RC Chapter 16 - Abuse of Process

ABUSE OF PROCESS Definition The Court has an overriding duty to ensure that justice is done and an inherent power arising from that duty to stay or stop any proceedings where it reasonably believes that should the prosecution of the case be allowed to continue, it would constitute an abuse of the court’s process. In Connelly v DPP 1964] AC 1254, [1964] 2 All ER 401 it was agreed by the House of Lords that a court possess general powers which can be used to safeguard itself from abuse of its process and also a defendant from an unfair prosecution. The Privy Council, in Connelly, described an abuse of process as ‘something so unfair and wrong that the court should not allow the prosecutor to proceed with what is in all other respects a regular proceeding’. Hui Chi-Ming v R [1992] 1 A.C. 34, PC Further, the ultimate aim of this discretionary power is to ensure that a fair trial is had by both parties. It was stated in R v Sang (1980) AC 402 at page 437: 'the fairness of a trial … is not all one-sided; it requires that those who are undoubtedly guilty should be convicted as well as that those about whose guilt there is any reasonable doubt should be acquitted' “. What are the basic principles? There are predominantly two (2) instances whereby the court has power to stop a prosecution for abuse of its process: R v Maxwell 2010) UKSC 48 para 13: - where the circumstances are such that it will be impossible for the accused to have a fair trial. - where it offends the court’s sense of justice and propriety to be asked to try the accused in the particular circumstances of the case. The Privy Council in Warren et al v AG of the Bailiwick of Jersey (2011) UKPC emphasized that these categories are different and requires separate considerations. The former category, seeks the interest of the defendant, and where the defendant cannot receive a fair trial due to

an unjustifiable delay on the prosecution’s part, (with respect to bringing a case to trial), the court will stay the proceedings. The delay in prosecuting the case can either be in charging or trying the defendant. In the Trinidadian case: Dularie Peters v The State Cr. App. No.34 of 2008 , the Court of Appeal stated that the court should not grant a stay of prosecution for the purpose of punishing the State for its “deleteriousness”. The prosecutorial fault of itself cannot justify a stay and the prejudicial effect on the fairness of the trial must still be determined. This was supported in Tan v Cameron [1992] 2 AC 205 In relation to the latter category, the court is concerned with maintaining the integrity of the criminal justice system, therefore, where the prosecution misused or manipulated the court’s process or acted unfairly so as to deprive a defendant the court’s protection, a stay will be granted. This will be done where the court believes that in all circumstances, a trial will be counter to the court’s sense of fairness and propriety or will undermine the confidence of the public in the criminal justice system or discredit it. Bennet v Horseferry Road Magistrate’s Court ex p Bennet (1993) 3 All ER 138; R v Latif and Shahzad (1996) 2 Cr App R 92, HL Right to a fair trial The right to a fair trial is enshrined in the various territories Constitution except for Trinidad and Tobago: Antigua and Barbuda Constitutional Order 1981 section 6; The Barbados Constitution section 18(1); Belize Constitution 1981 section 5(3); Grenada section 4(5),; Guyana: The Constitution of the Co-operative of the Republic of Guyana Act, CAP 1:01, section 144(13); St. Kitts and Nevis Constitution Order 1983 section 5 (5); St. Lucia Constitutional Order 1978 section 8; St. Vincent and the Grenadines: Saint Vincent and the Grenadines Constitution 1979, section 8(1) The protection of the law requires that a hearing be held within a “reasonable time”, though it may not be possible to be exact as to the particular period. What is reasonable though depends on all the relevant circumstances including the length of the delay, the reasons given by the prosecution to justify the delay, the efforts made by the defendant to assert his rights,

any prejudice to the defendant as a result of the delay, the consequences faced in the event of an adverse determination in proceedings. With regards to the absence of the express clause i.e that the right is not enshrined in the Constitution of Trinidad and Tobago, issues arising due to a delay in proceedings not related to a death sentence are relegated from a constitutional motion to common law treatment on reasonableness: Maraj- Narinesingh v A. G (2010) 77 WIR 470; DPP v Tokai (1996) 48 WIR 376 (UKPC) [T&T]; Sookermany v DPP (1996) 48 WIR 346 CA- T&T For death penalty cases: Boodram v The State (2001) 59 WIR 493 (UKPC) [T&T] For Civil cases: Boodhoo v A.G(2004) 64 WIR 370 (UKPC) [T&T] Delay Delay might be excused in certain circumstances where there are cogent and convincing explanations for it. Lovell v The Queen BB 2016 CCJ 6 Where the defendant alleges delay, he has the burden of proof to show that he has been so prejudiced in the presentation of his case. Attorney General’s Reference (No. 1 of 1990 1992) 95Cr App R 296 The court also emphasised that where the jurisdiction to stay proceedings is being exercised, the court must consider the following: The complexity of the case, The conduct of the defendant, and The manner in which the case has been dealt with by the prosecution and the courts. Tan v Cameron (1993) 2 All ER 493. The Privy Council in Tan, fully endorsed the judgement given in A-G’s Reference No 1 and highlighted that even where it is established that the prosecution is at fault, causing prejudice to the defendant, a court is still required to consider whether the situation that was created by the delay was such as to make it unfair for the defendant to be held accountable. Where there is an unwarranted amount of amendments to be made to an information, a complaint or charge, a magistrate must determine whether there would be any abuse to the accused if he grants an amendment and proceed with the matter.

