17th Jul 2012
The appellant (T) appealed against a decision of the Court of Appeal of Jamaica not to quash her conviction despite there having been inordinate delay in the proceedings against her, in contravention of the right to a hearing within a reasonable time given in the Constitution of Jamaica s.20(1).
In 1997, T had been charged for a number of offences with a co-defendant (M). A decision of the prosecutor was challenged in the Constitutional Court, which remitted the proceedings to the magistrates’ court in 1999. The trial began in 2000 and T and M were convicted in 2003, with bail granted pending appeal. They appealed against conviction and sentence, but the magistrates’ court did not send the notice of appeal to the Court of Appeal until 2007. The Court of Appeal, one of whose judges had previously sat in the Constitutional Court proceedings, dismissed the appeals against conviction in 2009. Regarding sentence, the court accepted that the post-conviction delay of over five years was inordinate and breached s.20(1). As a remedy, it reduced T’s sentence from 18 months to 12 months.
T argued that (1) in deciding that the breach of s.20(1) did not mean the conviction should be quashed, the Court of Appeal had erred in confining its consideration to the post-trial delay rather than considering the breaches of her rights over the whole course of the proceedings; she referred to evidence her attorney had filed in the instant appeal stating that the Court of Appeal had been asked to look at the total delay, evidence she had filed herself in her application for leave to appeal to the Court of Appeal detailing the proceedings since 1997 and her concerns about them, and the fact that a Court of Appeal judge had sat in the Constitutional Court proceedings, arguing that he would have been expected to have the history of the case in mind; (2) the correct legal approach was that established in Darmalingum v Mauritius  1 W.L.R. 2303.
(1) Neither T’s grounds of appeal to the Court of Appeal nor other written material submitted had specifically referred to delay, whether before or after conviction, as a reason for reducing sentence: post-conviction delay had been raised by M and the court had treated it as an issue in both appeals. The attorney’s evidence gave no details of her submissions regarding the total delay, nor did it explain why, if it was part of the case, total delay had not been mentioned in any written materials. T’s evidence, submitted after the judgment, was the kind of written material one would have expected to see at the earlier stage had it been a material part of the case. Further, the judge’s familiarity with the previous history made it more unlikely that he would have overlooked it, had it been any part of the case before him. Nor had there been any obligation on the court to extend the argument beyond that advanced by the experienced advocates representing T. Accordingly, the court had not erred in principle in confining itself to post-conviction delay. On its exercise of discretion, it would require something exceptional to justify the Privy Council substituting its opinion for that of the domestic court: that court was much better placed to judge the significance of delay having regard to local conditions and pressures on the courts. There were no grounds to question either the decision to reduce the sentence rather than adopt some other remedy, or the amount of the reduction (see paras 14-19 of judgment). (2) The proposition in Darmalingum that quashing the conviction was the normal remedy had not been accepted in later cases, R. v Bennett (James McLeod)  UKPC 15, Mills (Kenneth Anthony) v HM Advocate (No.2)  UKPC D 2,  1 A.C. 441, Attorney General’s Reference (No.2 of 2001), Re  UKHL 68,  2 A.C. 72 and R. v Boolell (Prakash)  UKPC 46, 26 B.H.R.C. 552 considered. In the light of those cases the authority of Darmalingum had been reduced almost to vanishing point; at most it was a case on its own facts, Darmalingum considered. The law as stated in the Attorney General’s Reference and Boolell represented the law of Jamaica: even extreme delay between conviction and appeal would not, in itself, justify the quashing of an otherwise sound conviction. Such a remedy should only be considered in cases where delay might cause substantial prejudice, for example in an appeal involving fresh evidence whose probative value might be affected by the passage of time (paras 23-28).
In deciding to reduce a sentence rather than quash a conviction despite there having been inordinate delay in criminal proceedings, the Court of Appeal of Jamaica had not erred in confining its consideration to delay between conviction and appeal where the evidence did not indicate that delay before trial had been an issue before the Court of Appeal.