Preston Devere Parris v The Attorney General

• Jurisdiction: Barbados
• Judge: Madam Justice Shona O. Griffith
• Judgment Date: 07 July 2022
• Neutral Citation: BB 2022 HC 26
• Docket Number: Civil Suit No: 1188 of 2020
• Court: High Court (Barbados)
• Year: 2022

In the Matter of Sections 11,16,18 and 24 of The Constitution of Barbados

and

In the Matter of an Application by Preston Devere Parris for Redress for Contravention of Fundamental Rights and Freedoms Guaranteed by and under The Constitution of Barbados

Between:

Preston Devere Parris

Claimant

and

The Attorney General

1 ^st Defendant

Director of Public Prosecutions

2 ^nd Defendant

Before;

The Hon. Madam Justice Shona O. Griffith, Judge of the High Court

Civil Suit No: 1188 of 2020

IN THE SUPREME COURT OF JUDICATURE

HIGH COURT

CIVIL DIVISION

Constitutional Law — Criminal Proceedings — Delay in Laying Charge — Delay in Commencement of Trial — Whether delays in breach of section 11(a), right to security of the person; section 11(c), right to protection of the law; section 18(1), right to trial within a reasonable time — Appropriate remedy for breach of right to trial within a reasonable time.

Appearances:

Mr. Larry A. Smith QC appearing with Ms. Jamila Smith and Jeriah Rock for the Claimant.

Ms. Marsha Lougheed, Principal Crown Counsel for the Defendants.

DECISION

1 In November 2020 the Claimant Preston Parris filed a claim against the Attorney-General of Barbados (subsequently adding the Director of Public Prosecutions), seeking redress under the Constitution, for alleged violations of several of his fundamental rights. The claim for relief arises out of criminal proceedings commenced against the Claimant on the 22 ^nd May, 2017 for the offence of causing death by dangerous driving. The accident in respect of which the May 2017 charge was laid occurred on the 11 ^th July, 2010, however, as of the filing of this claim in November 2020, the Preliminary Inquiry into that charge had not yet commenced. It is as a result of the delays relative to the date of occurrence of the accident, the date of institution of the charge, and the failure to commence the preliminary inquiry since the institution of the charge, that the Claimant alleges that his Constitutional rights have been violated.

2 In particular, the Claimant alleges breaches of his rights to (i) a fair hearing within a reasonable time, pursuant to section 18(1) of the Constitution; (ii) security of the person pursuant to section 11(a) of the Constitution; and (iii) protection of the law, pursuant to section 11(c) of the Constitution. The Claimant's position is that given the length of time elapsed since the date of the accident, it is no longer possible for him to have a fair trial, but more so, that at this stage, the reasonable time within which his trial ought to have been heard, has already elapsed. Additionally, because of the detrimental effects to his physical and mental health as a result of the delays, his right to security of the person has and continues to be breached. The Claimant seeks appropriate declarations as well as damages, for the alleged breaches of his Constitutional rights.

3 The Defendants resisted the claim for Constitutional relief with the aid of legal submissions only, having filed no evidence in response to the claim. The Defendants' position is that the delay attributed to the Claimant's criminal proceedings has to be assessed with reference to (i) proper construction and interpretation of the constitutional rights involved, (ii) the particular circumstances surrounding the commencement and conduct of the criminal proceedings, as well as (iii) prevailing conditions affecting the general operation of the court system and the country as a whole.

Issues

4 The issues for determination in this matter, are as follows:-

• (i) Do the delays associated with the Claimant's criminal proceedings, however identified or categorized, give rise to a breach of the Claimant's section 18 Constitutional right to a fair hearing or a fair hearing within a reasonable time?

• (ii) What are the effects of the delay on the Claimant and do such effects give rise to a breach of his Constitutional rights to security of the person or protection of the law?

• (iii) If yes to issues (i) or (ii) above, what is the appropriate relief to be afforded to the Claimant?

