TIME TO LEAVE PRIVY COUNCIL

KEN CHAPLIN

Tuesday, October 06, 2009

Source: Jamaica Observer

Justice Seymour Panton is a well-respected High Court judge. He is president of Jamaica's Court of Appeal. He balances the scales of justice to a remarkable degree and he is articulate. However, he was way out of line in his recent comments that the only people who are interested in retaining the Judicial Committee of the Privy Council are murderers, the very wealthy and people with a colonial mentality.

Justice Panton was reacting to the statement by Lord Nicholas Phillips, president of Britain's new Supreme Court that Britain's top judges are being diverted from the task of modernising that country's legal system by spending a disproportionate amount of time hearing appeals from independent Commonwealth countries like Jamaica. It should be pointed out that the Privy Council does the work free of cost.

Justice Panton's statement is misleading and makes no sense at all, to say the least. The poor people of Jamaica seem to have more confidence in the Privy Council than in Jamaica's Court of Appeal because they believe they get justice from the Privy Council, especially in murder cases and legal action against the government. I believe that Jamaican judges since independence have shed most of their pro-establishment stance as demonstrated by judges like Sir Colin McGregor, a former chief justice. Today's high court judges have no such proclivity and whatever errors they make in their judgements are sometimes due to misinterpretation of the law or not doing sufficient research on legal precedents.

Were it not for the Privy Council, many Jamaicans would have been hanged, would be serving life sentences or denied recompense for injustice by agents of the state. A classic case was the overturning by the Privy Council of the murder convictions of two poor Jamaican men on the basis that video footage of the scene of a 1996 robbery, in which a policeman was killed, was not made available to the defence at their trial. The men cried in court after they were found guilty, saying that they were innocent. The two accused were Randal Dixon and Mark Sangster. Dixon was found guilty of capital murder and sentenced to death while Sangster was found guilty of non-capital murder and sentenced to life imprisonment.

The men appealed against their convictions but the appeals were dismissed by the Court of Appeal. They then appealed to the Privy Council which overturned the convictions, suggesting that the investigations should be reopened because the police appeared not to have informed the prosecution of the videotaped evidence so that it was never disclosed to the defence. The police identified Dixon and Sangster as among four men who were involved in the robbery in which a policeman was killed. The videotaped footage from the security camera at the bank where the shooting took place was not produced by the police at the trial or the hearing before the Jamaican Court of Appeal. The Privy Council asked for the tape, viewed it (as the Court of Appeal should have done) and said that neither Dixon nor Sangster appeared on it. The men were eventually freed after many years in prison and the experience affected them mentally.

There was the case of Michael Bernard, another poor Jamaican. One day in 1990 Bernard patiently waited his turn to use a public telephone. A policeman came up and demanded to use the telephone. He told the policeman to join the queue and wait his turn. An argument followed and then shoving took place. The policeman drew his service revolver, shot Bernard and arrested him. Bernard took the matter to the Supreme Court and was awarded $2.2 million in damages by Justice Zaila McCalla. The attorney general appealed and the Court of Appeal surprisingly ruled that the action of the policeman fell outside the scope of his lawful duties and therefore the state could not be held liable. The court, however, recommended that the law be changed to give justice to victims of such attacks. The Privy Council endorsed the ruling of Justice McCalla.

There was also the depressing case of Janice Allen, 12-year-old daughter of helper, Millicent Forbes. Janice was shot dead on a street in an inner-city community in Kingston by one of a group of policemen who then refused assistance while she lay dying on the pavement. The policeman, Rohan Allen, was charged with murder after a long delay. After a preliminary inquiry lasting 16 months, trial took place in the Port Antonio Circuit Court. Allen pleaded not guilty and was dismissed of the charge under strange circumstances. Two applications for judicial review were turned down and Forbes, supported by the human rights group, Jamaicans for Justice, had to appeal directly to Her Majesty in the Privy Council on the basis that what took place in the Port Antonio Circuit Court was a fraud and null and void.

The Privy Council ruled that it is for the Director of Public Prosecutions to decide whether to re-indict the accused and submit that he is not entitled to plea of autrefois acquit (a principle in law which establishes that an accused who shows that he has been tried by a competent court for a criminal offence and is either convicted or acquitted shall not again be tried for that offence, save upon the order of a superior court made in appeal proceedings relating to that conviction or acquittal). The DPP carried out an intensive investigation and decided that there was not sufficient evidence to warrant a retrial. In dismissing the appeal, the Privy Council said that the DPP's decision would in principle be subject to judicial review and I understand that attorneys for Forbes are proceeding on this course. So the legal battle continues.

There are many more cases like these three in the history of jurisprudence in Jamaica where the Privy Council came out strongly for the poor. That is why so many Jamaicans would prefer to have the Privy Council over the CCJ, but it is about time that Jamaica and other Caribbean countries not using the CCJ have their own court of last resort. As I wrote in this column on August 5, 2003, there is one compelling reason for the CCJ: more Jamaicans will have the chance of appealing because taking one's case to Britain is rather expensive. There is no doubt that we can get judges of a high calibre like Justice McCalla to sit on the panel. However, the issue must be decided in a referendum. The government has already decided to take this course. It is now a matter of when it will be financially possible to hold the referendum. It may be placed on a ballot in the next general elections.