Commonwealth Caribbean Criminal Practice and Procedure

Roger Ramgoolam

• Publisher: Routledge
• Year: 2019
• Print ISBN: 9781138590083
• eBook ISBN: 9780429490668
• Edition: 5
• Topic: Derecho
• Subtopic: Derecho penal

The fifth edition of this best-selling book has been thoroughly revised to take into account recent developments in the law in criminal practice and procedure across the region. As the only textbook to explore criminal practice and procedure as it relates to the Commonwealth Caribbean, the book clarifies the state law in each of 11 jurisdictions, while at the same time making it clear when laws are the same or similar and highlighting where differences among jurisdictions occur.

Both statute law and common law are examined in the relevant jurisdictions, which include Trinidad and Tobago, Guyana, Barbados, Jamaica and Grenada amongst others. The impact of statutory changes in the laws are analysed, as well as recent developments in the common law. Throughout the text the statutory law in the Commonwealth Caribbean is compared with similar English legislation, in light of the analysis of such legislation in English case law.

This book is the recommended textbook for all professional law schools in the Commonwealth Caribbean and is used at regional universities as a reference book for criminal justice students. In addition, as the only book that deals specifically with criminal practice and procedure in the regions, it has proved a valuable reference tool for legal practitioners, judicial officers and police officers.

CHAPTER 1JURISDICTION

DOI: 10.4324/9780429955570-1

Before criminal proceedings may be commenced against anyone for any offence, it must first be ensured that the court before whom such proceedings are to be initiated has jurisdiction to hear the proceedings. Jurisdiction can refer to several matters, but in criminal proceedings it usually includes three things: physical jurisdiction; local jurisdiction, which determines which particular court within a country hears the case; and statutory limitation, which is effectively a denial of jurisdiction because of passage of time. The principles of abuse of process, which are discussed in Chapter 2, relate to situations where a court is asked to refuse jurisdiction to try a case because of the abuse of its process by prosecuting authorities.

PHYSICAL JURISDICTION

A State usually only has the ability to try offences that are committed within the boundaries of that State. The question of whether an offence is committed within a particular State depends not only on its physical boundaries, but also on legislation and legal principles that artificially extend those boundaries for jurisdictional purposes. In considering physical jurisdiction, the principles of both territoriality and extra-territoriality are relevant. As the names suggest, the former concerns matters within the State and the latter outside the boundaries.

Territoriality

The principles of criminal jurisdiction in the Commonwealth Caribbean courts are based on the English common law that is applicable across the region unless specifically overridden by statute law. The foundation of criminal jurisdiction is territorial, since it is regarded as one of the functions of the courts in a particular country to maintain peace by criminal process in that country.

In general, then, it is only conduct occurring within a particular State that is subject to prosecution by the agencies of that State: Cox v Army Council [1963] AC 48, HL. In that case the House of Lords considered the appeal of a British soldier from a conviction for driving without due care and attention contrary to the English Road Traffic Act. The incident itself occurred in Germany where the soldier was stationed. In upholding the conviction, Viscount Simonds emphasised, ‘Apart from those exceptional circumstances in which specific provision is made in regard to acts committed abroad, the whole body of the criminal law of England deals only with acts committed in England’.1 On the facts of this case, however, s 70 of the Army Act 1955, which decreed that a person ‘subject to military law who commits a civil offence, whether in the United Kingdom or elsewhere’ should be subject to punishment in accordance with the law of England, was applicable. This was an example of specific provision to which Viscount Simonds alluded. Once the constituents of the offence are committed by the offender in a particular State, the authorities may proceed to prosecute: DPP v Stonehouse [1977] 2 All ER 909, HL.

1 Cox v Army Council [1963] AC 48, HL, p 67.

In Stonehouse, an English Member of Parliament was charged with attempting to obtain property by deception. He had insured his life with five insurance companies in England and then faked his death (in the US) the following month, September 1974. Subsequently, in December, he was found alive in Australia. His wife had meanwhile sought to cash in the policies. She did not know that his death was faked. He was extradited to England and prosecuted on several charges of dishonesty in seeking to enable his wife to obtain money by deception, contrary to s 15 of the Theft Act. On an appeal based on lack of jurisdiction, the House of Lords confirmed the convictions. The House held that it had jurisdiction, on the basis that Stonehouse’s physical act (that is, his disappearance) wherever done would have caused the obtaining of property in England from the victim insurance companies. This was because Stonehouse had taken out the policies in England. Although the full offence was not completed he had performed sufficient of the actus reus in England to be liable in that country.

