"Waiting time" is the amount of time from inception to disposition of a case.
Unreasonable delay is the antithesis of speedy trial or trial within a reasonable time. Delay is an integral part of the criminal justice system. A minimum amount of time is needed for preparation of a criminal case at different stages of the processing of a criminal case.
In Polland v United States^^ the court observed that the right to speedy trial is consistent with delays. This is so because due process includes the right of an accused to legal representation, to make pre-trial motions for an adjournment
41
Court Reform on Trial, 1982, p. 182.
if necessary, and the opportunity for the defence and the prosecution to present their cases fully. The time to prepare a case fully may vary considerably. Justice is, therefore, a timely and deliberate process. Speed per se is not the only objective; the judicial process has a series of procedures and concomitant safeguards to ensure procedural fairness.
Delay according to Chambers English Dictionary means to put off to another time", "to defer" or "retard".
Barry Mahoney and his colleague in a paper, "Addressing Problems of Delay in Limited Jurisdiction Courts: A Report on Research in Britain" observed:
"The British tend to avoid using the term delay with its pejorative overtones, preferring instead , the more neutral term waiting time to describe the time between two points in the case flow process, such as, the issue of process and disposition of the case.
"Delay" or "waiting time" within the context of speedy trial would mean "excessive delay" or "excessive waiting time". The extent of delay must be weighed or measured within the social context of the particular jurisdiction.
There are a number of variables which are taken into account when determining excessive or unacceptable delays. Empirical evidence reveals that a large caseload is not sufficient in itself to produce long delay, nor a small one seems sufficient to eliminate long d e l a y s . ^
43
44
Winberry, Phillip B . , Church, Thomas W. J r . , The Justice System J . , pp.44-71 at p. 48.
Levin, Martin A., "Delays In Five Criminal Courts", 4 J. of Legal Studies, pp. 83-131 (Jan. 1975). Levin did case studies on Delay in 5 courts: the Chicago Preliminary Hearing Court, the Chicago Criminal Division Court, the Pittsburgh Common Pleas Court, the District Court of the
In interpreting the speedy trial provision or measuring delay, the first factor the courts take into consideration is "time" or the age of the case. The judicial decisions vary as to when "time" ought to be attached to determine "speedy" or "reasonableness". Some authorities articulate the view that time is attached upon arrest. There are authorities which state that time is attached upon indictment, while there are judicial decisions which state that time begins to run prior to arrest. However, the weight of authorities suggest that the parameters of measuring delay extend from the time of arrest or charge until final disposition. Dillingham v United States^^ a 197 5 case, is authority for the proposition that the right becomes operative upon arrest or the bringing of a formal charge, whichever occurs earlier.
In the Canadian case of R v Boron^*^. an appeal of a stated case, the court had to decide the relevance of precharge delay in determining whether the reasonable time guarantee in Section 11 (b) of the Charter of Rights and Freedoms, Constitution Act, 1982, Part 1, had been infringed. Ewaschuk J. observed that a person becomes "charged" when an information is laid or an indictment is preferred. Further, that precharge delay was irrelevant in determining whether the reasonable trial guarantee was infringed. There is, however, the Privy Council decision. Grant v P.P.P., a case which originated in Jamaica, which is inconsistent with Boron^g case^^ and subscribes to the view that consideration of
45 46
47 48
District of Columbia and Minneapolis District Court.
423 U.S. 64.
1984 (Ont. Sup. ct. Nov. 10, 1983) 36 Ann., 338-345. See also Bissoon Mungroo v the Queen [1991] 1 W.L.R., 1351.
[1982] A.C. 190.
préchargé delay is relevant, if it is accepted that it affects to some extent the reasonableness of delay after charge. In fact, the Privy Council stated that delay must be measured from the time when the police received the complaint, "the events which gave rise to the charges". On the matter of precharge delay, the court in United States v Lavasco'^'^. a 1977 case, stated that while the speedy trial protection did not extend to the period prior to arrest or charge, precharge delay may be considered as a denial of due process.
Although some delay is necessary, the courts have not stated a specific period of how long is too long a time. The right to speedy trials is too vague and " A m o r p h o u s , w h e n justice though deliberate is conceived to be speedy. It is the legislature or practice which fixes clear parameters of reasonable or unreasonable delays.
In Ontario, Canada, the reasonable period for an accused in custody charged with an indictable offence to be brought to trial is ninety days. For summary matters, the directory time limit is thirty days.^ The device used to encourage compliance with the ninety days and thirty days time limits is judicial review of custody. This means that the court backlog, at any given time, should be no more than the courts can process within ninety days as regards indictable offences. Thus, Miller and Barr observed:
"A court must have an inventory of cases with which
431 U.S. 763 .
Barker v Wingo: 407 U.S. 514 (1972).
to work; that is, it should have on hand the number of cases and only those which it can conveniently dispose of within a reasonable or tolerable period of time.
In Scotland, the trial of an accused person must commence within 12 months of the accused first appearance. This is very soon after arrest.^ Where the accused is in custody, trial must take place within 110 days of an order for committal.^ The order for committal must be made within eight days of arrest. Unless the trial of an accused in custody is brought to a conclusion before the expiration of the 110th day of incarceration, he shall be set free forth with from the offence for which he was committed.
In the United States of America, the Federal Speedy Trial Act, 1974, prescribes time limits for bringing an accused person to trial after arrest. The sanctions for compelling compliance with time limit include dismissal with or without p r e j u d i c e . T h e s e time limits will be detailed in chapter IV. 52 53 54 55 56 57
Judicial Administration in Canada, p. 196.
Criminal Justice (Scotland) Act, 1980. The period can only be extended by the court on cause shown.
