Melanie Tapper v Director of Public Prosecutions (Jamaica)

A breach of the constitutional guarantee of a fair hearing within a reasonable time does not automatically require a stay or the quashing of a conviction. The remedy must be effective, just and proportionate, having regard to the nature of the breach, all the circumstances and the stage at which it occurred. After a completed hearing, a declaration, reduction of sentence or compensation may be appropriate. Quashing is reserved for cases in which the hearing was unfair or it was unfair to try the defendant at all. Even extreme delay between conviction and appeal, without more, does not justify quashing an otherwise sound conviction. An appellate court should respect the domestic court’s assessment of delay and local conditions, intervening only exceptionally.

The appellant was arrested in 1997, tried after substantial delay and convicted in 2003 of fraudulently causing money to be paid out. The Court of Appeal of Jamaica dismissed her appeal against conviction but treated more than five years’ post-conviction delay as a breach of the constitutional right to a hearing within a reasonable time. It reduced an 18-month custodial sentence to 12 months, suspended for 12 months.

Before the Privy Council, the appellant argued that the whole period from arrest to the Court of Appeal’s judgment justified quashing the conviction. The respondent submitted that delay alone could not justify that remedy. The central issue was the appropriate remedy for constitutional delay where the conviction and hearing were otherwise sound.

The Board unanimously dismissed the appeal and advised Her Majesty accordingly.

1. The appeal concerned remedy only. The Court of Appeal had accepted that the constitutional guarantee extended to post-conviction delay. The Board doubted whether the questions framed for leave concerned constitutional interpretation, since one did not arise and the other concerned application of the guarantee and the exercise of remedial discretion.
2. The appellant had not shown that the wider pre-conviction history was materially advanced as part of the case before the Court of Appeal. There was no obligation on that court to extend the argument beyond the case presented by experienced advocates. The Board would substitute its own assessment only in exceptional circumstances.
3. The domestic court was better placed to assess the significance of delay in the light of local conditions and pressures on its courts, following the approach in Bell v Director of Public Prosecutions [1985] AC 937. There was no basis to question either the reduction of sentence or its amount.
4. As additional guidance, the Board affirmed the remedial principles stated in Attorney General’s Reference (No 2 of 2001) [2003] UKHL 68 and summarised in Boolell v The State [2006] UKPC 46. Delay itself constitutes a breach, but the remedy must be proportionate. After a completed hearing, a public acknowledgment, sentence reduction or compensation may suffice. Quashing is inappropriate unless the hearing was unfair or it was unfair to try the defendant at all.
5. Darmalingum v The State [2000] 1 WLR 2303 was treated as an exceptional, fact-specific case. Its suggestion that quashing was the normal remedy was not accepted in later authority. Extreme delay between conviction and appeal alone cannot justify quashing an otherwise sound conviction, although substantive prejudice, such as deterioration in the value of fresh evidence, may justify considering that remedy.

The sentence therefore remained 12 months’ imprisonment, suspended for 12 months.

• Privy Council — In [2012] UKPC 26, the appeal against the remedial decision of the Court of Appeal of Jamaica was dismissed.
• Court of Appeal of Jamaica — On 27 February 2009, the appeal against conviction was dismissed. The sentence appeal was allowed because of inordinate post-conviction delay; the sentence was reduced from 18 months’ imprisonment with hard labour to 12 months, suspended for 12 months.
• Constitutional Court of Jamaica — On 8 February 1999, the prosecutor’s nolle prosequi was held to be an abuse of process and a constitutional contravention. The voluntary bill was stayed and the proceedings were remitted to the Resident Magistrate’s Court.