In conjoined applications, the board considered the procedure and approach to be taken in relation to applications for permission to appeal in criminal appeals from the Caribbean.
The applicants (H and J) were sentenced in 2001 to life imprisonment for murder with a minimum term of 25 years. In 2003, the Court of Appeal of Jamaica refused their applications for permission to appeal against conviction and sentence. Their applications for permission to appeal to the Privy Council were served in July 2011. The Judicial Committee (Appellate Jurisdiction) Rules Order 2009 r.11(2) provided that an application had to be served within 56 days from the date of the decision of the court below or the court refusing permission. In practice, the delay in applications in criminal appeals from the Caribbean was invariably in excess of other cases. It was commonplace for years rather than days to elapse before the application was made. Most prisoners in the Caribbean were not legally represented following the conclusion of proceedings in the Court of Appeal, as legal aid was not available beyond that stage. Prisoners almost always had to resort to pro bono assistance, which was not easily found, and also often had limited access to means of communication with the outside world. H and J were represented on a pro bono basis, and the instant applications had been lodged 15 months after solicitors were instructed on their behalf. The solicitors instructed by the Crown stated that they were not aware of H and J's wish to appeal until approximately one week before the applications were served.
(1) The board had no intention of departing from the direction in r.11(2). Restricting access to the court by the imposition of time limits was not incompatible with the European Convention on Human Rights, so long as the very essence of the right to a fair hearing was not impaired, the restriction pursued a legitimate aim, and was proportionate. It had not been suggested that r.11(2) failed to meet that standard. The circumstances that contributed to the problem of delay in criminal appeals from the Caribbean were exceptional. However, the question for the board was no different. The overriding consideration was whether it was in the interests of justice that the time limit should be extended. Weight would always be given to the merits of the appeal and to the severity of the sentence. The stronger it appeared that the appellant might have suffered a miscarriage of justice, the less likely it would be that the application would be rejected on the ground that it was out of time. The board would also be sympathetic to the problems faced by death-sentence prisoners, and those in non-capital cases who had been sentenced to very long periods of imprisonment, who had to rely on the services of those who provided legal services pro bono. Those who provided such services had other demands on their time and, while they would be expected to progress their cases as quickly as possible, it would be unreasonable to expect them to adhere to the same exacting standards as those who provided professional services for remuneration (see paras 15-17 of judgment). (2) There were steps that should be taken to minimise the risk of unreasonable delay. The prosecuting authorities should be notified as soon as a prisoner had indicated to the judicial committee an intention to apply for permission to appeal, with a view to enlisting their help in obtaining relevant documents as soon as possible. It was in the public interest that help should be made available so as to minimise delay in the prosecution of the appeal, and prosecuting authorities would be expected to provide it. A copy of the notification should be available for production to the registrar when the application was lodged. Steps should also be taken at that time to inform those who normally act as Privy Council agents for the state concerned. The applicant's agents had nothing to lose and much to gain by involving the respondent's agents in the progress of the case from the outset. They could be expected to offer their assistance in obtaining the relevant documents as soon as possible if problems were encountered with the prosecuting authorities. The board was confident that those who regularly practised before it would continue to maintain the high standards of professional conduct and mutual co-operation which did so much to assist in the handling of appeals that had to rely on the pro bono system. The best way of reducing the opportunity for delay lay in the early exchange of information (paras 18-19). (3) In the instant cases, the applicants had been sentenced to very long periods of imprisonment and there was sufficient merit in their grounds of appeal to justify referring their cases to a full hearing. Much of the delay was unexplained, but the cases had been handled pro bono throughout and it was in the interests of justice that they should be heard (para.20).
The Privy Council gave guidance regarding the procedure and approach to be taken in relation to applications for permission to appeal in criminal cases from the Caribbean.