HERBERT BELL applied by originating motion to the Full Court Division of the Supreme Court for redress under

l Court Division of the Supreme Court for redress under section 25 of

AND On the applicant's appeal to the Judicial Committee:-

DIRECTOR OF PUBLIC PROSECUTIONS AND ANOTHER 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
RESPONDENTS 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
[APPEAL FROM THE COURT OF APPEAL OF JAMAICA] 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
[PRIVY COUNCIL] 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
[1985] AC 937 accused, but the weight to be afforded to each factor depended upon the particular jurisdiction and the
circumstances of the case (post, pp. 948H - 949A, 950B-C, H - 951B,D, F, 952A, C, H - 953A).
HEARING-DATES: 13, 14, 18, March 30 April 1985
(2) That the operative period in issue commenced when a retrial was ordered, and although in a normal case in
30 April 1985 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
CATCHWORDS: and trial was not necessarily reasonable between order for retrial and retrial, and since the applicant through
Jamaica - Constitution - Human rights and fundamental freedoms - Fair hearing within reasonable time - no fault of his own had suffered two wasted years and had to prepare for a second trial the retrial was more
Applicant's appeal against conviction allowed and retrial ordered - Retrial substantially delayed - Prosecution urgent than the first trial and the delay was unreasonable; that the Full Court and the Court of Appeal had
offering no evidence and applicant discharged - Rearrest for same offences to be retried - Whether overlooked the significance of the order for retrial and of the applicant's discharge in November 1981 on the
infringement of applicant's right to fair hearing within reasonable time - Jamaica (Constitution) Order in basis that further delay would then be unfair to him, and therefore the applicant was entitled to a
Council 1962 (S.I. 1962 No. 1550), Sch. 2, s. 20(1)
declaration that his right under section 20(1) to a fair hearing within a reasonable time by an independent and
HEADNOTE: impartial court established by law had been infringed (post, pp. 953E-F, 954D-E,F - 955B, D-E).
Section 20 of the Constitution of Jamaica provides:
Barker v. Wingo (1972) 407 U.S. 514 approved.
"(1) Whenever any person is charged with a criminal offence he shall, unless the charge is withdrawn, be
afforded 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. 950C-D).
a fair hearing within a reasonable time by an independent and impartial court established by law."
Decision of the Court of Appeal of Jamaica reversed.
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 INTRODUCTION:
Appeal of Jamaica and a retrial was ordered. Notice of that order was not received by the registrar of the Gun APPEAL (No. 44 of 1984) by the applicant, Herbert Bell, with special leave in forma pauperis, from a
Court until December 1979. The original statements of witnesses had to be served on the applicant before his judgment and order of the Court of Appeal of Jamaica (Zacca P., Carey and Ross JJ.A.) given on 19 May
retrial, but the investigating officer was unavailable and the statements could not be found. After the case had 1983 dismissing the applicant's appeal against a judgment and order of the Supreme Court, Full Court
been mentioned in the Gun Court on three occasions the applicant was released on bail in March 1980. Division (Morgan, Bingham and Wolfe JJ.) dated 3 June 1982 in favour of the respondents, the Director of
Thereafter the case was mentioned on numerous occasions but the Crown was not ready to proceed. The Public Prosecutions and the Attorney-General of Jamaica, by which the Full Court dismissed the applicant's
applicant was discharged by a judge in the Gun Court in November 1981 the Crown offering no evidence application for redress under section 25 of the Constitution for contravention of the right guaranteed by
against him and stating that the witnesses were not available. In February 1982 the applicant was rearrested section 20(1) of the Constitution.
for the same offences and despite objections on his behalf he was ordered to be retried in May 1982. He
The facts are stated in the judgment of their Lordships. unreasonable within the meaning of section 20(1), and the applicant is entitled to redress under section 25.
The only onus placed upon him is to show unreasonable delay, and if he demonstrates that the onus shifts to
COUNSEL: the Crown to justify the delay. The following factors are relevant when the Crown seeks to justify the delay:
Eugene Cotran and John Otieno for the applicant. [Reference was made to sections 13, 15(3), 20 and 25 of the the extent of time involved; the seriousness of the alleged offences; whether the delay is in the context of a
Constitution of Jamaica.] Section 8 of the Gun Court Act 1974 provides that a hearing before the Gun Court retrial; the period of incarceration; and the effect of the delay upon the defence.
of a firearm offence should ordinarily be commenced within seven days of the date of the first appearance
before the court of the person charged, but there can be no objection if any hearing is commenced later. The delay was for a long time and the offences charged are serious. There is a retrial context, and the
applicant has suffered a long period of incarceration. He was given great hope when no evidence was offered
The applicant seeks redress under section 25 of the Constitution claiming a declaration that section 20(1) has against him and he was discharged in November 1981. The delay was in no way attributable to the applicant,
been infringed. Mere lapse of time having regard to the circumstances of the particular case can be sufficient and there was no real basis on which the prosecution's applications for adjournments could have been
to constitute infringement of the Constitution, and the reason for the delay is irrelevant. There was delay of opposed. The prosecution knew on 7 March 1979 that a retrial had been ordered, and it is irrelevant that notice
almost three years between the order for retrial and the applicant's rearrest, and the date set for the retrial was of the order did not reach the Gun Court until 19 December 1979. A constitutional duty is imposed upon the
five years after his original arrest. state and its authorities to have trials heard speedily, and it is no excuse for the Crown to rely on "bureaucratic
bungling." The disappearance of the investigating officer, the loss of the original statements and the
The fundamental human rights provisions in the Constitution, including those in section 20(1), impose a fetter unavailability of witnesses were all matters within the responsibility of the prosecution, and they are not
upon the exercise by the legislature, the executive and the judiciary of the plenitude of their respective powers. sufficient to justify the delay.