The purpose of laying an information or preferring a complaint within six month limitation is to ensure that there is no unnecessary delay in the disposal of the matters within the magistrates’ courts. R v Newcastle upon Tyne Justices, ex p. John Bryce (Contractors) Ltd [1976] 2 All ER 611 Nevertheless he must be mindful of the six month limitation period and whether the amendment was being sought to be made on the last possible day so as to frustrate the proceedings. Where he is hesitant to grant an amendment, he can investigate and adjudicate upon the charges to find out whether the amendment is necessary or is vexatious and frivolous. Where the matter was not filed within a reasonable time, the court must note whether the lapse within the reasonable time requirement has been violated deliberately. Dyer v Watson 2002 UKPC DI 2004 AC 379; Gregory Lett v The Commissioner of Police & the Attorney General GDAHCV201/0234 The court in Gregory Lett in deciding whether to order a permanent stay of four (4) cases on the grounds of delay and abuse of process within the magistrates’ court, applied the principles emanating from Dyer v Watson. The court mentioned that the charges which were related to possession and trafficking was not intricate or complex, and the claimant’s conduct in the matter in no way assisted in the delayed proceedings. How is unreasonable delay determined? According to Gibson v The Attorney General of Barbados (2010) 76 WIR 137, the determination of unreasonable delay had to be made on a case by case basis. Unreasonable delay could not be reached by applying a mathematical formula. However, the mere lapse of time would give rise to the presumption that there had been undue delay, which is rebutted by the state.

To make such a determination, the court had to take into consideration, in addition to the length of the delay, the complexity of the case, the reasons offered for the delay and the conduct of both the accused and the state. “the concept of ‘reasonable time’ is elastic and whether delay in having a criminal trial commence is unreasonable or not depends upon a variety of factors which makes it problematic for a court to pronounce rigid timelines.” Jack v The Queen BB 2009 CA 1 What is the effect of delay on a trial? The following guidelines with respect to a matter being heard within a reasonable time: Boolell v. State of Mauritius [2006] U.K.P.C. 46; [2004] 2 A.C. 72; Attorney General's Reference (No. 2 of 2001) If a criminal case is not heard and completed within a reasonable time, that will itself constitute a breach of the Constitution, whether or not the defendant has been prejudiced by the delay; An appropriate remedy should be afforded for such breach, but the hearing should not be stayed or a conviction quashed on account of delay alone, unless: - the hearing was unfair . it was unfair to try the defendant at all. The appropriate remedy where delay gives rise to an abuse of process. In the Privy Council appeal of Melanie Tapper v the DPP 20012 UKPC 26 1 there was no challenge to the substantive basis of the conviction. The court was instead asked to consider the appropriate remedy on appeal for the breach of constitutional right under constitution (which is now embodied in s. 16 of the charter of fundamental rights and freedoms). The 1 The short history of the case is that charges were brought jointly against Ms. Tapper and Mr. Mckenzie in 1997 for offences allegedly committed between 1994-5. The trial in the Magistrates court, was due to begin in January 1998 however due to several intervening factors, did not get underway until January 2000. Thereafter, the case for the prosecution was not closed until December 2002. In 2003 she was convicted on count 11 and was sentenced. She was granted bail pending appeal. Notices of appeal against conviction and sentence were lodged by both defendants. The record of the case, with the magistrate’s notes of evidence was not received by the Court of Appeal until 9 August 2007, over four years late (In breach of the 14 day requirement under s. 299 of the Judicature (Resident Magistrates) Act) The appeal was eventually heard between March and April 2008 and a decision handed down in 2009.

