By Rawlston Pompey, Antigua News Room,
Not infrequently, certain judicial officers have sent confusing messages to both victims and those victimizing them criminally.’ A very small minority has been found to be performing roles at variance with their primary role as adjudicators. In some criminal trials, some have been observed functioning as; (i) ‘…Judges of Facts and Law; (ii) …Defence Attorneys; or (iii) …Crown Prosecuting Attorneys.’ Such roles were known to have either affected the way criminal trials were adjudicated and the way justice was administrated, or the way punishments were imposed. Such has often brought ‘travesties’ to the innocent victims, with sentences being tempered with leniency or favored with the ridiculously vexing ‘Suspended Sentence.’
BREACH OR PRACTICE
Likened to changes forced upon the citizenry by the feared and deadly ‘novel Coronavirus’ or ‘COVID-19,’ certain practice appears to have become the ‘new norm in the administration of justice. The Constitution Order makes it clear on several prosecutorial/trial issues. It specifically states; ‘…If any person is charged with a criminal offence, unless (i) …The charge is withdrawn, he/she shall be given a fair hearing; and (ii) …Within a reasonable time by an independent and impartial Court established by law’ [CO: 1981: Section 15]. Many accused persons awaiting trials, have seen these constitutional provisions, occurring more in ‘Breach’ than in ‘Practice.’ It is against this background, that this commentary was prompted.
This commentary looks at; (i) ‘…The Rule of Law; (ii) …Justice on the Altar of Expediency; (iii) …Developments over a Manslaughter Verdict by a Coroner’s Jury, touching the untimely and tragic death of ‘Andrea Hughes 32, of Cedar Grove, (leaving 9 children semi-orphaned).’ It specifically looks at instituted litigious proceedings by ‘an inquisitionally-declared culpable driver ‘Mark Ryan,’ causing a serious impediment to the administration of justice. It also looks at; (a) ‘…Certain Emerging Trends within the ‘Criminal Justice System; and (b) Two thought-provoking ‘Suspended Sentences’ that found themselves under scrutiny of the Appellate Court (ECSC).
TRIALS AND HEARINGS
Some ‘Criminal Trials’ and some ‘Civil Hearings’ seem to have gone into perpetuity. The ten-year part-heard criminal trial of ‘…Kenneth Ronald Wyre and Rowan ‘Archie’ Bailey’ [2010-] and the ‘Mark Ryan’ legal challenge to a Coroner’s Jury Verdict’ (Andrea Hughes)’ [2014-], vividly makes the point. The latter case not only begs for judicial closure, but also justice to a grieving and distraught family. As it relates to the accused ‘Kenneth Ronald Wyre and Rowan ‘Archie’ Bailey,’ it has been the very Court that has subjected them to that which the Constitution offers protection. The provision contained therein, states; ‘…No person shall be subjected to degrading punishment and inhuman treatment shall’ [CO: 1981: Section 15 (7)]. Having successfully instituted compensatory litigious proceedings against the ‘State’ for the inordinate delay in bringing closure to the partially-completed trial, there appears to be no judicial end in sight.
SADDEST OF CASES
It has always been the expectations of those with civil matters before the Judiciary to have them heard with some degree of expedition. This has not been the case for the family of ‘Andrea Hughes 32.’ Now seen as one of the ‘Saddest of Cases’ before the Judiciary, it begs the question, ‘…When will it be heard? The deceased, formerly of Cedar Grove, a mother of nine children was ‘tragically mowed down’ by a motorist. This reportedly occurred under cover of darkness, as she walked along the unlit and isolated ‘Weatherill’s public road.’ The deceased was either killed instantly or helplessly left to endure a painful and horrible death [March 28, 2014]. An apparent ‘panic-stricken motorist’ fled the scene. Subsequently, her badly bruised and lifeless body with wearing apparel drenched with her blood, was discovered on the roadway.
DEMISE OF ANDREA HUGHES
A family was left grief-stricken. It has not only been the ‘Tragic Demise of Andrea Hughes’ that had occupied the thoughts of the public, but also the slowness of investigation to bring a possible ‘culpable driver to justice.’ Rising public anger sparked national debates. The public called for justice to be done. Spearheaded by social and community activist ‘James ‘Tanny’ Rose and prominent businessman Sir George Ryan,’ they incessantly called for justice. As agitation mounted, it was public that had brought pressure to bear upon an apparent lethargic Police Service.