The protection afforded to the individual is against contravention of those rights and freedoms by the state or
other public authorities endowed by law with coercive powers. The contraventions that have taken place in Section 20(1) has been infringed and the applicant is entitled to redress under section 25 since no other
this case fall squarely within that ambit. Since many of the rights described were declaratory of the existing adequate means of redress are available.
law and practice at the commencement of the Constitution it is incumbent upon the state to ensure that the
rights are not whittled away. 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. In Jamaica the registrar of the Gun
Section 20(1) has three elements: (1) the person charged must be afforded a fair hearing; (2) that hearing must Court fixes the list of cases to be heard on a particular day, and the office of the Director of Public
take place within a reasonable time; and (3) the hearing must be by an independent and impartial court Prosecutions waits to be told by the registrar when a case is set for trial. The initiative rests with the registrar.
established by law. Breach of any of these limbs by any organ of the state entitles the individual to redress. Defence counsel may bring a case to the notice of the Director of Public Prosecutions, and then enquiries are
What is a reasonable time is a question of fact depending on all the circumstances. There may be cases where made of the registrar as to when the case is to be heard. Sometimes as many as 60 cases are set for trial on one
there is a presumptive delay, meaning that the delay is so long it is clearly unreasonable. This is such a case, day in the two Gun Courts, and delay is inevitable. The delay between the order for retrial on 7 March 1979
and a delay of five years is itself sufficient to be an infringement of section 20(1). A person charged with an and the first mention in the Gun Court on 28 January 1980 must be considered in relation to factors on both
offence should not have the matter hanging over him for a long time. sides.

Reliance is placed upon dicta in Grant v. Director of Public Prosecutions [1982] A.C. 190 as showing that the The applicant must prove that he has not been afforded a fair hearing within a reasonable time. The burden is
starting point is the event giving rise to the charges; that 31/2 years between that date and the trial would on him to show that his constitutional right has been infringed. The words in section 20(1) "within a
ordinarily be an unreasonable delay; that the fact the applicant is on bail during that period makes no reasonable time" are by themselves relative, and in order to
difference; and that the only circumstance which should be taken into account is whether the applicant was
instrumental in causing the delay. Accordingly the starting point here for time beginning to run is 17 April determine whether in a particular case a reasonable time has passed regard must be had to the circumstances
1977 when the offences are alleged to have been committed, and the delay is until the retrial date of 11 May existing in that case.
1982 and is therefore five years one month. The applicant did not cause the delay because it is not suggested
that any period after May 1982 is to be included. The whole scheme of section 20 is to provide for the protection of the law guaranteed in section 13 and to
ensure that any person charged is treated fairly by the state. What happened in this case does not amount to
Reliance is placed upon Reg. v. Ogle (1968) 11 W.I.R. 439; Reg. v. Thompson (1983) 3 D.L.R. (4th) 642; oppression by the state and therefore the applicant is not entitled to any redress under the Constitution.
Reg. v. Cameron [1982] 6 W.W.R. 270; Barker v. Wingo (1972) 407 U.S. 514 and Reg. v. Saunders(1973) 58
Cr.App.R. 248. The applicant has to show that the time which has elapsed is so long that in spite of the explanations given by
the prosecution for the delay he cannot now have a fair trial. The question of the unreasonableness of the
If time does not begin to run on 17 April 1977 it runs from 7 March 1979 when a retrial was ordered, and so delay depends on whether or not a fair trial is possible. Section 20 protects an accused from unfair treatment,
the delay is three years two months. Whether it is five years one month or three years two months the delay is and a lengthy period before trial cannot by itself be oppressive however long. Only if the applicant can show
that the delay is oppressive to him and he cannot have a fair trial can he seek redress for infringement of constitutional right has been contravened. The courts have power to control excessive delay: Reg. v. Fairford
section 20(1). Justices, Ex parte Brewster [1976] Q.B. 600. That power existed when the Constitution came into force in
1962 and is enshrined in it.
If an accused is charged in a system where there are insufficient courts to deal with the great number of cases,
that is an element to be taken into consideration in determining what length of time is reasonable. If the Alternatively, if the applicant is entitled to redress under section 25 the appropriate order would not be to
registrar of a court inadvertently fails to perform his duties that can also be taken into consideration. Another discharge him but to order a speedy trial: see Kadra Pahadiya v. State of Bihar [1982] A.I.R. 1167; McBean v.
relevant factor is acquiescence by an accused in the continued postponements of his trial. The four factors The Queen [1977] A.C. 537 and Thornhill v. Attorney-General of Trinidad and Tobago [1981] A.C. 61.
