Melanie Tapper v DPP
| Jurisdiction | UK Non-devolved |
| Judge | Lord Carnwath |
| Judgment Date | 17 July 2012 |
| Neutral Citation | [2012] UKPC 26 |
| Court | Privy Council |
| Docket Number | Appeal No 0015 of 2011 |
| Date | 17 July 2012 |
[2012] UKPC 26
Lord Phillips
Lady Hale
Lord Mance
Lord Sumption
Lord Carnwath
Appeal No 0015 of 2011
Privy Council
Appellant
Edward Fitzgerald QC
Thalia Maragy
(Instructed by Simons Muirhead & Burton)
Respondent
Howard Stevens QC
Gayle Nelson
Ms Sharon Millwood-Moore
(Instructed by Charles Russell LLP)
Heard on 10 May 2012
This is an appeal from a judgment given by the Court of Appeal of Jamaica (Smith and Harrison JJA and Dukharan JA (Ag)) on 27 February 2009. They dismissed the appellant's appeal against conviction, but allowed her appeal against sentence on the grounds of "inordinate delay", in breach of her constitutional right to a fair hearing within a reasonable time. They reduced the sentence of 18 months imprisonment with hard labour, to 12 months imprisonment suspended for 12 months. In the present appeal there is no challenge to the substantive basis of the conviction. It relates solely to the appropriate remedy for the breach of constitutional right.
On 7 July 1997 the appellant was arrested and charged with a number of offences arising out of events in 1994 to 1995. She was granted bail pending trial. She was tried jointly with Winston McKenzie ("McKenzie") on a number of counts of fraud. The counts against them both included two charges of conspiracy, on which they were acquitted. She was charged alone on a separate count of fraudulently causing money to be paid out. It is her conviction and sentence on that charge, as varied by the Court of Appeal, which gives rise to the present appeal. (McKenzie was convicted on ten counts, but only three were upheld by the Court of Appeal. There was no further appeal in his case.)
The trial before the Resident Magistrate was due to open on 28 January 1998. However, following a number of adjournments, on 6 July 1998 prosecuting counsel on behalf of the Director of Public Prosecutions entered a nolle prosequi. The stated purpose was to enable the proceedings to be recommenced in the Home Circuit Court on a voluntary bill of indictment. This action was challenged in the Constitutional Court (Panton, Smith, and Marsh JJ), who gave judgment on 8 February 1999. They held that the prosecutor's action was an abuse of the process of the court, and a contravention of the constitution. They stayed the voluntary bill, and remitted the criminal proceedings to the Resident Magistrate's Court.
The trial commenced on 25 January 2000, and continued intermittently for more than three years. The case for the prosecution itself lasted until December 2002. Following an unsuccessful submission of no case to answer, the appellant offered no evidence. On 29 May 2003 she was found guilty on count 11 and sentenced. Bail was granted pending appeal.
Notices of appeal against conviction and sentence were lodged by both defendants. The grounds filed by the appellant stated in respect of sentence: "that the sentence is manifestly excessive having regard to all the circumstances". The record of the case, with the magistrate's notes of evidence, should have been transmitted by the clerk within 14 days (section 299 of the Judicature (Resident Magistrates) Act). In the event it was not received by the Court of Appeal until 9 August 2007, over four years late. Supplemental grounds submitted by McKenzie (but not the appellant) added a ground that –
"an immediate sentence of imprisonment…to take effect after the passage of nearly five years from the date of conviction is not required in the interests of justice."
The appeals were heard over eight days in March to April 2008 by Smith and Harrison JJA and Dukharan JA (Ag). Judgment was given almost a year later, on 27 February 2009. The reasons for dismissing the appeals against conviction are set out in the judgment of Smith JA. As regards sentence, Smith JA noted the submissions on behalf of both appellants that "the inordinate delay between conviction and appeal" constituted a breach of their rights, and that "it would not be in the interests of justice for the appellants…to be required to serve a term of imprisonment". After referring to section 20(1) of the Constitution, and a number of authorities, he concluded that the post-conviction delay of over five years was inordinate, and that "such delay without more, constitutes a breach of the appellants' constitutional right to a hearing within reasonable time."
