Legal updates and commentary
Overview– In dismissing the appeal, the Privy Council upheld the decision of the Jamaican Court of Appeal to reduce Tapper’s sentence from 18 months to 12 months because of “inordinate” delay of over five years between conviction and appeal, which was held to constitute a constitutional breach.
The Law Lords affirmed that the law of Jamaica is that there will be a constitutional breach if a criminal case is not heard and completed within a reasonable time, whether or not the defendant has been prejudiced by the delay. There should be an appropriate remedy for the 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. The same approach applies to delay pending appeal, and even extreme delay between conviction and appeal, in itself, will not justify the quashing of a conviction which is otherwise sound.
Issues – trial within a reasonable time, effect of delay, appropriate remedies
Sequence of Events
On 7 July 1997, the appellant was arrested and charged jointly with Winston McKenzie for several fraud offences, and charged alone on another. She was granted bail pending trial.
The trial was scheduled to start in the Resident Magistrate’s court on 28 January 1998, but was adjourned several times.
On 6 July 1998 prosecuting counsel on behalf of the Director of Public Prosecutions entered a nolle prosequi to enable the proceedings to be transferred to the Home Circuit Court. This action was challenged in the Constitutional Court which held that the prosecutor’s action was an abuse of the process of the court, and a contravention of the constitution. They sent the case back to the Resident Magistrate’s Court.
The trial began on 25 January 2000, and continued for more than three years. On 29 May 2003 she was found guilty on count 11 and sentenced. Bail was granted pending appeal.
The record of the case which should have been sent to the Court of Appeal within 14 days was not received until 9 August 2007, over four years late.
Section 20 (1) of the Jamaican Constitution provides that:
“Whenever any person is charged with a criminal offence he shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.”
Supplemental grounds submitted by McKenzie (but not the appellant) stated that –
“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
Smith and Harrison JJA and Dukharan JA (Ag). dismissed the appeals against conviction, but Smith JA concluded that the post-conviction delay of over five years was inordinate, and breached the appellants’ constitutional right to a hearing within reasonable time.
On the question of the remedy, he stated that since the appellants had been granted bail after they had given verbal notice of appeal, monetary compensation would not be appropriate, but that the circumstances of the case warranted a reduction in the sentence from 18 months to 12 months.
The Privy Council
Lord Carnwath noted in his judgment that the appellant did not make any specific reference before the Court to delay (whether before or after conviction) as a reason for reducing sentence. The issue of post-conviction delay was raised by McKenzie, and addressed by the court as an issue in both appeals.
Counsel representing the appellant submitted that the Justices of the Court of Appeal erred by confining themselves to the delay since trial, rather than the entire proceedings since 1997. He also submitted that since this was a constitutional matter, the court should have considered the whole course of the proceedings, even if not argued by counsel.
The Privy Council rejected those submissions, and said that the Court had no obligation to “extend the argument beyond that advanced by the experienced advocates representing the appellant.”
The Privy Council said that “it would require something exceptional to justify the Board substituting its opinion for that of the domestic court” and that “ in particular, the domestic court is much better placed to judge the significance of delay having regard to local conditions and pressures on the courts.”
The Privy Council took the opportunity to state the law of Jamaica in cases of delay, following the case of Darmalingum v The State  1WLR 2303, which was relied on by the appellant.
Facts in Darmalingum
The appellant had been arrested and interviewed in 1985 in relation to a forgery offence, but then heard nothing more until being charged in 1992. He was convicted at a trial held in 1993, which lasted one day. The Supreme Court did not decide on his appeal until July 1998.
The Board held that the overall delay, much of it unexplained, was a flagrant constitutional breach, and that the only appropriate remedy would be the quashing of the conviction.
This approach has not been accepted in later cases, however.
The Law Since Darmalingum
The Privy Council made specific reference to the law as laid out in Attorney General’s Reference  2 AC 72, which dealt a provision in the European Convention for the Protection of Human Rights and Fundamental Freedoms. Lord Bingham, stated that:
“ 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 Privy Council also referred to Boolell v The State  UKPC 46, where Lord Carswell said that:
“(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.”
Lord Carnworth said, therefore, that:
“The significance of Darmalingum as authority has been reduced almost to vanishing-point. At most it is a case on its own facts, explicable, as Lord Bingham suggested, on the basis that, in a straightforward case, the unexplained passage of seven years without any contact with the defendant, made it unfair even to embark on trial.
The Board would affirm that the law as stated in the Attorney General’s Reference case,  2 AC 72 and as summarised in Boolell, represents also the law of Jamaica.
This also applies to cases of delay pending appeal.
“ It follows that even extreme delay between conviction and appeal, in itself, will not justify the quashing of a conviction which is otherwise sound. Such a remedy should only be considered in a case where the delay might cause substantive prejudice, for example in an appeal involving fresh evidence whose probative value might be affected by the passage of time.”
 UKPC 26
Privy Council Appeal No 0015 of 2011 from the Court of Appeal of Jamaica before
Before Lord Phillips, Lady Hale, Lord Mance, Lord Sumption, Lord Carnwath, handed down 17 July 2012.