eye.

Having made further inquiries

Corporal Farrell on 19th January 1982 laid
charges against the three respondents
for the offence of wounding Shaheed
Garib with intent to do grievous bodily
harm. He also charged the first
respondent, Jaikaran Tokai, with the
summary offence of having unlawfully
and maliciously damaged the property of
Rasheed Mohammed. Warrants for the
arrest of the respondents were executed
on 29th January 1982 and they were later
released on bail. As the wounding charge
was an indictable offence necessitating a
preliminary inquiry proceedings were
commenced in the Couva Magistrate's
Court. Between 5th February 1982 and
18th March 1986 the proceedings were
adjourned
on
28
occasions.
The
prosecution was represented by an
attorney in private practice who was
present on only four of these occasions.
The
preliminary
inquiry
eventually
started on 18th March 1986, the
prosecution being represented by a
police officer. It continued on 28th April
1986, and on 5th May 1986 the
magistrate committed the respondents
for trial at the next San Fernando Assizes.
The file relating to the charge reached
the office of the Director of Public
Prosecutions on 1st July 1986. On 7th July
1986 the first respondent was convicted,
after summary trial, upon the charge of
malicious damage. The first respondent
appealed against the conviction but his
appeal was dismissed on 28th November
1988.

(1) The Director of

Public Prosecutions
and
(2) The AttorneyGeneral of Trinidad and
Tobago
Appellants
v.
(1) Jaikaran Tokai
(2) Seeram Tokai and
(3) Jaisham Tokai
Respondents
[1996] 2 LRC 314
Privy Council Appeal No. 53 of 1995
FROM
THE COURT OF APPEAL OF
TRINIDAD AND TOBAGO
--------------JUDGMENT OF THE LORDS OF THE
JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL,
Delivered the 12th June 1996
------------------

An indictment against the respondents on

the wounding charge was not preferred
until 17th February 1994. A hearing by a
judge and jury was fixed for the Assizes
on 14th April 1994. On 30th March 1994
the respondents commenced the present
proceedings by way of constitutional
motion claiming an order quashing the
indictment and prohibiting any further
proceedings for the alleged offence, and
also compensation. An affidavit in
support was sworn by the third
respondent. In this he gave his account of
the events of 15th November 1981,
stating that Mohammed and Garib were
the aggressors and that Mohammed
accidentally struck Garib with a glass
while attempting to throw it at the
respondent Seeram Tokai. He further
stated that he could not remember
precise details of the incident, that there
had been an independent witness of it,
namely a barman, whom the respondents
had been unable to trace, and that by
1994 he had not expected any
prosecution to be brought in respect of
the incident since the D.P.P. had received

Lord Keith of Kinkel

Lord Jauncey of Tullichettle
Lord Nicholls of Birkenhead
Lord Steyn Lord Hope of Craighead
[Delivered by Lord Keith of Kinkel]
------------------------The question raised by this appeal is
whether in Trinidad and Tobago long
delay in bringing accused persons to trial
constitutes an infringement of their
constitutional rights with the result that
the indictment must be quashed, and no
further proceedings taken.
The facts of the case are these. On 15th
November 1981 a police officer, Corporal
Keith Farrell, was approached by two
men, Rasheed Mohammed and his
brother Shaheed Garib, who made to him
certain
allegations
against
the
respondents relating to events which had
occurred earlier that day in a shop at
Three Roads Junction, Chickland, Caroni.
Shaheed Garib had a wound above his

the papers as long ago as July 1986. The

appellants filed affidavits in reply from
Corporal (now Sergeant) Farrell and from
a member of the D.P.P.'s staff and an
assistant registrar of the High Court of
Justice. They described the long delays
regularly encountered over preliminary
inquiry proceedings, the huge backlog of
cases in the department's office and the
number of cases listed, determined and
still pending in the criminal courts over
the years from 1986 to 1993.

(f) deprive a person charged with a

criminal offence of the right (i) to be presumed innocent until proved
guilty according to law, but this shall not
invalidate a law by reason only that the
law imposes on any such person the
burden of proving particular facts;
(ii) to a fair and public hearing by an
independent and impartial tribunal or; ..."
Section 14(1)

On 29th June 1994 Lucky J. dismissed the

respondents' notice of motion. The
respondents appealed, and on 8th March
1995 the

"For the removal of doubts it is hereby

declared that if any person alleges that
any of the provisions of this Chapter has
been, is being, or is likely to be
contravened in relation to him, then
without prejudice to any other action with
respect to the same matter which is
lawfully available, that person may apply
to the High Court for redress by way of
originating motion."