court opined that the proposition that quashing the conviction was the “normal remedy” was not accepted in later cases. See Taito v The Queen [2002] UKPC 15.2 The importance of that decision for the purposes herein however is its pronouncement that the law as stated in the Attorney General’s Reference Case, [2004] 2 AC 72 and as summarized in Boolell v The State [2006] UKPC 463, represents the law of Jamaica and by extension the Commonwealth Caribbean. According to Gibson, the court had to weigh the competing public’s interest and the accused interest and apply the principles of proportionality, thereby taking into consideration all the circumstances of the case. Gibson indicated the following remedies may be available: (i). Stay of proceedings - The permanent stay or dismissal of a charge could not be regarded as the normal remedy in cases where an unreasonable delay existed but it was still possible to have a fair trial.4 (ii). Reduction in sentence - Archbold 2011 at 7-143 a , states that where there is delay in hearing of an appeal for which no blame can be accorded to the appellant, and the delay is such that amounts to a violation of his right to have his criminal charge determined within a reasonable time, generally the most suitable redress is a reduction of sentence. This was demonstrated in Gibson by the Caribbean Court of Justice, which held that following a conviction, the remedy for delay will necessitate consideration of a reduction of sentence. (iii). Award of damages - The award of damages is not automatic and depending on the circumstances of the case, it may be a suitable remedy for breach of the right to be tried within a reasonable time. Damages may be considered suitable where the accused was tried and acquitted or his conviction was quashed. However, where there is a possibility that the 2 “Delay for which the state is not responsible, present in varying degrees in all the relevant cases, cannot be prayed in aid by the appellants.” 3 Although those judgments were not directed specifically at the effect of delay pending appeal, the same approach applies. It follows that even extreme delay between conviction and appeal, in and of itself will not justify the quashing of a conviction which is otherwise sound. Such a remedy should only be considered in a case where the delay might cause substantive prejudice, for example in an appeal involving fresh evidence whose probative value might be affected by the passage of time. 4At paragraph 141 in Gibson the court stated that “Section 24(1) of the Constitution afforded the court flexibility, power and a wide discretion in fashioning a remedy that was just and effective taking into account the public interest and the rights and freedoms of others. No conceivable remedy, including a permanent stay or dismissal, ought to be removed from the range of measures at the disposal of the court if the relief in question would prove to be appropriate.”

accused may still be tried and convicted for the offence for which he is charge, it may be against public conscience that such award be afforded to the accused. In Hawkesworth, Gaskin and Scantlebury v Superintendent of Prisons BB 2012 HC 22, a matter that dealt with an extradition proceeding ongoing for over 8 years in which the defendant’s most recent application was for habeas corpus seeking bail, the High Court stated that although there has been delay in resolving that case, some of the delay was occasioned by the fugitive exercising his rights “ including an application in the High Court for judicial review which was appealed to this Court and to the CCJ which dismissed the appeal on procedural grounds.” Accordingly, the grant of bail was refused by the High Court on the basis that the delay was not as a result of “special circumstances” which required the court to exercise its discretion in granting the same. Hawkesworth approved of the Australian case of United Mexican States v. Cabal which stated that where the defendant exercises his right to appeal against the order of committal, this is not so special that it constitutes special circumstances. In Alexander v The Queen [2001] HCA 60 209 C.L.R. 165 paragragh 65 the appellant filed an appeal in September 2007 and it was set down for hearing on March 2009 but adjourned sine die. It was not finally heard until November 2011, and determined in 2014. It was held that the court possess a constitutional and statutory obligation to hear and determine a matter within a reasonable time, and in this case, where the court took over 6 years to do so the delay was excessive and systemic thereby amounting to a miscarriage of justice.5 While the magistrate is not concerned with the appeals process; obtaining from this case is that the delay with respect to the length of time and the court’s obligation to try a matter within a reasonable time should be taken into account by a magistrate In Singh v Harrychan GY 2016 CCJ 4 the Caribbean Court of Justice considered that 9 years had elapsed since the incident (September 2007) leading to the charge, conviction (November 2010) and the appeal by the appellant. The offence committed by the respondent was of the simple offence of demanding with menace and this elapse in time was seen as inexcusable. The facts were that the respondent on being convicted for 3 years by the Magistrate’s Court 5 The Guide to Judicial Conduct, approved by the Judicial Council of Barbados on June 6, 2006 and published at Chapter VI headed “Competence and Diligence” states at paragraph 6.1 and 6.5 states: \"The judicial duties of the judge take precedence over all other activities. A judge shall perform all judicial duties efficiently. These duties extend to the delivery of reserved decisions fairly and with reasonable promptness. Save in exceptional cases and for good reasons, a judge shall endeavour to deliver a reserved judgment within 8 months. Where a judge reasonably believes that he is likely to reserve judgment for more than 8 months, the judge shall inform the Chief Justice of the circumstances contributing to delay.\"

filed his notice of appeal (4 days from conviction) and he was placed on bail pending the appeal. However, it took 3 years for the magistrate to submit the memorandum of reasons to the clerk. After this it took some 17 months after the submission of the memorandum for the clerk to issue the notice of readiness of proceedings to the now appellant’s attorney. The CCJ therefore remitted the matter to the Court of Appeal for hearing and ordered that in light of the time passed that the respondent be afforded the opportunity to have his appeal fully heard in the Court of Appeal on its merits despite the technical errors. It further identified issues of merit that warranted appellate jurisdiction to include: 1. The actual conviction itself; 2. Specifically the sentence imposed by the learned magistrate and whether it was excessive; and 3. The impact of the delay on the respondent’s constitutional right to a fair hearing within a reasonable time. The Court of Appeal was directed that in hearing the appeal that it should consider the extensive delay in the processing of this case and the resulting impact on the conviction and sentence that was previously imposed by the magistrate. Again, while the issue of appeals are not determined by a magistrate, the fact that magistrates have a duty to submit the memorandum of his reasons for his decision within a specified time so as to facilitate the better administration of justice and the prevention of inordinate delay should be noted. In Crown v Ogle 1968 WIR439, consideration of delay in a criminal trial was considered. Between the committal of the accused by the magistrate and the trial there was a delay of 3 years in between. The prosecution was faced with the further difficulty of having to utilise the depositions as evidence due to the absence of witnesses which was created as a result of the delay in bringing on the trial. It was held by the court that the delay was excessive. Furthermore, the depositions would be required to be read as an alternative to oral evidence, (which the judge did not allow) and the prosecution did not offer any other evidence. Consequently, the court ordered that the accused be acquitted. In Sandiford v The Director of Public Prosecutions 1979 28 WIR p 152 the court emphasized the importance of trial within a reasonable time. The case dealt with a delay of 14 months between arrest and commencement of preliminary inquiry.

