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Jamaica
October 2000 -
The
Jamaica Gleaner
The Office of the Director of Public Prosecutions is
now without seven of its 16 senior prosecutors, including some who have
resigned.....
Vinette
Graham-Allen, Assistant Director of Public Prosecutions, who was
acting as Deputy Director of Public Prosecutions and had been to the United
Kingdom Privy Council twice, went on vacation leave in September and has since
taken up a job as Senior Crown Counsel in Bermuda. She will resign at the end of
her leave later this year.....
Asked the reasons for the resignations, several
prosecutors said they did not see any scope for promotion in the office. Three
senior prosecutors said that they were not happy with certain matters taking
place in the department. However, they preferred not to comment on them.
They said too that although clerks from the Resident Magistrate's Courts were
brought in to fill the vacancies, those junior prosecutors would have to undergo
training before they would be able handle Circuit Court and Court of Appeal
cases on their own.
"There are certain things happening in the
department with which some of us are very upset," said a senior prosecutor,
who told The Sunday Gleaner that he planned to leave the department at
the end of the year.
However he said that he would prefer not to comment
further on the problems until they were aired at the next meeting of the Legal
Officers Staff Association, scheduled for next month. Pressed further, he said
that they were disgusted with the manner in which a senior member was being
treated. He said that the feeling among the disgruntled senior staff members
is that whatever happened to one could happen to others.
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JAMAICA — Constitution — Human
rights and fundamental freedoms — Legal representation — Withdrawal of
defendant's counsel during capital trial — Defendant thereafter
unrepresented — Whether trial unfair — Jamaica (Constitution) Order in
Council 1962 (SI 1962 No 1550), Sch 2, s 20(6)(c) — Poor Prisoners' Defence
Act, Sch 3, r 14
Mitchell (John) v The Queen
PC: Lord Slynn of Hadley, Lord Nicholls of Birkenhead, Lord Hope of
Craighead, Lord Clyde and Lord Hutton: 28 June 1999
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After the withdrawal of the
defendant's counsel during his murder trial the judge should have adjourned
for a reasonable time for the question of alternative counsel to be
investigated, and failure to do so had deprived the defendant of a fair
trial.
The Judicial Committee of the Privy Council allowed the appeal of the
defendant, John Mitchell, against the dismissal by the Court of Appeal of
Jamaica of his appeal against a conviction of capital murder on 30 May 1996
in the Home Circuit Court, Kingston.
Counsel assigned to the defendant under the Poor Prisoners' Defence Act had
been released by the judge after the defendant had expressed his
dissatisfaction with counsel and his desire to cross-examination witnesses
himself. By r 14 of Sch 3 to the Act a person who refused to accept the
services of counsel assigned to him under a legal aid certificate in respect
of any proceedings was not entitled to have other counsel assigned in
respect thereof. Under s 20(6)(c) of the Constitution of Jamaica every
person charged with a criminal offence was permitted to defend himself in
person or by a legal representative of his own choice.
LORD SLYNN OF HADLEY,
delivering the judgment of their Lordships, said that r 14 was aimed at
preventing a defendant from changing his counsel at will. The authorities
had at least a discretion to change counsel where counsel and client had
lost confidence in each other, or where counsel was professionally
embarrassed. The proper approach to withdrawal of counsel was stated in
Dunkley v The Queen [1995] 1 AC 419, 428. All the circumstances had to be
taken into account in considering whether justice required on a capital
charge that more should have been done to seek to ensure that the defendant
was represented. The judge could not have been satisfied that the defendant
would not, or might not, suffer prejudice by the withdrawal of counsel, and
failed to consider whether the trial should be adjourned to enable the
defendant to try to obtain alternative representation. The lack of
representation was not due to the defendant's fault. There should have been
an adjournment to see whether other counsel was able and willing to
represent him or at least to advise him on the courses open to him. He had
been in prison seven years and on death row over three years. Retrials after
such a long period were undesirable, but the prosecution case was strong.
The conviction should be quashed and the case remitted to the Court of
Appeal of Jamaica to consider whether a trial should be ordered.
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| Appearances:
Philip Sapsford QC and Murray Shanks (Lawrence Graham)
for the defendant; Kent Pantry QC, Director of Public Prosecutions, Jamaica,
and Vinette Graham-Allen,
Deputy Director of Public Prosecutions, Jamaica (Charles Russell) for the
Crown. |
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