Features

Preliminary enquiries: good or bad?

THE GOVERNMENT HAS recently announced plans to abolish preliminary enquiries. According to news sources, the Committal Proceedings Bill will be tabled in parliament later this week and after the usual parliamentary debates the Bill, it is reported, will introduce new committal proceedings for the Jamaican criminal courts.

This week, Legal Eagle looks at what is preliminary enquiry which is also referred to as preliminary examination. Preliminary enquiry is held in a Resident Magistrate's court and is conducted by a Resident Magistrate sitting as a Justice of the Peace. The Resident Magistrate has jurisdiction to act as an examining justice upon the accused appearing or being brought before the court. The matters for which preliminary enquiries are usually held are regarded as serious criminal matters such as murder, manslaughter, motor manslaughter, rape, carnal abuse, buggery, wounding with intent, demanding money with menaces, and other serious matters. These are all matters that are 'triable' in a Circuit Court with a jury.

Accused to hear charges

At the Resident Magistrate's court, the procedure is that the charge or charges are read out to the accused man. He would be told by the Resident Magistrate that a preliminary enquiry would be conducted to determine if a prima facie case is made out. Thereafter, the Crown would call most if not all its witnesses who would give evidence which would be written down by the Judge and then the witnesses would be cross-examined by the accused or his lawyer. After the cross-examination or re-examination of each witness, the evidence given is read back to each witness who is required to sign what is called the deposition. In these Resident Magistrate's courts, the Resident Magistrate has to take his notes without the help of a steno typist. If at the end of the Crown's case, the Resident Magistrate finds that a prima facie case is made out against the accused man, this would be told to him and he would be invited to call witnesses if he so desires or to reserve his defence. In most cases, the accused will reserve his defence. Thereafter, the Resident Magistrate would commit him to stand trial in the next sitting of the Circuit court. At this stage, the Resident Magistrate may consider bail for the accused.

Based on reports in the media, witness statements which were usually taken by any police officer would have to be taken by a police officer not below the rank of Sergeant and the statements must be taken in the presence of a Justice of the Peace.

The process of a preliminary enquiry is oftentimes, time consuming, in that the investigating officer, after he has placed the matter before the court is usually given time to complete the file and after this is done, the preliminary enquiry would begin and that is sometimes subject to the availability of witnesses, including police witnesses. Oftentimes the delay causes loss of interest on the part of witnesses, further delay due to migration of witnesses and sometimes even violence against the Crown witnesses. On the other hand, for the accused man, justice delay is justice denied.

With respect to the administration of justice generally, the abolition of preliminary enquiry ought to assist the better operation of the Resident Magistrate's court in that a great portion of the time spent by any Resident Magistrate's court is used to conduct preliminary enquiries so one would expect that the time could be better utilised disposing of other matters that are before the court. On the other hand, there will be, at least initially, an influx of cases to the Circuit courts and thus this might require more court rooms and more judges at the Circuit court level if we are not to remove the delay from the Resident Magistrate's court to put the bottleneck at the Circuit court.

Retaining an attorney

Finally, the accused man who is usually exposed to two sets of legal fees will now have to concentrate on retaining an attorney for his trial. The government, through its legal aid programme will also derive benefit in that it will not have to pay legal fees to lawyers on the legal aid panel to do these preliminary enquiries.

In sum, the proposal to abolish preliminary enquiries is timely but one has to look carefully at what is contained in the Bill as soon as it is laid before Parliament. At that time, Legal Eagle will have further comments.

Keith N. Bishop is an Attorney-at-Law and partner in the firm of Bishop and Fullerton.