PI removal questioned by lawyer

| 31/01/2011

(CNS): Recent changes to the Criminal Procedure Code will, among a number of things, remove the right of people accused of serious crimes to seek a preliminary inquiry (PI) before their case is committed to the Grand Court. Speaking in the Legislative Assembly earlier this month, Attorney General Sam Bulgin said the move would speed up the course of justice and that it had support from the profession. However, one local attorney thinks differently and has noted that the decision has been made without a proper survey of how many cases are thrown out after a PI. Peter Polack has written to the governor pointing out that over a five year period some 15 cases of gun related crimes never made the grand court as a PI revealed that there was not enough evidence against the accused.

Polack is particularly concerned as a recent FOI request he made to the Legal Department requesting details of preliminary inquiries over a three year period was refused on the grounds that it would constitute “an unreasonable diversion of resources” because the officer would have to search manually for the information.

It is apparent, therefore, Polack told CNS, that the department has never completed a proper review of the outcome of preliminary enquiries relating to category A offences to ascertain whether their removal would be a good of bad thing.

Long form and short form PIs were carried out in the Summary Court and would see the prosecution place its evidence before the magistrate by calling witnesses to the court. The idea was that the magistrate would then make a decision to commit the case to Grand Court or to throw the case out. Polack says he is concerned now that more innocent people may be forced to face long and difficult trials.

Polack added that, in his own experience, here in Cayman there are very few long form preliminary inquiries, which tend to clog the system, and most take a short form, so, he said, their removal will do little to speed up the administration of justice.

The new amendment to the criminal procedure code will replace the PI with a ‘sufficiency trial’ in the Grand Court, where the evidence will be submitted in written form. Speaking in the LA earlier this month, the AG said that innocent people would still have a chance to be heard, but Pollack argues that there are real concerns about the preliminary inquiry’s removal.

“The inherent danger is that anyone charged with this type of offence (Category A) has no remedy where there is no cogent or slim evidence and are forced into long and damaging trials,” Pollack said.

Polack also noted that the rejection of fifteen firearms cases alone should be enough to sound the warning that removing the PI could see people committed to Grand Court trial on little evidence. The attorney points out that with the implementation of modern human rights provisions for the Cayman Islands next year, this amendment goes against the spirit and direction of those rights.

“As the chief justice recently stated, legislative reform cannot be the only response to crime and that a raft of legislative reforms was being used to respond to the crime crisis,” Polack said in a letter to the governor, as he urged the UK government to consider the importance of the preservation of the preliminary inquiry for the local justice system.

The amendments to the Criminal Procedure Code will see a number of other changes, including the downgrading of some offences from Category B to C, allows the crown to join summary offences with grand court offences and abolishes the rule prohibiting murder to be charged with any other indictment.

See Criminal Procedure Code Amendment 2010

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Comments (4)

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  1. Anonymous says:

    No, you are wrong. In England and Wales the law changed some time ago (4 April 2005). Offences triable only on indictment (the most serious ones) are sent directly to the Crown Court (s.51 Crime and Disorder Act 1998 (as amended)). It is not until a matter is before the Crown Court that a defendant can apply to dismiss the charges inthese cases.

  2. Anonymous says:

    One advantage (sic) of doing away with PIs is that it would avoid RCIPS having to go through an often embarrassing public examination of their conduct during investigations before the actual trial takes place.

    Taking aside that consideration, I think the biggest problem with this proposal is that it goes against the basic principles of English Law, where Committal Proceedings before Magistrates precede trials in higher courts.

    • Anonymous says:

      Not anymore, most serious cases in the UK are transferred to the Crown Court.  Someone worked out that it was a waste of time to have to wait for the committal, and it was right to let the Crown Court manage the case.  This is bringing in line with what happens in the Uk.  Once a person is charged with an indictable offence, then the first court appearance transfers the matter to the higher court, who then are responsible for case management.

      • Anonymous says:

        I think you are confusing the issue.

        This is the current legal position in the UK –

        If the defendant does wish to challenge the evidence, committal proceedings will take place under section 6(1) of the Magistrates Courts Act 1980 (MCA 1980): the magistrates, sitting as examining justices, will consider the statements and exhibits tendered by the prosecution. There will be no oral evidence and the defence are not entitled to present any evidence at all, documentary or otherwise. After considering the evidence, which is read out, and hearing submissions from both parties, the court will decide whether there is sufficient evidence to put the defendant on trial by jury. If the court finds that there is, the defendant is committed to the Crown Court to stand trial. If the court finds that there is not, the defendant is discharged.

        If the defendant does not wish to challenge the evidence at the committal stage s/he may agree to committal proceedings taking place under section 6(2) of the Magistrates’ Courts Act 1980, in which case there will be no consideration of the evidence. These proceedings are known as “paper” committals: the original signed statements (or a copy of the signed statements) are served on the court at the hearing. The evidence is not read to the court. As soon as it is known that committal proceedings are to be held, the defendant’s agreement to this form of committal should be sought.

        By-passing committal proceedings is not, as you seem to be suggesting, an automatic process and defendant(s) can still challenge evidence at a committal hearing if they choose to do so – the crucial thing is that this decision rests with the defendant, not the judiciary.