Page 565 - Magistrates Conference 2019

To make such a determination, the court had to take into consideration, in addition to the
length of the delay, the complexity of the case, the reasons offered for the delay and the

conduct of both the accused and the state.

“the concept of ‘reasonable time’ is elastic and whether delay in having a criminal trial
commence is unreasonable or not depends upon a variety of factors which makes it

problematic for a court to pronounce rigid timelines.” Jack v The Queen BB 2009 CA 1

What is the effect of delay on a trial?

The following guidelines with respect to a matter being heard within a reasonable time:
Boolell v. State of Mauritius [2006] U.K.P.C. 46; [2004] 2 A.C. 72; Attorney General's

Reference (No. 2 of 2001)

If a criminal case is not heard and completed within a reasonable time, that will itself

constitute a breach of the Constitution, whether or not the defendant has been prejudiced by

the delay;

An appropriate remedy should be afforded for such breach, but the hearing should not be

stayed or a conviction quashed on account of delay alone, unless:

- the hearing was unfair

. it was unfair to try the defendant at all.

The appropriate remedy where delay gives rise to an abuse of process.

1
In the Privy Council appeal of Melanie Tapper v the DPP 20012 UKPC 26 there was no
challenge to the substantive basis of the conviction. The court was instead asked to consider

the appropriate remedy on appeal for the breach of constitutional right under constitution
(which is now embodied in s. 16 of the charter of fundamental rights and freedoms). The

1
The short history of the case is that charges were brought jointly against Ms. Tapper and Mr. Mckenzie in 1997 for
offences allegedly committed between 1994-5. The trial in the Magistrates court, was due to begin in January 1998 however
due to several intervening factors, did not get underway until January 2000. Thereafter, the case for the prosecution was not
closed until December 2002. In 2003 she was convicted on count 11 and was sentenced. She was granted bail pending
appeal. Notices of appeal against conviction and sentence were lodged by both defendants. The record of the case, with the
magistrate’s notes of evidence was not received by the Court of Appeal until 9 August 2007, over four years late (In breach
of the 14 day requirement under s. 299 of the Judicature (Resident Magistrates) Act) The appeal was eventually heard
between March and April 2008 and a decision handed down in 2009.