In Liangsiriprasert v USA [1991] 1 AC 225, PC, the Privy Council went even further in claiming jurisdiction for criminal process. The Judicial Committee held that on a charge of conspiracy to traffic in heroin, even though the agreement (the actus reus) may have been committed abroad, the conspirator was liable in the country where it was intended that the constituents of the full offence were to be committed. This was an extension of the earlier principles in DPP v Doot [1973] AC 807, HL, which had suggested that at least an overt act should have been done in the country claiming jurisdiction.

According to the House in Liangsiriprasert, the Hong Kong courts had jurisdiction to try the case even though the conspiracy itself had been entered in Thailand and no overt acts pursuant to it had yet occurred in Hong Kong. As Lord Griffiths stated,

their Lordships can find nothing in precedent, comity or good sense that would inhibit the common law from regarding as justiciable in England inchoate crimes committed abroad which are intended to result in the commission of criminal offences in England.²

2 Liangsiriprasert v USA [1991] 1 AC 225, PC, p 251.

Presumably there was also nothing to inhibit as justiciable in Hong Kong an inchoate crime such as conspiracy committed in Thailand which was intended to result in a full crime, trafficking in heroin, in Hong Kong.

It follows, therefore, that an inchoate crime committed elsewhere is justiciable in any country in the Commonwealth Caribbean if the completed offence is to be committed in that country. The decision in Liangsiriprasert extended the principles of territorial jurisdiction set out in Stonehouse, which speaks to a rationale based on physical acts being done in the country that claims jurisdiction. In respect of inchoate crimes, however, since these by their very nature are incomplete, there is no requirement for physical acts to be done in the country. Once the result (the full crime) is intended in a given country, that country has jurisdiction to try the inchoate crime.

Extension of territory

The area of territory of a particular country can be extended to give jurisdiction to that country by prerogative of the executive head of the country or by Parliament. Thus, although a State usually has jurisdiction only within its borders, those borders may artificially be extended by the decision of the Head of State or more usually by statute, as has been done in the case of territorial waters. In R v Kent JJ ex p Lye [1967] 2 QB 153, it was argued that the Red Sands Tower, in which the offence of unlawfully using wireless telegraphy apparatus was alleged to have been committed, did not fall within the county of Kent, England. The question then arose as to what ‘territorial waters’ meant in the absence of a definition in the relevant Act. It was held that these were waters over which the Crown, the English Head of State, declared sovereignty, invariably in conformity with international law. Nowadays, State boundaries are usually specifically extended by statute.

Territorial waters

In Commonwealth Caribbean jurisdictions, the State boundaries have been extended by statute, in most cases by 12 nautical miles.3 This is called the territorial sea or territorial waters. Since most of the Commonwealth Caribbean territories are islands, this issue has more relevance than in larger countries where crime is concentrated in the landmass. Across the region there are statutory provisions that delimit the extent of the territorial sea.4 An example of the common provision can be found in s 5(1) of the Grenada Territorial Sea and Maritime Boundaries Act (1989) Cap 318, which provides:

3 One nautical mile equals 6,080 ft, as compared with 5,280 ft for the usual mile.

4 See: Antigua: Territorial Waters Act, 18 of 1982; Bahamas: Archipelagic Waters and Maritime Jurisdiction Act, No 37 of 1993; Barbados: Territorial Waters Act, Cap 386; Dominica: Territorial Sea and Maritime Boundaries Act, Chap 1:11; Grenada: Territorial Sea and Maritime Boundaries Act 1989, Cap 318; Guyana: Maritime Boundaries Act, 10 of 1977; Jamaica: Territorial Sea Act 1971; St Kitts and Nevis: Maritime Areas Act, Cap 7:03; St Lucia: Maritime Areas Act, 6 of 1984; St Vincent: Maritime Areas Act, Cap 464; Trinidad and Tobago: Territorial Sea Act, Chap 1:51.

Subject to subsection (2) and ... the territorial sea of Grenada comprises those areas of the sea having, as their landward limit, the baselines and, as their seaward limit, a line measured seaward every point of which is twelve nautical miles distant from the nearest point of the baselines.