Charter of Fundamental Rights and Freedoms, 2011, Jamaica s. 16(1): Whenever any person is charged with a criminal offence he shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time by an independent and impartial court established by law Attorney General’s Reference case [2004] 2 AC 72 a) If, through the action or inaction of a public authority, a criminal charge is not determined at a hearing within a reasonable time, there is necessarily a breach of the defendant's Convention right under article 6(1). b) For such breach there must be afforded such remedy as may be just and appropriate. c) The appropriate remedy will depend on the nature of the breach and all the circumstances, including particularly the stage of the proceedings at which the breach is established. d) If the breach is established before the hearing, the appropriate remedy may be a public acknowledgement of the breach, action to expedite the hearing to the greatest extent practicable and perhaps, if the defendant is in custody, his release on bail. e) It will not be appropriate to stay or dismiss the proceedings unless; (a) there can no longer be a fair hearing or (b) it would otherwise be unfair to try the defendant.6 f) The public interest in the final determination of criminal charges requires that such a charge should not be stayed or dismissed if any lesser remedy will be just and proportionate in all the circumstances.7 g) If the breach of the reasonable time requirement is established retrospectively, after there has been a hearing, the appropriate remedy may be a public acknowledgement of the breach, a reduction in the penalty imposed on a convicted defendant or the payment of compensation to an acquitted defendant. Unless (a) the hearing was unfair 6 The Court of Appeal in Jamaica reaffirmed in the 2010 decision of Steven Grant v R that the power to stay will only be applied in extremely exceptional circumstances. 7 See Steven Grant v R relying on Bell v DPP

or (b) it was unfair to try the defendant at all, it will not be appropriate to quash any conviction…8 It is essential that the defendant be afforded a trial within a reasonable time: Patrick Bailey v The Attorney General of Saint Vincent and the Grenadines and the Director of Public Prosecution Suit No. 79 of 1999 In a fledgling democracy such as Saint Vincent and the Grenadines it was held that judges must “forever be vigilant lest failure to detect the subtlety that sometimes slowly undermines the process of justice.” The High Court stated that the passage of time or a delay in obtaining evidence after an offence has been committed may not be considered unfair to the defendants (unless the delay in inordinate). Chance et al v. The Superintendent of Prisons et al VC 2009 HC 38 What amounts to prejudice to a defendant? In Jamaica, Steven Grant v R [2010] JMCA Crim 77, citing and approving the earlier decision of Barker v Wingo [1972] 407 US 514 relied upon, noted that prejudice was to be assessed by considering the interests of the defendant that a speedy trial was meant to protect. The interests identified were; (a) to prevent oppressive pre-trial incarceration; (b) to minimize anxiety and concern of the accused; and (c) to limit the possibility that the defence will be impaired. Of the three, the court felt the most important was the third because the inability of a defendant to adequately prepare his case necessarily skews the fairness of the system. Examples of prejudice which could result therefore were that witnesses may die or disappear during the delay or may be unable to accurately recall the events of a distant past. Misuse/Misrepresentation by Prosecution 8 The category of cases in which it may be unfair to try a defendant of course includes cases of bad faith, unlawfulness and executive manipulation of the kind classically illustrated by R v Horseferry Road Magistrates' Court, Ex p Bennett [1994] 1 AC 42… see also Boolell v The State [2006] UKPC 46

The court has power to stop a prosecution for abuse of process where the continued prosecution of the case, in the circumstances, offends the court’s sense of justice and propriety. A court that is endowed with a particular jurisdiction has powers necessary to enable it to perform its functions effectively (inherent powers) within that jurisdiction. Connelly v DPP 1964) 2 All ER 401 at 409, Lord Morris of Borth-y-Gest This inherent jurisdiction is necessary “to enforce its rules of practice and to suppress any abuses of its process and to defeat any attempted thwarting of its process”. Behaviour of the Executive When does the behaviour of the executive warrant a stay of prosecution? According to Bennett v Horseferry Road Magistrates’ Court ex p Bennett (1993) 3 All ER 138, HL even if a fair trial is possible, the court is still entitled to stay the trial in that to continue to prosecute the case in the particular circumstance would be offensive to the court’s sense of justice. In this case the defendant was physically abducted from one jurisdiction and brought to another jurisdiction so that he could be arrested in the other jurisdiction. There was evidence demonstrating that the prosecuting authorities were willing allies to this plot. The House of Lords, after reversing the decision of the Divisional Court, held that the rule of law was superior to the public’s interest of having a crime prosecuted, and in so doing the rule of law had to be maintained. The method used to bring the defendant to the jurisdiction was in contravention of international law, his rights under the law of the state from which he was abducted and a disregard of extradition procedures available to secure the defendant’s attendance to the state of the court. Following Bennett, the English Court of Appeal in Beckford (1996) 1 Cr App R 94 stated that it was important for the court to consider whether in the particular circumstances of each case it would be unfair to try the defendant. This was applied in R v Mullen (1999) 2 Cr App R 143, but the Court of Appeal stressed that there may exist cases in which the gravity of the crime is so extensive as compared to the