THE GUILTY WORD
Likened to the demise of ‘Bruce Greenaway,’ and calls for justice for his violent death, the cries for justice for ‘Andrea Hughes’ continue. Guided by his professional practice, the attorney sought to make the ‘Coroner’s Act’ ‘obsolete’ and the ‘Coroner’s inquisition ‘useless.’ The basis for the legal challenge, lies in the words; (a) ‘…After hearing the evidence, the Jury shall give their verdict; and (b) …If the deceased came by death by ‘Murder or Manslaughter,’ the person, if any, whom the Jury find to have been ‘GUILTY’ of such Murder or Manslaughter’ [Coroner’s Act: Chapter 105: Section 25 (4)]. Six years later, nothing has been heard of the civil proceedings instituted by the ‘culpable driver’ [March 28, 2014 – June 8, 2020].
During that time, there have been intrigues of all kinds. There has been; (i) …a particular interest-group that voluntarily showing concern for the welfare of her 9 children; (ii) …a joint-enterprise’ apparently disguised in deception in providing unsolicited accommodation to the children.’ Now, there is threat of litigation by one of the enterprising parties. Moreover, there have been clear attempts to legally hinder or pervert the course of justice.’ Consequent upon an ex parte application, seeking judicial interpretation of the word ‘Guilty,’ the High Court of Justice has placed Director of Public Prosecutions (DPP) Anthony Armstrong under ‘Judicial Restraint.’ Such restraint prevents the ‘DPP’ from exercising a constitutional power to institute criminal proceedings against the ‘culpable driver [CO: 1981: Section 88].
The conduct of investigations subsequently resulted in the holding of a ‘Coroner’s Inquest.’ The five-member Coroner’s Jury was unanimous that motorist ‘Mark Ryan’ involuntarily caused the death of the deceased. Consequently, they returned a ‘Verdict of Manslaughter’ . Seemingly intent on derailing the prosecutorial process, guided by his attorney ‘Hugh Marshall Jr,’ the driver so declared ‘culpable’ by the ‘Coroner’s Jury,’ took issue with the language contained in the ‘Coroner’s Act.’
RIOT WITH DECEPTION
Most attorneys know that a ‘Coroner’s Inquest,’ is an inquiry into ‘…circumstances surrounding the death of a person,’ whose demise came; (a) ‘…Suddenly; (b) …Tragically; or (c) …Violently.’ In such exercise, it begins with knowing the ‘Cause or Causes of Death.’ This is a professional function of pathologists. In the case of violence,’ a Coroner’s Jury makes determinations as to ‘culpability.’ Except for exploiting the ignorance of the culpable, practicing attorneys retained to represent the interests of the ‘Culpable,’ runs the risk of being seen as ‘fleecers.’ Such attorneys maybe considered running ‘Riot with Deception’ by feigning not to know that a finding of ‘culpability’ is not a determination of the ‘guilt or innocence of the ‘Culpable.’
SHATTERED DREAMS – TATTERED LIVES
The agonizing wait on the partially-complete ten-year trial is troubling. Jointly-charged with several drug-related offences, the accused are yet to know their fate. Then in the hands of the adjudicator ‘Justice Keith Thom,’ the mandatory age of retirement came upon him to demit office. For the duo, there may clearly be no hope in a Judiciary that has pauperized them; caused anxieties and torment. With properties and personal savings accounts frozen; ‘Dreams Shattered’ and ‘Life in Tatters,’ they are left in misery.
IMPERIALISTIC JUDICIAL PRACTICE
Even as a national attempts was made to severe the ‘judicial umbilical cord’ with the ‘Judicial Committee of the Privy Council (JCPC), except for the ‘Commonwealth of Dominica,’ most members of the ‘Organization of Eastern Caribbean States’ has resisted the ‘indigenous ‘Caribbean Court of Justice (CCJ) and retained this renowned judicial institution as their ‘Final Appellate Court.’ Today, many accused persons, victims of crime, have seen the imposition of sentences bearing evidence of ‘an historical and imperial practice.’ Such practice has emerged in some jurisdictions within the ‘OECS.’ This jurisdiction has seen such imperialistic judicial practice.’
