Judicial Committee of the Privy Council
| DOI | 10.1177/002201839706100104 |
| Published date | 01 February 1997 |
| Date | 01 February 1997 |
| Subject Matter | Judicial Committee of the Privy Council |
JUDICIAL
COMMITTEE
OF
THE
PRIVY
COUNCIL
DELAY AND RIGHT TO A FAIR TRIAL
DPP
VTokai
Where awritten constitution guarantees the right to a trial without undue
delay or a right to a trial in a reasonable time, a defendant who wishes to
obtain the quashing
of
the indictment or an order prohibiting any further
proceedings can obviously do so by claiming that the alleged delay has
deprived him
of
his expressly conferred constitutional rights. He may take
appropriate proceedings in the constitutional court, and need
not
rely on
an application to the trial judge, to make the appropriate orders on the
basis that otherwise he would
not
have a fair trial. In Trinidad and
Tobago, however, although the constitution contains several provisions
aimed at securing a fair trial, there is no express provision conferring a
right to a speedy trial, as such. In these circumstances, adefendant who
complains
of
undue delay in bringing his case to trial must fall back on
the common law principles which determine what constitutes a fair trial.
In
DPP
v Tokai [1996] 3
WLR
149, although the defendant's claim for
constitutional protection, in circumstances
of
delay between
1981
and
1996, was allowed by the
Court
of
Appeal
of
Trinidad
and
Tobago, the
appeal
of
the
DPP
and
the Attorney General to the Privy Council raised
the general issue
of
adefendant's right
not
to be deprived
of
his right to a
fair trial at common law, by reason
of
inordinate delay. The applicant for
relief in this case
had
been charged with wounding with intent to do
grievous bodily
harm
in 1981. The delay in bringing this to trial arose in
the early stages out of the prosecutor's failure to attend court, so
that
he
was
not
committed for trial until 1986,
and
later
out
of
the delay in the
DPP's
office in preferring the indictment, which did
not
take place until
1994. Although he appealed to the constitutional provisions
that
no one is
to be deprived
of
his liberty or property except by due process
of
law, and
his right to protection
of
the law, his complaint was in essence
that
he
had been deprived
of
a fair trial by the
delay-a
right which existed before
the coming into effect
of
the constitution, because it arose out
of
the
common law. The Board's decision, therefore, is squarely based on the
principles of the common law, without it being necessary to consider any
possible local modifications.
The questions raised in the instant appeal were considered in the English
Court
of
Appeal in Attorney General's Reference
(No
1
of
1995)
[1996]
1
WLR
970, namely, may a prosecution be stayed on the ground
of
prejudice caused by delay which is due to no fault on the
part
of
the
prosecution and, if so, what degree
of
likelihood and
of
seriousness of
prejudice must be established? Since 1977, the statement
of
Viscount
Dilhorne in
DPP
vHumphrys [1977] AC 1 that, in reality, such a stay can
be ordered only if there is an abuse of the process
of
the court, has been
accepted. On that basis, the courts have made it clear that, even where
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