Court of Appeal by a majority (Ibrahim

and Hosein JJ.A., Hamel-Smith J.A.
dissenting) allowed the appeal. The
appellants, who are the Director of Public
Prosecutions and the Attorney-General of
Trinidad and Tobago, now appeal to the
Board.

It is noticeable that this Constitution,

unlike some of those in other Caribbean
countries and elsewhere, particularly the
United States of America and Canada,
does not include in the catalogue of
fundamental rights and freedoms the
right to a speedy trial or trial within a
reasonable time. The only relevant rights
are the right not to be deprived of life,
liberty or property except by due process
of law and the right to the protection of
the law, which include, as section 5(2)(f)
makes plain, the right of those accused of
criminal offences to a fair trial. Further,
the opening words of section 4 indicate
that the rights in question are rights
which existed at the coming into force of
the Constitution. The present Constitution
is that of 1976, but the relevant wording
in the original independence Constitution
of 1962 was identical. It follows that the
rights in question are rights which were
enjoyed at common law before the 1962
Constitution came into force. Neither
Constitution purports to vary or enlarge
these common law rights. It is further to
be observed that the remedy made
available by section 14(1) is available
where a relevant right has been, is being
or is likely to be contravened in relation
to the applicant. The question to be
considered is therefore whether a trial of
the respondents under the indictment of
17th February 1994 would, in the
prevailing circumstances, contravene the
respondents' right to a fair trial, that is to
say, whether such a trial would be an
unfair trial.

The respondents' claim is founded upon

certain provisions of the Constitution of
Trinidad and Tobago. These are:Section 4(a) and (b)
"It is hereby recognised and declared that
in Trinidad and Tobago there have existed
and shall continue to exist without
discrimination by reason of race, origin,
colour, religion or sex, the following
fundamental human rights and freedoms,
namely (a) the right of the individual to life,
liberty, security of the person and
enjoyment of property and the right not
be deprived thereof except by due
process of law; (b) the right of the
individual to equality before the law and
the protection of the law."
Section 5(1) and (2)(e) and (f) "(1) Except
as is otherwise expressly provided in this
Chapter and in section 54, no law may
abrogate, abridge or infringe or authorise
the
abrogation,
abridgement
or
infringement of any of the rights and
freedoms hereinbefore recognised and
declared.
(2) Without prejudice to subsection (1),
but subject to this Chapter and to section
54, Parliament may not - ...
(e) deprive a person of the right to a fair
hearing in accordance with the principles
of
fundamental
justice
for
the
determination
of
his
rights
and
obligations;

The consequences under the common

law of England of delay in bringing an

accused person to trial were considered

by the Court of Appeal there in AttorneyGeneral's Reference (No. 1 of 1990)
[1992] Q.B. 630. In that case there had
been delay by the prosecution in bringing
a police officer to trial, so that the trial
was not due to start till 27 months after
the alleged offence. The trial judge
ordered a stay of the proceedings. The
Attorney-General referred the following
points of law for the opinion of the Court
of Appeal:-

will be, prejudiced in the preparation or

conduct of his defence by delay on the
part of the prosecution which is
unjustifiable: for example, not due to the
complexity of the inquiry and preparation
of the prosecution case, or to the action
of the defendant or his co-accused, or to
genuine difficulty in effecting service. ...
The
ultimate
objective
of
this
discretionary power is to ensure that
there should be a fair trial according to
law, which involves fairness both to the
defendant and the prosecution, for, as
Lord Diplock said in Reg. v. Sang [1980]
A.C. 402, 437: "the fairness of a trial ... is
not all one-sided; it requires that those
who are undoubtedly guilty should be
convicted as well as that those about
whose guilt there is any reasonable doubt
should be acquitted."'

"1. The point of law referred for

consideration by the court is: (i) whether
proceedings upon indictment may be
stayed on the grounds of prejudice
resulting from delay in the institution of
those proceedings even though that
delay has not been occasioned by any
fault on the part of the prosecution; (ii) if
the answer to (i) above is in the
affirmative what is the degree of: (a) the
likelihood and (b) the seriousness of any
prejudice which is required to justify a
stay of such proceedings."

