Government, Opposition wrangle over new right of appeal bills

Two pieces of legislation aimed at giving prosecutors the right of appeal in limited circumstances were passed without amendment in the Upper House on Friday amid strong dissenting voices, with at least one lawmaker registering his objection to the approval of both bills.

The Judicature (Appellate Jurisdiction) (Amendment) Act, 2021, and the Judicature (Appellate Jurisdiction) Act received the nod from the Senate.

Piloting the bills, Leader of Government Business Kamina Johnson Smith said prosecutors would have the right to appeal court judgments, with consent from the Director of Public Prosecutions.

Under present law, the prosecution has no right of appeal against a verdict of acquittal in criminal proceedings or against the imposition of an inappropriately lenient sentence.

Opposition Senator Donna Scott-Mottley wanted to know the mischief the Government was seeking to address in moving to pass this law.

“Has it occurred to you that when you put in a right of appeal against the sentence, in particular saying that the sentence is manifestly inadequate or unduly lenient, that what you are doing is bringing the judiciary into question?” Scott-Mottley argued.

An attorney-at-law, Scott-Mottley warned the Government that it could be “trampling on the whole concept of the separation of powers,” noting that the pieces of legislation would be dictating to judges how they should hand down sentences.

“You want to stay outside the courtroom as legislators and determine what the sentence must be, regardless of the nuances around the offence,” she said.

Scott-Mottley cautioned that this could send a wrong signal to the public about the competence of the judiciary.

But Johnson Smith dismissed the argument that the bills were encroaching on the separation of powers.

She said that those remarks were a desperate attempt by the Opposition to create a divide between the Government and the judiciary by saying that their capacity is being questioned.

“It is quite easily recognised that judges can err, they are human. Humanity is fallible. That is why appeals are part of the system,” Johnson Smith insisted.

LOOKING AT THE WRONG PLACE

Leader of Opposition Business in the Senate, Peter Bunting, said the Government was looking at the wrong places for solutions in the fight against crime.

He shared that studies have shown that it was not the harshness of punishment or the prosecutorial right of appeal that served as deterrents to criminals but the certainty of conviction.

According to Bunting, even before the courts can convict, law enforcers have to identify and arrest the criminals.

Since the start of this year, Bunting said, the clear-up rate for murder has hovered in the 30-odd per cent average, translating to one in three.

He said that data from the Supreme Court, which was included in the Jamaican Bar Association’s (JAMBAR) preliminary submission on the issue of right of appeal from the prosecution, shows that the conviction rate for trials in the Supreme Court was 31 per cent.

The majority of the convictions arose from cases in which the accused person pleaded guilty.

Quoting from JAMBAR’s submission, Bunting said, “There is no data to suggest that these ‘not guilty’ verdicts were as a result of any error of law or an administration of justice offence. The likelihood is that the investigations were poorly done or insufficient cogent evidence was produced.-”

Further, he said there was no evidence that “it is our judges who are the root cause for these low rates of conviction”.

Highlighting 2019 data of the number of cases disposed of in the Home Circuit Court, Bunting said there were an overall 309 cases. Of that number, guilty plea was 112; guilty verdicts, 43; not guilty - formal verdict, six; not guilty – discharged, 15; no evidence offered, 92; and nolle prosequi, 37.

PROTECTS CITIZENS

Government Senator and attorney-at-law Ransford Braham made it clear that the framers of the Constitution had contemplated that in criminal matters, the Crown or the prosecution was entitled to an appeal just like the accused person.

Braham said he accepts that errors could be made on acquittals, which render it unjust for those who suffer at the hands of criminals.

“I believe that a proper system put in place, whereby it can be reviewed by a competent superior court, is valuable and protects the citizens and holds the scales of justice even,” he said.

In his remarks, Charles Sinclair, an attorney and Government senator, described the bills as sensitive, noting that he has had discussions with colleague lawyers in which some oppose the proposed laws, while others felt that they should be tweaked.

While declaring that he had no difficulty with prosecutors having a right of appeal, Sinclair said they must use this law with due care.

He said if prosecutors abused the law, it should be viewed as prosecutorial misconduct.

In his contribution to the debate, Opposition Senator Lambert Brown said that over time, successive administrations have sought to reduce the rights of Jamaican citizens.

He said that the legislation was about a lack of confidence in judges, noting that it would serve to undermine the rights of defendants and as such, he could not support the measures.

edmond.campbell@gleanerjm.com