stated by Powell J. in Barker v. Wingo, 407 U.S. 514, 530-532, should be applied. That case indicates the
correct approach, although all the circumstances of the particular case have to be considered. The tests laid Kenneth Rattray Q.C., Solicitor-General of Jamaica, and Ranse Langrin, Senior Assistant Attorney-General of
down in Barker v. Wingo were followed in Reg. v. Cameron [1982] 6 W.W.R. 270. Jamaica for the Attorney-General of Jamaica. The fundamental rights under section 20(1) to which the
applicant is entitled to the protection of the law are those which existed at the coming into force of the
The first factor is the length of the delay. It is accepted that the time which elapsed, whether three years or five Constitution on 6 August 1962, and at that time there was no law or settled practice which prohibited the
years, is sufficient to require an examination as to whether there has been a breach of section 20(1). continuance of proceedings after delay such as that which occurred in the circumstances of this case. The
purpose of section 20(1) is to secure the fairness of the hearing. The phrase "a fair hearing within a reasonable
The second factor is the explanation given by the prosecution to justify the delay. The time between the time by an independent and impartial court established by law" is a composite phrase which must be read and
applicant's arrest and the order for retrial was spent in going through the judicial processes and there was no construed as such. Mere lapse of time or delay per se does not constitute unreasonable delay for the purpose of
fault on the part of the prosecution or defence. It should not be included in the length of time the establishing that the applicant was not afforded a fair hearing within a reasonable time within the meaning of
reasonableness of which is being considered. The prosecution's explanation for the delay after the retrial order section 20(1). Whether there is a fair hearing within a reasonable time depends on all the circumstances of the
was the misplacement of the original statements, the suspension of the investigating officer who could not be case and must be weighed and balanced to prevent a denial of justice. The seriousness of the charge and the
found, and the unavailability of witnesses. There was no evidence that there was a deliberate attempt to rights of public justice outweighed any prejudice to the applicant and tilted the scales in favour of a retrial
hamper the defence. In view of the reasons given the delay was justified. after his rearrest in February 1982. The courts of Jamaica being familiar with local conditions found that there
was not unreasonable delay. Although the tests in Barker v. Wingo, 407 U.S. 514 should be applied, in
The third factor is the responsibility of the accused for asserting his rights. The applicant was represented by determining the appropriate
experienced counsel, who did not oppose any of the adjournments. The applicant could have asserted his right
to have his case tried even if the prosecution was not ready, but he did not do so. weight to be given to those factors they have to be examined in relation to all the circumstances especially the
fact that the Constitution of Jamaica places great weight on prejudice to an accused.
The fourth factor is prejudice to the accused. It is for the accused to advance any circumstances arising as a
result of the delay which might prejudice his defence if he were to be tried. The passage of time affects both The rights protected by section 20(1) have to be considered in the context of Chaper III of the Constitution,
sides, especially with regard to the memories of witnesses. The applicant did not allege any prejudice and which presumes that the fundamental rights and freedoms stated were secured to the people of Jamaica on
adduced no such evidence. independence. However the main object was to ensure that no future enactments should derogate from the
rights enjoyed by the people when the Constitution came into force: Director of Public Prosecutions v.
The lapse of time has to be judged in the context of the system of justice in Jamaica and the pace at which Nasralla [1967] 2 A.C. 238 and de Freitas v. Benny[1976] A.C. 239. To understand the legal nature of the
cases are tried there: Holder v. The Queen [1980] A.C. 115. The Constitution requires a trial to be within a various rights and freedoms described in Chapter III it is necessary to examine the extent of the rights as they
reasonable time, but there is no right to a speedy trial. The courts below decided that the delay was not existed when the Constitution came into force. The legal rights protected by the Constitution are those which
unreasonable and that the applicant could still be tried within a reasonable time. existed de jure at the commencement of the Constitution and de facto by settled practice, and something
cannot be elevated into a legal right if it did not exist before the Constitution. This is fortified by the express
If the appeal is allowed the proper order would be a declaration that the applicant's constitutional right has provisions of section 26(8) of the Constitution which provides that nothing done under the authority of any
been infringed. No court in Jamaica would then proceed to try him for these offences. law in force immediately prior to independence shall be held to be done in contravention of the provisions of
Chapter III (including section 20(1)) dealing with fundamental rights and freedoms. It was held in the Nasralla
Smith following. Even if section 20(1) has been infringed no order should be made under section 25 because case that the reference to "law" in section 26(8) of the Constitution included the common law and,
adequate means of redress are otherwise available. When the case ultimately comes on for trial the applicant accordingly, the applicant can only legitimately complain of an infringement of his rights under section 20(1)
can ask the court by reason of the delay to let the indictment lie on the file and not be proceeded with without of the Constitution if such rights existed at common law at the commencement of the Constitution. The effect
leave of the court, or he can invoke the court's jurisdiction to treat the prosecution's conduct as an abuse of the of section 26(8) is to crystallise the rights which existed immediately prior to independence.
process of the court. The guarantees in the Constitution are not meant to interfere with the ordinary criminal
process. Alternatively, the case could be dismissed for want of prosecution on the grounds that the applicant's There was no rule at common law and no settled practice which precluded an accused from being tried after a
period of delay, unless he could establish that the effect of such delay would be to make the hearing unfair. Langrin following. Since the application to the Supreme Court was by notice of motion and not by writ the
Mere delay was not sufficient and prejudice had to be shown. Although the Constitution provides remedies applicant is precluded from alleging that his right under section 20(1) is likely to be contravened, and is
not previously available, it does so only in respect of rights existing before the Constitution. Accordingly confined to alleging that his right has been infringed. Because the fair hearing is bound up with the reasonable
section 20(1) cannot be construed so as to elevate into a legal right facts or circumstances which were not time, and the applicant is still to be tried, the only possible finding is that the applicant is unlikely to get a fair
recognised as legal rights before the Constitution. Mere lapse of time is not sufficient to contravene section hearing within a reasonable time, but there would be a procedural bar to such a finding.
