THE COURT OF APPEAL OF
- - - - - - - - - - - - - - - - -
JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL
- - - - - - - - - - - - - - - - -
Present at the hearing:-
- - - - - - - - - - - - - - - -
The charge arose out of a transaction entered into by the appellant, a
The prosecution case was that the appellant knew quite well that the bank account on which the second cheque was drawn had been closed and that the cheque was a dud, but nevertheless took this and another cheque, signed by Balram Seewoodin but otherwise blank, and used the second cheque in order to obtain the return of the first cheque which had been dishonoured. The case for the appellant was that the second cheque had been given to him by
The appellant appealed to the Supreme Court on a number of grounds, on all of which the court found against him. Before the Board the appellant relied only on one ground, that of breach of his constitutional rights to a fair trial within a reasonable time, as guaranteed by section 10(1) of the Constitution. The appeal was founded on the very long delay which took place between the date when the first statement under caution was taken from the appellant and the eventual disposition of the case by the finding of guilt by the
The complex and long drawn-out history of the prosecution has been fully set out in the judgment of the Supreme Court, and the Board is accordingly able to set out that history in this judgment in reasonably summary form. The offence was reported by
The police inquiry was completed on
Preliminary hearings commenced in early March 1993 and at a hearing on
The trial was fixed for
A recognisably similar pattern may be seen from the history of the case over the next three and a half years. The appellant made a number of applications, of which two major ones were brought without prior notice to the prosecution or the court. The first, brought on
On three further days,
The taking of evidence did not commence until
Submissions of no case to answer followed, which were finally rejected on
Evidence was given by and on behalf of the appellant over some twelve court days, which because of adjournments stretched until
The court was plainly becoming impatient with the appellant’s conduct of his case by
“In view of the attitude of the accused and of his latest statement that he needs time to consider all his options and even consider filing a new list of witnesses in spite of our ruling refusing him a postponement in the absence of the witnesses, we are of the view that accused is making an abuse of the process of the court. We have no alternative than to close the case for the defence, which we do.”
The court on
Further submissions were made over the next three months, then there followed a series of adjournments caused by claims on behalf of the appellant that he was incapacitated by illness from attending and pursuing his case. Medical certificates were submitted, but the court did not until
The appellant appealed to the Supreme Court on a variety of grounds, all of which were rejected by the court. Since the appellant has relied before the Board on only one of these grounds, that of delay, their Lordships need not consider the others. The Supreme Court considered the issue with care in its written judgment given on
“If anything, the appellant was the cause, not the victim, of the delay. The history of the case shows that he has made an abuse of the proceedings, giving to counsel instructions which they found unable to execute, withdrawing instructions from counsel, changing counsel according to his whims and fancies, making a number of motions similar in content though not in form, absenting himself from court on several occasions, summoning new witnesses at every sitting. Indeed, the appellant has made use of every possible device to secure an adjournment and prevent the case from being heard within a reasonable time. We also note that the trial court has been unduly lenient despite the deliberately obstructive attitude on the part of the appellant.”
On the appeal to the Board the appellant’s appeal against conviction was founded solely on the issue of delay. He also raised a ground of appeal which had not been advanced before the Supreme Court, that he was deprived of an opportunity to address the
Section 10(1) of the Constitution of Mauritius contains a guarantee in familiar terms, that where a person is charged with a criminal offence “the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law”. As Lord Steyn pointed out in Darmalingum v The State  1 WLR 2303, 2307, section 10(1) contains three separate guarantees, namely (1) a right to a fair hearing (2) within a reasonable time (3) by an independent and impartial court established by law. The application of these requirements in the decided cases has not been entirely consistent. Lord Bingham of Cornhill observed in Dyer v Watson  UKPC D1, 
The point on which any difference between these cases turns is whether there is a breach of section 10(1) only if there is a sufficient element of prejudice or unfairness, or whether there is a breach if unreasonable delay without more has been established, notwithstanding that the trial itself may be regarded as having been fair.
“Their Lordships agree with the respondents that the three elements of section 20, namely a fair hearing within a reasonable time by an independent and impartial court established by law, form part of one embracing form of protection afforded to the individual. The longer the delay in any particular case the less likely it is that the accused can still be afforded a fair trial. But the court may nevertheless be satisfied that the rights of the accused provided by section 20(1) have been infringed although he is unable to point to any specific prejudice.”