Developments within the ‘Criminal Justice System,’ suggests a disturbing emerging trend. Such trend appears symptomatic of ‘Grievous Adjudicating Deficiencies’ and offensive to the effective administration and dispensation of justice. It was seen as a trend that may have serious implications for public confidence in the Judiciary and State prosecutions agencies. It has also been seen as a trend that showed no consistency with ‘Founding Constitutional Principles’ that states; ‘…Whereas the people of Antigua and Barbuda recognize that (a) …The law symbolizes the public conscience; (b) …Every citizen owes to it an undivided allegiance, not to be limited by private views of justice or expediency; and that (c) …The State is subject to the law’ [CO: 1981: Principle D].
ALTAR OF EXPEDIENCY
Not infrequently, have persons victimized by the criminal element, have seen justice being sacrificed on the ‘Altar of Expediency.’ Conversely, not infrequently have accused persons with pending criminal cases or cases partially heard, have taken issue with the approach to trial by particular adjudicators. To the many distraught and traumatized victims, most will have been given bad reasons to view the judicial institutions as, ‘Courts of Horror.’ With innumerable Cases and accused persons yet to face trial, many may have been given reasons to feel that the ‘Wheels of Justice’ have halted.
Some may also have believed that the ‘Criminal Justice System’ has failed them. Even with such harbored belief, and while the cries may intensify, ‘Justice’ shall never be sacrificed on the ‘…Altar of Expediency.’ Instead, it shall manifestly appear that Justice has been done. However, inordinate delays with trials have often seen accused persons frustrated themselves into taking courses of action that were often ‘Detrimental to their Liberty.’ That which prosecutors shall be mindful of, is that; (i) ‘…No matter how overwhelming the evidence; or (ii) …how reasonable the prospect of conviction,’ none shall be seen as ‘Encouraging Complicity’ in practices that may give even the appearance of advising accused persons to enter ‘Guilty Pleas’ for light sentences.
BASTION OF HOPE
At an opening of a ‘New Law Year,’ she spoke to the ‘Courts’ within the ‘OECS’ Jurisdiction with great optimism. Instructively, when ‘Chief Justice Dame Janice M. Pereira DBE,’ addressed Court officials, she spoke passionately to the Court as the ‘Bastion of Hope.’ She may have taken a position for reasons of; (i) …Sending warnings to adjudicators that ‘Court Decisions’ that have the appearance of travesty would be addressed to reflect such hope.’ Fearlessly and forcefully, she urged judicial officers that in discharging their judicial duties, they were to be seen by all a sundry as ‘Protectors and Enforcers of the Rule of Law.’ It now seems obvious that if public confidence is to be sustained, much is desirous in facilitating the expeditious disposal of pending criminal indictments.
HORROR OR HOPE
Some adjudicators have given the impression that they were more concerned about the welfare of ‘self-convicted accused,’ than to victims that have been traumatized by acts of criminality. As far as interference in the Judiciary is concerned, she retorted, ‘…You shall fiercely, unhesitatingly and without fear or favor guard and defend the independence of the Court’ [SNO: September 21, 2016]. While in recent times there may have been few complaints of interference, those waiting for the start, or completion of their trials appeared to have been given reasons to believe that they have been lost in the ‘Criminal Justice System.’ As such, those criminally indicted, have seen the Court as causing them ‘Horror’ than giving ‘Hope’ of a fair trial within a reasonable time, as constitutionally guaranteed [CO: 1981: Section 15 (1)].
As has been observed, some ‘Guilty Plea Attorneys;’ and complicit Crown Prosecutors, acting as ‘Facts Givers,’ have religiously shown callous disregard to the liberty of persons awaiting criminal trials. Some seem not prepared to engage the services of Juries in full criminal trials. In criminal trials, from professional law enforcement knowledge, the ‘Judges of Facts’ are members of the Jury. Conversely, the ‘Judges of Law’ are those with a legal background and sit as adjudicators. They guide criminal trials and accordingly, ‘give directions to Juries on the law.’ It may have been to the judicial knowledge of the ‘Eastern Caribbean Supreme Court (ECSC)’ that such practice has been affecting the administration of justice.
The religious practice of imposing ‘Suspended Sentences’ upon convicts for reasons of, or bordering ‘Expediency,’ has never augured well, neither for the administration of justice, nor in the public interest. Invariably, there have been ‘open public dissent and outrage’ with some ‘Court Decisions.’ These were seen to have been, starved of rationale and reek of insensitivity. Besides, these decisions have shown inconsistency with the expressed judicial views of ‘Chief Justice, Her Ladyship Dame Janice M. Pereira DBE.’ With an inherited colonial jurisprudence, power lies only with the ‘Eastern Caribbean Supreme Court (ECSC) in eliminating a practice and a lingering offending colonial vestige.
