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Lawyers against new criminal policy

Wednesday, January 10, 2018

The new judicial policy introducing sanctions for accused persons who fail to disclose their defences at the start of their criminal cases is being met with stiff criticism from defence attorneys.

Head of the Criminal Bar Association Pamela Elder, SC, expressed her opposition of the provision while addressing a public lecture and panel discussion on the new Criminal Procedure Rules at the Hall of Justice in Port-of-Spain yesterday afternoon.

Elder pointed out that the policy was introduced by a practice direction signed by Chief Justice Ivor Archie and gazetted in December last year, as opposed to be included in the substantive rules, which came into force in April last year.

“Can a practice direction confer the obligation on defence attorneys? How can I discharge my duty to everyone here, when one panellist is saying that these rules are a step in the right direction and I sit here and say nothing?” Elder said.

The method of introducing the policy has also been raised in a judicial review lawsuit threatened against Archie earlier this week by defence attorneys Wayne Sturge, Mario Merritt and Joseph Sookoo.

According to their pre-action protocol letter, which was obtained by the T&T Guardian, the attorneys are alleging that the practice direction was used to bypass parliamentary scrutiny, which was required for the approval of the rules.

They contend that the policy, under which adverse inferences could be drawn by an accused person’s failure to adequately state their defences, is unconstitutional as it breaches an accused person’s right to silence.

Archie, who attended the event as a member of the audience, responded to the issue as he made a brief statement.

He said: “I think it is important that we have a frank discussion because what we a tackling here is a multi-faceted problem which has taken decades to create. The disclosure of defence statements will help us focus matters so we can concentrate on the real issues.”

However, he claimed he did not want to discuss it in detail as he suggested that it may be the subject of future legal challenges.

Stating that practice directions are used to provide guidance on the rules, Archie said: “The rules really codify what we should have been doing all the time and what responsible judges and practitioners would have been doing.

Nothing we are attempting to do in having a more efficient system is something that suddenly appeared out of thin air.”

British Judge Sir James Dingemans and barrister Nathaniel Rudolf, who sat on the panel discussion, admitted that concerns over the defence statement policy were raised by attorneys in their country when it was introduced over a decade ago.

Dingemans said: “However, experience has shown that these understandable fears and concerns were not well founded because defence statements have allowed defendants to identify why prosecutions should not succeed.”

Rudolf encouraged the defence lawyers present to use the policy to their advantage when representing their clients.

“Let me tell you that they (the rules) are there to be used because at the end of the day under the new system it is far more often than not, the State that has problems,” Rudolf said.

Despite his initial scepticism over the rules, which give magistrates and judges additional case management powers, Rudolf admitted that it led to marked efficiency in the disposition of cases.

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