Thu | Dec 9, 2021

Gordon Robinson | A ball of confusion

Published:Saturday | October 16, 2021 | 12:09 AM
Government, acutely aware of society’s confluence of ability to influence and ethical vacillation (widespread by decades of under-/mis-education) now seeks to erase these rights by allowing prosecutors to appeal acquittals.
Government, acutely aware of society’s confluence of ability to influence and ethical vacillation (widespread by decades of under-/mis-education) now seeks to erase these rights by allowing prosecutors to appeal acquittals.

Every week, some hot political topic pushes back my preferred subject, namely amateur philosophy.

For the two readers who’d take the trouble to wade through those ethereal journeys with me, rest assured we’ll soon return to the important questions of life: Who is God? Where’s God found? How does God work (mysteriously)? Does God speak directly to us skipping middle-men retailers?

But, for the moment, serious conversation is again derailed, this time because Government pushed through Parliament a law that erodes centuries of formerly inalienable rights of citizens charged with criminal offences.

Until now, citizens were protected against arbitrary or malicious prosecution by being guaranteed the presumption of innocence and trial by a jury of peers. But Government, acutely aware of society’s confluence of ability to influence and ethical vacillation (widespread by decades of under-/mis-education) now seeks to erase these rights by allowing prosecutors to appeal acquittals.

Government didn’t have to do this. It had options, including boosting investigatory resources, witness protection, trial efficiency and prosecutorial personnel. But THAT would be work.

Also, Government KNOWS the police side of that equation has its own “problems”. So, surprise, surprise, Government took the easy way out. It callously removed protection of “he-who-alleges-must-prove” from citizens who may be unjustly charged by giving the prosecution two bites of the conviction cherry while presumed innocent citizens continue with Damocles’ sword over their heads for decades.

Let’s scrutinise this insulting, expedient legislation proposed by a lazy, uninspired Executive and duly rubber-stamped by a subservient Legislature.

The act allows the Appeal Court to hear prosecutorial appeals against judge’s decisions on any point of law; mixed law and fact; or on the grounds there has been an administration of justice offence where the decision results in an acquittal (my emphasis). So surely this ballyhooed right of appeal is limited to successful no-case submissions where a judge instructs a jury to return a not guilty verdict?

I ask because, otherwise, the case goes to the jury and it’s impossible to establish that anything a judge said or did “resulted” in an acquittal which itself is nothing more than a confirmation of the presumption of innocence, NOT a finding of innocence. Conversely, a judge’s error in summing-up adverse to a convicted citizen has always been grounds for overturning the conviction or ordering a new trial, depending on the extent of the miscarriage of justice. The basis of THAT has always been the presumption of innocence.

UNREASONED, SHORT-SIGHTED ACT

But the act appears determined to disguise a right to appeal all acquittals shuffled up in legal gobbledygook certain to confuse and further delay justice.

How can there be a ground of appeal against an acquittal where “there has been an administration of justice offence” (defined as perverting justice; bribery, intimidation or interference with a juror, witness or judicial officer; or perjury) when that “offence” hasn’t been tried? Who must commit the offence – the acquitted citizen or someone else? Must someone be charged with the offence; tried; and convicted before a prosecutor can appeal a by-then decades-old acquittal? Or would that trial be as part of the appeal?

Sigh.

Then a State-of-Emergency-style provision permits a court to deny liberty to an acquitted citizen by ordering the citizen to be detained in police custody pending appeal once DPP gives notice of appeal.

Wha, wha, WHAT???

This unreasoned, short-sighted act subverts so many fundamentals it’s difficult to know where to begin.

Let’s try the beginning. All litigation is just a fancy, Government-created dispute resolution process for enforcing citizens’ rights. In Jamaica, it competes (so far unsuccessfully) with community-based jungle justice. So, for example, civil litigation theoretically resolves disputes between/among citizens whose private rights are allegedly breached. The State steps in (through the attorney general) to enforce public rights.

“Public rights” are rights of the general public, NOT Government’s rights. Governments have no rights. They have duties and obligations. Owed. To. YOU! And powers to be used to discharge their duties.