nature of the particular abuse of process, that it would not be an improper exercise of judicial discretion to allow the prosecution to proceed. On the facts of R v Latif and Shahzad (1996) 2 Cr App R 92, HL, the House of Lords came to the conclusion that the public interest of ensuring that those who are charged with committing serious crimes are tried took precedence in that case. However, unlike Bennett the defendant was not forcefully abducted and brought to another jurisdiction, he willing came to the jurisdiction to traffic heroine in accordance with a premeditated plan. The House of Lords held that in absence of exceptional factors e.g. forcible abduction, then a stay of prosecution for abuse of process will not be granted to a defendant. In R v Looseley [2002] 1 Cr. App. R. 29; Attorney General's Reference (No 3 of 2000) the House of Lords stated the following: ▪ It is unacceptable for the state to lure its citizens in committing acts that are illegal and then seek to prosecute them for committing the same; ▪ The courts have the right to use their inherent power to stay proceedings so as to ensure that executive agents of the state are discouraged from misusing their powers. ▪ As a guide to identifying the limits of acceptable police conduct is to take into consideration whether, in the specific circumstances, the police did no more than present the defendant with an unsatisfactory chance to commit a crime (each case will determined on its facts); and ▪ Where the court has to deal with illegal conduct by the police or prosecutors, which is so serious to the extent that it threatens to undermine the rule of law, the court will more likely consider itself bound to stop the case. i) Trying the defendant for the same offence more than one time. The constitution of the various territories expressly state that a person should not be tried twice for the same offence.9 In the Trinidadian case of Charles, Carter and Carter v The State (1999) 54 WIR 455, PC, it was held by the Privy Council, in the particular circumstances of that case, that it was a manipulation or misuse of the court’s process by the 9 Barbados: The Constitution of Barbados, section 18(5); Guyana: The Constitution of the Co-operative Republic of Guyana Act, Cap 1:01 section 144(5); Saint Vincent and the Grenadines: Saint Vincent and the Grenadines Constitution 1979, section 8(5)

prosecution to seek to have the defendant prosecuted for a third time in respect of the same offence, 10 to do the same was oppressive and unjust to the defendant. Further, that it might be contrary to the principle of due process that, the prosecution after failing twice should continue to try to secure a conviction. This case also highlighted the issue of delay with respect to abuse of process. The delay in this case was disturbing and unacceptable, and the assistance “which might have been reasonably expected from the prosecution and the court to counter the difficulties caused by the delay had not been forthcoming”. According to Seetahal, the situations in which a court may hold that the prosecution has misused or manipulated the process of the court are not fixed. There must be evidence that there was actual misuse or manipulation of the court’s process.11 ii) Where the prosecution promises not to prosecute According to R v Townsend and Others, not every breach of a promise to prosecute would give rise to an abuse of process.12 However, if the prosecution or its agents makes an expressed or implied promise to the defendant not to prosecute him and subsequently reneges on same, the court may regard this as an abuse of process if the defendant was induced to act on the promise to his detriment, and the defendant suffers serious prejudice. In R v Croydon JJ ex p Dean the applicant was a 17 year old who was arrested by the police during the course of a murder investigation and he made certain admissions that he did particular acts intended to impede the apprehension of another person.13 He was subsequently released on the basis that he would be a prosecution’s witness and will not be charged. He complied with the agreement and provided a statement to the police and assisted them otherwise, however he was later charged with the offence and committed to trial counter to the promise made by the police. On application to have the proceedings stayed, the court held 10 The offence occurred some 9 years previously and during that time, on the first prosecution the defendant was convicted of the offence but on appeal this conviction was quashed, on the second prosecution the jury had failed to agree. See also the Jamaican case of Heron v DPP (2000) 61 WIR 319, where the DPP had discontinued a charge of murder where previously 3 juries had failed to agree, where the prosecution attempted to press a fourth trial on the defendant based on the same facts, this amounted to oppressive conduct on the prosecutions part. 11 Seetahal, D. “Commonwealth Caribbean Criminal Practice and Procedure”, 4th edition, page 24 12 (1997) 2 Cr App R 540 13 (1993) 3 All ER 129

