Carlos Hamilton and Jason Lewis v The Queen (Jamaica)

Under rule 11(2) of the Judicial Committee (Appellate Jurisdiction) Rules Order 2009, an application for permission to appeal must ordinarily be filed within 56 days. The Registrar may extend time, but that extension does not prevent an objection to an out-of-time application. The Board must decide whether an extension is in the interests of justice, weighing all the circumstances. The longer the delay, the more convincing and weighty the explanation required. In criminal appeals from Caribbean jurisdictions, difficulties in obtaining representation, legal aid, instructions and documents, particularly for prisoners relying on pro bono assistance, must be given appropriate weight. The merits and severity of sentence are relevant. A strong indication of possible miscarriage of justice makes refusal for delay less likely. Early notification of prosecuting authorities and State agents should help reduce delay.

The appellants were convicted of murder in Jamaica on 2 April 2001 and sentenced to life imprisonment, with parole eligibility after 25 years. The Court of Appeal of Jamaica refused permission to appeal on 24 March 2003. The appellants applied to the Judicial Committee for permission in July 2011, more than eight years after the Court of Appeal’s decision. The Board considered whether, despite the delay, it was in the interests of justice to extend time and grant permission. The central issue was the proper approach to late applications in criminal appeals from Caribbean jurisdictions, where prisoners may lack continuing legal representation and effective access to legal aid.

1. Permission granted. The applications were substantially out of time, but the appellants’ long sentences, the merits disclosed by the proposed grounds, and the fact that the case had been handled pro bono made it in the interests of justice for the appeals to proceed to a full hearing.
2. Rule 11(2) of the Judicial Committee (Appellate Jurisdiction) Rules Order 2009 remains applicable. The Registrar’s power under rule 5(1) to extend time does not prevent the respondent from objecting on grounds of delay. The Board will require an explanation and determine whether an extension is in the interests of justice. The longer the delay, the more convincing and weighty the explanation must be.
3. The exceptional difficulties affecting criminal appellants from Caribbean jurisdictions do not create a different legal test. They are circumstances to be weighed in the interests-of-justice assessment. Relevant considerations include the merits, severity of sentence, possible miscarriage of justice, limited legal aid, reliance on pro bono representation, and practical difficulties in obtaining instructions and documents.
4. Constitutional guarantees of a fair hearing within a reasonable time extend to post-conviction appellate proceedings, including proceedings before the Judicial Committee. A time limit restricting access to the courts is compatible with that guarantee where it preserves the essence of the right, pursues a legitimate aim, and bears a reasonable relationship of proportionality to that aim.
5. Prosecuting authorities and the State’s Privy Council agents should be notified when a prisoner indicates an intention to apply for permission. They are expected to assist in obtaining relevant documents and reducing avoidable delay.

• Privy Council: Permission to appeal was granted and the case proceeded to a full hearing before the Board.
• Court of Appeal of Jamaica: Permission to appeal against the convictions and sentences was refused on 24 March 2003.
• Trial proceedings: The appellants were convicted of murder on 2 April 2001 and sentenced to life imprisonment, with parole eligibility after 25 years.