Dear Editor,
I refer to the article ‘Repeat offenders becoming a nuisance to the society’ set out at page 12 of the Kaieteur News of Friday November 19, 2010.
The judge who asked not to be named is reported as saying that the judicial system leaves much to be desired and then is quoted as saying, “What are we doing, granting bail in the High Court is defeating the whole process in the Magistrate’s Court.”
I will not discuss here the principles upon which bail is granted, but merely wish to point out that the presumption of innocence is the bedrock of our jurisprudential philosophy.
A perusal of the records in the Georgetown Magisterial District would show that apart from guilty pleas, the prosecution service does not secure more than a 20% conviction rate. A proper inquiry to determine the actual conviction rate would not be difficult because all one has to do is add up the matters completed and then add up the number of convictions and do the maths.
Further, the average time taken to conclude serious crime is approximately nine months. It is not uncommon for cases to last 2-3 years in the Magistrates’ Court. By this time witnesses die, migrate or become unavailable for one reason or the other. Criminals rely on the fact that delay works in their favour.
The Honourable Chancellor, Mr Carl Singh, did try an experiment wherein serious crimes and narcotics cases were sent to a single court in Georgetown. Unfortunately, this court soon became bogged down by the share weight of work and soon accused persons were given 2-3 months as a return date after first appearance in court.
Let me be clear, serious criminals must be punished and removed from society. What then is the answer?
1. At the core of the problem lies the fact that in a significant number of cases the persons ought not to have been charged in the first instance because the prospect of a conviction was non-existent. For example in a typical case where drugs are found in a boat with five passengers, no one confesses and there is no evidence that they acted together, yet all five are charged. The Director of Public Prosecutions should only charge where there is a 75% chance of success. This would immediately bring down the workload.
2. The Director of Public Prosecutions should bite the bullet and nolle prosequi, or the state should pardon the small matters which now clog the courts so that magisterial time in the short term can be devoted to new and serious crimes.
3. A review should be made of existing cases which are good on paper, but which have no prospect of success. For example the NBS fraud case once discharged by a Magistrate because the virtual complainant did not turn up. The accused were recharged and again the virtual complainant did not turn up. Valuable magisterial time was expended.
4. Magistrates must be given the leeway to enquire from the prosecution, “How do you intend to prove this case?” I have in the courts right now a case where the two defendants were out of the country, the key to a safe in which the ammunition was found was in the possession of a third party and there is no confession. This is the prosecution’s case and not the defence version of the facts. This case has been going on in the Magistrate’s Court for nearly two years. Mr K A Juman-Yassin employed this method when he was Chief Magistrate and I as a Magistrate serving under him did likewise. I also employed the method of asking defence counsel how they intended to get around a strong prosecution case indicating that if judicial time was wasted in a trial for the sake of a trial the defendant could not expect much leniency. This method saves much judicial time.
5. The police must stop relying on confessions and do police work. Many good cases are lost when confessions are thrown out. We are still in the Dark Ages as far as confession methodology is concerned. With all the money spent on justice improvement and improving police capacity, why is it we are not video-taping confessions when Parliament has already made such evidence admissible?
6. The police must utilize the method of preponderance of evidence, using finger-printing, and DNA in their arsenal. This is the method used in the United States where persons are confronted with insurmountable evidence and therefore they do not waste the court’s time with a trial.
7. Speed! Speed! Speed! Magistrates must be facilitated to work with speed and the police excuse of no file, or the file is with the DPP must stop. Serious crimes must be fast-tracked through the Magistrate’s Court. I could recall Mr Juman-Yassin working until 5pm some days. Speed is achievable but the will must be there.
8. There must be an aggressive prosecution service. A kick-down-the-door bandit comes to court, and upon his arraignment the prosecution serves statements and tells the court, “We are ready to proceed” and that the prosecution can be concluded within 36 hours of judicial time. The accused is a notorious kick-down-the-door bandit, the Magistrate begins the trial within 7 days, and I challenge anyone to produce a single instance where the High Court has granted bail where trial has commenced and the matter is pursued with alacrity. The High Court cannot refuse bail and encourage magisterial and prosecutorial sloth.
9. The Prosecution service must become noted for surgical efficiency and having a capacity to win cases so that being charged in itself must be a deterrent.
10. The system must be such that bandits must be in terrorem of being charged.
I respectfully submit that blame must be placed where it lies.
Yours faithfully,
V V Puran
