The Jamaican Bar Association wants lawmakers to rethink certain amendments to two Bills giving the Crown a limited right to appeal not guilty verdicts in criminal cases.

Parliament’s Upper House, the Senate, last week gave the nod to the Bills, but the association, in addition to the rethink, also wants a limiting of prosecutorial rights.

The Bills — the Judicature (Appellate Jurisdiction) (Amendment) Act 2021 and the Judicature (Parish Courts) (Amendment) Act 2021 — were passed without amendment in the Senate and will apply to criminal proceedings in the parish and supreme courts.

The amendments seek to grant the prosecution a right of appeal with the consent of the Director of Public Prosecutions (DPP) where there has been a verdict of acquittal in an administration of justice offence.

An administration of justice offence includes perverting the course of justice; bribery or intimidation of, or interference with a witness, judicial officer, family member of a witness or judicial officer; or perjury.

The Bills will also allow the prosecutor to refer an acquittal to the Court of Appeal for its opinion on any point of law or any point of mixed law, and fact under the Judicature Appellate Jurisdiction Act.

Additionally, they will amend the Criminal Administration Act to provide an exception to the rule against double jeopardy, which would allow the prosecution — again with the consent of the DPP — to apply to the Court of Appeal to quash an acquittal and direct a retrial in limited circumstances.

But attorney-at-law Alexander Williams, president of the Jamaican Bar Association, said that the organisation remains “unconvinced” about the extent of the changes.

“First of all, I am not so sure how widespread it is across the Caribbean where the prosecution right of appeal has been granted in respect of facts. Prosecutorial right of appeal, as far as I am aware in most cases, has been limited to what is called an administration of justice offence, that is to say when somebody does something like influence a juror or whatnot and, of course, on a point of law. But we do not feel that there should be a prosecutorial right of appeal in respect of fact or in respect of mixed law and fact. It should strictly be limited to an administration of justice offence or on a point of law,” Williams, a former senator, stated.

“If there is an error of law, or there’s an administration of justice offence we see no difficulty in the prosecution being granted the right of appeal, but where we take issue is on the point of fact, that’s where we find that that is problematic, because at the end of the day you may well be substituting a Court of Appeal decision as opposed to the trial judge and the jury who saw the evidence,” he argued.

“Sometimes, the way in which a person gives evidence, how they handle themselves in the box, the tone in which they answer a question — whether it’s shaking or nervous or nonchalant — all these things are factors which a trial judge and a jury will take into account as to whether or not a witness is a witness of truth. Those things are not available to an Appeal Court and that is why, generally, an Appeal Court is loath to interfere with findings of fact by a trial judge,” he said further.

“That’s the danger I see, which is why I say we part company with a prosecutorial right of appeal in respect of fact. We are not convinced that the prosecution needs a right of appeal in respect of fact, and we remain concerned about a number of issues that affect criminal trials,” Williams added.

Commenting on another effect of the amendments — the right to appeal when the sentence is materially less than the generally expected and accepted level of sentence for the offence concerned — Williams warned, “It is dangerous to interfere with the time-honoured, hallowed judicial guidelines as to how sentences are imposed. Each case turns on its own facts. We are a society of law and not of emotion. In any trial a judge has a number of factors to take into account to apply an appropriate sentence. If the crime is particularly heinous, there are no mitigating factors and so on and so forth, one would expect a trial judge to impose a heavy fine or a heavy sentence depending on what the case is. But I think it is very dangerous, at any point in time, to legislate an interference into the way in which judges go about imposing sentences.”

In the meantime, he contended that the prosecution has other options open to it outside of appeals.

“There is a nolle prosequi (where the prosecution decides not to proceed with a case), there are different stages during a criminal trial where there is an opportunity where both counsel can seek to ensure that no errors are made during a trial and, to a limited extent, there is a judicial review. So there are different ways in which problems of that nature can be addressed during a trial,” the Bar Association’s president insisted.

In the meantime, the association is demanding that evidence supporting the need for the changes be produced.

“So, what we are saying is, how big a problem is it here in Jamaica? Never mind the other Caribbean territories and all that; how big a problem is it in Jamaica, which would require going to the extent of granting the prosecutorial right of appeal? Let’s see the statistics. This is a question we raised. I don’t know that we have gotten an answer fully,” he told the Jamaica Observer.

In the meantime, Williams said, given what is at stake with the changes, further improvements to the criminal justice system should take precedence.

“Remember that accused persons go up against the weight of the State. A typical accused, the poor person who faces the State in a criminal charge, doesn’t have those kinds of resources, they don’t have a complete lab to test bullets and blood samples and all of that to counteract DNA evidence that may or may not be coloured,” he said.

“So we feel that as best as possible, maybe the Government can see where they can best level the playing field in dealing with criminal trials, and we are not sure that we are there yet, quite frankly, before going to the extent of granting the prosecution right of appeal even to cover points of fact,” he said.

However, Williams said jitters over the Crown being given the right to appeal amount to double jeopardy are unfounded.

“Double jeopardy — being tried for an offence more than once — that constitutional concern would not arise with the Bill. We do have retrials all the time, retrials do happen because the judge died or whatever, so you have to try over the case. It is the same case being tried all over again rather than a different case being brought,” he pointed out.

Under the new regime, the definition of prosecutor is being expanded to take into consideration the other individuals who may legally exercise prosecutorial powers. The definition will include the DPP or any of the attorneys-at-law employed in that office, or an attorney-at-law to whom the DPP has granted a fiat to prosecute a case, a clerk of the court, the Integrity Commission’s director of corruption prosecutions, the director general of the Major Organised Crime and Anti-Corruption Agency (MOCA), and a person who has initiated a private prosecution.

The right of appeal for the prosecution recognises that the Office of the Director of Public Prosecutions is not the only prosecuting entity in Jamaica and it recognises that the right will be exercised by the director of corruption prosecutions of the Integrity Commission, the director general of MOCA, clerks of court and private prosecutors.