The Police (Scotland) Act, 1967, s. 17 (1) (b). See Criminal Procedure (Scotland) Act, 1975, s. (19) (1) (2)
(3) .
Criminal Procedure (Scotland) Act, 1975, s. 101 (4) . The High Court can extend the 110 days in situations, such as, illness of an accused, absence or illness of vital witnesses, illness of the judge or jury or any sufficient cause for which the prosecution is not responsible.
18 U.S.C.A., s .3162.
Supra note 19. The judiciary demanded that the period increase to 180 days. See the Resolution of the Federal Judicial conference, June 1977, 63 A.B.A.J., 1643.
Unreasonable delay can be defined as excessive delay from the time of arrest to trial. The jurisprudence shows that "reasonable time" or excessive delays can only be measured within the context of the particular circumstances of each case and cannot be measured in terms of a specific time periods. The statutes, however, have often articulated speedy or unreasonable trial in specific numerical terms. The United States Supreme Court in Baker's Case^^ distinguished between neutral reasons for delays, valid reasons for delays and deliberate delays. "Delay" has two components the justifiable component and unjustifiable component.
The justifiable component, would be the practical and necessary time that is needed by participants to get a case ready for trial and any period after that, is the unjustifiable component. In Sandiford v D.P.P.,^^ the court reasoned that a part of the fourteen months' delay was capable of reasonable explanation but a part was not. That part which cannot be justified is "undue delay". Delay, therefore, is a question of fact. There cannot be an optimum waiting time for all jurisdictions. A waiting time of three years may be acceptable in one jurisdiction, whilst a waiting time of six months may not be tolerated in another jurisdiction.
Delay within the context of this thesis means excessive or unjustifiable delay.
"SPEEDY TRIAL" OR "TRIAL WITHIN REASONABLE TIME"
It is really the jurisprudence that gives clarity and definition to the "speedy trial" or "trial within a reasonable time" provision. The courts have evolved guidelines in the
Supra note 30.
interpretation of these provisions.
In Jamaica, the case of R v Shirley Chin See^° Fox J. held that reasonable time cannot be considered in a vacuum but in light of the circumstances prevailing in the corporate area at the time with respect to:
a) the number of criminal cases for trial in relation to existing facilities and the personnel affecting trial;
b) the inordinately slow pace at which some trials do, in fact, proceed;
c) the indifferent standard of efficiency which it has been possible to achieve in making arrangements for bringing on cases for trial.
This approach to "reasonable time" was followed by the court in Director of Public Prosecution for Jamaica v Feurtado.^^ In this case, twenty-two months elapsed between the respondent's arrest and his being indicted on charges of forgery. The respondent obtained a Declaration from the Supreme Court under S.25 of the Jamaican Constitution that he ought not to be tried and should be unconditionally discharged by reason of the gross, unconscionable and unreasonable delay in breach of section 20 (1) of the Constitution. Kerr, J. A. adopted the approach and proposition regarding "reasonable time" as enunciated by Fox J. in R v Shirlev Chin See. The Court of Appeal held that what was reasonable time depended on the circumstances of each case, including the nature of the
60
Unreported Suit No. M. 178 of 1967.
30 W.I.R. , 206 (1979) .
case, the formalities of the pre-trial procedures, the facilities existing and the efforts made to conclude the proceedings.
However, in Bell v D.P.P.^^ the Privy Council in England adopted a more liberal approach and applied a four-factor balancing test. In determining whether the accused had been deprived of a fair trial by reason of unreasonable delay, four factors must be considered:
I) the length of the delay;
II) the reasons given by the prosecution to justify the delay;
III) the efforts made by the accused to assert his rights ;
IV) the prejudice to the accused.
The court went on to say that the assessment of these factors will necessarily vary from jurisdiction to jurisdiction and from case to case. In particular, the prevailing system of legal administration, economic, social and cultural conditions in Jamaica, must be taken into account.
The United States Supreme Court also applies this four-factor balancing test in Barker v Wingo. I n determining whether the right to speedy trial has been denied, both federal and state courts in the United States of America traditionally applied the "demand doctrine", that is, if an accused person does not demand to be tried or object to any adjournment, then he is deemed to have waived his right to a speedy trial. The basis for this doctrine was that delay benefits the accused
[1985] 2 ALL E. R. 585; see also [1985] 2 W.I.R. 317.
64
person by either delaying punishment or allowing time to prepare his defence. The Barker case will be discussed more
fully in chapter IV.
Articles 5 (3) and 6 (1) of the European Convention for the Protection of Human Rights affirm the right of an individual to "trial within a reasonable time". The jurisprudence of the European Court has applied a similar approach as the municipal court in the definition of "reasonable time".
In Wemhoff v the Federal Republic of Germanv.^^ the accused was arrested on November 9, 1961, on charges for breach of trust and the investigations took three years. Wemhoff was convicted in 1965. Wemhoff contended that West Germany breached article 5 (3) and 6 (1) of the Convention. The court held that the exceptional length of the investigation and of the trial were justified by the exceptional complexity of the case and by further unavoidable factors; accordingly, the time period did not exceed reasonable time. The court further noted, that the reasonableness of a persons continued detention must be assessed in each case according to its special features, which may vary greatly.
In Koenig v Federal Republic of Germanv^^ the European Court stated that regard must be had to; the complexity of the case, the applicant's conduct, and the manner in which the matter was dealt with by the administration and judicial authorities.
65
66
E. C. H. R. Judgment of June 27, 1968, [1968] Y. B. Eur. Conv. on Human Rights 769 (Eur. Ct. of Human Rights). See also Neumeister v Austria,(1968) Y. B. Eur. Conv. on Human Rights 812.