We would like to add to that statement of

principle by stressing a point which is
sometimes overlooked, namely, that the
trial process itself is equipped to deal
with the bulk of complaints which have in
recent Divisional Court cases founded
applications for a stay."

Lord Lane C.J., said at pages 641-642,

after observing that the issue was one of
abuse of process, which might take
various forms:-

After discussing a number of cases Lord

Lane recorded at page 643 a concession
by counsel for the Attorney-General that
in the light of Reg. v. Telford Justices, Ex
parte Badham [1991] 2 Q.B. 78 the first
question put to the court should be
answered with a qualified "yes" and at
pages 643-644 continued:- "As it is not
possible to anticipate in advance all the
infinitely variable circumstances which
may arise in the future, we feel
ourselves, albeit reluctantly, forced to
agree to a limited extent with that
concession.

"However, the most usual ground is that

based on delay, that is to say the lapse of
time between the commission of the
offence and the start of the trial. The
number of applications based on this
ground has increased alarmingly over the
past few years.
The decision of the Divisional Court in
Reg. v. Derby Crown Court, Ex parte
Brooks (1984) 80 Cr.App.R. 164 for some
time seems to have provided the
guidelines for courts faced with this
problem of delay. Sir Roger Ormrod,
delivering the judgment of the court in
that case, said at pp. 168-169:-

However, we remind ourselves of the

principles
outlined
earlier
in
this
judgment and the observation of Lord
Morris of Borth-y-Gest in Connelly v.
Director of Public Prosecutions [1964]
A.C. 1254, 1304, that

`In our judgment, bearing in mind

Viscount Dilhorne's warning in Director of
Public Prosecutions v. Humphrys [1977]
A.C. 1, 26, that this power to stop a
prosecution should only be used in "most
exceptional circumstances." ... the effect
of these cases can be summarised in this
way. The power to stop a prosecution
arises only when it is an abuse of the
process of the court. It may be an abuse
of process if either (a) the prosecution
have manipulated or misused the process
of the court so as to deprive the
defendant of a protection provided by the
law or to take unfair advantage of a
technicality, or (b) on the balance of
probability the defendant has been, or

`generally speaking a prosecutor has as

much right as a defendant to demand a
verdict of a jury on an outstanding
indictment, and where either demands a
verdict a judge has no jurisdiction to
stand in the way of it.'
Stays imposed on the grounds of delay or
for any other reason should only be
employed in exceptional circumstances.
If they were to become a matter of
routine, it would be only a short time
before
the
public,
understandably,
viewed the process with suspicion and
mistrust. We respectfully adopt the

reasoning of Brennan J. in Jago v. District

Court of New South Wales (1989) 168
C.L.R. 23.

show that no prejudice resulted from the

delay. He said at page 225:"Their Lordships do not agree with this
appreciation of the law. Naturally, the
longer the delay the more likely it will be
that the prosecution is at fault, and that
the delay has caused prejudice to the
defendant; and the less that the
prosecution has to offer by explanation,
the more easily can fault be inferred. But
the establishment of these facts is only
one step on the way to a consideration of
whether, in all the circumstances, the
situation created by the delay is such as
to make it an unfair employment of the
powers of the court any longer to hold
the defendant to account. This is a
question to be considered in the round,
and nothing is gained by the introduction
of shifting burdens of proof, which serves
only to break down into formal steps
what is in reality a single appreciation of
what is or is not unfair."

In principle, therefore, even where the

delay can be said to be unjustifiable, the
imposition of a permanent stay should be
the exception rather than the rule. Still
more rare should be cases where a stay
can properly be imposed in the absence
of any fault on the part of the
complainant or prosecution. Delay due
merely to the complexity of the case or
contributed to by the actions of the
defendant himself should never be the
foundation for a stay.
In answer to the second question posed
by the Attorney-General, no stay should
be imposed unless the defendant shows
on the balance of probabilities that owing
to the delay he will suffer serious
prejudice to the extent that no fair trial
can be held: in other words, that the
continuance of the prosecution amounts
to a misuse of the process of the court. In
assessing whether there is likely to be
prejudice and if so whether it can
properly be described as serious, the
following matters should be borne in
mind: first, the power of the judge at
common law and under the Police and
Criminal Evidence Act 1984 to regulate
the admissibility of evidence; secondly,
the trial process itself, which should
ensure that all relevant factual issues
arising from delay will be placed before
the jury as part of the evidence for their
consideration, together with the powers
of the judge to give appropriate
directions to the jury before they
consider their verdict."

