Patrick W. Foster, ContributorI NOTE that a number of statements and comments have been made about certain submissions that I made to the Court of Appeal on June 9, 2006 in an appeal filed by Ms. Millicent Forbes against the Attorney-General.
Some controversy has been generated about the portion of my submissions that referred to legislation to quash tainted acquittals in the criminal courts.
It is necessary to explain what was said and to put those submissions in a proper context, because it appears that there has been some misunderstanding and misrepresentation of the nature of the submissions that I made to the Court of Appeal.
On April 14, 2000, Janice Allen, a 13-year-old child, was killed in most tragic circumstances. There was some dispute as to the exact circumstances under which she was killed, but subsequently a police officer, Rohan Allen, was charged with her murder.
At the trial on March 15, 2004, the prosecutor indicated to the court that he would be offering no evidence after explaining that there were certain gaps in the case that he had intended to present.
The trial judge, the Honourable Justice Hibbert, therefore instructed the jury to return a formal verdict of not guilty against the police officer.
After this verdict was entered, Ms. Forbes commenced legal proceedings to have the acquittal of Rohan Allen quashed which, if achieved, would pave the way for him to be charged again with the murder of her daughter. Ms. Forbes, in the legal documents filed, stated that the verdict was obtained by fraud and other improper means.
No allegation of impropriety was made against the prosecutor or the judge, but it was contended that misinformation was given to the prosecutor regarding the availability of a crucial witness and this caused him to inform the court that he was not in a position to proceed. The judge in turn, it is said, acted on what was stated by the prosecutor and directed the jury accordingly.
The legal proceedings that were commenced was an application to the Supreme Court for permission to apply for 'judicial review'.
The Supreme Court being a Superior Court of record has supervisory functions over inferior courts and tribunals and can in exercise of this function review the decisions of those courts and tribunals to determine whether the process by which those decisions was arrived at was fair and in accordance with the law.
If not, such decisions can be 'quashed' by the Supreme Court.
APPLICATION REFUSED
The first application for permission was heard and refused on the 1st October 2004 on the basis that the verdict of acquittal by the Supreme Court cannot be overturned by judicial review. A renewed application was made before the Full Court and with the same result on February 24, 2005.
Both courts expressed sympathy about the circumstances under which young Janice Allen was killed, but stated that in the circumstances permission to proceed to judicial review would not be granted.
The Full Court stated that the verdict in the Portland Circuit Court which was a decision of a Superior Court 'was not subject to judicial review as a court of equal jurisdiction cannot review a court of equal jurisdiction.' (Pg. 3 of Judgment of Smith, J.).
A fundamental issue before the Court of Appeal was whether permission to proceed to a judicial review hearing should be granted. Counsel for the appellant, Mr. Richard Small, said it should be because the threshold for granting permission for such applications was low and the court had an inherent jurisdiction to quash its own decisions when they have been obtained by fraud or any circumstances that renders the decision void.
We contended that the decision of the Full Court was correct and a court of equal jurisdiction cannot quash the decision of another court of equal jurisdiction in these circumstances.
It was in that context that I stated to the court that in the United Kingdom one High Court has the jurisdiction to quash a decision of another High Court of equal jurisdiction, but this jurisdiction had been given by legislation. I referred the court to the Criminal Procedures and Investigation Act which permits the quashing of what is called 'tainted acquittals'.
ACQUITTAL
Under that legislation where a person has been acquitted of an offence and a person has been convicted of what is called an administration of justice offence involving interference with or intimidation of a juror or a witness which led to the acquittal, the court has the power to quash the acquittal in certain specified and defined circumstances.
I indicated to the court that given the limitations on judicial review we could consider enacting legislation in Jamaica that would deal with situations such as this, and to that end I would give the minister a report on the matter by Friday of last week for him to consider such legislation.
The submissions that I made were never intended to be a policy statement or any legislative intent by the Cabinet or Parliament, but we became aware of this legislation in the United Kingdom during the course of preparing for the hearing before the Court of Appeal.
It was relevant for it to be mentioned because it illustrated that even in the United Kingdom the scope of judicial review was limited and legislation had to be enacted to allow the quashing of verdicts of a Superior Court of record by another Superior Court of record. This limitation on judicial review I maintain exists in Jamaica.
The tragic circumstances of Janice Allen's death must be addressed on the basis of the present state of the law, and it is the duty of the court to interpret and apply the law to the facts of this case.
LAW AND ITS BOUNDARIES
If the verdict cannot be quashed in these circumstances, then it is the duty of the representatives of the Attorney- General to inform the court of our view of the law and its boundaries.
This is not 'blocking' a valid claim as has been suggested in some sections of the media; it is upholding the rule of law. It is also permissible to indicate to the court that legislation may be required to address any lacuna in the law.
These matters have not yet been resolved by the court and it is possible for the Court of Appeal to find that judicial review can extend to the circumstances of this case in which event, the legislation may or may not be required.
I am sure that after the Court of Appeal hands down its decision we can engage in a fuller and more comprehensive debate on these issues.
Patrick W. Foster is acting deputy solicitor general.