20(1) unless prejudice and unfairness are caused to the accused.
Cotran in reply. Whatever the position was before the Constitution came into force section 20(1) speaks for
The language of the relevant provisions of the Constitution of the United States and the Canadian Charter of itself. The words "within a reasonable time" would not have been included if time had no part in the process
Rights and Freedoms Constitution Act 1982 are different from section 20(1) of the Constitution of Jamaica. In of a fair hearing. The common law itself provided that a fair hearing must be timely: Reg. v. Robins (1884) 1
Maharaj v. Attorney-General of Trinidad and Tobago (No. 2) [1979] A.C. 385, 395, Lord Diplock said that in Cox C.C. 114 and Connelly v. Director of Public Prosecutions [1964] A.C. 1254. The right to a timely trial
order to understand the legal nature of the fundamental rights and freedoms described in the Constitution of existed in Jamaica at common law before the Constitution came into force and was embedded specifically in
Trinidad and Tobago it was necessary to examine the extent to which they existed immediately before the section 20(1). The right is to a fair hearing within a reasonable time and that reasonable time is an essential
Constitution came into effect. Before the commencement of the Constitution of Jamaica mere lapse of time element in a fair hearing.
did not result in infringement of any fundamental right unless the fairness of the hearing would be
In balancing the factors to determine whether the delay was reasonable the fact that the delay was in the
impaired, and the right afforded by section 20(1) should not be construed so as to elevate into a right one not context of a retrial is important, and also the applicant's discharge in November 1981 when no evidence was
existing before the Constitution. Reliance is placed upon Abbott v. Attorney-General of Trinidad and Tobago offered against him. Although the courts below found the delay not to be unreasonable they considered the
[1979] 1 W.L.R. 1342 and Riley v. Attorney-General of Jamaica[1983] 1 A.C. 719. Reg. v. Cameron [1982] 6 matter on the wrong basis, and so the Board should interfere with their decision. [Reference was made to
W.W.R. 270 shows that the right to a speedy trial did not exist in Canada at common law before the Charter. 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.]
It is important to distinguish between delay as recognised in section 15(3) of the Constitution of Jamaica and a
fair hearing within a reasonable time as required by section 20(1). Section 15(3) relates to trial within a The appropriate remedy if the appeal succeeds is a declaration that the applicant's constitutional right has been
reasonable time, whereas section 20(1) concerns a fair trial within a reasonable time. The protection of the law infringed and an order that he be discharged.
safeguarded by section 20(1) is the fairness of the hearing. When the words of section 20(1) are read in the
light of the common law existing at the commencement of the Constitution it is a composite provision which Cur. adv. vult.
emphasises the fairness of the hearing. The references to reasonable time and an independent and impartial
tribunal are merely descriptive of the circumstances which may afford a fair hearing. The lapse of time has to 30 April. The judgment of their Lordships was delivered by
be tested as to its effect, and therefore delay per se is not sufficient. Section 20(1) does not state that a person
charged must be tried within a reasonable time or that the trial must be concluded within a reasonable time. PANEL: Lord Keith of Kinkel, Lord Elwyn-Jones,Lord Edmund-Davies, Lord Roskilland Lord Templeman

With regard to the length of the delay the period between the applicant's arrest and the allowing of his appeal JUDGMENTBY-1: LORD TEMPLEMAN
on 7 March 1979 should be wholly disregarded because there was no unreasonable delay during that time, or
alternatively very little weight should be given to it. The nine months between the order for retrial in March JUDGMENT-1:
1979 and its receipt at the Gun Court was not intentional delay or delay caused by ulterior motives but through LORD TEMPLEMAN: .
inadvertence, and so it should be given less weight. The explanation given by the prosecution for the delay
thereafter was sufficient to justify the delay in the context of the Jamaican situation. 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.
It was in the public interest that a person charged with these offences should be brought to trial. Although the
number of courts and judges in Jamaica have greatly increased since 1962 the increase in crimes of violence Section 13 of the Constitution which came into force immediately before 6 August 1962 by virtue of the
has made it necessary for it to be recognised that any possible prejudice suffered by the applicant would be Jamaica (Constitution) Order in Council 1962 provides that "every person in Jamaica is entitled to the
outweighed by there being a retrial in the interests of justice. Having regard to the serious nature of the fundamental rights and freedoms of the individual," including "the protection of the law" but "subject to
offences greater delay can be tolerated in the public interest. The courts of Jamaica did not consider the delay respect for the rights and freedoms of others and for the public interest."
to be such that the applicant would not be afforded a fair hearing within a reasonable time. When all the
circumstances are taken into account and balanced the appeal should be dismissed. Section 20 sets out the provisions which by section 13 are afforded to secure the protection of law and
provides, inter alia:
 By a notice of motion dated 5 May 1982 the applicant applied to the Supreme Court for a declaration in the
"(1) Whenever any person is charged with a criminal offence he shall, unless the charge is withdrawn, be following terms:
afforded a fair hearing within a reasonable time by an independent and impartial court established by law."
"That section 20(1) of the Jamaica Constitution Order in Council 1962 which afford the applicant the right to
As a result of an incident on 17 April 1977 the applicant was arrested on 18 May 1977 and convicted on 20 a fair hearing within a
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 Gun Court reasonable time by an independent and impartial court established by law has been infringed."