that prosecution of a person who was given a representation that they would not be prosecuted amounts to an abuse of process. In addition, having regard to the facts of the case, the court paid particular attention to the age of the applicant.14 iii) Repeated committal proceedings Where an accused is discharged in a committal proceeding/preliminary enquiry, this is not synonymous with an acquittal since there was no final adjudication in the matter. A preliminary enquiry is not a trial and does not determine the guilt or innocence of an accused. Therefore, the prosecution or the Director of Public Prosecutions may be able to lay fresh information regarding the same incident as was held in R v Manchester City Stipendiary Magistrate ex p Snelson (1978) 2 All ER 62.15 It must also be noted that in respect of committal proceedings, the Director of Public Prosecutions has the power to remit a case to be re-opened for inquiry although it has already been committed for sentence.16 Nonetheless, this provision seems to provide a legal excuse for an accused to be subjected to repeated committal proceedings at the discretion of the prosecution. In R v Horsham JJ ex p Reeves, after a successful no-case submission was upheld at trial in which the defendant was successfully discharged, the court held that the laying of fresh information, thereby leading to a committal hearing, in those circumstances would be considered vexatious and oppressive. This was considered the same because the court was already considered fully by a court of competent jurisdiction. What amounts to an abuse of process? 14 In this case the court held that it was irrelevant that the police did not have the required power to make the promise, this still amounted to an abuse of process. 15 In this case the matter was initially at trial in which the prosecution did not offer any evidence and the matter was discharged. The prosecution subsequently commenced fresh committal proceedings shortly after on the same facts in respect of the said offence. It was held that the magistrate had jurisdiction to hear fresh committal proceedings provided that the prosecution does not abuse this by bringing repeated committal proceedings which, may be vexatious and this amounts to an abuse of process. This Court of Appeal in the Trinidadian case of Cadogan v R (1963) 6 WIR 292 took a similar view. 16 Barbados: Magistrate’s Court Act, CAP 116A, section 27; Guyana: Criminal Law Procedure Act, Cap 10:01, section 77; St. Vincent and the Grenadines: Criminal Procedure Code Act, CAP 172, section 160.

Normally the abuse of the process of the court is raised as a preliminary issue; however nothing prevents it from being raised during the trial. In R v Smolinsky it was stated that the best time to make an application on the ground of delay may be subsequent to evidence being led so that the court would be in a better position to decide whether to try the defendant would be unfair. Does abuse of Process apply in Magistrates’ Courts? In Bennett v Horseferry Road Magistrates’ Court et al [1993] 3 All ER 138, HL, the House of Lords confirmed that Magistrates in exercising both their summary jurisdiction and at committal proceedings have power to exercise control over their proceedings through an abuse of process jurisdiction. This power is, however, limited to matters relating to the fairness of the trial of the particular defendant before them, matters such as delay and unfair manipulation of the court process. Cases that do not belong in this narrow category would fall to be considered by the High Court with its wider responsibility for upholding the rule of law. This case was affirmed in the Belizean decision of The Queen v Calman Hall and Tiffarah Tench CLAIM No. 292 of 2014 (Delivered February 23rd 2015) and a similar line of reasoning was pursued in Dominica in Henry Liu and Feng Huang v The AG of the Commonwealth of Dominica, The Director of Public Prosecutions and the Comptroller of Customs where the court opined having reviewed the authorities that it may be said that any court has an inherent power to prevent the misuse of its procedure. Such misuse may be of such a nature that it would be unfair to a party seeking justice, or the use of the procedure may be such as to bring the administration of justice into disrepute. Does a Magistrate have the inherent power to stay proceedings for an abuse of process? Originally, there was some debate as to whether a magistrate had the power to stay a prosecution for abuse of process mainly because magistrates are creatures of statute and had no inherent power. Initially, in Mills v Cooper [1967] 2 QB, Parker LJ had opined that every court had a right to decline to hear proceedings on the ground that they are oppressive, since then, there has been

a gradual acceptance that the magistrates’ court as well as the High Court, could protect themselves from abuse of process. Mills was then followed by R v Brentford JJ ex p Wong [1981] 1 QB 445, the Divisional Court declined to make an order for prohibition as the magistrates’ court had ample power to deal with a matter that went to their jurisdiction. Despite this, it was still uncertain how this power should be used but in R v Canterbury and St Augustine JJ ex p Klisiak [1982] QB 398, it was held that the power should be utilised very sparingly and only if otherwise it would be a blatant injustice to do otherwise. Eventually in Bennett v Horseferry Road Magistrates’ Court ex p Bennett [1993] 3 All ER 138, the House of lords confirmed that magistrates, in exercising their summary jurisdictions and at committal proceedings, have power to exercise control over their proceedings through an abuse of process jurisdiction. The power is however, only limited to matters relating to the fairness of the trial, such as delay and unfair manipulation of the court’s process relating to a particular defendant before them. Circumstances where a Court may grant a stay on the grounds of an abuse of process. The basis of an application lie in the common law: Boodram Anne Marie v The State (2001) 59 WIR 493; PC Jones v Whalley [2007] 1 AC 63; The State v. Davanan Latchman HCA No. 101 of 2006; Dularie Peters v. The State Cr. App. No. 34 of 2008; R v TBF [2011] EWCA Crim 726; Spiers v Ruddy [2008] 2 WLR 608; The State v Forde. There was unjustifiable delay in bringing charges or trying the case. Shaheed Mohammed v AG of Trinidad and Tobago CV 2016-1052 The court may grant a stay of proceedings where the applicant successfully makes this application on the grounds of delay. The applicant must show he suffered prejudice as a result of the delay. A stay will be refused if a fair trial is still possible. R v Latif and Shahzad [1996] 2 Cr App R 92 HL A stay will be granted on the ground of delay in exceptional circumstances. AG’s Ref No 2 of 2001; Charles and Carter v The State (1999) 54 WIR 455; Flowers v R (multiple trials). Even where there is a constitutional right to be tried within a reasonable time a stay on the grounds of delay will still be granted in exceptional circumstances.