From professional knowledge, it has never been the duty of any accused person to implicate him or herself in criminal wrongdoings. Every practicing attorney is duty bound to be guided and respect the constitutional protection available to accused persons. That which is professionally known, it has never been the duty of an accused person to ‘Prove his/her Innocence.’ This has always been the prosecutorial duty of Crown Prosecutors. Hence, the ‘Burden of Proof’ lies squarely upon the shoulders of the Prosecution. Logic, therefore, dictates that for an accused person to be ‘proved and found guilty,’ such person shall be tried, be it ‘Summarily or upon being indicted for Jury trial by the Director of Public Prosecutions (DPP).
PRESUMPTION OF INNOCENCE
Thus, until such trial has commenced, every accused person ‘enjoys’ the constitutional right to the ‘Presumption of Innocence.’ The constitutional provision states; ‘…Every person who is charged with a criminal offence shall be (a) …Presumed to be innocent until he is proved guilty; or (b) …Until he has pleaded guilty’ [CO: 1981: Section 15 (2) (a)]. Second only to the deadly world pandemic ‘Coronavirus or Covid-19,’ has been the ‘inordinate trial delays’ that have resulted in anxieties, uncertainties and mental agony not knowing when their trials would begin or end, and if convicted, what penalty might be imposed.
PLAGUES TO THE SYSTEM
Afflicted by a ‘virus’ that have seen cases begging for ‘disposal,’ many have been anguished as are many continue to languish in the penitentiary. In most of these cases, many have been; (a) ‘…Hastily arrested and charged; (b) …Committed for trial at the Criminal Assizes; and (c) …Indicted and arraigned.’ Instructively, many have been anxiously awaiting trials for up to ‘ten years.’ These trials have shown two notable features; (i) …Startless waits; and (ii) …Endless judicial determinations.’ There are plagues that continue to afflict the judicial institutions. Incidentally, among those with serious afflictions includes the ‘Criminal Justice System.’ There have been issues with the ‘….infrastructure; …human; …financial and technological resources.’ These appear to have been constantly afflicted by; (a) ‘…Inordinate Court delays; (b) …Non-beginning of, and agonizing incomplete Jury trials.’
RULE OF LAW
In civil society, what has been seen as vitally important to the social control has been the ‘Rule of Law.’ Moreover, what has been critical to a stable society has been the ‘expeditious administration of justice.’ As it affects the dispensation of justice, it shall be made manifestly clear that all efforts shall be exerted in conducting thorough investigations into acts of criminality. It is the experience that instances of hesitation and/or reluctance in enforcing the law have seen some alleged offenders left un-amenable to law. Even so, it is less than helpful to embark upon swift apprehension and slow prosecution of the perpetrators. This has been a virus that has not only impacted on the psyche of victims, but also a plague on the ‘Criminal Justice System.’
The general public harbors the view that some adjudicators seem pitifully minded to give accused persons pleading guilty to serious criminal acts special considerations. From the victim’s perspective adjudicators shall make it obvious to those victimized that the ‘punishment shall fit the crime perpetrated against them.’ But then there is the provocation of some ‘Incentivized Punishments.’ Consequent upon this, it appears that some adjudicators have caused traumatized victims to feel like ‘Criminals’ and the vicious, heartless and merciless criminals feel rescued by ‘Charlie’s Angels.’
Those victimized by criminals abhors ‘incentivized sentences for Guilty Pleas.’ For instance, in a sexual encounter with a minor, research has shown that a male accused had been on remand for committing a grievous sexual act at his home. Accused of ravishing a 13 year-old minor, seeking overnight refuge at his home,’ an adult male ‘Sex-Offender’ had seen his sentence ‘Tempered with Leniency.’ Nothing shall preclude a ‘Chief Justice from drawing reasonable inferences that ‘Hope of Advantage’ may sometimes be improperly held out to accused persons. In this particular case, it may not necessarily have been the case.