Act 1974 to try firearms offences. The applicant was sentenced to life imprisonment and to three concurrent
sentences of seven, five and ten years for the various offences of which he had been convicted. After a three-day hearing the Full Court Division of the Supreme Court (Morgan, Bingham and Wolfe JJ.) on
3 June 1982 dismissed the applicant's application for redress under the Constitution. The applicant's appeal
On 7 March 1979 the Court of Appeal of Jamaica quashed the convictions and by a majority ordered a retrial. against the decision of the Full Court was dismissed by the Court of Appeal after a three-day hearing on 19
On 12 March 1979 the registrar of the Court of Appeal sent written notice to the registrar of the Gun Court May 1983. The applicant appeals to the Board with special leave granted by Her Majesty in Council on 11
and to the Director of Public Prosecutions that the applicant's appeal had been allowed and a retrial ordered. April 1984. In the meantime the retrial of the applicant has been adjourned and the applicant has remained at
That notice was not received by the Gun Court until 19 December 1979. Before a retrial could take place, liberty on bail.
original statements of witnesses were required to be served on the applicant but the investigating officer was
not available and the statements were not traced. The case was mentioned in the Gun Court on 28 January The Solicitor-General who appeared on behalf of the Attorney-General of Jamaica now submits that the
1980, 8 February 1980 and 15 February 1980. On 21 March 1980, when the case was again mentioned, bail application to the Supreme Court should have been made by writ and not by notice of motion. Without
was granted to the applicant. On some of the appearances of the applicant before the Gun Court he was entering into a consideration of the rules of procedure which apply in Jamaica and are best determined by the
represented by counsel. Thereafter there were more adjournments by the Gun Court until finally on 10 courts of Jamaica, their Lordships reject this submission. The applicant fairly raised before the appropriate
November 1981 the Crown offered no evidence stating that the witnesses were not available and the applicant court his complaint that his fundamental right guaranteed by the Constitution had been infringed.
was discharged. On 12 February 1982 the applicant was rearrested. Despite the objections of the applicant's
attorney, the applicant was ordered to be retried on 11 May 1982. The respondents next submitted that the Constitution of Jamaica conferred no rights on the individual which
were not enjoyed immediately before the Constitution came into force immediately before 6 August 1962 and
By section 25(1) of the Constitution, if any person alleges a contravention of his fundamental rights, then that there was no right at common law to a speedy trial. For this submission reliance was placed on authority.
"without prejudice to any other action with respect to the same matter which is lawfully available, that person
may apply to the Supreme Court for redress." By section 25(2) the Supreme Court shall have original Director of Public Prosecutions v. Nasralla [1967] 2 A.C. 238 concerned section 20(8) of the Constitution of
jurisdiction to hear and determine any application "and may make such orders, issue such writs and give such Jamaica whereby:
directions as it may consider appropriate for the purpose of enforcing, or securing the enforcement of," any of
the fundamental rights to which the person concerned is entitled but it is provided "No person who shows that he has been tried by any competent court for a criminal offence and either
convicted or acquitted shall again be tried for that offence or for any other criminal offence of which he could
"that the Supreme Court shall not exercise its powers under this subsection if it is satisfied that adequate have been convicted at the trial for that offence ..."
means of redress, for the contravention alleged are or have been available to the person concerned under any
other law." The Judicial Committee decided that section 20(8) was intended to embody the common law principles and
rules of autrefois acquit. Lord Devlin, delivering the advice of the Board stated, at pp. 247-248, that Chapter
By section 25(3): "Any person aggrieved by any determination of the Supreme Court under this section may III of the Constitution dealing with fundamental rights and freedoms:
appeal therefrom to the Court of Appeal."
"proceeds upon the presumption that the fundamental rights which it covers are already secured to the people
It was argued on behalf of the respondents, the Director of Public Prosecutions and the Attorney-General, that of Jamaica by existing law. The laws in force are not to be subjected to scrutiny in order to see whether or not
the applicant was able to obtain redress by waiting until his retrial, ordered for 11 May 1982, and then they conform to the precise terms of the protective provisions. The object of these provisions is to ensure that
submitting to the Gun Court at the commencement of the retrial that the proceeding should be dismissed on no future enactment shall in any matter which the chapter covers derogate from the rights which at the coming
the grounds that in the events which had happened a retrial would be an abuse of the process of the court. into force of the Constitution the individual enjoyed."
Their Lordships cannot accept this submission. If the constitutional rights of the applicant had been infringed
by failing to try him within a reasonable time, he should not be obliged to prepare for a retrial which must In Nasralla's case the Board was dealing with the right which had long been recognised by the common law
necessarily be convened to take place after an unreasonable time. and to which well recognised principles were applied. Those principles remained in force when the right was
codified by section 20(8). In the present case however if the common law did not provide for "a fair hearing
within a reasonable time by an independent and impartial court established by law" it is quite process of law.'"