At several other places in the judgment Lord Templeman referred to the requirements of fairness and at page 953 considered the problems of lack of judicial resources in that jurisdiction:
“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 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.”
Such considerations may of course be material in determining the reasonableness of the time taken to bring a case to hearing, but it is apparent from Lord Templeman’s remarks at page 954-5 that the requirement of fairness was prominent in his reasoning, a conclusion which is supported by his observations at page 954:
“The courts seek to prevent exploitation of the rights conferred by the Constitution and to weigh the rights of the accused to be tried against the public interest in ensuring that the trial should only take place when the guilt or innocence of the accused can fairly be established by all the relevant evidence. The Board will therefore be reluctant to disagree with the considered view of the Court of Appeal of
The Board also relied heavily on the judgments of the Supreme Court of the
A similar approach was adopted by the Board in Flowers v The Queen  1 WLR 2396, also an appeal from
“The judgment of the Board [in Darmalingum] does not refer to the passage in the judgment of the Board in Bell v Director of Public Prosecutions  AC 937 which recognises that the right given by section 20 of the Constitution of Jamaica must be balanced against the public interest in the attainment of justice or to the passage which states that the right to a trial within a reasonable time is not a separate guarantee but, rather, that the three elements of section 20(1) form part of one embracing form of protection afforded to the individual.”
One should at this point go back to the judgment of the Board in Darmalingum, which was decided before Flowers. The appellant was arrested in 1985 on provisional charges of forgery. After his being interviewed in custody at that time, the appellant heard nothing further about the matter until he was charged in 1992 and then convicted at a trial held in 1993. He appealed to the Supreme Court, which did not reach a final decision rejecting his appeal until July 1998. The Board held that the overall delay, much of which was unexplained, was a flagrant breach of section 10(1) and that the only disposal which would properly vindicate the constitutional rights of the appellant would be the quashing of the convictions.
Lord Steyn, giving the judgment of the Board, described the content of section 10(1) as being three separate guarantees and continued at pages
“Hence, if a defendant is convicted after a fair hearing by a proper court, this is no answer to a complaint that there was a breach of the guarantee of a disposal within a reasonable time. And, even if his guilt is manifest, this factor cannot justify or excuse a breach of the guarantee of a disposal within a reasonable time. Moreover, the independence of the ‘reasonable time’ guarantee is relevant to its reach. It may, of course, be applicable where by reason of inordinate delay a defendant is prejudiced in the deployment of his defence. But its reach is wider. It may be applicable in any case where the delay has been inordinate and oppressive. Furthermore, the position must be distinguished from cases where there is no such constitutional guarantee but the question arises whether under the ordinary law a prosecution should be stayed on the grounds of inordinate delay. It is a matter of fundamental importance that the rights contained in section 10(1,) were considered important enough by the people of
The inconsistencies between these cases were considered by the Privy Council in the Scottish devolution case of Dyer v Watson  UKPC D1 
Lord Hope of Craighead was, however, prepared to commit himself to supporting the views expressed by Lord Steyn in Darmalingum rather than those which prevailed in
“So the fact that a defendant was convicted after a fair hearing by a proper court could not justify or excuse a breach of his guarantee of a disposal within a reasonable time.”
Lord Hutton in paragraphs 120-1 of his judgment considered that Darmalingum and Flowers could be distinguished on their respective facts and pointed to the fact that the European Court of Human Rights had held in a number of decisions that a conviction after unreasonable delay in breach of article 6(1) does not necessarily have to be quashed. Lord Millett and Lord Rodger of Earlsferry also reserved their opinions on the question left open by Lord Bingham, though they regarded the rights guaranteed by article 6(1) as being distinct and independent.
The resolution of these issues is to be found in the decision of the House of Lords in Attorney General’s Reference (No 2 of 2001)  UKHL 68, 
The House sat in an Appellate Committee of nine members and decided by a majority that although through the lapse of time in itself there was a breach of article 6(1), the appropriate remedy would not necessarily be a stay but would depend on all the circumstances of the case. Lord Bingham of Cornhill, who gave the leading opinion for the majority, set out as two of the fundamental first principles applying to article 6(1), that (a) the core right guaranteed by the article is to a fair trial (para 10) and (b) the article creates rights which though related are separate and distinct (para 12). It does not follow that the consequences of a breach of each of these rights is necessarily the same. He quoted with approval the aphorism of Hardie Boys J in the New Zealand case of Martin v Tauranga District Court  2 NZLR 419, 432:
“The right is to trial without undue delay; it is not a right not to be tried after undue delay.”
