Lawyers doubtful over abolishing preliminary inquiries

The content originally appeared on: Trinidad and Tobago Newsday

Israel Rajah-Khan

Some lawyers have reservations over abolishing preliminary inquiries, despite the confidence of both the Attorney General and the Chief Justice on the issue.

Although it is welcomed by attorneys who practise in the criminal courts, many believe it will only solve part of the problem plaguing the criminal justice system at present – the backlog of cases.

President of the Assembly of Southern Lawyers Michael Rooplal said his reservations centred on the fact that there have been no physical hearings since last year.

“While one of the purported aims for the abolition of PIs is the increased efficiency of the criminal justice system, it is my considered view that the proposed abolition will result in the removal of one of the bottlenecks in the present system while simultaneously exacerbating the current bottleneck when cases are sent to the High Court.

“Furthermore, given the fact that there are no physical sittings of the assizes at this time, and there have not been any physical hearings since last year, there is already a serious backlog of criminal cases in the High Court. Accordingly, the proposed abolition will not have the desired effect of increasing efficiency at this time.”

Rooplal suggested the Attorney General should hold his hand on the proposed abolition until physical sittings resume and logistical arrangements are in place for more courts and judges.

On Tuesday, in his opening address for the 2021/2022 law term, Chief Justice Ivor Archie said the general backlog of criminal matters was not being neglected and a committee had been convened to arrive at solutions.

He said he was pleased that more indictments had been filed for this year, and with the elimination of preliminary inquiries in the new year, he expects there would be more.

“We look forward to working closely with the DPP, the public and private defence bar to achieve a smooth transition. The numbers won’t be less, but it is a fantastic opportunity to retool our process with an open mind.”

He also addressed the wider use of judge-only trials,

“Now that we have more experience and data concerning judge-alone trials, the time is right for further discussion about making that a more robust, perhaps even the default option, without eliminating choice as appropriate,” he said.

For now, jury trials have been suspended because of pandemic restrictions and the logistics of accommodating physical distancing in courtrooms.

Earlier this week, Attorney General Faris Al-Rawi spoke of judge-only trials, saying they had improved access to justice.

He said emphasis was placed on clearing the backlog of cases in the criminal courts, with a reduction of caseloads in the magisterial division.

Al-Rawi also estimated that some 26,000 preliminary inquiries will soon be removed from the system.

On Wednesday, senior criminal attorney Israel Khan, SC, said while abolishing preliminary inquiries was a “step in the right direction,” there must be a holistic approach to dealing with the problems plaguing the criminal justice system.

He said unless there were increases in the number of criminal judges and courts, there will continue to be a bottleneck of cases at the assizes, with indictments being filed but cases not being expedited fast enough.

“It must not stop there,” Khan said. He suggested categorising murder and making it an offence for which bail can be assessed. This is the focus of a case currently before the Appellate Court in which a former murder accused has asked for the option to apply for bail for murder.

The Law Association has agreed with the position. The court’s judgment has been reserved.

Khan also said there should also be serious plea bargaining, with massive deductions from sentences for those who plead guilty, as well as programmes for rehabilitating prisoners, and a parole system.

He also pointed to the understaffed Office of the Director of Public Prosecutions as another issue to be addressed.

“Unless these are dealt with seriously, they will just be spinning top in mud. There needs to be a holistic approach to managing the justice system.”

Khan also agreed with the call by the Chief Justice for full financial autonomy for the Judiciary.

“They need to allocate more and have the Judiciary handle its own financial affairs.”

On the thrust towards judge-only trials, Khan said there was a “little water in the brandy” where these were concerned. He expressed caution over putting the life of an accused person in the handsof a single judge. In the past, Khan has been very vocal against the abolition of jury trials, saying it was the only means by which the average citizen could participate in the criminal justice system.

However, on Wednesday, he acknowledged that judge-only trials will be the reality in all Commonwealth jurisdictions. For now, he does not think TT is ready for carte-blanche judge-only trials.

On virtual criminal trials, he was not too optimistic of their success.

“Virtual hearings cannot do justice to a case when you have to assess a witness’s demeanour.”