EDITORIAL - Balancing justice

You can expect intensified opposition from the Criminal Bar if the Simpson Miller administration seriously pushes ahead with its plan to allow the Crown the right of appeal in criminal cases in a handful of circumstances.

For criminal lawyers not only believe that the legislative pendulum has been swinging in favour of prosecutors, but fear that the proposal, if allowed to stand, will ultimately lead to the dismantling of the principle of double jeopardy.

Despite the recent announcement that drafting instructions have been given for the law, this newspaper needs more to be convinced that legislation will reach Parliament anytime soon.

Indeed, this matter has been seriously on Jamaica's agenda, with various levels of intensity, for a decade. Kent Pantry, then the director of public prosecutions (DPP), advanced the idea at a law reform forum of the University of the West Indies, Mona, in 2003.

Nor is this the first time a declaration of intent on the matter has been made by the Jamaican Government. In February 2011, for instance, Daryl Vaz, then the de facto minister of information in the Bruce Golding administration, made the same statement about a similar law. Little, if anything, happened.

In any event, the bases of appeals proposed by the Simpson Miller Government are substantially less robust than those for which Mr Pantry argued and which the Golding administration promised to allow.

The current idea is for the prosecutors to have the ability to appeal in circumstances where they feel sentences are manifestly inadequate, or unduly lenient, or there is not clear ability on the part of a court to impose a sentence.

Presumption of innocence

Notwithstanding our earlier position against any action that might erode the principle of a defendant not being tried again for the same offence, this newspaper agrees with Paula Llewellyn, the incumbent DPP, that the current proposals do not go far enough.

We hold that a presumption of innocence must rest with the defendant and that the balance of protection ought to be in his favour against the power of the State.

At the same time, we insist that justice and its delivery must also be accountable as much to the interests of victims and the wider society as to those of accused persons. In that sense, manifestly unjust sentences, not unlike those corruptly arrived at, ought not to stand. In that regard, what the Government has on the table is well-founded.

But there is the need to extend the principle, as was done in the United Kingdom in the aftermath of the Stephen Lawrence case. Retrials are allowed in circumstances where compelling new evidence is unearthed, as happened when the advance of DNA technology years after botched police investigations - some say deliberately - initially allowed Mr Lawrence's murderers to go free.

British legislation, we feel, provides a potential model for Jamaica, with the appropriate protections to prevent abuse by the State.

The opinions on this page, except for the above, do not necessarily reflect the views of The Gleaner. To respond to a Gleaner editorial, email us: editor@gleanerjm.com or fax: 922-6223. Responses should be no longer than 400 words. Not all responses will be published.