In Boodram v. Attorney-General of
Trinidad and Tobago [1996] 2 W.L.R. 464
an individual charged with murder issued
a notice of motion seeking declarations
that his constitutional rights under
section 4(a) and (b) and section 5(e) and
(f) of the Constitution had been infringed
by adverse press reports and by the
failure of the Director of Public
Prosecutions to stop them; he claimed
that his trial should be discontinued or
postponed for at least 18 months. This
Board, affirming the judge at first
instance and the Court of Appeal of
Trinidad and Tobago, decided that the
appellant
had
no
grounds
for
constitutional relief. Lord Mustill, giving
the judgment of the Board, first
considered and dismissed an argument
that the inaction of the Director of Public
Prosecutions itself contravened the
appellant's constitutional rights. He
continued at pages 472-473:-

In the opinion of the court the decision to

grant a stay was wrong. The delay was
not unjustifiable, the chances of prejudice
were small; the trial process would have
provided ample protection for the
accused; there was no danger of the trial
being unfair; finally, the case was not in
any sense exceptional so as to justify a
stay.

"Their Lordships now turn to the second

and more substantial argument for the
applicant, which stripped of elaboration
comes to this. By its use of the
expression `is likely to be contravened'
section 14(1) contemplates both that the
power of the High Court can and in
suitable cases should be exercised to
avert
a
threatened
breach
of
constitutional rights, and also that the
jurisdiction exists in cases short of
absolute certainty that what is feared will
come to pass. In the present case the
impropriety was so gross that unless
more time is allowed to elapse before the
trial it must at the very least be likely
that the minds of the jury will be

In Tan v. Cameron [1992] 2 A.C. 205, a

case from Hong Kong, Lord Mustill giving
the judgment of the Board endorsed the
statement of the law in the passage from
Lord Lane's judgment quoted above. Lord
Mustill went on to deal with an argument
that while the burden of showing that the
continuance of the prosecution would be
an abuse of process rested on the
accused, yet where an inexcusably long
delay was demonstrated that burden was
discharged unless the prosecution could

poisoned, however hard the trial judge

may try to put the damage right. Why
wait for the trial, with all the stress for
the applicant and uncertainty for those
responsible for preparing the case which
this will involve, when the High Court in
its constitutional role can immediately
nip the abuse in the bud?

the way in which, in the individual case,

they are put into practice) have been, are
being or will be subverted that the
complaint moves from the ordinary
process of appeal into the realm of
constitutional law. No such case is made
out here. It is not even suggested that if
an application to stay the trial is made,
either at the commencement of the trial
or in advance if a sufficient need is
shown, the court will fail to receive it; or
will not do its best to arrive at a solution
which measures together the risk of
prejudice, the steps which can be taken
to ensure that the verdict is uninfluenced
by improper comment, and the public
interest in making sure that a case which
has been committed for trial does in fact
come to trial, and at a proper speed.
Nobody could pretend that these are
always easy decisions for the judge to
make, but they are concerned with trial
management within the context of a
system whose fairness as a system has
not been attacked. Thus, in the opinion of
the Board, no constitutional question is
invoked."

Although this argument was made to

seem very attractive their Lordships
believe it to be misconceived, for the
reasons already given by the courts in
Trinidad and Tobago. The flaw can
perhaps be seen most clearly in relation
to section 5, and in particular to sections
5(2)(e) and (f) upon which the applicant
based an important part of his argument.
In the opinion of their Lordships those
provisions have no bearing on the
appeal. The purpose of subsection (2) is
to make clear that certain fundamental
rights which would otherwise exist in law
are not taken away. Here, neither
Parliament nor any other body is seeking
to take away the applicant's right to the
fair trial which is part of the due process
of law guaranteed by section 4(a). That
right is undisputed, and the applicant has
no need for recourse to the High Court in
order to establish it. Properly analysed,
the real gist of the applicant's complaint
is that the adverse publicity will
prejudice, not the existence of the right,
but the exercise of it. Whether this
complaint is well founded is a matter for
decision and if necessary remedy by the
ordinary and well-established methods
and principles of criminal procedure
which exist
independently
of
the
Constitution, and which the newspapers
and broadcasts could not even purport to
abrogate. Provided that the safeguards
remain in place, and are made available
to the applicant in the trial court, and if
necessary on appeal, he has the benefit
of the fair trial process to which he is
entitled.