Relevant Factual Background

5 Given that the Defendants filed no evidence in answer to the Claim, the facts alleged are as asserted by the Claimant. On the 11 ^th July, 2010 the Claimant was involved in a vehicular accident in which a pedestrian died. The accident scene was processed by police and the Claimant a few days later, gave a voluntary statement to the police and was subsequently issued with a Notice of Intended Prosecution for the charge of driving without due care and attention. For almost seven (7) years after the date of the accident, the Claimant says he heard nothing further from police, but in May 2017 he was asked to attend the Black Rock Police Station where he was charged with the far more serious offence, of causing death by dangerous driving, instead of driving without due care and attention. He was arraigned at the Magistrate's Court and granted bail, and in September 2017 he received his disclosure. One of the statements in his disclosure comprises the evidence of an expert witness (collision reconstructionist) whose report absolves the Claimant of fault for the accident.

6 Given the conclusion of the report, the Claimant by his attorney-at-law requested in February 2018, that the Director of Public Prosecutions (DPP) review the decision to prosecute the Claimant for the accident. On the second such request (issued in June 2018), the DPP responded in July 2018, advising that there was sufficient basis to proceed with the prosecution notwithstanding the conclusion of the report. At the time of instituting these proceedings the Claimant says that 10 years would have elapsed since the accident occurred and three (3) years since the institution of the charge against him. The preliminary inquiry into the charge has yet to commence, and the Claimant has received no indication of when it is likely to commence. The Claimant believes that he would be unable to obtain a fair trial due to the negative effects of the passage of time on both the availability and quality of evidence.

7 Aside from his concerns as to the ability to receive a fair trial, the Claimant says that the effect of the charge has resulted in distress over thoughts of being imprisoned — as the offence for which he was charged is far more serious than that for which he received a notice of intended prosecution; that he is unable to sleep whenever faced with impending court dates; and as a result of anxiety from the proceedings, the Claimant's family, social life, as well as his ability to function and focus at work, have all been negatively impacted. The Claimant also alleges that given that the DPP has elected to continue the prosecution in spite of the report concluding that he was not at fault for the accident, he would himself require the services of a collision reconstructionist in order to adequately prepare for his defence. The Claimant says that he does not have the means to obtain the services of such an expert, and unless assisted by the State, he would be prejudiced in the preparation of his defence, and his trial rendered unfair. As stated before, the Defendant filed no evidence in response to the Claim.

Legal Submissions

Claimant's Submissions

8 The Claimant's case is predicated on the delay of the State both in bringing the charge against him seven (7) years after the occurrence of the accident, as well as to date, its failure to commence even the preliminary inquiry. The right primarily asserted is that under section 18(1) of the Constitution, which provides for a person charged with a criminal offence, to receive a fair hearing within a reasonable time by an independent and impartial tribunal.

Queen's Counsel for the Claimant cites Frank Gibson v the Attorney-General 1 as directly binding authority, affirming the interpretation of this section as creating three distinct rights, namely — (i) the right to a fair hearing; (ii) within a reasonable time (the reasonable time guarantee); and (iii) by an independent and impartial tribunal. 2 In relation to the Claimant, it is alleged that the breach of his section 18(1) right arises in relation to the first two guarantees, i.e. to a fair hearing and a fair hearing within a reasonable time.

9 Extracting from the dictum in Frank Gibson, Queen's Counsel highlighted how the nature of the reasonable time guarantee has been judicially interpreted. Particularly with reference to — (i) the date from whence time starts to run (i.e. whether the occurrence of the event; date of arrest or charge); (ii) its correlation to, but independence from, the other limbs of section 18(1); (iii) the fact that once the time has passed, there is no remedial action which a court can take to cure the breach; (iv) whether or not a reasonable time has passed is always dependent upon the peculiar facts and circumstances of each case; and (v) the determination of whether a reasonable time has passed is based upon factors such as the length of the delay, complexity of the case, reasons

for the delay, and whether the accused person is responsible for or has contributed to the delay. 3

10 Aside from the nature of the right as outlined above, Queen's Counsel urged the Court to regard the right with reference to the full import of it being enshrined within the Constitution. Reference was made to Sookermany v Director of Public Prosecution 4 to illustrate this point, wherein the Court of Appeal of Trinidad and Tobago contrasted the effects of a complaint about delay at common law, as opposed to pursuant to the Constitution. Queen's Counsel highlighted the judgment of then de la Bastide CJ, whose position was that a different approach was required when addressing delay at common law (by means of seeking a stay of proceedings), as opposed to when enforcing the explicit written guarantee of a right to a trial within a reasonable time....