Reservations from some lawyers, good support for moves to end PIs

DESPITE reservations from some lawyers on the abolishing of preliminary inquiries (PIs), for most who practise in the criminal division and the magisterial districts, it is a welcomed move.

On November 9, at the virtual opening of the 2021/2022 law term, Chief Justice Ivor Archie said he was confident that the elimination of PIs will provide stakeholders in the criminal justice system the “fantastic opportunity” to retool their processes.

Attorneys are hopeful the move will solve at least part of the problem plaguing the system: a backlog of cases.

But there was also a caveat: there must be supporting physical structure and human resource to ensure it does not cause a bottle-neck at the High Court.

In an interview, president of the Assembly of Southern Lawyers Michael Rooplal said his reservations were centred on the fact that there are no physical hearings since last year.

“While one of the purported aims for the abolition of PIs is the increased efficiency of the criminal justice system, it is my considered view that the proposed abolition will result in the removal of one of the bottlenecks in the present system while simultaneously exacerbating the current bottleneck when cases are sent to the High Court.

“Furthermore, 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 suggested the Attorney General should hold his hands on the proposed abolition until physical sittings of the Assizes resume, and logistical arrangements are in place for more courts and judges.

Archie assured that the general backlog of criminal matters was not being neglected and a committee had been convened to arrive at solutions for the division.

Attorney General Faris Al-Rawi also recently spoke of the introduction of judge-only trials, saying it had improved access to justice. He said emphasis was placed on clearing the backlog of cases in the criminal courts, with a reduction of case-loads in the magisterial division. With the abolition of preliminary, Al-Rawi also estimated that some 26,000 preliminary inquiries will soon be removed from the system as well.

THE RIGHT MOVE

Senior criminal attorney Israel Khan, SC, told Newsday, while the abolishing of preliminary inquiries was a “step in the right direction,” there must be a holistic approach to dealing with the problems plaguing the criminal justice system.

He said unless there were increases in the number of criminal judges and courts, there will continue to be a bottle-neck of cases at the Assizes with indictments being filed but cases not being expedited fast enough.

“It (abolishing of PIs) must not stop there,” Khan said. He suggests the categorisation of murder and making it an offence for which bail can be assessed. This issue is the focus of an appeal currently before the Appellate Court in which a former murder accused has asked for the option to apply for bail for murder.

The Law Association has agreed with the position and the court’s judgement has been reserved.

Khan also said there should also be serious plea bargaining with massive deductions on sentence for those who plead guilty for offences while also setting up programmes for the rehabilitation of prisoners as well as introducing a parole system.

He also pointed to the understaffed Office of the Director of Public Prosecutions as another issue to be addressed.

“Unless these are dealt with seriously, they will just be spinning top-in-mud. There needs to be a holistic approach to managing the justice system.”

Khan also agreed with the call by the Chief Justice for full financial autonomy for the Judiciary.

On the thrust towards judge-only trials, Khan said there was a “little water in the brandy” where these were concerned. He expressed caution of putting the life of an accused in the hand of a single judge.

In the past, Khan has been very vocal against the abolishing of jury trials, saying it was the only means by which the average citizen could participate in the criminal justice system.

Also weighing in on the issue was defence attorney Jagdeo Singh who said he fully supported the abolition of PIs.
“Preliminary inquiries were an unnecessary, anachronistic burden on the criminal justice system which has outlived its usefulness and which only added a layer of costs.

“You do not need a formal court proceeding to do what can be done by disclosure.”
Singh said there were amply cases to support that position, explaining that preliminary inquiries were developed when there were no rules governing the disclosure of evidence.

He said with the passage of time and statute, there was no longer the need for a formal judicial proceeding to achieve that exercise of disclosure that can be done by a judge, with rules.
“When are you going to be ready The backlog is not getting smaller. We must find creative ways to unclog the system.”

Singh suggested the setting up of a permanent criminal and appeals division.
“But to burden the system with an unnecessary judicial enquiry which ties up the Office of the DPP, the court and the police, with an unnecessary process serves no useful purpose.”
He said there were Privy Council decisions which say an accused was not entitled to a particular process, but a fair one.

“A fair hearing can be achieved by robust case management.”
Singh said in the same way the civil proceedings rules cleared the backlog of cases and speeded up civil cases, the abolition of PIs will “go a long way in making the system more efficient and speedy.”

He also said sufficiency hearings, which will be heard by masters in the criminal division, will not take up as much judicial time as PIs.
Singh also said it could not be argued that sufficiency hearings – which will deal with the evidence “on paper” – will not determine if there was sufficient evidence to take to a jury since it already has to pass through the advice of the DPP in any event.

“I do not think it will be a bug bear. But certainly, there will be no expensive procedural hearings. It won’t take up as much time for a police officer to spend all day in court or a whole lot of prosecutors traversing the country to different courts. It frees up the police, prosecutor, and magistracy to allow the lower court to better deal with summary cases.”

SLOW RATE OF JUSTICE
Criminal defence attorney Lyndon Lue was also in favour of the abolition of PIs and in favour of sufficiency hearings. He said the process at the magistrates’ court consumed a large portion of judicial time.

“There is a very slow of rate of justice in the courts for the simplest of matters.”
However, he too was of the view that for it to reap rewards, there must be supporting physical and human resource structures otherwise “the end result would be the bottle-neck would be transferred to the High Court level.”

“I am in favour of the concept in theory, but place a caveat that there must be the proper support systems in place for it to move forward to provide a more speedy, efficient delivery of justice for the public and all those who are part of the process.”

Other attorneys Newsday spoke with said by and large they were happy with the abolition of preliminary inquiries while the jury was out on judge-only trials as it was dependent on the judge and the facts of the individual case.