If one country is closer than 24 nautical miles to another, the territorial waters of each is determined by agreement.⁵ In the absence of statute, common law prevails and at common law jurisdiction extends to three miles⁶ from the nearest point of the baselines.

5 As indicated, for instance, in sub-s 5(2) of the Grenada Act, Cap 318.

6 Pianka v R (1977) 25 WIR 438, PC, p 443, letter C-H.

A ship that is within the territorial waters of a country is within that country’s jurisdiction: Pianka v R (1997) 25 WIR 438, PC. In that case a boat registered in the US carrying US citizens was intercepted in the territorial waters of Jamaica with over 3,000 lbs of marijuana. Two US citizens were charged with possession of the drug. Upon conviction it was argued on appeal that the magistrate lacked jurisdiction. It was contended that the s 4 of the Jamaica Territorial Sea Act 1971, extending the territorial waters to 12 miles, applied to indictable offences only and this was a summary trial. It was held that the 1971 Act did apply to resident magistrates’ courts and the extension of territorial waters of Jamaica was the same for jurisdiction as regards all offences.

This case also highlights some of the problems with territorial jurisdiction of summary courts where jurisdiction depends on the statute, that is, the relevant summary procedure legislation, since magistrates are creatures of statute. This compares to the High Court, where judges have jurisdiction based on common law. Thus, in most summary procedure legislation in the region, there can be found a provision stating that for criminal acts committed within the territorial sea, or internal waters, the magistrate of the closest magisterial district has jurisdiction, or any magistrate7 may have jurisdiction.

7 As in Magistrates’ Courts Act 1996, s 15, Barbados, District Courts Act Chap. 2.02, section 6(2); St Lucia, Summary Courts Act Chap 4:20; section 10, Trinidad and Tobago.

Extra-territoriality

On the face of it, it would seem that a State might not have jurisdiction over offences committed outside its land space or the territorial waters such as in the High Seas or airspace. However, international law has intervened to extend jurisdiction in specific situations, in respect of acts committed outside the boundaries or territorial waters of a particular State. This relates to both the High Seas and airspace. Statute also provides for a State to assist another in enforcing its jurisdiction by facilitating extradition of an offender to the latter State where the offence was committed.

High seas

The Convention on the High Seas (1958) specifies that a ship is subject to the jurisdiction of the State whose flag it bears.8 Although this Convention was superseded by the United Nations Convention on the Law of the Sea (Law of the Sea Convention) the principle is restated in Art 97 of the latter. A ship may only fly one flag. It is subject to the exclusive jurisdiction of that State if it is on the High Seas. Most countries in the Commonwealth Caribbean are signatories to the Law of the Sea Convention, so the principles of international law should apply on such juri...

Table of contents

• Cover
• Half Title
• Series
• Title
• Copyright
• Dedication
• Contents
• Acknowledgements
• Introduction
• Table of abbreviations
• Table of cases
• Table of legislation
• 1 JURISDICTION
• 2 ABUSE OF PROCESS
• 3 ARREST, SEARCH, AND SEIZURE
• 4 PROSECUTION AND BAIL
• 5 INITIATION OF PROCEEDINGS
• 6 THE PLEA
• 7 SUMMARY TRIAL
• 8 CRIMINAL PROCEDURE RULES
• 9 SUMMARY APPEALS
• 10 TRIABLE EITHER WAY
• 11 COMMITTAL PROCEEDINGS
• 12 PAPER COMMITTALS AND COMMITTAL FOR SENTENCE
• 13 PRELIMINARIES TO INDICTABLE TRIAL
• 14 THE COURSE OF AN INDICTABLE TRIAL
• 15 THE JURY
• 16 THE VERDICT
• 17 CRIMINAL APPEALS
• 18 SENTENCING
• 19 JUVENILES
• 20 EXTRADITION
• APPENDICES 1 A SAMPLE OF DRAFT INDICTMENTS FROM ACROSS THE COMMONWEALTH CARIBBEAN
• 2 A SAMPLE OF VARIOUS DRAFTS, COMPLAINTS, INFORMATIONS
• 3 RECOGNIZANCES FOR APPEARANCE OF DEFENDANT
• 4 DRAFT IMMUNITY
• 5 SOME DRAFT DOCUMENTS - LEAVE TO APPEAL
• Bibliography
• Index