Lord Bingham stated in paragraph 22 that the threshold of proving a breach of the reasonable time requirement is a high one, not easily crossed. He went on to summarise his conclusions at paragraphs 24 and 25:
“24. If, through the action or inaction of a public authority, a criminal charge is not determined at a hearing within a reasonable time, there is necessarily a breach of the defendant’s Convention right under article 6(1). For such breach there must be afforded such remedy as may (section 8(1)) be just and appropriate or (in Convention terms) effective, just and proportionate. The appropriate remedy will depend on the nature of the breach and all the circumstances, including particularly the stage of the proceedings at which the breach is established. If the breach is established before the hearing, the appropriate remedy may be a public acknowledgement of the breach, action to expedite the hearing to the greatest extent practicable and perhaps, if the defendant is in custody, his release on bail. It will not be appropriate to stay or dismiss the proceedings unless (a) there can no longer be a fair hearing or (b) it would otherwise be unfair to try the defendant. The public interest in the final determination of criminal charges requires that such a charge should not be stayed or dismissed if any lesser remedy will be just and proportionate in all the circumstances. The prosecutor and the court do not act incompatibly with the defendant’s Convention right in continuing to prosecute or entertain proceedings after a breach is established in a case where neither of conditions (a) or (b) is met, since the breach consists in the delay which has accrued and not in the prospective hearing. If the breach of the reasonable time requirement is established retrospectively, after there has been a hearing, the appropriate remedy may be a public acknowledgement of the breach, a reduction in the penalty imposed on a convicted defendant or the payment of compensation to an acquitted defendant. Unless (a) the hearing was unfair or (b) it was unfair to try the defendant at all, it will not be appropriate to quash any conviction. Again, in any case where neither of conditions (a) or (b) applies, the prosecutor and the court do not act incompatibly with the defendant’s Convention right in prosecuting or entertaining the proceedings but only in failing to procure a hearing within a reasonable time.
25. The category of cases in which it may be unfair to try a defendant of course includes cases of bad faith, unlawfulness and executive manipulation of the kind classically illustrated by R v Horseferry Road Magistrates’ Court, Ex p Bennett 
Their Lordships accordingly consider that the following propositions should be regarded as correct in the law of
(i) If a criminal case is not heard and completed within a reasonable time, that will of itself constitute a breach of section 10(1) of the Constitution, whether or not the defendant has been prejudiced by the delay.
(ii) An appropriate remedy should be afforded for such breach, but the hearing should not be stayed or a conviction quashed on account of delay alone, unless (a) the hearing was unfair or (b) it was unfair to try the defendant at all.
In Dyer v Watson  UKPC D1, 
53. The court has identified three areas as calling for particular inquiry. The first of these is the complexity of the case. It is recognised, realistically enough, that the more complex a case, the greater the number of witnesses, the heavier the burden of documentation, the longer the time which must necessarily be taken to prepare it adequately for trial and for any appellate hearing. But with any case, however complex, there comes a time when the passage of time becomes excessive and unacceptable.
54. The second matter to which the court has routinely paid regard is the conduct of the defendant. In almost any fair and developed legal system it is possible for a recalcitrant defendant to cause delay by making spurious applications and challenges, changing legal advisers, absenting himself, exploiting procedural technicalities, and so on. A defendant cannot properly complain of delay of which he is the author. But procedural time-wasting on his part does not entitle the prosecuting authorities themselves to waste time unnecessarily and excessively. The third matter routinely and carefully considered by the court is the manner in which the case has been dealt with by the administrative and judicial authorities. It is plain that contracting states cannot blame unacceptable delays on a general want of prosecutors or judges or courthouses or on chronic under-funding of the legal system. It is, generally speaking, incumbent on contracting states so to organise their legal systems as to ensure that the reasonable time requirement is honoured. But nothing in the Convention jurisprudence requires courts to shut their eyes to the practical realities of litigious life even in a reasonably well-organised legal system. Thus it is not objectionable for a prosecutor to deal with cases according to what he reasonably regards as their priority, so as to achieve an orderly dispatch of business. It must be accepted that a prosecutor cannot ordinarily devote his whole time and attention to a single case. Courts are entitled to draw up their lists of cases for trial some time in advance. It may be necessary to await the availability of a judge possessing a special expertise or the availability of a courthouse with special facilities or security. Plans may be disrupted by unexpected illness. The pressure on a court may be increased by a sudden and unforeseen surge of business. There is no general obligation on a prosecutor, such as that imposed on a prosecutor seeking to extend a custody time limit under section 22(3)(b) of the Prosecution of Offences Act 1985, to show that he has acted ‘with all due diligence and expedition.’ But a marked lack of expedition, if unjustified, will point towards a breach of the reasonable time requirement, and the authorities make clear that while, for purposes of the reasonable time requirement, time runs from the date when the defendant is charged, the passage of any considerable period of time before charge may call for greater than normal expedition thereafter.”