On the question of the remedy, in the light of the Privy Council authorities, he considered that "only in exceptional circumstances, if at all" would it be justified and necessary to set aside a conviction, on the ground of unreasonable delay between the date of conviction and the hearing of the appeal. He concluded:
"The appropriate remedies which of course will depend on the circumstances of each case will include a reduction in sentence, monetary compensation or merely a declaration. In this case the appellants were granted bail by the trial judge after they had given verbal notice of appeal. Thus in my view monetary compensation would not be appropriate. A mere declaration would not in my view, be a sufficient remedy as, this would mean that after waiting for over five years the appellants would now have to serve the full sentence.
In my judgment, in the circumstances of this case a reduction in the sentence…from 18 months to 12 months would be sufficient to compensate the appellants for the effects of the delay.
Another relevant factor which was brought to our attention at the end of the hearing is that a sum of about $1.7M was paid to the complainant towards restitution. This we think is a mitigating factor which we shall take into account by suspending the sentence for one year."
It is now common ground that, contrary to the apparent understanding of the Court of Appeal, the payment referred to in the last paragraph was made by McKenzie alone, and no part of it by the appellant. To that extent the Court erred in her favour. It is not suggested that this mistake should affect our consideration of the appeal.
The issues, on which leave to appeal to Her Majesty was sought and granted, were expressed as follows in the Notice of Motion:
"(a) Are the provisions of Section 20 of the Constitution of Jamaica, insofar as they relate to a remedy for any breach of the said section against a person charged with a criminal offence, confined only to a delay in the trial of a criminal offence?
(b) Do the provisions of that Section of the Constitution, properly interpreted, require a conviction to be quashed, if there are breaches of Section 20 of the Constitution, between the date of arrest and the date of handing down of its judgment by the Court of Appeal?"
Section 20 of the Constitution provides:
"20 (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."
Leave was granted under section 110(1)(c) of the Constitution, which gives a right of appeal in respect of final decisions "on questions as to the interpretation of this Constitution". Although no point was taken by the Crown, the Board doubts respectfully whether either point justified leave to appeal under that sub-section. The first issue did not arise, since the Court of Appeal accepted, and there is no dispute, that section 20 extends to post-conviction delay. On the second issue, it is not now contended that, in the event of a breach arising from such delay, section 20 "requires" a conviction to be quashed. The submission is that the Court erred in the exercise of its discretion. On this basis, the issue seems properly characterised as one of application of the constitutional provision, rather than interpretation.
On behalf of the appellant, Mr Fitzgerald QC submits that the Court of Appeal erred by confining themselves to the delay since trial, rather than having regard to the nature and gravity of the breaches of the appellant's rights, extending over the whole course of the proceedings from 1997. Those breaches started with the initial breach of her constitutional rights in 1998, as found by the Constitutional Court, leading to a delay of some two years before the commencement of the trial; followed by the unreasonably protracted course of the trial itself (in which the evidence of the chief prosecution witness alone stretched over two years); and leading to the delay of almost six years between the lodging of the appeal and the judgment.
For the correct legal approach, he relies principally on the judgment of the Board in Darmalingum v The State [2000] 1WLR 2303. This, he submits, established that the right to trial within a reasonable time was independent of the right to a fair trial, and that a breach in itself might in certain circumstances justify setting aside a conviction. He accepts that the statement at p 2310 that this was the "normal remedy" must be qualified in the light of subsequent authority (notably Attorney General's Reference (No 2 of 2001) [2004] 2 AC 72, [2003] UKHL 68; Boolell v The State [2006] UKPC 46). However, the actual decision still stands, and the facts of the present case, he submits, are no less extreme.
For the respondent, Mr Stevens QC supports the reasoning of the Court of Appeal. They concentrated on the delay since conviction, because that was how the case was argued. There is no indication in the papers before the court, nor in their judgment, that they were asked to look at the issue more widely. In any event, Darmalingum must now be taken as an exceptional case turning on its own facts. The law is as stated by Lord Bingham of Cornhill...
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