendant. The defendant enjoys no such right when he is denied bail! Also, an accused in a murder trial, for which the sentence is imprisonment for life, can now be convicted even when three members of the jury have voted for his acquittal.

The head of the prosecutorial arm of the State has been vocal, if not passionate, about the need to equip the prosecution with the right to appeal verdicts handed down by judges and jurors. She has argued strongly in support of her position that this would set right verdicts of acquittal arrived at corruptly. No focus has been placed on appeals concerning GUILTY verdicts arrived at by corrupt means.

I am yet to hear the empirical evidence of any cases of corrupt verdicts setting the guilty free in support of this most far-reaching position. The law already has, for centuries, provided for checks and balances to punish any person, be it judge or jury, who passes a corrupt verdict to achieve an acquittal or conviction.

This past week, the prosecution's right to appeal sentences gave them, in part, what I firmly believe they will get in full very shortly. It seems to be only a matter of time before the executive further encroaches on the judiciary and trial by jury by giving the prosecution the right to appeal not-guilty verdicts.

Consider a poor defendant who, after a long trial, has been convicted and sentenced by a court. Within days of the commencement of his sentence, a notice of an appeal by the prosecution seeking to increase his sentence is served on him. From his prison cell, he now has to face and pay for the preservation of a duly-imposed sentence. He now has to pay a lawyer again while he suffers the mental anguish of the possibility of an increased sentence. Can we afford to spend the limited judicial and prosecutorial time we have, with the huge case backlog in the system, on these sentence appeals, just to please the prosecution?

MORE IMPORTANT AREAS

I wish to submit that there are more important areas for our lawmakers to intervene in for the preservation of fair play. These include:

1. Creating laws allowing for parity so that a defendant who has been denied bail can, like the prosecution has already been given, appeal to a judge of the Court of Appeal.

2. Abolishing the shackling of prisoners in the presence of the jury.

3. Abolish, like so many other countries have, the prisoners' dock where those whom we profess to be innocent sit in a roofless cage, thereby taking away from them the appearance of innocence. The defendant properly belongs beside his attorney, who stands in his client's shoes to present his case.

4. Repeal the laws that refer to a defendant who is constitutionally clothed with the presumption of innocence before conviction as 'the prisoner'.

5. And, most important, create criminal sanctions for prosecutors who deliberately hide evidence, resulting in a conviction.

In support of criminal sanctions for prosecutors who conceal evidence beneficial to an accused, I wish to give a recent example. The Court of Appeal, on July 5, 2013, overturned a conviction in the case of Nickoy Grant v R. In this case, a complainant lied to the jury that he suffered blindness in one eye because of an injury by the accused. The prosecution called no medical evidence in support of the injury, nor did they serve any medical report on the defence.

The defendant was found guilty and sentenced to seven years' hard labour. The Court of Appeal ordered discovery against the prosecution during his appeal. Lo and behold, when the medical certificate, which the prosecution always had, was revealed to the court, it was discovered that though the complainant was led to testify that he had lost sight in one eye, the said medical report contradicted this evidence.

In this scandalous display of prosecutorial misconduct, the court was moved to conclude: "The prosecution must comply with its duty to ensure that the trial is fair to both the Crown and the defence. The late/non-disclosure of the medical evidence, viewed as a whole, showed a failure to discharge that duty and resulted in a miscarriage of justice."

This misconduct, which landed an innocent 20-year-old behind bars for one year and three months, in my opinion, is more deserving of legislative intervention than prosecutorial appeals against sentence.

SEPARATION OF POWERS

I question how we have found ourselves in this state of affairs. Can anyone point me to one piece of legislation conferring new rights on the defendant in a criminal trial in the past 10 years? Are we committed to the concept of the separation of powers when one arm of the State fails to repose confidence in the decisions of the judiciary?

Are we being fair to our judiciary, who cannot speak from a podium or issue press releases regarding the dangers of encroaching on its independence and responsibilities as guardians of our Constitution?

Some things happen only in Jamaica. Only in Jamaica can a citizen be excluded from the commission of a crime by DNA evidence solicited by the prosecution, and the prosecution, notwithstanding, continues with the trial unheeded! How long will we continue to allow our Parliament to further strengthen the all-powerful arm of the prosecutorial state machinery as the defendant's right to a fair and equitable system of justice is denied by laws followed by more laws?

Bert Samuels is an attorney-at-law. Email feedback to columns@gleanerjm.com and bert.samuels@gmail.com.

Parliament listening to prosecution only?