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Lawyers differ on new criminal procedure rules

Wednesday, April 19, 2017
Attorney Mario Merritt

There are differences of opinion among criminal defence attorneys over the new criminal procedure rules implemented by the Judiciary on Tuesday.

Attorneys polled by the T&T Guardian were split in opinion on the potential effect of the rules which are intended to reduce delays in the criminal justice system. The rules are meant to work in tandem with legislation currently before Parliament to abolish preliminary inquiries and to allow for plea bargaining and jury-less trials. In addition, there is a new procedure for prosecutors and defence attorneys to follow for the conduct of criminal trials.

During case management conferences, after indictments are filed in the High Court, both parties are now required to fill out forms listing all the legal issues in the case which need to be addressed before the start of the trial.

Accused persons are now required to state at the preliminary hearing whether they wish to rely on a defence and whether they will be calling defence witnesses.

Judges have a discretion to penalise prosecutors and defence attorneys who do not follow the rules and miss deadlines without applying for extensions.

Judiciary-appointed case progression officers are to be assigned to all cases to monitor their progress.

Senior criminal defence attorney Mario Merritt said he had several issues with the rules which he claims are biased against accused persons and their attorneys.

“They say it will speed up the process but to me it will do the opposite and slow it down because if you put another cog in place before you get to actual trial, the bureaucracy will naturally slow down the actual event happening,” he said.

Merritt has used the rules in several test cases selected by the Judiciary over the past year and is also critical of the new requirement that accused persons disclose their defence.

He told the T&T Guardian: “I find that this is an unfair situation. The playing field has never been level. The State has always had the freedom to withhold information that they think we don’t need and I think that is unfair especially in light with them saying there is no ambush anymore.”

Merritt said the rules will have a negligible effect on the backlog of cases in the system as there are no provisions to address the shortage of defence attorneys in the country.

“There are a lot of complaints about the criminal bar but they fail to recognise that in fact there are a few criminal attorneys manning a whole lot of cases.

“You will get situations where attorneys will have to do three and four cases at the same time, because if you are good, people would want you,” Merritt said.

He also complained that there wasn’t training for all parties before the rules were introduced.

“They would say there was actual group discussion but it is always a selected few on the committees and not the actual practitioners who are in the trenches every single day,” he said.

Senior Counsel Gilbert Peterson, who regularly serves as special prosecutor for the Office of the Director of Public Prosecutions (DPP) in high profile cases, had a different opinion.

“I don’t think we could have continued practising the way we have been doing and expect the backlog to be reduced,” he said.

“It is a refreshing step that is not going to be the sole answer to the backlog but will significantly help.”

While he acknowledged that there would be issues in implementation, Peterson said he is confident they will be addressed.

“As best as you can draft the rules, it is only when you implement them the areas that can be tweaked will become apparent but that is not a reason against the implementation of the rules,” he said.

He said similar concerns were raised when rules were introduced for civil litigation in 1998.

Peterson said concerns about disclosing an accused person’s defence are unfounded.

“That kind of mutual disclosure has been practised in other jurisdictions and what it does is narrow the issues, so you do not spend forever figuring out what the issues are and what is contentious and disputed,” he said.


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