CCJ judge says prolonged case delays are “unacceptable”; recommends system to fast-track cases

Last Updated on Sunday, 25 June 2023, 11:15 by Denis Chabrol

Caribbean Court of Justice (CCJ) Judge, Jacob Wit on Saturday expressed concern about the protracted delay in accused persons on bail and on remand awaiting trial, prompting him to recommend the establishment of a pre-trial Chamber in Guyana to address the worrying trend.

“Regionally, the delays are such that they are simply unacceptable. In some persons, accused persons are on remand for more than 10 years, still waiting for their trial,” he said in a public lecture in Guyana on the topic “Re-thinking Criminal Justice”.

Justice Wit, a prominent Dutch jurist in The Netherlands and the Netherlands Antilles, lamented that many persons were spending longer on remand than the maximum imprisonment for the alleged offence. “That has nothing to do with justice,” he said. On the other hand, he said there are many accused persons who are free on bail although they should not be but the reality is that the remand prisons were full and could not accommodate more prisoners.

The CCJ judge said eventually remanded prisoners are released in keeping with the constitution that states that if an accused person is on remand and is not trialed within a reasonable time, he or she should be released unconditionally or upon reasonable condition.

CCJ Judge, Winston Anderson described the criminal justice system as “broken” as in a number of countries citizens spend between five and 10 years or even 15 years on remand before their trials begin. “This is wrong. The trial process is woefully in need of revamping. All of this makes a mockery of the presumption of innocence and the constitutional right to a fair trial within a reasonable time. Victims are re-traumatised, persons found not guilty have lost the productive years of their lives yet the society has grown accustomed to all of this,” he said. He said unless relatives or friends are impacted, people turn a blind eye.

Justice Anderson said in October , 2023 the CCJ Academy for Law would be holding its 7th biennial conference out of which “a list of discreet and concrete proposals” are expected to emerge for the judiciary, legislature and the executive to adopt and recommend. “We intend to produce a suite of recommendations and we will press, as appropriate, for their rapid implementation throughout region,” he said.

Pre-trial Chamber

Justice Wit harshly criticised the manner in which the Lower Courts decide whether persons should be remanded, placed on bail or freed after a protracted delay in their trial.  “Usually these decisions are taken by magistrates. looking at the decisions taken in the pre-trial phase, they seem to be somewhat haphazard, chaotic and unsystematic,” he said.

He recommended that pre-trial procedures be taken more seriously and dealt with in an organised way to allow for accused persons on remand to be trialed within one year of their arrest, ideally six months, and those free on bail within 18 months or two years. He urged attendees of the sparsely attended lecture at the Arthur Chung Conference Centre to pay attention to Suriname where cases must go to trial after the accused is on remand for five months and most are finished with a sentence or acquittal within 10.5 months. “I don’t think there is any place in the Commonwealth Caribbean that can say that and in my view it is nothing to do with civil or common law. It’s a matter of organising the pre-trial phase to be brave enough to take such decisions,” he said. If cases are discharged by the pre-trial Chamber, as is done by the Magistrate Courts, because of a lack of evidence, he said suspects could be re-arrested based on fresh evidence, prosecuted and face trial.

Justice Wit recommended that the post of pre-trial Chamber be created which should consist of a High Court judge assisted by magistrates. The pre-trial Chamber should be monitoring all criminal cases of remand prisoners and bailed persons.

He said the Chamber should have the power to give the prosecution the deadline so that they do not automatically perverse the case. “Both the prosecution and defence would be under constant supervision by the court to move the cases forward and to secure and protect the quality of the evidence whichever way it goes,” he said.

Touching on Guyana, Justice Wit noted that a lot of cases get “kicked out” for no-case submissions and the prosecution was unable to produce sufficient evidence even with the defence having to say anything. “In my view, a pre-trial Chamber would have taken out that case long before. If there is no  sign of evidence, why keep the accused in prison.? He should be released in an early phase and space left for a more worthy case,” he said.

He contended that the pre-trial Chamber would allow the court system and the prosecution to ease the back-log of cases through strict case management in the pre-trial phase. “This is the process of sifting out the weaker cases and keeping the stronger ones,” he said.  He further recommended that the stronger cases should be determined by plea bargains and trials.

Bail, he said, should be granted in a transparent manner based on guidelines that should be published. Responsibilities of the Chamber should be to support the work of the defence, give the prosecution deadlines, constantly supervise the defence and the prosecution.

In response to Justice Wit, Guyana’s High Court Judge, Joanne Barlow said while his recommendations were laudable and Guyanese would expect swifter criminal justice, there was need for more resources. She hinted that included more judges. “The accused persons, who may come to hear Justice Wit’s opinion that they should be tried within six months to a year will come knocking with expectation; an expectation that cannot be realised given our current circumstances. Expansion of the pool from which flows the stream of timely dispensation of justice is, therefore, needed and needed urgently,” she said. The Judicial Service Commission which is responsible for recommending the appointment of judges, is yet to be appointed and the President and the Opposition Leader have not completed their consultation on the substantive appointment of a Chancellor and Chief Justice.

In his contribution to the discussion on Mr Wit’s lecture, Attorney-at-Law Dharshan Ramdhani appealed for “judicial assistants” to assist judges who are saddled daily with trials, applications and decision-writing. “Judges need judicial assistants. There should be resources in place so that a judge can ask the file- the case, the notes- to judicial assistants to get a draft,” he said.

Justice Barlow said important institutions, such as the Chambers of the Director of Public Prosecutions, Guyana Police Force, Guyana Prison Service, Probation and Welfare Services and medical services are engaged after a matter is filed. Those entities, she said, also needed support and strengthening. “Greater collaboration, training and the general beefing up of resources are needed in these institutions too. The entire process is as strong as its many parts. If these various entities are not equipped or positioned to work together, we give members of society false hope. We promise what we cannot deliver,” she said.

The High Court Judge said the rights of accused persons, who could not afford lawyers, are equally important but the inability to find a lawyer of his or her choice sometimes contribute to delays in trials.

Abolish hearsay rule
The CCJ Judge also called for the abolition of the hearsay rule to allow for all evidence to be admitted unless it is clearly more prejudicial than probative. Such an approach, he said, would allow the admission of written, video or tape-recorded statements as substitute for oral evidence and possible use as evidence-in-chief, leading to cross-examination. He said statements given within one or two days of an occurrence would reflect what has happened rather than a few years later during a trial. “Not to be able to use that would really be a truth-defeating thing. We have to get rid of that,” he said. Justice Wit said dispute of facts should be proven by producing a written record.
He said witnesses should be allowed to give hearsay evidence from someone else should be allowed in certain circumstances.

Wrapping up his lecture, Justice Wit said some features of the Caribbean legal system that had been inherited from the United Kingdom have now been replaced in that country by rules of the European Court of Human Rights. Alluding to Guyana’s blend of the Roman-Dutch legal systems, he said there was nothing wrong with blending. “We shouldn’t be bothered by ‘oh this is not our system’. We should be bothered by the question ‘what is the best thing for us in this region?’ because we want an effective system that protects people in  proper way, in a decent way but not as it is functioning at the moment. That has to change drastically,” he said.