Wed | Sep 30, 2020

Editorial | End delayed prosecutions

Published:Friday | August 7, 2020 | 12:00 AM

We guard jealously our capacity for outrage when the rights of citizens are abused, especially if the perpetrator is the State or its agents and what are attacked are constitutionally guaranteed entitlements, such as the right to a fair and speedy trial. So we were appropriately scandalised by the matter of Lynford Allen, in which murder/conspiracy charges against him were tossed out by a judge in June, after 13 years, for want of evidence.

We agree with Delroy Chuck, the justice minister, that there should be a time frame within which such matters are prosecuted or thrown out. But rather than merely talking, Mr Chuck, given his unique position, should act to make it happen.

Mr Allen, as was recently recounted by this newspaper, was first arrested in early 2006 in connection with the abduction and murder of Jaime Lue, a young financial analyst, in the waning days of the previous year. Mr Lue’s electronic bank card was used to withdraw money from his account. Prosecutors’ records show that over the next 13 years, between November 2006 and October 2019, Lynford Allen appeared in court 94 times, although he estimates it to be more than 100.

“I went before 10 judges and four prosecutors,” Mr Allen said. One of the prosecutors, he reported, was a member of the private Bar, operating under fiat from the director of public prosecutions. Mr Allen claimed that despite protesting his ignorance of the crime, he was, during 49 days in lock-up, tortured by police, who hoped he would turn Crown witness, which would have caused him to manufacture a story.

BACKLOG OF CASES

We make no comment about Lynford Allen’s guilt or innocence beyond the verdict of the court, except to say that the delay in the delivery of justice is not unique to him. There is much anecdotal and empirical evidence of accused persons going to court multiple times, over many years, without their cases being heard. This is, in part, reflected in the backlog of hundreds of thousands of cases in Jamaica’s courts. A related issue is of the scores of people, detained at the court’s pleasure, who, because they were unfit to plead, became ‘lost’ in prisons.

Yet, Section 16 (1) of Jamaica’s Constitution requires that person charged with criminal offences “be afforded a fair hearing within a reasonable time by an independent and impartial court established by law”.

Mr Chuck has suggested that the “reasonable time” test, or the cap thereon, should be five years, after which cases should be dismissed if prosecutors do not proceed. “It is really quite unconstitutional to drag a case out for such a long period and take an accused person back to court in excess of 10, 30 times, much less 94 times,” the minister said. “To my mind, at some point, the Crown should make a decision to stop the case by nolle prosequi, or, if the Crown fails to do so …, the courts should dismiss the case for want of prosecution.”

AGREE ON THE PRINCIPLE

We agree on the principle but would like to hear other views on the time frame, including from the director of public prosecutions, Paula Llewellyn.

Mr Chuck’s five-year benchmark fits into, and was probably borrowed from, the loose timetable established by the Privy Council, in the 1993 Pratt and Morgan case, for executions to take place in capital cases before the prospect of an execution became cruel and inhumane. The ruling overturned a previous majority judgment by the same court that rejected that delays in executions did not breach strictures against, as the Constitution stated it at the time, “torture or to inhuman or degrading punishment or other treatment”.

In Pratt and Morgan, the judges held that appeals in capital cases should be completed within a year of conviction and that the entire domestic appeal process, including rulings on mercy by the governor general’s Privy Council, should be done in approximately two years. There should be another 18 months or so for petitions to international human-rights tribunals, with the entire process completed in about five years.

“... A state that wishes to retain capital punishment must accept the responsibility of ensuring that execution follows as swiftly as practicable after sentence, allowing a reasonable time for appeal and consideration of reprieve,” the Privy Council said.

In other words, justice insists upon an efficient, swift, and discerning judicial system. That is a requirement not only for capital cases, but for all matters before the courts.