PRIVY COUNCIL ADMONISHMENT

ATTORNEY JOHN Clarke says Jamaica should legislate a ‘prison mailbox rule’ arising from what the Privy Council (PC) called the “serious miscarriage of justice” meted out to a Jamaican man who spent 10 years in prison awaiting his appeal.

The rule emerged in the United States in the 1980s to provide a fair opportunity for inmates to personally mail a filing to the court before the expiration deadlines.

An incarcerated person’s notice of appeal is considered “filed” on the date that it is deposited in the prison mail system.

Clarke explained that in Jamaica, his client Ray Morgan was required to go to the parish court where he was sentenced in 2011 to file the grounds of appeal. But because he was incarcerated, he had to ask the prison authority to carry the appeal document to the appropriate court.

That document was sent to the wrong court and it took 10 years more before he faced the Court of Appeal, which did not entertain his complaint, saying that by then he had served his 12-year sentence and a review would have been “purely academic”.

“I hope that a lasting legacy from this judgment should be that the State recognises that Jamaica needs a prison mail box rule so that the minute an appellant files an appeal at the prison appeal office it should mean that the State and the law recognise that the appeal has been properly filed,” Clarke suggested.

He said rule should be codified into law.

The records of the trial presided over by now Supreme Court judge Sonia Bertram-Linton have not been produced.

Director of Public Prosecutions (DPP), Paula Llewellyn, said the PC has sent a message to “all of us” in the criminal justice system.

“It is a wakeup call for the stakeholders who are responsible for the administrative architecture which provides the record or the transcript of the proceedings of trial for the purpose of review by the Court of Appeal,” she said.

“Some would say that it (PC ruling) has more force than friendly advice as one stakeholder to another,” the DPP added.

Morgan’s case and the PC’s rebuke of the Court of Appeal exposed “the failures of the justice system”, contended defence attorney Bert Samuels.

“The Privy Council is reinforcing the duty of the Court of Appeal to hear matters,” Samuels said.

He said the PC has affirmed that the absence of grounds of appeal when a notice was given is “not a bar” to an appeal being heard and this “shows that the justice of the matter is more important than the procedure and the Jamaican Court of Appeal was chastised”.

Morgan was given four consecutive sentences of three years’ imprisonment in the parish court on February 11, 2011, after he was convicted under the Larceny Act of four counts of obtaining money by false pretences. He did not have a lawyer.

On the same day Morgan was sentenced to a total of 12 years, he gave verbal notice of appeal against his conviction and sentence.

He was required to file the grounds of appeal within 21 days with the clerk of the courts in the parish court.

However, in an administrative error, prison authorities sent the grounds of appeal prepared in time to the Registrar of the Court of Appeal instead of the clerk of the courts.

Despite several attempts for his appeal to be heard, Morgan was not informed of the error until 2017, which meant that the filing of the appeal was not done.

In June 2021, the Court of Appeal ruled that although Morgan’s complaint that the sentence was manifestly excessive had “merit”, it was “purely academic” since he already served his time, argued the panel, which comprised President Justice Patrick Brooks and justices Jennifer Straw and Carol Edwards.

But the PC was not pleased with that treatment.

SUBSTANTIAL INJUSTICE

“The Court of Appeal’s judgment did not expressly weigh the balance that the appellant (Morgan) was entirely blameless for the lengthy delay which had occurred and that he had done everything possible to file with the clerk of the courts his grounds of appeal. Through no fault of his own, the appellant has suffered a substantial injustice in that his appeal was not heard before the expiry of his prison sentence,” the PC said in its judgment handed down yesterday morning.

The PC also argued that issues of administrative errors should be heard because of the public interest and need to ensure confidence in the justice system.

“It would offend the basic principles of fairness that failures by the justice system, for which the appellant can bear no responsibility,” to prevent Morgan’s appeal, it said.

The PC allowed the appeal and said the Court of Appeal should determine Morgan’s complaint against his sentence.

If the trial records from 2011 still cannot be found, the court said the local judges should decide the case in favour of Morgan.

It argued that the correct sentence could help Morgan’s quest for redress for the alleged breach of his constitutional rights over the delays.

Clarke, along with lawyers Terrence Williams and Celine Deidrick instructed by Simons Muirhead & Burton argued Morgan’s appeal.

Morgan has a relevant criminal record dating back some 33 years prior to 2011, consisting of 72 previous convictions for offences such as fraud, larceny, and forgery.

In 2022, Morgan pleaded guilty to defrauding veteran reggae singer Marcia Griffiths of approximately $4.8 million.

barbara.gayle@gleanerjm.com