Since the Sierra Leone Courts Monitoring Programme (SLCMP) started monitoring the national courts in early September 2005, it has observed that delays in courts are most times avoidable. Under Section 23 (1) of the 1991 Constitution of Sierra Leone, an individual charged with criminal offence is guaranteed speedy trial. This has however not been the case as proceedings continue to be run at a snail’s pace.
This article primarily examines the prosecutorial and defense strategies that amount to undue delays in courts; how these affect the trial process and the right of accused; and suggests ways of remedying the situation.
The SLCMP assigned one monitor in September to Magistrate Court No. 1 presided over by Magistrate Sam Margai. The Monitor attended court hearings at least 5 hours a day, from Monday to Friday. This article is based largely on the observations during this period.
THE CAUSES
Prosecution
The prosecution on its part has not been helping the situation. In the month of September there were many occasions upon which the Prosecution failed to produce witnesses, and the Magistrate ordered successive adjournments as a result. The prosecution appears regularly to lose track of their witnesses as police investigators who double as witnesses are often transferred to other areas of the country without prior knowledge of the prosecution. In addition to that, when more than one police officer is involved in the investigation of cases, the prosecution often has difficulty in getting all of them to testify in court. The absence of a victims and witness support unit within the Sierra Leone judiciary makes it very difficult for the prosecution to keep track of their witnesses. These delays, which in our submission
could be prevented, negatively impact on the speedy resolution of cases, casting doubt upon the basic tenets that make the process of litigation credible and reliable.
Another reason for delays is the lack of the requisite expertise to prosecute cases. The police prosecuted all the criminal cases that were heard in Magistrate Court No. 1 during this period. However, with the exception of the senior/lead police prosecutor, most of the police officers lack the requisite prosecutorial expertise. Most times they are not au fait with the procedures and even the facts of the matter. Their inadequate experience is largely manifested in the manner they present evidence and cross-examine witnesses in court. Unfortunately it appears that they make series of mistakes that do not only lead to acquittal but unnecessarily prolong the trial process.
Defence
Defense counsels on their part often fail to adequately to represent their clients in court. On many occasions Magistrate Sam Margai has been forced to take a brief stand down on cases so that the accused could scout around for his counsel. This is usually because the defense counsels have more clients than they can serve. They are often scheduled to be in more than one courtroom at the same time. Consequently, they end up not attending other court sessions in which they must make representation.
The Bench
The fact that most legal practitioners are not attracted to the Bench brings undue pressure on the latter. The courts are assigned more cases than they can handle which has continued to cause undue delays in court. Furthermore, the Bench attempts to write every bit that is said by the witness or the counsels, thus often stopping them in order to catch up with them. This act brings undue delay to the trial process. However, the problems with delays are circular, because in view of the fact that a case only hears one witness at a time, and that a witness’s testimony itself may be divided into two hearings, it is vital that the judge has a good note of exactly what was said so that it can be revisited later. The SLCMP thus acknowledges the very difficult situation in which Magistrates find themselves, and understands that changes must be made in the whole system and cannot be made merely in part of it.
EFFECT
Delays in criminal proceedings have severe negative implications on the path to justice. It results in distortion of evidence for both the prosecution and defence. The Commonwealth Conference on Fair Trials in November 2002 commented that: “[l]ong delays in complex criminal trials can be unfair because evidence for both the prosecution and the defence can be lost or forgotten over time.” In Sierra Leone, these delays are occurring not just in complex criminal trials, but even in more straight forward ones. This is a key problem for witnesses as they are constrained during their testimonies especially when it discredits certain pieces of evidence.