The prosecution has manipulated/misused the court’s process, or otherwise acted unfairly thus depriving the defendant of the protection of the law or; Trying an accused person on multiple occasions may also constitute an abuse of process where the accused can show he suffered prejudice and where he can provide evidence that there was a manipulation of the court’s process. Charles and Carter and Bowe v R (2001) 58 WIR 1 PC Laying of charges shortly before the expiration of the limitation period may be an abuse of process. It has been held to be an abuse of process where further charges were laid for different offences on the same facts. Nandlal v The State (1995) 49 WIR 412 The court may grant a stay where the prosecution goes back on a decision not to prosecute. A stay may be granted when the prosecution tries to go back on a previous offer of amnesty. AG v Phillip (1994) 45 WIR 456) Repeated committal proceedings after a successful no-case submission were held to be an abuse of process. R v Horsham JJ ex p Reeves; Cadogan Where the applicant can show that the conduct of the police is so improper so as to bring the administration of justice into disrepute, a stay may be granted. R v Loosely [2001] 4 All ER 897 HL (a case which deals with entrapment). Abdul Kadir, Kareem Ibrahim v The Commissioner of Prisons CV 3062 & 2063 of 2007 T&T; Barry Barrington v AG of Trinidad and Tobago CV 2015-03519 Can a magistrate proceed to dismiss a matter on grounds of abuse where he has already stated a case for the supreme court and awaits an answer? In the Queen v Calman Hall et al, Court concluded that at that time (the time of the Chief Magistrate’s dismissal of the charge), as the decision on the question referred to the Supreme Court remained outstanding, the Chief Magistrate had no jurisdiction to dispose of the proceedings, as she was constrained to dispose of the matter only in furtherance of section 20(5) of the Constitution. The only option available to the Chief Magistrate at the time was to temporarily stay the proceedings, pending the completion of the question which she had referred to the Supreme Court under section 20(3) of the Constitution.

In Henry Liu and Feng Huang17 the Court of Appeal adopted the meaning of an abuse of process which can be defined where ‘the prosecution has manipulated or misused the process of the court or taken advantage of a technicality or where on a balance of probability the accused has been or will be prejudiced in the preparation or conduct of his defence by delay on the part of the prosecution’18. In all matters within the Magistrates’ purview, he or she must protect the court’s process from abuse which can directly affect fairness of the trial for the accused or the litigant. In Bennett v Horseferry Road Magistrates’ Court and Another 1993] 3LRC 94, the court in its wisdom settled the conflicting views regarding whether Magistrates possessed the power to exercise a stay of proceedings due to an abuse of process. The court stated that where a Magistrate is exercising his or her power through its summary jurisdiction or its power as an examining Magistrate (for example, within an extradition hearing or a preliminary inquiry) that such Magistrate has the power to exercise control over their proceedings through an abuse of process jurisdiction in relation to matters directly affecting the fairness of the trial of the particular accused with whom they were dealing, such as delay or unfair manipulation of court procedures19. Where a Magistrate orders a stay of proceedings due to an abuse of process by the prosecution, this should not be done to exercise any disciplinary function over the prosecution, but rather to ensure the accused is not unwarranted pressured or receives an imbalanced trial. Abuse of Process as being equally applicable to either party to proceedings In the Jamaican case of Director of Public Prosecution v Senior Resident Magistrate for the Corporate Area 2012] JMFC Full 3, at the heart of the complaint before the Supreme Court was the fact that the subpoena was issued for an improper or ulterior purpose or purposes. It was not sought for the bona fide purpose of obtaining relevant evidence. Its issuance amounts to an abuse of the process of the Court. In the Dominican case of Henry Liu and Feng Huang v The AG of the Commonwealth of Dominica, The Director of Public Prosecutions and the Comptroller of Customs HCVAP 2006/001 (Delivered September 22nd 2008) , the court agreed with the general settled position that an abuse can exist where the prosecution has manipulated or misused the process of the 17 Henry Liu , Feng Huang v The Attorney General of the Commonwealth of Dominica, Director of Public Prosecutions and Comptroller of Customs DM 2008 CA 6 18 This quote was coined in Hui Chi Ming v R [1991] 3 All ER 897 19 Bennett v Horseferry Road Magistrates’ Court and Another [1993] 3LRC 94, 110

