Derek Achong

The im­ple­men­ta­tion of the long-tout­ed move to abol­ish pre­lim­i­nary in­quiries for in­dictable crim­i­nal of­fences in Jan­u­ary is not like­ly to have an im­me­di­ate pos­i­tive im­pact on the back­log of cas­es in the crim­i­nal jus­tice sys­tem.

Sev­er­al se­nior crim­i­nal at­tor­neys who spoke with Guardian Me­dia on Wednes­day, all ex­pressed the view that the move, cou­pled with the low dis­po­si­tion rate of crim­i­nal cas­es dur­ing the on­go­ing COVID-19 pan­dem­ic due to an in­abil­i­ty to host tri­als by ju­ry, meant that the ex­ist­ing back­log of cas­es would be sim­ply shift­ed from the Mag­is­trates’ or Dis­trict Courts to the Crim­i­nal Di­vi­sion of the High Court.

In his an­nu­al ad­dress at the vir­tu­al open­ing of the 2021/2022 Law Term on Tues­day, Chief Jus­tice Ivor Archie re­vealed that on­ly 30 crim­i­nal cas­es, eight of which were for mur­der, were dis­posed over the past year due to lo­gis­ti­cal and health and safe­ty is­sues as­so­ci­at­ed with ju­ry tri­als.

Archie al­so wel­comed the move to abol­ish pre­lim­i­nary in­quiries and re­place them with “suf­fi­cien­cy hear­ings” be­fore High Court Mas­ters, which At­tor­ney Gen­er­al Faris Al-Rawi re­cent­ly an­nounced would be im­ple­ment­ed in Jan­u­ary.

“We look for­ward to work­ing close­ly with the Di­rec­tor of Pub­lic Pros­e­cu­tions (DPP), the pub­lic and pri­vate de­fence bar, to achieve a smooth tran­si­tion. The num­bers won’t be less but it is a fan­tas­tic op­por­tu­ni­ty to re­tool our process with an open mind,” Archie said, as he al­so sug­gest­ed con­sid­er­ing mak­ing judge-alone tri­als the de­fault op­tion, with ac­cused per­sons be­ing giv­en the op­tion to elect a ju­ry tri­al. 

Con­tact­ed yes­ter­day, Se­nior Coun­sel Is­rael Khan sug­gest­ed that while the move to abol­ish pre­lim­i­nary in­quiries is pos­i­tive, the bot­tle­neck in the crim­i­nal jus­tice sys­tem would be shift­ed to the High Court un­less there are more judges ap­point­ed and more court­rooms es­tab­lished to fa­cil­i­tate more tri­als.  

He ad­mit­ted that the ap­par­ent abysmal clear­ance sta­tis­tic over the past year was un­der­stand­able, con­sid­er­ing the lim­i­ta­tions of host­ing vir­tu­al judge alone tri­als. 

“The sta­tis­tics are rea­son­able be­cause we re­al­ly are at a stand­still,” Khan said. 

Khan sug­gest­ed that the low vir­tu­al tri­al num­bers were due to lim­it­ed video con­fer­enc­ing rooms at the pris­ons for re­mand­ed in­mates and vir­tu­al court­rooms, as well as a gen­er­al re­luc­tance of ac­cused per­sons to elect judge-alone tri­als. 

“The vir­tu­al tri­al is re­al­ly a stop-gap or a tem­po­rary thing be­cause you re­al­ly can­not do a vir­tu­al tri­al and do jus­tice to the case both for the pros­e­cu­tion and the de­fence,” Khan said. 

“Peo­ple would not want to take the chance of one per­son de­cid­ing whether you live or you die, they would pre­fer to have 12 rea­son­able per­sons do­ing so.”

He said for the abo­li­tion of pre­lim­i­nary in­quiries to have its de­sired ef­fect on the back­log there must be a holis­tic ap­proach to the crim­i­nal jus­tice sys­tem, in­clud­ing the cat­e­gori­sa­tion of the of­fence of mur­der and in­creased use of plea bar­gain­ing. 

“You can­not do it piece­meal, oth­er­wise you are just scratch­ing the sur­face,” he said, as he not­ed that the Ju­di­cia­ry must be pro­vid­ed with ad­di­tion­al re­sources. 

“In no part of the world or the Com­mon­wealth, you would hear that a per­son is locked up for a decade and can’t get a date in court. It is ridicu­lous and pre­pos­ter­ous,” Khan said.

At­tor­ney Wayne Sturge ex­pressed sim­i­lar sen­ti­ments to Khan, as he sug­gest­ed that the abo­li­tion of pre­lim­i­nary in­quiries with­out first in­creas­ing the Ju­di­cia­ry’s ca­pac­i­ty to have more tri­als was “putting the cart be­fore the horse.” 

“We are al­ready in chaos but this is go­ing to re­sult in more chaos,” Sturge said. 

Sturge said even if more ac­cused per­sons were will­ing to do vir­tu­al judge-alone tri­als dur­ing the pan­dem­ic, this was not pos­si­ble as there are on­ly lim­it­ed vir­tu­al court­room fa­cil­i­ties. 

“Un­til we aug­ment the com­ple­ment of ju­di­cial of­fi­cers and sup­port staff, the ex­ist­ing quo­ta could on­ly process the amount of mat­ters they are ac­cus­tomed to pro­cess­ing,” he said. 

As­sem­bly of South­ern Lawyers pres­i­dent Michael Rooplal mean­while called on Al- Rawi to hold his hand on im­ple­men­ta­tion un­til phys­i­cal sit­tings can re­sume. 

“Giv­en the fact that there are no phys­i­cal sit­tings of the As­sizes at this time and there have not been any phys­i­cal hear­ings since last year, there is al­ready a se­ri­ous back­log of crim­i­nal cas­es in the High Court. Ac­cord­ing­ly, the pro­posed abo­li­tion will not have the de­sired ef­fect of in­creas­ing ef­fi­cien­cy at this time,” Rooplal said.