Monday, April 21, 2014

Does The Prosecution "Deserve" The Right To Appeal?

The case for legislating the Prosecution's Right To Appeal Against An Acquittal In Criminal Cases  in Jamaica has been ventilated in a document emanating from the Office of the Director of Public Prosecutions.Like any other case, the arguments presented have to be assessed before any conclusion can be made concerning the desirability,and/or appropriateness  of such in our judicial system.

In a letter entitled "Prosecution Deserves Right To Appeal" published in The Gleaner, Saturday, April 19, 2014 Glenn Tucker states, inter alia, "asymmetry twists the criminal procedure towards the interest of defendants".

 For what it is worth, that argument is hinged on two questionable predispositions: (a) the DPP's concern stems from the fact that the judge could make a error in law and where that exists, the matter should be revisited; and (b) there should be freedom from bias against both the defendant and the prosecution.

Let us examine briefly the position of the Prosecution "deserving" such a right.

  • Judges make errors in law every day and this forms the basis of appeals. However, it is the convicted who must make such an appeal and stand the attendant costs. If the judge makes an error in law and the convicted does not take the initiative and appeals, he serves his time or pays his fine. 

Suffice it to state that the DPP's concern stems from a multiplicity of factors and is not confined to the error in law.(see our "The Prosecution's Right To Appeal")

  • The much touted adage of the scales of justice being evenly balanced is more myth than reality. It is the state that promulgates the laws with accompanying sanctions for violations; recruit, pay and equip the police force to apprehend violators: select the judges; establish and maintain (poorly) the court houses and prisons; collect the fines; and maintain the criminal records. Appeals are made to a panel of judge selected and paid by the state. Interestingly, the majority of judges have spent time in the prosecution's office and see their career path as culminating in the Court of Appeal. Appeals from the RM courts depend on the notes taken by the sitting trial judge.  

It may be agued that attempts have been made in the recent past to lessen the imbalance in favour of the state usually under the rubric of "Human Rights" and with the aid of foreign intervention. 

Given that there seems to be implementation hitches, then it seems reasonable to take a position that there should be a phased implementation of such a right based on the addressing of the myriad of problems besetting the administration of justice, especially in the criminal jurisdiction. The supporting infrastructure is woefully absent.

The Prosecution having very limited and circumscribed right of appeal has been rejected by the DPP on the basis "that no useful purpose is served to law and justice'".

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