Carlos Hamilton and Jason Lewis v The Queen
| Jurisdiction | UK Non-devolved |
| Judge | Sir Anthony Hooper,Lord Hope |
| Judgment Date | 25 October 2012 |
| Neutral Citation | [2012] UKPC 37,[2012] UKPC 31 |
| Date | 25 October 2012 |
| Docket Number | Appeal No 0051 of 2011 |
| Court | Privy Council |
[2012] UKPC 31
Lord Hope
Lord Kerr
Lord Dyson
Lord Reed
Sir Anthony Hooper
Appeal No 0051 of 2011
Privy Council
Appellant
Edward Fitzgerald QC
Richard Samuel
(Instructed by Herbert Smith LLP)
Respondent
Tom Poole
(Instructed by Charles Russell LLP)
Heard on 17–18 July 2012
On 2 April 2001 the appellants were found guilty of the murder of Saleem Hines. They were sentenced to life imprisonment and to serve 25 years in prison before they became eligible for parole. On 24 March 2003 the Court of Appeal of Jamaica (Downer, Bingham and Panton JJA) refused the appellants' application for permission to appeal against their convictions and sentences. They now seek permission to appeal to the Judicial Committee of the Privy Council against the judgment of the Court of Appeal. Their applications for permission to appeal were served on 27 July and filed on 29 July 2011. Rule 11(2) of the Judicial Committee (Appellate Jurisdiction) Rules Order 2009 ("the 2009 Rules") provides:
"An application for permission to appeal must be filed within 56 days from the date of the order or decision of the court below or the date of the court below refusing permission to appeal (if later)."
The period that elapsed between the order of the Court of Appeal and the appellants' applications for permission was 8 years and 4 months. In accordance with current practice, and in the exercise of the powers conferred on her by rule 5(1) of the 2009 Rules, the Registrar by entering the case onto the Judicial Committee's record in effect granted an extension of time for the filing of the applications. This was to enable the Board to consider whether or not permission to appeal should be granted. The Board directed that the applications should be put out for an oral hearing before five members of the Judicial Committee, with the appeals themselves to follow if the Board was satisfied that it was in the interests of justice that they should proceed to a full hearing. Concern was however expressed at the length of the delay. The parties were invited to make submissions on the approach that should be adopted in a case such as this, where the applications for permission were lodged long out of time.
Prior to the coming into force of the 2009 Rules the practice of the Board was not to lay down any precise timetable. Paragraph 5 of the Judicial Committee (General Appellate Jurisdiction) Rules Order 1982 provided that a petition for special leave to appeal was to be lodged "with the least possible delay" after the date of the judgment from which special leave to appeal was being sought. This reflected the fact that appeals come before the Board from jurisdictions with widely differing characteristics. It was thought preferable to describe the need for expedition in general terms rather than in terms of a given number of days, so as to enable account to be taken of the particular circumstances of each case. A flexible approach was seen to be particularly necessary in the case of criminal appeals coming before the Board from jurisdictions in the Caribbean. In practice the periods that elapsed between the order that was being appealed and the lodging of the petition for special leave in cases of that kind during this period were invariably well in excess of those that were normal in other cases. In cases of capital murder they varied from about 5 months to 4 years and 6 months and, occasionally, much longer. In non-capital cases the periods that elapsed were almost always much longer, sometimes in excess of 10 years.
The coming into force of the 2009 Rules on 21 April 2009 was the product of a different approach. Those Rules were drafted at the same time as the Rules that were to regulate the procedure of the Supreme Court of the United Kingdom as from 1 October 2009. Rule 11(1) of the Supreme Court Rules 2009 provides that the application for permission to appeal must be lodged within 28 days of the order that is being appealed against. It was thought appropriate now to lay down a timetable for appeals to the Judicial Committee as this was the practice that the Supreme Court wished to adopt, but to double the period from 28 days to 56 days in its case. On the whole the setting of a time limit has proved to be salutary, and for the most part it has not given rise to difficulty. Nevertheless it remains commonplace in the case of criminal appeals coming before the Board from jurisdictions in the Caribbean for periods of years rather than days to elapse before the application is made. In Krishna v Republic of Trinidad and Tobago [2011] UKPC 18, where special leave was given, the period was 14 years and 8 months. That was an exceptional case in view of the length of the delay. But in another respect it was typical, as the appellant, who had no access to legal aid, had to rely on pro bono assistance. In no case have applications for permission to appeal from these jurisdictions been lodged within the time limit set by rule 11(2) or, indeed, anywhere near the period of days set by that time limit.
