Is there a right to pre-trial disclosure in West Indian constitutional law?

• Author: Albert K. Fiadjoe
• Position: LL.B. (Hons) (Ghana); LL.M., Ph.D. (London)
• Pages: 273-317

IS THERE

A

RIGHT

TO

PRE-TRIAL DISCLOSURE

IN WEST INDIAN CONSTITUTIONAL LAW?

ALBERT

K.

FIADJOE*

Introduction

It

is

fitting that

the

Faculty

of Law has

decided

to

honour

the

outstanding contributions

of Prof. A.R.

Carnegie through this

Commemorative Issue

of the

Caribbean

Law

Review.

Prof.

Carnegie

has made

a

towering contribution

to the

advancement

of

the University

of

the

West Indies

and,

especially,

to the

Faculty

of Law. As an

academician,

he has

been

an

exemplar.

And, as an

administrator,

he

has exhibited quality leadership

by

example.

His

overall contribution

to U.W.I.

can be

described only

in

superlative terms.

It is

therefore

an

undeserved privilege

to be

given

the

opportunity

to

contribute

to

this

special Commemorative Issue

in his

honour.

I

have chosen

to

write

on

a topic

in

Constitutional

Law, one of the

many subjects that

Prof.

Carnegie pioneered

in

U.W.I.,

in the

hope that

he

would

be

pleased

to

know that

the

seeds which

he

sowed

in

that subject have

not

fallen

on

dry land.

But I

also have

an

additional agenda; that

of

provoking

him

as well, because

I do not

intend

to say

with

him

"Floreat

the

Westminster Model?"1 when that model

is in its

twilight zone

in the

Caribbean.

I

would rather choose

to

address

one of the

grey areas

of

Caribbean Public

Law -

pre-trial disclosure

for the

criminally accused.

The Right

to a

Fair Trial

The Jamaican

and

Beiizean cases

of

Vincent

and

Franklyn

v. R2 and

Courtenay

v. A.G. of

Belize3 respectively provide

the

inspiration

to

LL.B.

(Hons) (Ghana); LL.M.,

Ph.D.

(London).

I am

indeed grateful

to

my colleague,

Mr.

Sampson Owusu,

who

assisted

me

greatly with

the

initial background research

to

this article

and to Mr.

Eamon Courtenay,

attorney-at-law, Belize,

who

inspired

me to

examine this area

of the law.

1

A.R.

Carnegie, "Floreat

the

Westminster Model?

A

Commonwealth

Caribbean Perspective", ante

p.l.

2 [1993]

1

W.L.R.

862.

3

1995

(H.Ct. Belize) (Unreported).

discuss the law governing pre-trial disclosure of materials in the hands

of the prosecution to the criminally accused. This question is

inextricably linked to the principle of a fair trial for the criminally

accused, a principle expressly espoused by all the written constitutions

of the Commonwealth Caribbean. As is the style with most

constitutions, however, the right to a fair trial is couched in general

terms;4

followed by a few specific references to the presumption of

innocence, the need to be informed of the nature of the offence in a

comprehensible language,5 the bestowal of adequate time and facilities

for the preparation of one's defence and the right to counsel,6 among

others. The details are left out to be filled in on a case by case basis.

In both Vincent and Franktyn and Courtenay, the nice legal question

raised in the trial of the applicants was whether the right to a fair trial

encompassed the right to pre-trial disclosure of evidence in the hands

of the prosecution. Since the Constitutions of Jamaica and Belize7 do

not speak directly to the point, it means that one has to have recourse

to the experiences of countries outside of the Caribbean, by way of

analogy and comparison, in order to see how other jurisdictions have

dealt with the issue. After that excursus, it will be appropriate to return

to Vincent and Franktyn and Courtenay. This review will thus discuss

the legal position as it applies to the United Kingdom, Australia, New

Zealand and the United States of America before reverting to the

Caribbean.

The Position in the

U.

K.

The absence of a written constitution in the U.K. makes that country

a most unlikely candidate for comparison with any Caribbean

jurisdiction on the question of pre-trial disclosure for the criminally

accused. However, the leading role of the U.K. as the "mother" of the

4

S.18(l)

of the Barbados Constitution states that "if any person is charged

with a criminal offence, then unless the charge

is

withdrawn, the case shall

be afforded a fair hearing within a reasonable time by an independent and

impartial court established by law".

5 A.G. of Trinidad & Tobago v. Whiteman [1991] 2 A.C. 240.

6 Thornhill v. A.G. of Trinidad A Tobago [1981] A.C. 61.

7 See sections 6(a)(b) & (d) and 20 of the Constitution of Jamaica; and

section 6 of the Constitution of Belize.

independent Commonwealth Caribbean Constitutions, and the common

law which all the Commonwealth Caribbean jurisdictions subscribe to,

makes the U.K. eminently suitable for prime discussion in this regard.

Lord Diplock, in the case of Council of Civil Service Unions v.

Minister for the Civil Service9 has reduced the principles of modern

Public Law into three simple propositions: illegality, irrationality and

procedural impropriety. Procedural impropriety connotes a failure to

observe basic rules of natural justice or failure to act with procedural

fairness. That concept of "procedural impropriety or irregularity" has

been expressly imported into the constitutional/criminal law of England

by statute.9 An appellate court may allow an appeal against conviction

if it thinks that "there was a material irregularity in the course of the

trial".

Of the U.K. cases which have been selected for discussion,

chronologically R. v. Hassan10 falls first for treatment. On the trial

of the appellants for wounding with intent, the complainant had given

evidence, which differed materially from his evidence at the

magistrates' court and conflicted entirely with the evidence given by

the appellants. It was not known at the trial, but was subsequently

discovered; that the complainant had a number of serious convictions

for violence, under different names. This piece of information was not

disclosed by the prosecution. The court allowed an appeal against

conviction on the basis that it would "be unsafe and unsatisfactory to

allow the verdicts to stand". Reading the unanimous judgment of the

Court of Appeal, Sachs L.J. referred to the ground of appeal

concerning the non-disclosure of evidence in the hands of the

prosecution as "extremely strong". In his own words:

"Whereas at the trial Mr. Leonard, having received recent

instructions from the police, was able to place before the jury

only the information that Hobeishi had suffered one relatively

minor conviction, it appeared that after the trial had been

concluded the police obtained further information and that the

man Hobeishi, far from having only one conviction, had a

8 [1984] 3 W.L.R. 1174; [1985] A.C. 374.

9 Criminal Appeal Act, 1966, s.4 which in turn has been repealed by the

Criminal Appeal Act, 1968 (c.19); see s.2(l)(c).

10 (1968) 52 Cr. App. Rep. 291.