UKPC 26
Privy Council Appeal No 0015 of 2011
Melanie Tapper (Appellant) v Director of Public Prosecutions (Respondent)
From the Court of Appeal of Jamaica
JUDGMENT DELIVERED BY
17 JULY 2012
Heard on 10 May 2012
Edward Fitzgerald QC
(Instructed by Simons Muirhead & Burton)
Howard Stevens QC
Ms Sharon Millwood-Moore
(Instructed by Charles Russell LLP)
"an immediate sentence of imprisonment… to take effect after the passage of nearly five years from the date of conviction is not required in the interests of justice."
The Judgment of the Court of Appeal
"The appropriate remedies which of course will depend on the circumstances of each case will include a reduction in sentence, monetary compensation or merely a declaration. In this case the appellants were granted bail by the trial judge after they had given verbal notice of appeal. Thus in my view monetary compensation would not be appropriate. A mere declaration would not in my view, be a sufficient remedy as, this would mean that after waiting for over five years the appellants would now have to serve the full sentence.
In my judgment, in the circumstances of this case a reduction in the sentence . . . from 18 months to 12 months would be sufficient to compensate the appellants for the effects of the delay.
Another relevant factor which was brought to our attention at the end of the hearing is that a sum of about $1.7M was paid to the complainant towards restitution. This we think is a mitigating factor which we shall take into account by suspending the sentence for one year."
It is now common ground that, contrary to the apparent understanding of the Court of Appeal, the payment referred to in the last paragraph was made by McKenzie alone, and no part of it by the appellant. To that extent the Court erred in her favour. It is not suggested that this mistake should affect our consideration of the appeal.
The issues in the appeal
"(a) Are the provisions of Section 20 of the Constitution of Jamaica, insofar as they relate to a remedy for any breach of the said section against a person charged with a criminal offence, confined only to a delay in the trial of a criminal offence?
(b) Do the provisions of that Section of the Constitution, properly interpreted, require a conviction to be quashed, if there are breaches of Section 20 of the Constitution, between the date of arrest and the date of handing down of its judgment by the Court of Appeal?"
Section 20 of the Constitution provides:
"20 (1) Whenever any person is charged with a criminal offence he shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time by an independent and impartial court established by law."
Darmalingum and after
"taking into account the nature of the charges, the documentary records available, what the prosecution described as comprehensive confessions on all counts, and the duration of the eventual trial".
Although there was a strong argument that the pre-trial delay by itself amounted to a breach of the constitutional guarantee, the Board found it unnecessary to rule on this matter as an independent ground of appeal (p 2309). However, this had to be taken with the delay of more than five years in disposing of the appeal:
"In the result the defendant has had the shadow of the proceedings hanging over him for about 15 years. There has manifestly been a flagrant breach of section 10(1)." (p 2310)
"The normal remedy for a failure of this particular guarantee, viz the reasonable time guarantee, would be to quash the conviction. …
Their Lordships do not wish to be overly prescriptive on this point. They do not suggest that there may not be circumstances in which it might arguably be appropriate to affirm the conviction but substitute a non-custodial sentence, eg in a case where there had been a plea of guilty or where the inexcusable delay affected convictions on some counts but not others. But their Lordships are quite satisfied that the only disposal which will properly vindicate the constitutional rights of the defendant in the present case would be the quashing of the convictions." (p 2310)
"Delay for which the state is not responsible, present in varying degrees in all the relevant cases, cannot be prayed in aid by the appellants. Moreover, Darmalingum was a case where the defendant 'had the shadow of the proceedings hanging over him for about 15 years'…. It was a wholly exceptional case…." (para 23)
"It is clear from this passage that the Privy Council took the view that quashing of a conviction is not the only remedy for a breach of the particular guarantee. On the contrary, it is clear that Darmalingum, and its disposal, was regarded as an exceptional case. The holding in Taito is inconsistent with the proposition that the normal remedy for such a breach is the quashing of the conviction." (para 19)
"24. If, through the action or inaction of a public authority, a criminal charge is not determined at a hearing within a reasonable time, there is necessarily a breach of the defendant's Convention right under article 6(1). For such breach there must be afforded such remedy as may (section 8(1)) be just and appropriate or (in Convention terms) effective, just and proportionate. The appropriate remedy will depend on the nature of the breach and all the circumstances, including particularly the stage of the proceedings at which the breach is established. If the breach is established before the hearing, the appropriate remedy may be a public acknowledgement of the breach, action to expedite the hearing to the greatest extent practicable and perhaps, if the defendant is in custody, his release on bail. It will not be appropriate to stay or dismiss the proceedings unless (a) there can no longer be a fair hearing or (b) it would otherwise be unfair to try the defendant. The public interest in the final determination of criminal charges requires that such a charge should not be stayed or dismissed if any lesser remedy will be just and proportionate in all the circumstances. The prosecutor and the court do not act incompatibly with the defendant's Convention right in continuing to prosecute or entertain proceedings after a breach is established in a case where neither of conditions (a) or (b) is met, since the breach consists in the delay which has accrued and not in the prospective hearing. If the breach of the reasonable time requirement is established retrospectively, after there has been a hearing, the appropriate remedy may be a public acknowledgement of the breach, a reduction in the penalty imposed on a convicted defendant or the payment of compensation to an acquitted defendant. Unless (a) the hearing was unfair or (b) it was unfair to try the defendant at all, it will not be appropriate to quash any conviction. Again, in any case where neither of conditions (a) or (b) applies, the prosecutor and the court do not act incompatibly with the defendant's Convention right in prosecuting or entertaining the proceedings but only in failing to procure a hearing within a reasonable time. [emphasis added]
25. The category of cases in which it may be unfair to try a defendant of course includes cases of bad faith, unlawfulness and executive manipulation of the kind classically illustrated by R v Horseferry Road Magistrates' Court, Ex p Bennett  1 AC 42, but Mr Emmerson contended that the category should not be confined to such cases. That principle may be broadly accepted. There may well be cases (of which Darmalingum v The State  1 WLR 2303 is an example) where the delay is of such an order, or where a prosecutor's breach of professional duty is such (Martin v Tauranga District Court  2 NZLR 419 may be an example), as to make it unfair that the proceedings against a defendant should continue. It would be unwise to attempt to describe such cases in advance. They will be recognisable when they appear. Such cases will however be very exceptional, and a stay will never be an appropriate remedy if any lesser remedy would adequately vindicate the defendant's Convention right."
"(i) If a criminal case is not heard and completed within a reasonable time, that will of itself constitute a breach of section 10(1) of the Constitution, whether or not the defendant has been prejudiced by the delay.
(ii) An appropriate remedy should be afforded for such breach, but the hearing should not be stayed or a conviction quashed on account of delay alone, unless (a) the hearing was unfair or (b) it was unfair to try the defendant at all." (para 32)