plain that the express words of section 20(1) of the Constitution sufficed to confer such a right. In the present case, in determining whether the applicant was afforded a fair hearing within a reasonable time
by an independent and impartial court established by law, the practice and procedure of the courts established
In de Freitas v. Benny [1976] A.C. 239 the Board considered the Constitution of Trinidad and Tobago which by law prior to the Constitution must be respected. But by section 20(1) the applicant is entitled to a fair
as is the case with the Constitution of Jamaica preserves the validity of laws in force at the commencement of hearing "within a reasonable time," albeit that, in considering whether a reasonable time has elapsed,
the Constitution. The appellant claimed that a sentence of death pronounced on him after the Constitution consideration must be given to the past and current problems which affect the administration of justice in
came into effect was an "imposition of cruel and unusual punishment" prohibited by the Constitution and Jamaica.
infringed his right under the Constitution not to be deprived of life except "by due process of law." The Board
held that the executive act of carrying out a sentence of death pronounced by a court of law was authorised by Their Lordships do not in any event accept the submission that prior to the Constitution the law of Jamaica,
laws that were in force at the commencement of the Constitution. This decision does not in the view of the applying the common law of England, was powerless to provide a remedy against unreasonable delay, nor do
Board assist the respondents in the present case where the right to a fair hearing within a reasonable time is they accept the alternative submission that a remedy could only be granted if the accused proved some
expressly conferred by section 20. specific prejudice, such as the supervening death of a witness. Their Lordships consider that, in a proper case
without positive proof of prejudice, the courts of Jamaica would and could have insisted on setting a date for
In Maharaj v. Attorney-General of Trinidad and Tobago (No. 2)[1979] A.C. 385 the Judicial Committee trial and then, if necessary, dismissing the charges for want of prosecution. Again, in a proper case, the court
allowed an appeal against a committal for contempt. The Board held that the Constitution of Trinidad and could treat the renewal of charges after the lapse of a reasonable time as an abuse of the process of the court.
Tobago had not abolished the common law right of an accused, in accordance with the principles of natural In Connelly v. Director of Public Prosecutions [1964] A.C. 1254, 1347, Lord Devlin rejected the argument
justice, to be informed of the nature of the contempt of which he was accused so that he could have an that an English court had no power to stay a second indictment if it considered that a second trial would be
opportunity to explain or excuse his conduct. Lord Diplock, delivering the advice of the Board, referred to oppressive. In his opinion:
Director of Public Prosecutions v. Nasralla [1967] 2 A.C. 238 and de Freitas v. Benny [1976] A.C. 239 and
said at p. 395 that in order to understand the legal nature of the fundamental rights and freedoms described in "the judges of the High Court have in their inherent jurisdiction, both in civil and in criminal matters, power
the Constitution (subject of course to any statutory rules) to make and enforce rules of practice in order to ensure that the
court's process is used fairly and conveniently by both sides ... First, a general power, taking various specific
"in broad terms and in language more familiar to politics than to legal draftsmanship, it is necessary to forms, to prevent unfairness to the accused has always been a part of the English criminal law ... nearly the
examine the extent to which, in his exercise and enjoyment of rights and freedoms capable of falling within whole of the English criminal law of procedure and evidence has been made by the exercise of the judges of
the broad descriptions in the section, the individual was entitled to protection or non-interference under the their power to see that what was fair and just was done between prosecutors and accused."
law as it existed immediately before the Constitution came into effect."
Lord Devlin was there speaking of the power of the court to stay a second indictment if satisfied that its
Since before the coming into force of the Constitution an individual accused of contempt had a right to a fair subject matter ought to have been included in the first. But similar reasoning applies to the power of the court
trial carried out in accordance with the principles of natural justice, the right to a fair trial guaranteed by the to prevent an oppressive trial after delay. Their Lordships agree with the respondents that the three elements
Constitution also preserved the principles of natural justice. The common law protection of the individual was of section 20, namely a fair hearing within a reasonable time by an independent and impartial court
not intended to be whittled away by the Constitution. This decision does not avail the respondents in the established by law, form part of one embracing form of protection afforded to the individual. The longer the
present case where they are attempting to whittle away the rights of the applicant under the Constitution by delay in any particular case
reference to the common law in force before the Constitution.
the less likely it is that the accused can still be afforded a fair trial. But the court may nevertheless be satisfied
In Abbott v. Attorney-General of Trinidad and Tobago [1979] 1 W.L.R. 1342 the Judicial Committee held that the rights of the accused provided by section 20(1) have been infringed although he is unable to point to
that delay in the execution of a sentence of death was not contrary to the law existing before the Constitution any specific prejudice.
came into effect and did not therefore amount to an infringement of the appellant's right to life under the
Constitution. Lord Diplock, delivering the advice of the Board, reserved the possibility that The question then is whether in the circumstances of the present case the applicant's right to "a fair hearing
within a reasonable time" has been infringed.
delay might occur which was so prolonged as to arouse a reasonable belief that the death sentence must have
been commuted to a sentence of life imprisonment. He added, at p. 1348: Some guidance is provided by the judgments of the Supreme Court of the United States in Barker v. Wingo
(1972) 407 U.S. 514. The sixth amendment to the Constitution of the United States provides: "In all criminal
"In such a case, which is without precedent and, in their Lordships' view, would involve delay measured in prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury ..." Powell J.
