Prosecution's right to appeal makes great legal sense

Friday, December 14, 2018

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Chief Justice Bryan Sykes' call on Wednesday for the prosecution to be given the right to appeal shines a perfect spotlight on the slow pace of legislation in Jamaica.

For it was in February 2014 that the then Cabinet announced to the country that it had approved the drafting of legislation that will grant a limited right of appeal to the prosecution in cases where the sentence is deemed inadequate or unduly lenient.

At the time, then Information Minister Senator Sandrea Falconer told us that the legislation would also include cases where the court did not have the power in law to pass the sentence.

Miss Falconer had also explained that in determining whether to allow the prosecution to appeal against a sentence, the Court of Appeal should be satisfied that there is “something seriously or manifestly wrong with the sentence imposed by the trial judge, in that it is materially less than the generally expected and accepted level of sentencing for the offence committed”.

That, she noted, would take into account any sentencing guidelines applicable to the offence and the circumstances surrounding the particular offence.

She also said that, upon hearing the appeal, the Court of Appeal may quash any sentence passed in the court below, and in place of it, pass such sentence as they think appropriate for the case (being a sentence which the court below had the power to pass), or affirm the sentence and dismiss the appeal.

An opinion in legal circles is that Jamaica should, like other Commonwealth jurisdictions, give prosecutors greater right of appeal, such as in “cases of serious offences, where fresh and compelling new evidence was found, the acquittal was tainted and/or where it became clear that key witnesses had given false evidence”.

The Mona Law Society, in a discussion on the matter in 2014, had also pointed out that “in some jurisdictions, provisions were included for cases where the accused confesses to the crime after acquittal” but “these exceptions only apply to serious and grievous indictable offences that carry severe penal consequences, eg murder”.

We are aware that in January this year the motion was ready to be tabled, but Justice Minister Delroy Chuck, in an obvious move to get consensus, had it circulated to stakeholders. However, so far, only the Office of the Director of Public Prosecutions has responded.

Information reaching this newspaper is that Minister Chuck intends to move on this matter in short order. Given the pace at which he is moving to modernise the justice system, we have no doubt that he will act on this matter, because he has proven to be results-oriented.

We agree with Chief Justice Sykes's argument that Jamaica should seek to have this legislation in light of the current move to modernise the legal system.

In any event, the defence which has the right of appeal, should not appear to have an advantage over the prosecution, if the law is to appear balanced and equitable.

Over to you, Minister Chuck.

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