Statement by the Congress of the People on Section 34 of the

Administration of Justice (Indictable Proceedings) Act, 2011

The Congress of the People has carefully considered the history of the now infamous section 34 of the Administration of Justice (Indictable Proceedings) Act, 2011 and matters which have arisen in the High Court applications recently made under it.

This COP considers this matter to be of great importance to the governance of Trinidad and Tobago and its justice system and the bona fides of relevant governmental action.

In that context, we present some detailed information on those developments:

Indictable Offences and the Objectives of the Act

1. The Indictable Proceedings Act 2011 (as we shall refer to it) was introduced in the circumstances of demands for improvement in the justice system as a part of the package of measures needed to combat rampant crime in the country.

2. Its objective was to eliminate lengthy preliminary proceedings which had become bogged down in the Magistrates' Courts and allow speedier conclusion of jury trials and swifter justice.

3.Indictable offences have no time limitation in our law, or did not until the developments concerning section 34 during its passage in Parliament.

4. This means that no matter when such a serious offence is committed, at any time sufficient evidence was discovered to warrant the preferring of a charge a person could be brought before the courts for determination of the charge against him.

The development of section 34

5. To understand the intent of section 34 we reproduce it as it was firstly introduced into the Lower House of Parliament:

34. (1) Except in the case of matters listed in Schedule 6, where the proceedings are instituted on or after the coming into force of this Act and the Master is not, within twelve months after the proceedings are instituted, in a position to order that the accused be put on trial, the Master may discharge the accused.

(2) On an application by the accused, a Judge shall discharge an accused if the proceedings were instituted prior to the coming into force of this Act and the trial has not commenced within seven years after the proceedings were instituted, except—

(a) in the case of matters listed in Schedule 6; or

(b) where the accused has evaded the process of the Court and the trial on indictment has, or that reason, not commenced.

6. In this form, the section was aimed at two things;

a. It preserved the essence of indictable offences as having no time limitation, and

b. It provided that an accused person once charged would have the safeguard of the State proceeding expeditiously with his matter. This is a matter of fairness to the accused.

7. Therefore, this clause allowed for the laying and prosecution of charges no matter how long after the commission of the offence.

8. It also provided that for lengthy delay in concluding the entire procedure (beyond 7 years)for reasons that were not the fault of the accused but of the State, the proceedings against him would not be allowed to continue.

9. During the debate in the Lower House, this section was only amended by increasing the time allowed for conclusion of such criminal proceedings from 7 to 10 years in sub-section (2)

10. The effect of this was to even further guarantee the right of the accused person to a fair trial of the charges against him.

11. The section as the Bill was then introduced in the Senate was as follows:

34. (1) Except in the case of matters listed in Schedule 6, where the proceedings are instituted on or after the coming into force of this Act and the Master is not, within twelve months after the proceedings are instituted, in a position to order that the accused be put on trial, the Master may discharge the accused.

(2) On an application by the accused, a Judge shall discharge an accused if the proceedings were instituted prior to the coming into force of this Act and the trial has not commenced within ten years after the proceedings were instituted, except—

(a) in the case of matters listed in Schedule 6; or

(b) where the accused has evaded the process of the Court and the trial on indictment has, for that reason, not commenced.

12. However, during the debate in the Senate, the Minister of Justice introduced an amendment (which was passed) which meant that after the Senate debate the section then read as follows:

34. (1) Where proceedings are instituted on or after the coming into force of this Act and the Master is not, within twelve months after the proceedings are instituted, in a position to order that the accused be put on trial, the Master shall discharge the accused and a verdict of not guilty shall be recorded.

(2) Except—

(a) in the case of matters listed in Schedule 6; or

(b) where the accused has evaded the process of the Court, after the expiration of ten years from the date on which an offence is alleged to have been committed—

(c) no proceedings shall be instituted for that offence; or

(d) no trial shall commence in respect of that offence.

(3) Except—

(a) in the case of matters listed in Schedule 6; or

(b) where the accused has evaded the process of the Court, where—

(c) proceedings have been instituted;

(d) an accused is committed to stand trial; or

(e) an order is made to put an accused on trial,

whether before or after the commencement of this Act, a Judge shall, on an application by the accused, discharge the accused and record a verdict of not guilty if the offence is alleged to have been committed on a date that is ten years or more before the date of the application.

13. We produce the part relevant to the timeframe which would allow for a Judge to discontinue proceedings against an accused:

"...a Judge shall discharge an accused if the proceedings were instituted prior to the coming into force of this Act and the trial has not commenced within ten years after the proceedings were instituted" (before the Senate amendment)

"….a Judge shall, on an application by the accused, discharge the accused and record a verdict of not guilty if the offence is alleged to have been committed on a date that is ten years or more before the date of the application" (after the Senate amendment)

14. This meant that in the pre-Senate amendment an accused person could have his prosecution stopped if after 10 years of being charged he was not brought to trial.

15. Post the Senate amendment an accused would have to terminate the prosecution against an accused simply because the offence for which he is before the Court occurred 10 years before he applied to the Judge to stop the prosecution.

16. By the change of basis a person accused of an indictable offence could no longer be prosecuted because of the passage of time since the date the offence occurred.

17. This means that a time limitation was now introduced for the prosecution of serious offences therefore completely changing the nature of such offences in law as being without a time limitation for prosecution.

18. This was never the intent of the original section 34 or of the Act as a whole.

Undertakings to Parliament

19. During the debate on Bill with the original section 34 and based on concerns later expressed (probably assuming that the Senate-amended section 34 had the original objective) concerns were raised by the Opposition that the Act should not be proclaimed (made effective law) until all the Rules required and administrative arrangements were completed to allow speedy operation of the new process.

20. The concern was to not have a new system that was so slow that accused persons could have prosecutions stopped only because of delay in bringing them to trial on the part of the state.

21. If that was allowed to happen the objective of swift justice would be lost.

22. In response, the Attorney General and the Minister of Justice gave undertakings to Parliament that the law would not be proclaimed until all the arrangements necessary were in place so that once in effect it could operate immediately as it was intended.

23. By initiating the mechanism for section 34 to be proclaimed (in the absence of both the Rules and administrative machinery) before the end of August 2012, the Minister effectively breached that undertaking to Parliament and acted in contempt of the Parliament.

The effect of the proclamation

24. Since the law was proclaimed on Independence Day, August 31, it meant that accused persons in the appropriate circumstances could then apply to a Judge of the High Court to have the prosecution of charges against them.

25. The accused in the Piarco Airport matters made such an application.

26. This opened the possibility (depending on the outcome of their applications) that they could never be tried in Trinidad and Tobago for those offences.