KINGSTOWN, St. Vincent, CMC -St. Vincent and the Grenadines hope to join at least one other Caribbean Community (CARICOM) country in abolishing preliminary inquiries as regional countries move to deal with a backlog of cases and the crime situation.
Trinidad and Tobago announced that from December 12 this year, the Administration of Justice (Indictable Proceedings) Act, 2011 “AJIPA) and its six amending Acts had been proclaimed and that “this has been preceded by decades of discussions, stakeholder engagements, policy developments, legislative amendments and more recently sensitization sessions in collaboration with the Judiciary of Trinidad and Tobago.
“The proclamation of the AJIPA, which abolishes preliminary inquiries, will create sweeping changes to the functioning of the Courts and the dispensation of justice, reduce case backlog, ease the burden on witnesses, and significantly eliminate the wastage of time and resources in the disposal of indictable matters.
“The citizens of Trinidad and Tobago can now anticipate a thoroughly reformed, highly streamlined, and entirely operational pre-trial system that has been under development for several decades,” the Office of the Attorney General and Ministry of Legal Affairs said.
Now, St. Vincent and the Grenadines are exploring the possibility of following Port of Spain, with Prime Minister Dr. Ralph Gonsalves saying his administration is proposing changes to how the courts handle certain criminal matters and that it has a clear strategy on crime.
Gonsalves, also the Minister of National Security and Legal Affairs, said, “We have done some important reforms already about evidence, procedure. But we need to do some more”.
Gonsalves, a lawyer who practiced law in the criminal court for many years before becoming prime minister in March 2001, also said, “We have done something about preliminary inquiries.
“But defense counsel will still insist on the preliminary inquiry rather than having what you may call a paper committal with the statements being made, and the defense would say, well, okay, we’ll go straight to trial.”
A preliminary inquiry is a legal process through which a magistrate determines if the prosecution has enough evidence for a jury to consider whether someone is guilty of a charge.
Preliminary inquiries (PI) are conducted in two forms: a paper committal, in which the magistrate, prosecutor, and lawyer for the defendant read through the evidence in the defendant’s presence, or witnesses come to court and give evidence and are cross-examined.
Gonsalves said that lawyers often reject paper commitments not because of the case’s merits, saying, “Sometimes it is monetary.
“The lawyers want to make sure that, they don’t like me to say this, but I know how the system works, to collect their piece of change for the PI, for the preliminary inquiry, and so on.
“And maybe we need to change that and take away the right from the defense and let the presiding magistrate, based on the documents which are before (him or her])say, listen, ‘I’ve read these documents, and I’m sending this forward,” Gonsalves said, adding that this would also alleviate a backlog in the system.
He acknowledged that the country would have to have more judges because cases would move through the system faster.
“But that’s fine,” he said, adding that a case is being made to abolish jury trials for murder and some other offenses.
“Have by judge alone. All of these matters, I’m telling you that as Minister of National Security, I’m giving serious reflection upon for a public conversation because it would mean that we will be changing in some fundamental ways some matters, the way some criminal matters have been dealt with but the circumstances may well justify and continuing discussions on these matters,” Gonsalves said.
He said he is anticipating some pushback from human rights activists to the proposed changes to the law.
“I know by raising these, human rights persons are going to jump at me, but the point is this: I’m not saying that anything must be taken away from procedural fairness. All the constitutional requisites would remain; the presumption of innocence would remain.
“All of these things would be there. It’s just that you may need to alter some of the procedures because it’s a different world, which is evolving and we have to respond accordingly. So, I just wanted to put those out for public reflections,” Gonsalves added.
The issue had caught the attention of the island’s chief prosecutor and several defense lawyers.
While the Director of Public Prosecution (DPP) Sejilla Mc Dowall agreed with the suggestions, saying that abolishing PIs would see matters coming more speedily to the High Court for trial, defense counsel and former Speaker Jomo Thomas notes that most preliminary inquiries are disposed of within nine months of a person being charged. Still, people wait up to six months for their trial before the High Court.
Another defense lawyer, Grant Connell, expressed similar sentiments, saying that the problem will not be fixed if people still have to wait years to be tried.
The issues were also discussed last Thursday during the closing of the Criminal Assizes, presided over by Justice Brian Cottle.
The DPP welcomed both of the government’s suggestions regarding PIs and judge-only trials, saying, “The time is now for us to think about judge-alone trials,” adding that she was sure that jurors had “endured” some trial.
“Some of the matters certainly, if there was an option, they would have said, let that cup pass from them if a judge could make that final determination in matters,” Mc Dowall said.
But Thomas said that the notion that abolishing PIs “would fundamentally change the amount of time we spend waiting trial may not be as true as we make it out to be.”
He noted that even after a PI is completed, some accused people are remanded for up to five years before they are tried.
Thomas, however, agreed with the abolition of PIs because, in the absence of legal aid except for murder trials, doing so could help to ensure that accused people have legal representation at their trials.
“Most often, a family member may be able to support an accused person at the PI stage, and an attorney may get a fee at that stage, but because the threshold is so low where once a prima facie case is made out it moves to the High Court, the family might be wasting money at the PI and by the time they get to the High Court they don’t have any money.”
Thomas said he has seen many people facing severe charges go to trial without a lawyer, saying, “That is a travesty that happens.
“Maybe we need to do more to ensure there is legal aid,” he said, adding that he does not think that in 2023, anyone charged with a serious crime should be coming to court without a lawyer.
Thomas said a lawyer may advise a client to plead guilty rather than going to trial and being convicted. The council said there is a public notion of why a lawyer should be hired if the lawyer advises the client to plead guilty.
He noted that people in the judicial system know that there are benefits to pleading guilty rather than being found guilty, including the fact that a person who pleads guilty may be granted a reduction of up to one-third of their sentence.
Thomas, however, was sold on something other than judge-only trials.
“Judge-only trials? I am not sure,” he said, adding that if the state were to go this way, the accused person should have an option of a judge and jury or judge-only trial. He said that judge-only trials might reduce a trial’s time “but may not bring the kind of justice that we want.”
The lawyer cited Jamaica, saying that 40 to 45 percent of the decisions in judge-only trials are overturned on appeal, much like many of the jury trials are overturned on appeal.
“So, it is not a solution, but it is good to see we are thinking through these critical and vital issues.
Regarding abolishing preliminary inquiries, Connell agreed with Thomas “to a certain extent,” adding that the problem can be fixed by giving disclosure — where the prosecution provides the defense with the evidence.
“I agree that it could be a problem when we catapult it (the case) to the High Court, and they (defendants) have to wait five years for trial. It doesn’t fix the problem,” he said, recalling that a couple of years ago, a murder case here.
“Some guy, Jolly. Two foreigners. I am trying to remember the lawyer. But at the end of the preliminary inquiry, I remember the lawyer saying that if these two people were committed for trial at the High Court after this preliminary inquiry, it would be a travesty of justice.
“What would you call it if you put them up to the High Court and don’t fix the timeframe problem when they are tried? You see the problem, my lord?” Connell reasoned.
Retired assistant director of public persecution, Carl Williams, said he is not opposed to judge-alone trials.
“But as Mr. Thomas pronounced, there should be an option. An accused man should be able to choose how he wishes to be tried. Whether by judge alone or by judge and jury,” the defense counsel said.
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