Lord Mustill proceeded to leave open the

possibility of an application to the High
Court for constitutional relief where the
chance of a fair trial had been obviously
and totally destroyed.
In their Lordships' opinion similar
considerations apply in the present case,
where the complaint made is that of
undue delay. The traditional procedures
available to the criminal courts of
Trinidad and Tobago exist for the purpose
of securing that trials are fair. Application
can be made to the trial judge for a stay,
which the trial judge may grant if he
considers that the case falls into the
exceptional category indicated by Lord
Lane C.J. in Attorney-General's Reference
(No. 1 of 1990). If the trial judge does not
grant a stay, it will be his duty in
directing the jury to bring to their
attention all matters arising out of the
delay which tell in favour of the accused.
If he fails to do that satisfactorily the
appeal process is available to put right
any injustice which may have resulted
from the failure, as in R. v. Dutton [1994]
Crim.L.R. 910. In that case the accused
was tried on a charge of indecency with a
male, the last alleged indecent act
having taken place 14 years before the
trial. The trial judge refused a motion for
a stay without giving reasons, and failed
to give the jury any direction that they
should have regard to possible prejudice
to the accused resulting from the delay.
The Court of Appeal held that the trial
judge was entitled to refuse a stay but

A similar flaw vitiates the arguments

based on section 4. The `due process of
law' guaranteed by this section has two
elements relevant to the present case.
First, and obviously, there is the fairness
of the trial itself. Secondly, there is the
availability of the mechanisms which
enable the trial court to protect the
fairness of the trial from invasion by
outside influences. These mechanisms
form part of the `protection of the law'
which is guaranteed by section 4(b), as
do the appeal procedures designed to
ensure that if the mechanisms are
incorrectly operated the matter is put
right. It is only if it can be shown that the
mechanisms themselves (as distinct from

allowed the appeal against conviction on

the ground of the judge's failure to direct
the jury as to the possible adverse effects
that the delay could have occasioned to
the defence.

delay may include the grant of a stay.

The former right, however, may be
invoked by constitutional motion in
advance of any trial. In drawing this
distinction their Lordships have not
overlooked that in Vincent v. The Queen
[1993] 1 W.L.R. 862 Lord Woolf said at
page 867 that the provisions of section
20(1)
and
(6)
of
the
Jamaican
Constitution "do no more than codify in
writing the requirements of the common
law which ensure that an accused person
receives a fair trial". That case was not,
however, concerned with the right to a
hearing within a reasonable time, and in
so far as Lord Woolf's words are to be
read as applying to that aspect of section
20(1) they must be regarded as obiter,
and as not being the subject of particular
consideration.

Their Lordships were referred by Dr.

Ramsahoye S.C., for the respondents, to
a number of cases in jurisdictions where
there exists a constitutional right to a
speedy trial or to trial within a reasonable
time. One of these was Bell v. Director of
Public Prosecutions [1985] A.C. 937, an
appeal from Jamaica where section 20(1)
of the Constitution provides that a person
charged with a criminal offence shall be
afforded "a fair hearing within a
reasonable time by an independent and
impartial court established by law". The
applicant had been arrested and charged
in May 1977 and convicted in October
1977, but his appeal against conviction
was allowed in March 1979 and a retrial
ordered. He was released on bail in March
1980 and after the case had been
mentioned on several occasions he was
discharged by a judge in November 1981,
the Crown offering no evidence. He was
re-arrested in February 1982 for the same
offences and it was proposed to retry him
in May 1982. The Full Court and the Court
of Appeal in Jamaica dismissed his
application for constitutional redress on
the ground of contravention of section
20(1). This Board advised Her Majesty
that the applicant's appeal should be
allowed. Lord Templeman said at page
947:-

Their Lordships have also considered

Attorney-General of Hong Kong v. Cheung
Wai-Bun [1994] 1 A.C.1. That was a case
where the trial judge had granted a stay
of trial on the ground of undue delay.
Article 11(2) of the Hong Kong Bill of
Rights, contained in section 8 of the Hong
Kong Bill of Rights Ordinance, provided:"In the determination of any criminal
charge against him, everyone shall be
entitled to the following minimum
guarantees, in full equality ... (c) to be
tried without undue delay; ..."
This Board advised the dismissal of an
appeal by the prosecution, with special
leave, against the trial judge's ruling.
Lord Woolf said at page 8:-

