Crown's right of appeal the right thing at the right timeWednesday, October 13, 2021
It was a long time coming, eight years to be exact, but finally the scale of justice has been balanced further with passage, last Friday, in the Senate of two Bills that grant limited right of appeal to the prosecution in criminal proceedings.
The Bills — the Judicature (Appellate Jurisdiction) (Amendment) Act 2021 and the Judicature (Parish Courts) (Amendment) Act 2021 — were passed without amendment despite a curious attempt by the Opposition to delay their passage.
Readers will recall that in February 2014 the then People's National Party Cabinet had announced to the country that it had approved the drafting of legislation that would grant a limited right of appeal to the prosecution in cases which the sentence was deemed inadequate or unduly lenient.
At the time, Information Minister Senator Sandrea Falconer explained that in determining whether to allow the prosecution to appeal against a sentence, the Court of Appeal should be satisfied that there was “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, the senator noted, would take into account any sentencing guidelines applicable to the offence and the circumstances surrounding the particular offence.
She had 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.
At the time we had highlighted in this space the long-held opinion in legal circles 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.
We had also pointed to the Mona Law Society's discussion on the matter in 2014, in which it stated 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”.
In January 2018, the motion was ready to be tabled, but Justice Minister Delroy Chuck, in an obvious move to get consensus, had it circulated to stakeholders. Therefore, the argument raised last Friday by Opposition Senator Peter Bunting that there was no need to rush the Bills is simply bollocks.
It is important to highlight that the Bills do not deny the safeguards in place for accused individuals, such as the presumption of innocence, the right to due process and a fair trial, the prosecution's burden of proof, and the right to appeal.
No modern criminal justice system can claim to be balanced and equitable if the prosecution does not have the right to appeal. Moving to that ideal is ensuring the provision of accountability to litigants while, at the same time, enhancing public confidence that the justice system is equipped to correct errors.