TIME SERVED SENTENCE
It was alleged that while a ‘13-year-old run-away minor’ reportedly snoozed at his home, a mature adult allegedly fondled and forcefully engaged in sexual intercourse with her’ . This case had provoked the public wrath. In the case of the ‘sex-offender,’ it speaks to anxieties, uncertainties and mental agony. To the victim and family, it was trauma and anguish. Seemingly caught between the ‘devil and the deep blue sea,’ he had no desire to go to the penitentiary. He was adamant that he was not guilty of having ‘sexual intercourse with the minor. Thus, he was prepared to stand trial before a jury. Added to his miseries, had been his inability to meet ‘Bail Conditions.’
NOT GUILTY TO GUILTY
Though he rightly maintained his innocence and ‘Pleaded not guilty,’ some influences appeared to have been at work. That which followed after, seemed somewhat suspect. Even so, his not guilty plea was in keeping with the ‘presumption of innocence’ [CO: Section 15]. On the second appearance the accused reportedly maintained the plea of ‘Not Guilty.’ To all intents and purposes, the ‘devil’ seemed to have intervened in the proceedings. From that which had developed, it appeared that the ‘devil’ had spoken to the accused through the ‘Crown Prosecutor and the Sentencing Judge.’ For reasons of leniency, the accused reversed his plea to guilty.’ He may have been full of optimism.
It may have been for reasons of ‘expediency,’ the accused was favored with a ‘…two-year jail sentence, suspended for one year.’ This sentence had no basis in law. Even as he may have been given due considerations to the ‘Sentencing Guidelines’ (ECSC), the sentence was clearly ‘…not in the interest of justice.’ It had not only outraged the public, but also aroused an appellate consciousness in Director of Public Prosecutions (DPP), Anthony Armstrong. Considering the interest of justice, he caused the ‘Appellate Court to be visited upon the ‘Outrageous Sentence.’ This, the ‘ECSC’ examined and set the clearly perverted sentence aside. Academically, the Court merely substituted the sentence in judicial language, ‘…Time Served’ [ANR: May 28, 2020].
Another outrageous ‘Suspended Sentence’ was that of an apparent cunning ‘Female Fraudster.’ Entrusted with a ‘Cheque’ with monetary value of ‘EC$37, 603’ to cover travel cost for several persons, the ‘Cheque’ was reportedly cashed at a commercial bank. No travel arrangements were made. Thus, no ‘Travel Tickets or Itinerary’ was provided to the expectant travelers to ‘Continental Africa.’ When demands were reportedly made for the money to be returned, a ‘personal Cheque’ issued for the exact sum. When criminal investigators intervened, the alleged fraudster was slapped with ‘Fraudulent Conversion.’ She was indicted to stand trial by Jury, but opted for a ‘Guilty Plea.’ She was facing a ‘custodial sentence of 7 years’ [LA: Chapter 241: Section 21 (c)],
Seemingly mesmerizing the adjudicator or ‘defrauding him of his judicial wisdom,’ she escaped with a ‘12-month jail sentence, suspended for eighteen months.’ Placing the adjudicator under a mathematical spell,’ the suspension appears ‘6 months longer’ than the jail term. Considering the sentence manifestly lenient, Director of Public Prosecutions (DPP) Anthony Armstrong caused the ‘Appellate Court (OECS)’ to be visited upon the adjudicator’s judgment. The three-member Appellate Court led by Chief Justice, Her Ladyship Janice M. Pereira DBE, ordered the fraudster to make ‘Full Restitution’ to the virtual complainant. The fraudster was ordered to pay ‘…EC$3, 000 by the end of September 2020; and ‘…EC$1000. 00,’ at the end of every month’ until the full sum is restored to the victim’ [OMG: May 28, 2020].
It has been long touted appears that some adjudicators have shown little familiarity with, or conveniently ignoring the objectives of the Eastern Caribbean Supreme Court’s (ECSC) ‘Sentencing Guidelines.’ That which has been made sufficiently clear, is that the ‘Guidelines’ seeks to bring ‘Consistency’ in respect to sentencing of convicted or self-convicted felons. This has not only been a feature in ‘fair and independent trials,’ but shall also manifestly appear that justice has been done. The objectives aimed, are not necessarily to be considered an impediment to the ‘inherent discretion’ of adjudicators. Therefore, each case under judicial consideration shall be judged on its own merit. For the innumerable persons victimized by criminals, most have been agonizingly awaiting the dispensation of justice. Even so, ‘Justice’ shall never be seen as having been ‘Sacrificed on the Altar of Expediency.’