The court system is a vital functional socio-legal institution and the right to Speedy Trial or trial within a reasonable time is a highly valued socio-legal goal.
What is the meaning of this constitutional guarantee of speedy trial? It is anything more than a cliche? Has this legal ideal become an operative norm in the Jamaican criminal legal system? What does speedy trial really mean? How can we operationise this right to a speedy trial? What can a legal system do to maximise this right? What has given rise to the great importance now being placed in all quarters on this right to a speedy trial?
These are some of the related issues which will be dealt with in this study in an exploratory fashion. A study and evaluation of Jamaica's legal process in terms of its efficacy in discharging its legal functions, in the optimum time possible is intended. As such, this is the first full-scale and systematic study of this legal right to a speedy trial ever done in the English speaking Caribbean.
The study of this phenomenon is chosen, not as a mere philosophic ideal but as an empirical reality which can be
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R V Central Court, Ex Parte Randle and Pottle [1991] 92 Cr. App. R. 323, 337. See also Jago v District Court of New South Wales [19891 63 A.L.J. 640.
studied objectively.
Methodologically, the concept of speedy trial cannot be studied in abstraction; it can only be studied in conjunction with the problem of "caseloads", "backlogs" and "delays" within a particular legal system.
Delays in the Administration of Justice conflict with the concept of fairness in Justice. The Common Law system operates on the premise that "Justice Delayed is Justice Denied". This particular was reiterated by Gardener J. in Shepherd v United States;
"the constitutional guarantee of a speedy trial is intended to prevent the oppression of a citizen by delaying criminal prosecution for an indefinite time and to prevent delays in the administration of justice by requiring judicial tribunals to proceed with reasonable dispatch in the trial of criminal prosecution.
Empirical study of accused persons in the Shefield courts in England carried out by Bottoms and McLean, revealed that accused persons may suffer acutely because of pre-trial delays.
Bottoms and McLean observed;
"from the point of view of the defendant, unless he himself is anxious to secure an adjournment, all waiting time is bad. Therefore, many defendants ask the question, 'how soon will it all be over'?"
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163 F. 2d pp. 974-995.
Bottom, A. E. and McLean, J. D. Defendants In The Criminal Process, Lond., Routledge and K. Paul, 1976, p. 44 .
Moreover, accused persons in custody, in particular first time offenders may suffer most in the holding jail because of the overcrowded and dirty conditions, as well as having to face numerous court appearances in full public view, the uncertain outcome of the case and the fact of being confined with hardened criminals who are more likely to be aggressive. All these matters may considerably increase the accused person's anxiety.
The most serious prejudice to an accused person resulting from delays, identified by the Supreme Court in the locus classicus case of Barker v Wincfo^^ is that which affects the ability of the accused to defend himself. For example, witnesses for the accused may have died, left the jurisdiction or be unable to recall events with any degree of accuracy because of the passage of time. Society too, has an interest in the expeditious disposition of criminal cases. A prompt disposition is an integral part of a well ordered society. In "The Limits of Expeditious Justice", Professor Shetreet observed :
If a system cannot exercise the organized sanction of society expeditiously and effectively against offenders, society will not be able to attain the goals of the criminal justice system: deterrence of potential offenders. A decline in deterrence may lead to an increase in crime which, in turn,
increases congestion and delay.
407 U.S. 514 (1972) at p. 656 Greene J. observed: "While recognising the prejudice to the accused person, loss of employment and public ridicule are factors to be considered; these were the normal effects of being accused of criminal charges. Before delay can be considered to cause personal prejudice, an accused person must demonstrate more than the normal anxiety, embarrassment and concern suffered by all persons awaiting trial."
31 Shetreet, Shimon, "The Limits Of Expeditious Justice", in
"Expeditious Justice", Canadian Institute for the Administration of Justice, 1979, p. 10. See also Burger,
Where a potential accused is assured of expeditious resolution of a case, it will indeed enhance the deterring intent of the law. The idea of speedy punishment deterring crime has had a long standing tradition. However, delays associated with caseloads and backlogs enable an accused to negotiate more effectively for pleas of guilty to lesser charges and thus manipulate the system. Empirical study^^ shows that central to the entire criminal justice process, are compromised convictions or sentences as a result of 'plea bargaining'. Thus, the object of deterring potential offenders from committing offences of a like kind to that for which the sentence was imposed is defeated as the sentence would not be proportionate to the accused culpability.
Delays also hinder rehabilitation. Accused persons, kept for lenghty pre-trial periods in holding jails which are not governed by institutional rules, for lengthy pretriil periods may be dehumanized by jail conditions, thus making rehabilitation difficult. Katz asserts:
"Rehabilitation is most effective when begun as close as possible to the criminal activity which necessitates the treatment. It is least effective when postponed so that the wrongdoer is scarcely able to relate the treatment to his wrongful
Chief Justice, A.B.A.J., 929-932 (1970).