"It was argued on behalf of the

respondents, the Director of Public
Prosecutions and the Attorney-General,
that the applicant was able to obtain
redress by waiting until his retrial,
ordered for 11 May 1982, and then
submitting to the Gun Court at the
commencement of the retrial that the
proceeding should be dismissed on the
grounds that in the events which had
happened a retrial would be an abuse of
the process of the court. Their Lordships
cannot accept this submission. If the
constitutional rights of the applicant had
been infringed by failing to try him within
a reasonable time, he should not be
obliged to prepare for a retrial which
must necessarily be convened to take
place after an unreasonable time."

"There remains the question as to

whether Duffy J. was correct in saying
that there is no material distinction
between the onus on a defendant who
seeks to have a prosecution stayed as
being an abuse of process at common
law and the onus which faces a
defendant who wishes to establish that
he is entitled to have the proceedings
stayed under the Bill of Rights. Mr.
Nicholls having accepted that, if there
was
any
distinction
between
the
approach at common law and under the
Bill, this distinction could not avail him on
this appeal, their Lordships had to decide
whether to determine this issue. In the
circumstances their Lordships decided
not to do so and did not call on Mr.
Robertson to address the Board as they
had already decided that his help was not
needed as to the outcome of the appeal.
Their Lordships recognise that it is
possible to argue that there is a
difference of approach at common law
and under the Bill. However, as any
difference in the approach to be adopted

This passage highlights the distinction

between the constitutional right to a trial
within a reasonable time and the
constitutional right only to a fair trial. The
latter right is to be secured by the
procedures exercised by the trial judge,
which in an exceptional case involving

is only likely to be of significance in a

very small minority of applications for
stay, their Lordships have decided that it
is preferable not to determine the extent
of the difference in this case, where it
would be merely an academic exercise,
but to leave it to be determined in a case
where the existence of the difference
would materially affect the result of the
appeal. The issue is one which can be
more satisfactorily examined in the
context of a case where a difference in
approach
could
have
practical
consequences."

injudicious attempt to expand an existing

system
of
courts,
judges
and
practitioners, could lead to deterioration
in the quality of the justice administered
and to the conviction of the innocent and
the acquittal of the guilty. The task of
considering these problems falls on the
legislature of Jamaica, mindful of the
provisions of the Constitution and mindful
of the advice tendered from time to time
by the judiciary, the prosecution service
and the legal profession of Jamaica. The
task of deciding whether and what
periods of delay explicable by the
burdens imposed on the courts by the
weight of criminal causes suffice to
contravene the rights of a particular
accused to a fair hearing within a
reasonable time falls upon the courts of
Jamaica and in particular on the
members of the Court of Appeal who
have
extensive
knowledge
and
experience of conditions in Jamaica. In
the present case the Full Court stated
that a delay of two years in the Gun
Court is a current average period of delay
in cases in which there are no problems
for witnesses. The Court of Appeal did not
demur. Their Lordships accept the
accuracy of the statement and the
conclusion, implicit in the statement, that
in present circumstances in Jamaica, such
delay does not by itself infringe the rights
of an accused to a fair hearing within a
reasonable time. No doubt the courts and
the prosecution authorities recognise the
need to take all reasonable steps to
reduce the period of delay wherever
possible."

Their Lordships consider that the

difference between the common law
position and that where there is an
express constitutional right to trial
without undue delay or within a
reasonable time is that in the latter case
complaint by way of constitutional
motion can more readily be regarded as
the appropriate remedy. Where, on the
other hand, common law principles are to
be applied in order to determine whether
the trial would be a fair one the matter is
primarily for the trial judge to decide.
One of the matters which he will take into
account in making his decision is the
extent to which suitable directions to the
jury are capable of obviating any
prejudice to the accused resulting from
the delay. That is not an aspect which
would be conveniently available to the
court on a constitutional motion.
At page 953 of Bell v. Director of Public
Prosecutions (supra) Lord Templeman
said:-

At pages 954-955 Lord Templeman went

on to say that while a period of 32
months between arrest and trial might
not be unreasonable in Jamaica a special
need for urgency arose after retrial had
been ordered. Further, the judge who
discharged the applicant in November
1981 must have been satisfied, and the
prosecution did not appear to have
disputed, that any further delay would
have been unfair to him, and if fairness
required that the applicant should be
discharged in November 1981 fairness
required that he should not be rearrested
in February 1982.