Delay may also result in the commission of more crimes, and will certainly cause the courts to have to balance this risk against the rights of the accused, causing individuals’ rights to suffer for the sake of the court’s own internal problems. The Ninth Criminological Colloquium on Delays in 1998 (Strasbourg) commented on the dangers of delays thus:
“Due to delays, dangerous defenders (if not incarcerated prior to trial) may be free and commit new crimes. On the other hand pre-trial delay may violate the right of the offender in custody on remand if he or she is not incarcerated after trial, as delay generally affects the rights of the defendants as mentioned in the European Convention for the Protection of Human Rights and Fundamental Freedoms, state constitutions and other laws” .
The right of the accused is not ensured as a result of delay, which is contrary to the constitution of Sierra Leone. This is worsened by the fact that no compensation is given to the accused upon acquittal, even if it is clear that the case has been managed incompetently or the prosecution has behaved unreasonably. Compensation is a contentious point with regard to criminal trials in any jurisdiction, but it is strongly arguable that in certain limited circumstances it should be allowed, and this in itself could be an incentive for the courts or the prosecution to run cases more efficiently and fairly. The country also suffers in terms of resources and time. It also costs the State huge sums of money to pay for court hearings, which could rather be used to provide other services in order to improve on the standard of living of the masses.
RECOMMENDATIONS
The SLCMP has been considering what could be done to help ameliorate the situation. Clearly all efforts must be made in the whole, and stakeholders on all sides must work together to achieve improvements. There will be more suggestions for change in future editions of the Monitor, but as a preliminary finding, we suggest that this situation could be improved if steps were taken to work on the following suggestions.
In the first place the Chief Justice can set up a committee within the judiciary to monitor case files in the various courtrooms. This will enable the top cadre of the judiciary to know the pace of trials and in the same vein ascertain problems and how they can be surmounted.
The prosecution on its part needs more qualified personnel who can effectively lead the witnesses. The Criminal Investigation Department of the police should also be staffed with bright and highly trained officers that have manifested their ability in the investigation of criminal cases. Currently some of the investigators do not seem to obtain statements that can effectively prosecute accused persons for alleged crimes, and so it may help if they were to receive training from prosecutors, lawyers or judges in what is really needed before the court. The police administration should also collaborate with the prosecution more to ensure that transfer of police personnel dealing with court matters is communicated.
There should be coordination between defence counsels and the clerks of the various courts to prevent simultaneous hearing of cases. If the dates cannot be separated, the scheduled time must allow counsels to represent their clients, or alternative representation must be assigned (although this is not preferable as counsel will, or at least should, spend a considerable amount of time getting to know the details of each case so it would save preparation time if they stay with cases from start to completion). Significantly though, defence counsels as legal practitioners need not to be reminded that, once contracted, they are obliged to provide the services for which they have been hired, and so it is their responsibility to ensure that even if they themselves cannot attend, a competent counsel arrives, prepared and on time, to represent the client.
Government should improve on the current compensation given to the judicial sector as a way of attracting able legal practitioners to occupy the Bench. This would clearly attract many qualified practitioners who currently frown on the Bench, making them ready to serve in that capacity. However, in no jurisdiction are judges paid as well as the most well paid lawyers, and so the government should not have to compete financially to obtain such. Sitting on the Bench is, in most jurisdictions, an honour bestowing respect, and many judges see it moreover as a matter of public service, a means of helping the community. Thus lawyers cannot see it purely in terms of financial gain, as this is unfeasible in any part of the world, but once salaries are of a respectable level that would itself improve the status of the Bench as both in terms of respect and as a career option.
The Bench on its part can leave the note-taking to one of the court recorders, or alternatively record proceedings on a cassette, to be listened to if necessary by judges or lawyers, for example in an appeal. This will save the court a great deal of valuable time, and also enable judges to look at witnesses and gauge their demeanour, helping them decide the credence they are to give to their testimony.
In view of the observations on the causes for delay in the trial process we sincerely hope that some of the recommended solutions suggested in this piece will be considered and adopted by the Government, and by all the parties mentioned above, in the interest of justice.
The SLCMP looks forward to bringing further suggestions on the subject of delay in due course.