The criminal justice system has been long maligned as ineffective. The primary reason for this unfortunate characterisation stems from the painstakingly slow process by which justice is dispensed. To remedy this unsatisfactory state of affairs Government has taken steps to introduce a suite of four pieces of legislation directed towards improvement. Since this package of legislation has been laid on the table there has been a diversity of views all round, however it is important for citizens to properly understand how the proposed measures operate their aims.
The Indictable Offences (Pre Trial Procedure) Bill is the first element in the package and seeks to eliminate the requirement for the preliminary enquiry stage of criminal proceedings. Now, the purpose of the preliminary enquiry has traditionally has been to examine whether the evidence of the State in a given case is prima facie (on its face) sufficient to enable the chance of a successful conviction. Following this, the accused proceeds to full trial where the same evidence is again played out.
This redundancy is now erased. The major difficulty with the bill seems to be the role of the DPP to determine the sufficiency of evidence to maintain proceedings. This country’s highest courts have long upheld the principle that the decision whether or not to prosecute is an executive act and not a judicial one so the role of the DPP does not offend the separation of powers.
The Constitution itself at Section 90 anoints the DPP with the authority to institute, takeover or discontinue any criminal proceedings before judgement. Therefore, what this bill does is simply remove the redundancy in the system and clear the way for the DPP to fulfil his constitutional mandate.
Second, is the Trial by Judge Alone Bill which seeks to provide an accused in indictable proceedings with a right of election between trial by jury or trial by a judge alone. There is no blanket abolition of jury trials and any suggestion otherwise is plainly untrue. Now, statistics and even the Chief Justice himself bemoan the length of time and money usually expended on trial by jury.
Arguments have been advanced that trial without a jury of one’s peers will result in arbitrary and capricious decisions. However, such a view omits the fact that juries do not give reasons for their decisions and the fact that there is little certainty that juries ever really fully appreciate complex criminal facts. A judge is now mandated to give reasons for a decision. In fact the requirement of reasons is itself the antithesis of arbitrariness. Therefore, the criticisms of this Bill seem to be rooted not in fact but rather in inciting fear and cannot be sustained.
The remaining two pieces of legislation in the package is the Access to Bail Bill and the Plea Discussion and Agreement Bill. The Bail Bill provides for the provision of security for bail by way of front deposits of cash instead of real property. This will make bail more accessible to accused persons at a faster pace, thus reducing the amount of inmates on remand.
The Plea Agreement Bill allows for accused persons to enter into discussions with the prosecution towards pleading guilty in exchange for certain courses of action by the State. Plea bargaining is no stranger to the criminal justice system in the democratic world and has been credited with increasing the pace of the disposition of cases. My only recommendation is that a rigorous regime of regulations accompanies the implementation of the Act.
Consequently, it is readily discernible that the common thread running through all the bills is their potential to loosen the viscosity of cases flowing through the justice system. The proposals are not untested in the Commonwealth as variations are already in successful operation. As a general consideration the bills do not require three-fifths majority where they pursue a legitimate aim and are proportionate to it.
Where this proportionality test is met the proposed measures can be passed by ordinary legislation. Therefore, it is for Parliament to strike the balance between individual rights and the general interest of improving the delivery of justice.
From the foregoing this package of legislation appears to satisfy this test.
Now, on such an analysis it is easy to appreciate that the Government is not leading the nation on the pathway to dictatorship.
For these reasons I applaud the Attorney General and urge the nation to support the Government in its latest attempt to improve the pace of criminal justice.
Vaughn M Thomas