The reason why there are delays in the lodging of applications in cases of this kind is not hard to seek. Most, if not all, prisoners in the Caribbean region are left without continuing legal representation when the proceedings in the Court of Appeal have been concluded. Legal aid is not generally available at that stage, and on the rare occasions when it is available the facilities provided under it are very limited. Almost always these prisoners have to resort to pro bono assistance, which is not easily found. It is harder for non-capital prisoners to obtain it than it is for prisoners on death row, whose cases are given priority by those who practise in this field.
There is a system of legal aid in Jamaica. Section 15(3) of the Legal Aid Act states that a legal aid certificate shall entitle the person to whom it is granted to such legal aid as may be specified therein for the preparation and conduct of his defence in the appropriate proceedings or in such of those proceedings as are specified in the certificate. Section 15(4)(c) provides that the expression "appropriate proceedings" includes, in respect of a legal aid certificate granted by a Judge of the Court of Appeal or the Registrar of the Court of Appeal, any appeal from conviction to the Court of Appeal or to Her Majesty in Council. But the information that the Board was given indicates that the resources available for criminal legal aid are very limited, that fees payable for appeals to the Court of Appeal are restricted to a flat rate that covers every aspect of the appeal and that there are frequent complaints about arrears of fees due to attorneys for their services. The Board was told of one case where an informal arrangement was entered into between the Legal Aid Council and Ms Nancy Anderson of the Independent Jamaican Council of Human Rights. She was assigned by the Legal Aid Council to be the Jamaican attorney in an appeal to the Judicial Committee, but she did not receive payment of any fees.
It appears therefore that the provision of assistance under legal aid in appeals from the Court of Appeal in Jamaica to Her Majesty in Council exists in theory only. The schedule of prescribed fees for lawyers under the Legal Aid Act does not specify any fees for such appeals. It appears not to have been contemplated that the Legal Aid Council could afford to pay an attorney to undertake work of that kind. The Board was told that there is no provision for legal aid in appeals to the Judicial Committee from Trinidad and Tobago, Grenada, St Vincent and the Grenadines and other independent states in the Eastern Caribbean region. In practice prisoners who wish to appeal from decisions of the Courts of Appeal in the Caribbean states have to rely on pro bono assistance from local attorneys and, especially, from English barristers and solicitors. Legal aid is available for criminal appeals in Bermuda and the Cayman Islands. But there is no legal aid for such appeals from the British Virgin Islands.
Prisoners in the Caribbean states who are in need of legal assistance are disadvantaged in other ways. The Board was told that there is no access from a Jamaican prison to landline telephones. Prisoners have access to the outside world by writing letters. But writing materials are not provided by the prison authorities, and many of the prisoners are illiterate. For those who can read and write, letters sent in and out of prison tend to take about four weeks, some take months and some letters go missing. Counsel for the respondent said that those instructing him had been told by the Commissioner of Prisons in Jamaica that prisoners had access to cell phones. But this was disputed by the solicitor for the appellants. Her information was that they were prohibited and that prisoners were punished if they were found to be using one. So they could not be contacted by this means in case they got caught. Ms Juliet Oury, of Oury Clark, solicitors in London, who has over 10 years' experience of providing assistance to prisoners in Jamaica, said that it was her belief that cell phones were contraband items and that prisoners found in possession of them were disciplined within the prison.
The solicitors for the parties were agreed that there is no currently published procedure for prisoners in Jamaica to be informed of their rights of appeal. A prisoner wishing to appeal has to speak to the Superintendent in charge of the prison. Failing that, he can write to the Commissioner of Prisons and request his assistance with the steps necessary to obtain legal representation and appeal. But these opportunities were said by the appellants' solicitor to be theoretical only...
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