In criminal law, citizens can lay charges against other citizens in private prosecutions. Government, through DPP, steps in, as YOUR agent, where the aggrieved citizen can’t for many reasons (including being kinda dead) and because crime is a wrong against the general public. So DPP has constitutional authority over all prosecutions.

But DPP’s role isn’t personal. It’s as official performer of Government’s duty to deliver justice. Any prosecutor will tell you he/she isn’t a litigant but a minister of justice who puts facts before the court and assists in producing a just result.

Unlike an accused citizen whose reputation is harmed by a wrong conviction, DPP suffers no injury by an incorrect acquittal. As the saying goes, “better 1,000 guilty men go free than one innocent man be convicted”. This is NOT a victim vs accused match up. It’s a mission to achieve justice for ALL.

PRESUMPTION OF INNOCENCE

So the essential basis of Jamaica’s criminal justice system is the presumption of innocence. Jamaica’s Constitution unconditionally and unequivocally expresses that presumption as a fundamental human right, thusly:

“16 (5) Every person charged with a criminal offence shall be presumed innocent until he is proved guilty or has pleaded guilty.”

So the problem this act can’t legally overcome is it flies in the face of this fundamental right by seeking to have an accused citizen “proved guilty” after the State has failed to do so and an Appeal Court, where NOTHING can be proved, gives the State a second try. Or third? How many is too many?

Let’s say an accused citizen is acquitted after a judge made an error of law in summation. Does that “prove” the accused is guilty? Of course not! Let’s go further and assume someone committed “an administration of justice offence”. Again, does that PROVE the accused is guilty? SOMEBODY may have committed “an administration of justice offence”. SOMEBODY should be prosecuted and punished. But that’s a separate matter from proving a presumed-innocent-accused to be guilty.

Parliament is caught in a Catch-22 conundrum. It seems to acknowledge it can’t empower an Appeal Court to substitute conviction for acquittal. So it tries to pretend this isn’t what it’s doing by mandating the Appeal Court to order “a new trial”.

Would THIS be constitutional?

The act offends another uncomfortable fundamental principle Americans call “Double Jeopardy” and English law (borrowing from the French) calls “Autrefois acquit” (pronounced like half the national dish). This is also entrenched in Jamaica’s Charter of Rights as follows:

“No person who shows that he has been tried by any competent court for a criminal offence and either convicted or acquitted, shall again be tried for that offence or for any other criminal offence of which he could have been convicted at the trial for that offence save upon the order of a superior court made in the course of appeal proceedings relating to the conviction or acquittal.”

So, how to interpret the words “save upon the order of a superior court made in the course of appeal proceedings relating to the conviction or acquittal...”? Does this allow Parliament to authorise a DPP to appeal an acquittal and obtain a “new trial” of like charges?

CAN’T BE RIGHT

Again, this just can’t be right. The Privy Council (in R v Lloydell Richards) held that an identical pre-2011 constitutional provision was “simply intended to embody the common law doctrines of autrefois convict and autrefois acquit”. Autrefois acquit mandates that a person shouldn’t be convicted of an offence for which he/she was formerly acquitted. Its purpose is to protect against double jeopardy which, in part, protects an accused from unwarranted harassment by multiple State prosecutions.

It goes back to first principles. Unwarranted harassment by multiple State prosecutions, however politically convenient, is an attack on the presumption of innocence; dangerous to libertarian justice; and unconstitutional. Like any other unjust or irrational law, it won’t work. Watch and see how it creates more confusion than justice for any victim and more injustice to innocents wrongly charged and rightfully acquitted. All we’re getting here is what the Temptations would call “Ball of Confusion”.

In my opinion, the Charter is restrictive, not permissive of State power. So it cannot be used to give DPP permission to appeal acquittals. It doesn’t give Government any constitutional right enforceable against citizens. The Charter creates a State obligation to “promote universal respect for and observance of, human rights and freedoms”.

It’s no surprise current and former prosecutors welcomed this law that gives prosecutors a mulligan in their work. What surprises me is more practising lawyers don’t oppose as vigorously as they opposed police searches of their offices and seem to find demonstrably justifiable vaccine mandates more offensive than this assault on innocence.

Let’s watch the ball of confusion unravel.

Peace and Love!

Gordon Robinson is an attorney-at-law. Email feedback to columns@gleanerjm.com