Bell v Director. of Public Prosecutions
| Jurisdiction | UK Non-devolved |
| Judgment Date | 1985 |
| Date | 1985 |
| Year | 1985 |
| Court | Privy Council |
Jamaica - Constitution - Human rights and fundamental freedoms - Fair hearing within reasonable time - Applicant's appeal against conviction allowed and retrial ordered - Retrial substantially delayed - Prosecution offering no evidence and applicant discharged - Rearrest for same offences to be retried - Whether infringement of applicant's right to fair hearing within reasonable time -
Section 20 of the Constitution of Jamaica provides:
“(1) Whenever any person is charged with a criminal offence he shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.”
In May 1977 the applicant was arrested and charged with firearm and other offences. He was convicted in the Gun Court in October 1977, but in March 1979 his appeal against conviction was allowed by the Court of Appeal of Jamaica and a retrial was ordered. Notice of that order was not received by the registrar of the Gun Court until December 1979. The original statements of witnesses had to be served on the applicant before his retrial, but the investigating officer was unavailable and the statements could not be found. After the case had been mentioned in the Gun Court on three occasions the applicant was released on bail in March 1980. Thereafter the case was mentioned on numerous occasions but the Crown was not ready to proceed. The applicant was discharged by a judge in the Gun Court in November 1981 the Crown offering no evidence against him and stating that the witnesses were not available. In February 1982 the applicant was rearrested for the same offences and despite objections on his behalf he was ordered to be retried in May 1982. He applied by originating motion to the Full Court Division of the Supreme Court for redress under section 25 of the Constitution seeking, inter alia, a declaration that section 20(1) of the Constitution had been infringed. The Full Court dismissed the application and the applicant's appeal was dismissed by the Court of Appeal.
On the applicant's appeal to the Judicial Committee: —
Held, allowing the appeal, that regardless of whether a remedy for unreasonable delay before trial existed at common law (as applied in Jamaica prior to the coming into force of the Constitution), section 20(1) of the Constitution expressly conferred on a person charged with a criminal offence the right to a fair hearing within a reasonable time by an impartial court established by law which right could be infringed without proof of specific prejudice; that in deciding whether a defendant's right to a fair trial had been infringed, the court should, having taken into account the practice and procedure of the courts prior to the Constitution and the problems affecting the administration of justice in Jamaica, consider the length of delay, the justification put forward by the prosecution, the responsibility of the accused for asserting his rights, and prejudice to the accused, but the weight to be afforded to each factor depended upon the particular Jurisdiction and the circumstances of the case (post, pp. 77H, 78H–79A, F–H, 80B, D, F, 81A, F).
(2) That the operative period in issue commenced when a retrial was ordered, and although in a normal case in the Gun Court in Jamaica the average delay before trial was two years and a delay of about 32 months would not infringe the right conferred by section 20(1) a period of delay which might be reasonable between arrest and trial was not necessarily reasonable between order for retrial and retrial, and since the applicant through no fault of his own had suffered two wasted years and had to prepare for a second trial the retrial was more urgent than the first trial and the delay was unreasonable; that the Full Court and the Court of Appeal had overlooked the significance of the order for retrial and of the applicant's discharge in November 1981 on the basis that further delay would then be unfair to him, and therefore the applicant was entitled to a declaration that his right under section 20(1) to a fair hearing within a reasonable time by an independent and impartial court established by law had been infringed (post, pp. 82B–D, H–83A, C–G, H–84A).
Per curiam. Prior to the Constitution, the law of Jamaica, applying the common law of England, was not powerless to provide a remedy against unreasonable delay before trial (post, p. 79B).
The following cases are referred to in the judgment of their Lordships:
Abbott v. Attorney-General of Trinidad and Tobago[
Barker v. Wingo(
Connelly v. Director of Public Prosecutions[
de Freitas v. Benny[
Director of Public Prosecutions v. Nasralla[
Maharaj v. Attorney-General of Trinidad and Tobago (No. 2)[
Reg. v. Cameron[
The following additional cases were cited in argument:
Feurtado v. Director of Public Prosecutions (unreported), 13 July 1979, Full Court Division of the Supreme Court of Jamaica; 16 November 1979, Court of Appeal of Jamaica
Grant v. Director of Public Prosecutions[
Holder v. The Queen[
Kadra Pahadiya v. State of Bihar[
McBean v. The Queen[
Reg. v. Fairfold Justices, Ex parte Brewster[
Reg. v. Ogle(
Reg. v. Robins(
Reg. v. Saunders(
Reg. v. Thompson(
Riley v. Attorney-General of Jamaica[
Thornhill v. Attorney-General of Trinidad and Tobago[
APPEAL (No. 44 of 1984) by the applicant, Herbert Bell, with special leave in forma pauperis, from a judgment and order of the Court of Appeal of Jamaica (Zacca P., Carey and Ross JJ.A.) given on 19 May 1983 dismissing the applicant's appeal against a judgment and order of the Supreme Court, Full Court Division (Morgan, Bingham and Wolfe JJ.) dated 3 June 1982 in favour of the respondents, the Director of Public Prosecutions and the Attorney-General of Jamaica, by which the Full Court dismissed the applicant's application for redress under section 25 of the Constitution for contravention of the right guaranteed by section 20(1) of the Constitution.
The facts are stated in the judgment of their Lordships.
Eugene Cotran and John Otieno for the applicant.
Ian X. Forte Q.C., Director of Public Prosecutions, Jamaica, and F. Algernon Smith, Deputy Director of Public Prosecutions, Jamaica, for the Director of Public Prosecutions.
Kenneth Rattray Q.C., Solicitor-General of Jamaica, and Ranse Langrin, Senior Assistant Attorney-General of Jamaica for the Attorney-General of Jamaica.
30 April. The judgment of their Lordships was delivered by LORD TEMPLEMAN.
The applicant Mr. Bell claims relief under the Constitution of Jamaica, asserting a breach of his fundamental rights to a fair trial within a reasonable time for an alleged criminal offence.
Section 13 of the Constitution which came into force immediately before 6 August 1962 by virtue of the Jamaica (Constitution) Order in Council 1962 provides that “every person in Jamaica is entitled to the fundamental rights and freedoms of the individual,” including “the protection of the law” but “subject to respect for the rights and freedoms of others and for the public interest.”
Section 20 sets out the provisions which by section 13 are afforded to secure the protection of law and provides, inter alia:
“Whenever any person is charged with a criminal offence he shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.”
As a result of an incident on 17 April 1977 the applicant was arrested on 18 May 1977 and convicted on 20 October 1977 in the Gun Court of illegal possession of a firearm and ammunition, robbery with aggravation, shooting with intent, burglary and wounding with intent. The Gun Court was established by the
On 7 March 1979 the Court of Appeal of Jamaica quashed the convictions and by a majority ordered a retrial. On 12 March 1979 the registrar of the Court of Appeal sent written notice to the registrar of the Gun Court and to the Director of Public Prosecutions that the applicant's appeal had been allowed and a retrial ordered. That...
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