court or taken advantage of a technicality or where on a balance of probability the accused has been or will be prejudiced in the preparation or conduct of his defence by delay on the part of the prosecution.” Hui Chi Ming v R [1991] 3 All ER 897 JM 2011 CA 94. In Jamaica, the position is no different as was evident in the case of Thomas v R JM 2011 CA 94. In that case, one of the issues on appeal to the Court of Appeal was whether the fair trial of the appellant was compromised by the improper conduct of the prosecution in putting to the defence witness an allegation of criminal conduct, namely, that she was paid to give evidence, while adducing no evidence to substantiate the allegation, whereby a miscarriage of Justice may have occurred and whether the learned judge erred in permitting the said allegation to be made without any intervention on her part. Admittedly, this case involved a trial in the Supreme Court before a jury however some of the principles distilled therein are nonetheless applicable. The Court of Appeal felt that the questions for determination was whether the conduct of counsel for the prosecution undermined the integrity of the trial so as to amount to injustice to the appellant and whether the learned judge had failed to exert authority and properly control the proceedings resulting in the trial being unfair. The principles of general applicability are as follows: (a) That it was a cardinal rule of law that ever accused person who is brought before the court is presumed innocent and that this presumption of innocence remained throughout the trial until the evidence adduced points to his guilt beyond a reasonable doubt. (b) That persons charged with the responsibility of marshalling evidence for the prosecution as well as the trial judge must at all times ensure that the conduct of the trial is beyond reproach. (c) That admittedly, in light of the trial process being adversarial, the trial cannot always proceed flawlessly, however, procedural breaches, where they do occur, will not always result in harm so serious as to imperil the fairness of a conviction.

(d) Where the occurrences of breach are substantially prejudicial and an appellate court is of the view that great harm was occasioned to an appellant, a conviction will be quashed as unsafe.20 (e) That to safeguard the fairness of any trial, a number of rules have been developed to ensure that the proceedings however closely contested… are conducted in a manner which is orderly and fair, namely; - The duty of prosecuting counsel is not to obtain a conviction at all costs but to act as a minister of justice. - While the duty of counsel may require a strong and direct challenge to the evidence of a witness, and strong criticism may properly be made of a witness or defendant so long as that criticism is based on evidence… there can never be any justification for bullying, intimidation, personal vilification or insult… - It is the responsibility of the judge to ensure that the proceedings are conducted in an orderly and proper manner which is fair to both prosecution and defence. He must neither be nor appear to be partisan. If counsel begins to misbehave, he must at once exert his authority to require the observance of acceptable standards of conduct. Insofar as this was not found to have been observed the court felt that the breaches were sufficient to render the trial unfair and the appeal was allowed and a new trial ordered. Can a magistrate proceed to dismiss a matter on grounds of abuse where he has already stated a case for the supreme court and awaits an answer? In the Queen v Calman Hall et al, Court concluded that at that time (the time of the Chief Magistrate’s dismissal of the charge), as the decision on the question referred to the Supreme Court remained outstanding, the Chief Magistrate had no jurisdiction to dispose of the proceedings, as she was constrained to dispose of the matter only in furtherance of section 20(5) of the Constitution. The only option available to the Chief Magistrate at the time was to temporarily stay the proceedings, pending the completion of the question which she had referred to the Supreme Court under section 20(3) of the Constitution. 20 Randall v R (2002) 60 W.I.R. 103 referenced.

The magistrates’ duties to the court is confined wholly to mitigating the possibility of an abuse of process; the magistrates’ powers do not extend to supervisory prerogatives and upholding the rule of law which are exercised solely by the Justices in the High Court. Thus, based on the cases, magistrates have jurisdiction to abuse of process applications for the following: a. abuse complaints directed at the propriety or fairness of the trial process or procedure; b. abuse complaints concerning mala fides of the prosecution, or investigations into whether the prosecution had been instituted oppressively or unfairly; c. delay; and d. in cases of alleged unfair manipulation of court procedures. Magistrates do not have jurisdiction in instances of an abuse of process by the police, prosecution authorities or governmental officials pursuant to ulterior motives or wrongful purposes in violation of international law and for fundamental human rights21. What are the minimum requirements for a fair trial? Magistrates are responsible for preliminary inquiries, all summary offences, road traffic offences and extradition hearings22. To ensure that a fair trial is being conducted, the following are the minimum requirements magistrates should be mindful of:- a. The defendant understands the proceedings and the charge being read to him or her proceedings. The magistrate must be satisfied that the defendant where the defendant has given a guilty plea, know that he or she was wrong by the act or omission of the offence. b. The defendant understands what defences or remedies are available to him or her where applicable. 21 Abuse of Process in Criminal Proceedings Fourth Edition, David Young, Mark Summers QC, David Corker, Bloomsbury Professional Limited, 2014 pg 388 22 This list is not exhaustive.

c. The defendant has a reasonable opportunity to make relevant representations if he or she wishes. d. The magistrate must ensure the defendant has the opportunity to be represented and record where the defendant has refused representation.