Right of the prosecution to appeal and the double jeopardy ruleSunday, June 13, 2021
The concept of double jeopardy is a well-established principle in constitutional law.
In a Caribbean context, more specifically Jamaica, the concept of double jeopardy and the predominant argument that an accused should not be tried twice for the same offence, because doing so would violate his [or her] constitutional rights, has once again been brought to fore.
The right of an accused person not to be tried twice is entrenched in section 16 (9) of Jamaica's Charter of Fundamental Rights and Freedoms which provides that “no person who shows that he has been tried by any competent court for a criminal offence and either convicted or acquitted shall be tried again for that offence…no person shall be tried for a criminal offence if he shows he has been pardoned for that offence”.
Correspondingly, section 7 of the Criminal Justice (Administration) Act, 2014 provides that “it shall be sufficient for any defendant to state that he has been lawfully convicted or acquitted of the offence and therefore cannot be prosecuted in the future for that offence”.
To do so would violate the principle of double jeopardy, notwithstanding evidence which points to the guilt of the accused.
Double jeopardy in a
In many jurisdictions, a modern trend has emerged which allows for a relaxation of the double jeopardy rule and gives the prosecution the right to appeal on certain grounds. It is thought that this would restore balance to and maintain public confidence in the integrity and efficacy of the criminal justice system.
The Bills – The Judicature (Appellate Jurisdiction) (Amendment) Act, 2021 and The Judicature (Parish Courts) (Amendment) Act, 2021 – however, contravene sections of the Charter of Fundamental Rights and Freedom and the Criminal Justice (Administration) Act. Given that the constitution reigns supreme, such violations would be deemed ultra vires or null and void or of no legal effect.
In keeping with that, the Bills as they currently stand, create room for conflicting situations without a clear process of resolution. This could be very problematic in the future. For example, if the accused is sentenced and believes the sentence to be excessive, he or she may want to exercise their right to appeal. Similarly, if the prosecution is of the view that the sentence imposed is too lenient, they may also exercise their right to appeal. Therefore, the question at hand is: Who has the right to appeal in those circumstances, the defendant or the prosecutor?
With the current backlog of cases in Jamaica's judicial system, what is the likely impact of the right of the prosecution on an already overburdened system?
Civil vs criminal proceedings
In civil proceedings, either party to a suit has the right to revise their interest in making an application to the court. Why is that right not being recognised in criminal matters? In my view, section 298 of the proposed Bill – The Judicature (Parish Courts) (Amendment) Act, 2021 – is too harsh and remains limited. As it stands, the right to appeal will no longer exist after 14 days have elapsed. In my capacity as junior shadow spokesperson on justice, it is my recommendation that this section be amended to include a more appropriate time frame for leave to appeal. Taking into consideration the various reasons why a person may have failed to give notice of their intention to appeal in the manner prescribed in section 297 of the Bill, 14 days is insufficient.
Even though the People's National Party started the work of drafting this legislation, it does not preclude the Opposition from giving feedback and suggestions to the legislation as it is currently proposed. Whilst we welcome legislative change, there remain issues necessary for deliberation. My recommendation is simple: The court should be guided by evidence. If the court determines that evidence is of the highest possible standard to warrant a retrial, it is important that our legal system gives way for such allowances. In support of this, there must be safeguards in the legislation to protect against abuse and limit the right to appeal.
Final-year law student Shari-Ann Henry is the People's National Party's junior shadow minister for justice. She also holds an MSc Degree in Policy and Research.
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