years, rather than in months, it might be argued that the taking of the condemned man's life was not 'by due pointed out, at pp. 521-522:
 (4) Prejudice to the accused:
"the right to speedy trial is a more vague concept than other procedural rights. It is, for example, impossible to
determine with precision when the right has been denied. We cannot definitely say how long is too long in a "Prejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial right
system where justice is supposed to be swift but deliberate ... The amorphous quality of the right also leads to was designed to protect. This court has identified three such interests: (i) to prevent oppressive pretrial
the unsatisfactorily severe remedy of dismissal of the indictment when the right has been deprived. This is incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the
indeed a serious consequence because it means that a defendant who may be guilty of a serious crime will go defense will be impaired. Of these, the most serious is the last ... If witnesses die or disappear during a delay,
free, without having been tried." the prejudice is obvious. There is also prejudice if defense witnesses are unable to recall accurately events of
the distant past. Loss of memory however, is not always reflected in the record because what has been
Powell J. then identified four factors which in his view the court should assess in determining whether a forgotten can rarely be shown" (p. 532).
particular defendant has been deprived of his right. They are (1) length of delay:
The applicant did not allege the death or disappearance of a witness. Where, as in Jamaica, for a variety of
"Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other reasons, there are in many cases extensive periods of delay between arrest and trial, the possibility of loss of
factors that go into the balance. Nevertheless, because of the imprecision of the right to speedy trial, the length memory which may prejudice the prosecution as much as the defence, must be accepted if criminals are not to
of delay that will provoke such an inquiry is necessarily dependent upon the peculiar circumstances of the escape. Nevertheless in considering whether in all the circumstances the constitutional right of an accused to a
case. To take but one example, the delay that can be tolerated for an ordinary street crime is considerably less fair hearing within a reasonable time has been infringed, the prejudice inevitable in a lapse of seven years
than for a serious, complex conspiracy charge" (pp. 530-531). between the date of the alleged offence and the eventual date of retrial cannot be left out of account. The fact
that the applicant in the present case did not lead evidence of specific prejudice does not mean that the
In the present case it cannot be denied that the length of time which has elapsed since the applicant was possibility of prejudice should be wholly discounted.
arrested is at any rate presumptively prejudicial.
The four factors considered relevant in Barker v. Wingo, 407 U.S. 514 to the constitutional right to a speedy
(2) The reasons given by the prosecution to justify the delay: trial were reproduced and adopted by McDonald J. sitting in the Alberta Queen's Bench Court in Reg. v.
Cameron [1982] 6 W.W.R. 270. In that case the applicant alleged infringement of the right granted by section
"A deliberate attempt to delay the trial in order to hamper the defense should be weighed heavily against the 11 of the Canadian Charter of Rights and Freedoms Constitution Act 1982 to "Any person charged with an
government. A more neutral reason such as negligence or overcrowded courts should be weighed less heavily offence ... to be tried within a reasonable time."
but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with
the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve Their Lordships acknowledge the relevance and importance of the four factors lucidly expanded and
to justify appropriate delay" comprehensively discussed in Barker

In the present case part of the delay after arrest was due to overcrowded courts, part to negligence by the v. Wingo. Their Lordships also acknowledge the desirability of applying the same or similar criteria to any
authorities, and part to the unavailability of witnesses. constitution, written or unwritten, which protects an accused from oppression by delay in criminal
proceedings. The weight to be attached to each factor must however vary from jurisdiction to jurisdiction and
(3) The responsibility of the accused for asserting his rights: from case to case.

"Whether and how a defendant asserts his right is closely related to the other factors we have mentioned. The Their Lordships accept the submission of the respondents that, in giving effect to the rights granted by
strength of his efforts will be affected by the length of the delay, to some extent by the reason for the delay, sections 13 and 20 of the Constitution of Jamaica, the courts of Jamaica must balance the fundamental right of
and most particularly by the personal prejudice, which is not always readily identifiable, that he experiences. the individual to a fair trial within a reasonable time against the public interest in the attainment of justice in
The more serious the deprivation, the more likely a defendant is to complain" (p. 531). the context of the prevailing system of legal administration and the prevailing economic, social and cultural
conditions to be found in Jamaica. The administration of justice in Jamaica is faced with a problem, not
Their Lordships do not consider this factor can have any weight in the present case. The applicant and his unknown in other countries, of disparity between the demand for legal services and the supply of legal
counsel no doubt took the view that strenuous opposition to an application sought by the prosecution from services. Delays are inevitable. The solution is not necessarily to be found in an increase in the supply of legal
time to time for an adjournment or an appeal from an order granting an adjournment would be a waste of time. services by the appointment of additional judges, the creation of new courts and the qualification of additional
The applicant's complaint is that he was discharged and told to go free and was subsequently in 1982 lawyers. Expansion of legal services necessarily depends on the financial resources available for that purpose.
rearrested for the offences for which he had first been arrested in 1977. The applicant raised that complaint as Moreover an injudicious attempt to expand an existing system of courts, judges and practitioners, could lead
soon as he was rearrested. to deterioration in the quality of the justice administered and to the conviction of the innocent and the acquittal
of the guilty. The task of considering these problems falls on the legislature of Jamaica, mindful of the
provisions of the Constitution and mindful of the advice tendered from time to time by the judiciary, the Court of Appeal quashed the conviction in March 1979 and ordered a retrial. The members of the Court of
prosecution service and the legal profession of Jamaica. The task of deciding whether and what periods of Appeal must therefore have considered that the applicant might be acquitted. The applicant having been
delay explicable by the burdens imposed on the courts by the weight of criminal causes suffice to contravene arrested, detained and submitted to a defective trial and conviction had, through no fault of his own, endured
the rights of a particular accused to a fair hearing within a reasonable time falls upon the courts of Jamaica two wasted years and must for the second time prepare to undergo a trial. In these circumstances there was an
and in particular on the members of the Court of Appeal who have extensive knowledge and experience of urgency about the retrial which did not apply to the first trial. A period of delay which might be reasonable as
conditions in Jamaica. In the present case the Full Court stated that a delay of two years in the Gun Court is a between arrest and trial is not necessarily reasonable between an order for retrial and the retrial itself. Far from
current average period of delay in cases in which there are no problems for witnesses. The Court of Appeal recognising any urgency, the Full Court excused delay which occurred after March 1979 on the ground that it
did not demur. Their Lordships accept the accuracy of the statement and the conclusion, implicit in the was partly due in their words to "bureaucratic bungling."