"Their Lordships accept the submission of

the respondents that, in giving effect to
the rights granted by sections 13 and 20
of the Constitution of Jamaica, the courts
of Jamaica must balance the fundamental
right of the individual to a fair trial within
a reasonable time against the public
interest in the attainment of justice in the
context of the prevailing system of legal
administration
and
the
prevailing
economic, social and cultural conditions
to
be
found
in
Jamaica.
The
administration of justice in Jamaica is
faced with a problem, not unknown in
other countries, of disparity between the
demand for legal services and the supply
of legal services. Delays are inevitable.
The solution is not necessarily to be
found in an increase in the supply of legal
services by the appointment of additional
judges, the creation of new courts and
the qualification of additional lawyers.
Expansion of legal services necessarily
depends on the financial resources
available for that purpose. Moreover an

It is apparent that the case exhibited

certain exceptional features in the shape
of the order for retrial and the applicant's
subsequent discharge and later rearrest.
It may well be that in similar
circumstances retrial of an accused
person in Trinidad would not constitute
fair trial and that a stay would therefore
be appropriate. But the case affords no
direct assistance for purposes of the

present
appeal
apart
from
Lord
Templeman's observations about the
significance of the disparity between the
demand for legal services and the supply
of legal services in the jurisdiction
concerned.

when trying to attack the second

respondent, Seeram Tokai. The affidavit
indicates that the third respondent has a
clear recollection of any matters of
importance. As to the missing barman,
the affidavit does not describe what
attempts, if any, have been made to
trace him, or when. That is a matter
which could very appropriately be gone
into before the trial judge. In the result,
their Lordships do not consider that this
is a case of exceptional character where
the procedures available to the trial judge
will
be
obviously
and
inevitably
insufficient to secure that fairness of trial
is achieved. The measures which the trial
judge may take will include the ordering
of a stay if, in the light of AttorneyGeneral's Reference (No. 1 of 1990)
[1992] Q.B. 630, he considers that to be
the appropriate course.

Their Lordships are of opinion that the

approach favoured by the Board in
Boodram v. Attorney-General of Trinidad
and Tobago [1996] 2 W.L.R. 464 is
appropriate for the purpose of dealing
with cases where the complaint is one of
undue delay as well as cases such as
Boodram where the complaint relates to
adverse publicity. The question in both
categories of cases is whether the
circumstances
are
such
that
the
procedures available to the trial judge are
obviously and inevitably going to be
insufficient to secure that the trial will be
a fair one. Unless that is so a
constitutional motion under section 14(1)
must be dismissed. In Sookermany v.
Director of Public Prosecutions and
Attorney-General of Trinidad and Tobago
(unreported, 1st May 1996 Civil Appeal
No. 153 of 1995), in which the Court of
Appeal of Trinidad and Tobago dismissed
an
appeal
against
refusal
of
constitutional relief claimed on the
ground of undue delay, de la Bastide C.J.
said at page 18 of the transcript:-

For these reasons their Lordships will

allow the appeal and restore the order of
Lucky J. The respondents must pay the
appellants' costs in the Court of Appeal
and before the Board.
[31]

"As there are admittedly measures

available to a trial judge to negative the
prejudicial effect on the defence of delay,
there would seem to me to be no reason
why a court following the lead given by
the Board in [Boodram] should not in all
but the most exceptional circumstances
refuse to stay criminal proceedings on a
constitutional motion brought for that
purpose, and leave it for the trial judge to
determine what measures he should take
to counteract the prejudicial effect of the
delay and if he should conclude that no
effective
counteraction
is
possible,
himself to order the proceedings stayed."
Their
Lordships
would
respectfully
endorse that statement of the position.
In the present case the affidavit of the
third respondent sets out as matters
tending to prejudice the defence failing
memories and the fact that the barman
said to be an independent witness of the
events giving rise to the charge has not
been traced. The facts of the case are,
however, extremely simple. The only
issue would appear to be whether one of
the respondents deliberately wounded
Shaheed Garib, or whether, as the third
respondent says in his affidavit, Rasheed
Mohammed accidentally wounded Garib