Page 565 - Magistrates Conference 2019

court opined that the proposition that quashing the conviction was the “normal remedy” was
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not accepted in later cases. See Taito v The Queen [2002] UKPC 15.

The importance of that decision for the purposes herein however is its pronouncement that

the law as stated in the Attorney General’s Reference Case, [2004] 2 AC 72 and as
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summarized in Boolell v The State [2006] UKPC 46 , represents the law of Jamaica and by
extension the Commonwealth Caribbean.

According to Gibson, the court had to weigh the competing public’s interest and the accused

interest and apply the principles of proportionality, thereby taking into consideration all the

circumstances of the case. Gibson indicated the following remedies may be available:

(i). Stay of proceedings - The permanent stay or dismissal of a charge could not be regarded

as the normal remedy in cases where an unreasonable delay existed but it was still possible to
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have a fair trial.

(ii). Reduction in sentence - Archbold 2011 at 7-143 a , states that where there is delay in
hearing of an appeal for which no blame can be accorded to the appellant, and the delay is

such that amounts to a violation of his right to have his criminal charge determined within a

reasonable time, generally the most suitable redress is a reduction of sentence.

This was demonstrated in Gibson by the Caribbean Court of Justice, which held that

following a conviction, the remedy for delay will necessitate consideration of a reduction of
sentence.

(iii). Award of damages - The award of damages is not automatic and depending on the
circumstances of the case, it may be a suitable remedy for breach of the right to be tried

within a reasonable time. Damages may be considered suitable where the accused was tried

and acquitted or his conviction was quashed. However, where there is a possibility that the

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“Delay for which the state is not responsible, present in varying degrees in all the relevant cases, cannot be prayed in aid by
the appellants.”
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Although those judgments were not directed specifically at the effect of delay pending appeal, the same approach applies.
It follows that even extreme delay between conviction and appeal, in and of itself will not justify the quashing of a
conviction which is otherwise sound. Such a remedy should only be considered in a case where the delay might cause
substantive prejudice, for example in an appeal involving fresh evidence whose probative value might be affected by the
passage of time.
4 At paragraph 141 in Gibson the court stated that “Section 24(1) of the Constitution afforded the court
flexibility, power and a wide discretion in fashioning a remedy that was just and effective taking into account
the public interest and the rights and freedoms of others. No conceivable remedy, including a permanent stay
or dismissal, ought to be removed from the range of measures at the disposal of the court if the relief in
question would prove to be appropriate.”