Davis, A. E . , "Sentences for Sale: A New Look at Plea Bargaining in England and America, [1971] Grim. L. R. pp. 150-161,218-228.
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Baldwin, A. and McConville, M, Negotiated Justice, 1977. See Feeley M.M, Court Reform on Trial, 1982, p. 183. Feeley observed: "Yet there is evidence to suggest that there is little, if any, correlation between length of time to disposition, or court room congestion."
act. "34
Although it is to be noted that the high rate of recidivism may question the soundness of the rehabilitation theory. So too delays cause escape and further crimes. Accused persons released on bail during long periods of delays are likely to commit further offences or even abscond. A National Advisory Commission reported that a 1968 survey in the district of Columbia found: "there is an increased propensity to be rearrested when the release period extends more than 280 days.
Moreover, delays associated with caseloads and backlogs affect the quality of justice. Dr. Shimon Shetreet (now Professor Shetreet) pointed out:
"If a judge is acting under unreasonable pressure he may concentrate more on disposing of cases than in doing justice in each particular case. He may adopt a 'let's get on with it' approach becoming short-tempered and hasty in making decisions. The result is a lack of patience, attentiveness, dignity and considered
deliberation. "^7
Indeed, the lack of "patience", "attentiveness" and "deliberation" is forcibly demonstrated in the account of the
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Katz, L. R . , et al. Justice Is The Crime: Pretrial In Felony Cases, Cleveland, Case Western Reserve University Press, 1972. See also Levin, M.A, "Delays In Five Criminal Courts," 4 J. of Legal Study 83-131 (1975).
"Speedy Trial Schemes and Criminal Justice Delay". 57 Cornell L. Rev. p.794.
Pilot Study, Compilation and Use of Criminal Court Data in relation to Pre-trial Release of Defendants, 1971.
"The Limits of Expeditious Justice" in "Expeditious Justice", Canadian Institute for the Administration of Justice, 1979 at p. 15.
hearing by the New York State Commission, into the conduct of Judge Friess. The learned judge determined the length of sentence in one case by the toss of a coin, and in respect of another case he requested persons present in court to vote as to which witness to believe. Judge Friess pleaded justification for his conduct, on the basis of a heavy caseload and the pressures on a judge to expeditiously dispose of cases. Surprisingly, two of his brother judges who gave evidence on his behalf described his conduct as "creative and innovative" in view of an overburdened judicial system.^®
Indeed, judges are in a high stress profession and can be driven to extreme conduct because of the caseload explosion, especially in developed countries. As a consequence, the value of the Judicial System and the very independence of the judiciary is threatened.
But, while recognizing the negative consequence of heavy caseloads, it should be remembered that judges should operate within a framework of shared values, which serve to maintain the quality of justice. As Professor Judith Resnick pointed out :
"Among all of our official decision makers, judges alone are required to provide reasoned explanation for their decisions. Judges alone are supposed to rule without concern for the interest of particular constituencies. Judges alone are required to act with deliberation, a steady, slow, unhurried task."39
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Walker, Michael D. , "Congestion and Delays in the Provincial Court (Criminal Division)", vols. 40-42, Uni. of Tor. Fac. of L. R. (1982-1984) 82 at p. 84.
"Managerial Judges", 96 Harv. L. Rev., pp.376-446 (Dec. 1982) .
Finally, the cost of delay to the taxpayer is substantial. It also increases expenditure of police time. Task Force Report: The Courts 38, recorded that in 1962, housing, feeding and guarding a detained accused in New York City, cost between US$3.00 and US$9.00 per day. Projecting these figures on a current economic basis and taking the increasing crime rate into consideration, pre-trial detention expenses are bound to be substantial. In Jamaica, the cost of feeding a prisoner in 1985 was recorded at $7,025.00 for the year. In Canada, it costs $20,000.00 to maintain a prisoner per year.
Witnesses are also hampered by delays. Delays affect a witness's interest in the redress of wrongs in several ways. As the period between the offence and case disposition lengthens, a witness may die or leave the jurisdiction. So too, the passage of time may preclude the prosecutor from adequately discharging the burden of proof and thus, the reliability of the verdict is affected as a witness power to recollect accurately depends not only on the witness's power of observation and basic intelligence, but largely on the amount of time that elapses from the time of offence to trial.
In the likely event of multiple court appearances, witnesses may be put to hardship and expenses and may even lose several days wages. Indeed, the legal representative of the accused may at times actively seek to 'wear' out witnesses by frequent adjournments or continuances. Thus, they may refuse to attend court or become less co-operative.
Professor Shimon Shetreet in "The Limits Of Expeditious Justice" noted:
"Lawyers also use delay as a tactic, using frequent adjournments and pretrial motions to wear down the opposition, believing that they are thus serving
the best interest of their client."40