statement, that in present circumstances in Jamaica, such delay does not by itself infringe the rights of an
accused to a fair hearing within a reasonable time. No doubt the courts and the prosecution authorities Moreover in the present proceedings the Full Court and the Court of Appeal not only overlooked the
recognise the need to take all reasonable steps to reduce the period of delay wherever possible. significance of the fact that the applicant

Thus, their Lordships accept the submission of the respondents that in general the courts of Jamaica are best was complaining of delay in the context of a retrial, but also overlooked the significance of the fact that on 10
equipped to decide whether in any particular case delay from whatever cause contravenes the fundamental November 1981 the applicant had been discharged. When Chambers J. discharged the applicant on 10
right granted by the Constitution of Jamaica. The respondents explained, and their Lordships accept, that a November 1981 the judge must have been satisfied and the prosecution does not appear to have disputed that,
particular current problem arises from the difficulty in securing the attendance of witnesses. Witnesses absent whatever the reasons for the unavailability of the witnesses at that time, any further delay would be unfair to
themselves through ignorance or fear, sometimes influenced by intimidation, crude or subtle. The courts of the applicant and that he was entitled to be discharged in the light of all that had happened to him since his
Jamaica must constantly balance the claim of the accused to be tried, arrest in 1977. If that had not been the position, the prosecution would have sought and the judge might have
granted a further adjournment. If fairness required the applicant to be discharged on 10 November 1981
notwithstanding the absence of witnesses, against the possibility, unproved and unprovable in many cases, that fairness required that he should not be rearrested in February 1982. Although the provisions of the
the absence of a necessary witness has been procured or encouraged by someone acting in the interests of the Constitution may not have been present to the mind of the judge, his discharge of the applicant can only be
accused. The courts seek to prevent exploitation of the rights conferred by the Constitution and to weigh the construed in the circumstances of the present case as recognition of the fact that the applicant had not been
rights of the accused to be tried against the public interest in ensuring that the trial should only take place afforded a fair hearing within a reasonable time.
when the guilt or innocence of the accused can fairly be established by all the relevant evidence. The Board
will therefore be reluctant to disagree with the considered view of the Court of Appeal of Jamaica that the Provided that the courts of Jamaica recognised that a retrial required urgency, the Board would not normally
right of an accused to a fair hearing within a reasonable time has not been infringed. But since no court is interfere with a finding of those courts that a particular period of delay after an order for a retrial did not
infallible, there remain the power and the duty of the Board to correct any error of principle and to reverse a contravene the constitutional right of an accused to trial within a reasonable time. But in the present case their
decision which, in the opinion of the Board, could only have been reached by a reliance on some irrelevant Lordships conclude that the decisions of the courts of Jamaica were flawed by failure to recognise the
consideration or by ignoring some decisive consideration. significance of the order for a retrial and the significance of the discharge by the judge. In these circumstances
their Lordships will humbly advise Her Majesty that the appeal should be allowed and that the applicant is
In the present case the Full Court considered that the operative period of delay which must be examined for entitled to a declaration that section 20(1) of the Jamaica (Constitution) Order in Council 1962 which afforded
reasonableness is the period of 32 months beginning with 7 March 1979 when the applicant was ordered to be the applicant the right to a fair hearing within a reasonable time by an independent and impartial court
retried. The Court of Appeal considered that the operative period of delay was 27 months beginning with 19 established by law has been infringed.
December 1979 when notice of the order for a retrial reached the Gun Court. Their Lordships have no doubt
that the operative period of delay began on 7 March 1979 when the Court of Appeal ordered a retrial. From Their Lordships were reminded by counsel, the Director of Public Prosecutions and the Solicitor-General, of
that date it was the duty of those charged with the administration of justice to ensure that the order for a retrial the traditional and invariable adherence by the authorities of Jamaica to the spirit and letter of the advice
was obeyed without avoidable delay. For the reasons already advanced, their Lordships would in a normal tendered by the Board. In these circumstances it would not be appropriate to accede to the request by the
case accept the view of the courts of Jamaica that a delay of 32 months or thereabouts did not infringe the applicant that the Board should order that the applicant be discharged and not tried again on the original or
constitutional rights of an accused. any other indictment based on the same facts.

But their Lordships consider that in the present case the courts fell into error when they compared the delay SOLICITORS:
which occurred after the order for a retrial with the average delay which occurs between arrest and trial. The Solicitors: Philip Conway Thomas & Co.; Charles Russell & Co.
applicant was arrested in May 1977. His trial was defective. The Court of Appeal which heard his appeal
against conviction at the first trial could have upheld the conviction if they had been satisfied, notwithstanding S. S.
the defective conduct of the trial, there had been no miscarriage of justice involved in the conviction. The