While conceding that but for the appellant’s contribution to the delay there would be a breach of the reasonable time in section 10(1) of the Constitution, Mr Cox QC submitted on behalf of the State that the Supreme Court was quite justified in holding that that contribution was such as to prevent a breach from occurring. Mr Guthrie QC for the appellant, on the other hand, contended that (a) the delays were basically the fault of the prosecution and the court system and in particular the decision of the Director of Public Prosecutions to enter a nolle prosequi (b) most, if not all, of the applications made by the appellant during the course of the proceedings were justifiably made and it was wrong to stigmatise them as devices (c) the trial of the appellant was unfair.
In their Lordships’ opinion it is undeniable that the delay in completing the trial was caused to a considerable extent by the actions of the appellant. It is quite apparent from consideration of the history of the proceedings that he deliberately made numerous attempts to exploit and abuse the legal system, making inappropriate use of his legal knowledge and experience. In that respect the observations of the Supreme Court at page 528 of the Record were fully justified. It is objected on the appellant’s behalf that some at least of the applications were justifiably made, even if they were rejected. But this is not a sufficient answer. If a defendant makes a large number of applications which hold up the completion of a trial, even if all were made in good faith and based on sufficient grounds to be justifiable, he cannot properly complain that there was unreasonable delay, provided that there was has been due expedition on the part of the prosecution and the court.
It is plain, however, from the propositions set out by Lord Bingham of Cornhill in Dyer v Watson at paragraphs 52-4 that it is necessary to consider an amalgam of factors before reaching a conclusion on the reasonableness of the time taken to complete a trial. The defendant’s contribution to the delay may be an important factor, but before dismissing his complaint of delay as a breach of his constitutional rights the appellate tribunal is obliged to look at the whole picture.
It is not in dispute that the time taken overall, between February 1991 and March 2003, gives grounds for real concern and is prima facie unreasonable, even setting the threshold at the appropriate height. There has been no material before the Board which would suggest that the case was unusually complex for a prosecution of this type, which is confirmed by the relatively small number of witnesses called for the prosecution and the fairly limited nature of the issue which the
There remains the question of the remedy which should be afforded to the appellant. Mr Guthrie submitted that the trial was unfair in a number of respects. These included the length of the protracted trial and the intermittent nature of the hearings, together with such matters as the magistrates’ treatment of the appellant’s illness in the latter stages of the trial, the reference of matters to the judge in chambers, the closing down of the appellant’s defence, disclosure and the degree of bias evidenced by the magistrate Mr Chan’s statement to the police. The Supreme Court dealt with a number of these complaints in its judgment, and in those respects their Lordships consider that their decision was correct. They do not consider that the several matters on which the appellant relies, taken either singly or cumulatively, satisfy the test laid down by Lord Bingham of Cornhill in Attorney General’s Reference (No 2 of 2001)  UKHL 68,  2 AC 72, 90, para 25. They accordingly did not give rise to sufficient prejudice to him to justify a conclusion that the trial was unfair.
The Board must therefore determine the remedy which is to be afforded to the appellant. In the light of its finding that the trial was not unfair, the Board does not consider that the conviction should be set aside. On the other hand, their Lordships would not regard it as acceptable that the prison sentence imposed by the
The Board will accordingly allow the appeal and make a declaration that the appellant’s rights under section 10(1) of the Constitution of Mauritius to a trial within a reasonable time have been infringed. A fine of Rs 10,000 will be substituted for the sentence of imprisonment. The order for costs made against the appellant by the