By Alric Lindsay
On December 11, 2024, Magistrate McFarlane ruled that the Summary Court would not stop or order a stay of proceedings in the case of Joseph Alfred Hurlston, who argued that his constitutional right to a fair trial was impacted or prejudiced by an unreasonable time taken to handle his proceedings. The delays were over 18 months, partially due to several court adjournments by the Office of the Director of Public Prosecutions while they waited on additional evidence that, as it turns out, the DPP does not now intend to rely upon. The DPP also changed lawyers assigned to the case at least four times, requiring each new lawyer to review the case file and initiate contact with relevant parties. Regarding Magistrate McFarlane’s ruling, it is understood that this was based on two considerations: (1) Hurlston’s lawyers did not show that his prospect of a fair trial was impossible and (2) the court’s sense of justice and propriety had not been offended by the DPP’s behaviour.
Fair trial
As mentioned in a previous story, concerning the right to a fair trial, it is vital to understand that this is set out in the Bill of Rights in the constitution of the Cayman Islands.
This states:
7. (1) Everyone has the right to a fair and public hearing in the determination of his or her legal rights and obligations by an independent and impartial court within a reasonable time.
Common examples of what may impact a right to a fair trial are delays, non-disclosure of information by the prosecution and adverse publicity.
Looking at the delay issue and its impact on a right to a fair trial, the Crown Prosecution Service in the United Kingdom set out considerations from the case of Stephen Paul S [2006] EWCA Crim 756.
According to the Crown Prosecution Service, in Stephen Paul S, the court held:
- Even where delay is unjustifiable, a permanent stay should be the exception rather than the rule
- Where there is no fault on the part of the complainant or the prosecution, it will be very rare for a stay to be granted
- No stay should be granted in the absence of serious prejudice to the defence, so that no fair trial can be held
- When assessing possible serious prejudice, the judge should bear in mind his or her power to regulate the admissibility of evidence and that the trial process itself should ensure that all relevant factual issues arising from delay will be placed before the jury for their consideration in accordance with appropriate direction from the judge
- If, having considered all these factors, a judge’s assessment is that a fair trial will be possible, a stay should not be granted
In the analysis of the current case of Hurlston, Magistrate McFarlane’s points may be summarised as follows:
- The Court ought not to stay the proceedings merely as a warning to others.
- Where there are prosecution failures, the power to stay proceedings should not be used to punish prosecutors where a fair trial remains possible.
- A stay of proceedings based on the grounds of delay should only be employed in exceptional circumstances. Therefore, even where the delay can be said to be unjustifiable, the imposition of a permanent stay should be the exception rather than rule. No stay should be imposed unless the defendant shows on the balance of probabilities that she or he will suffer serious prejudice and that a fair trial is impossible.
Magistrate McFarlane added:
I also noted that the factual matrix of cases which have considered whether delays and abuse for process concern delays of several years, not months as in this case.
So looking at the circumstances of this case, this is not a case where the trial issue as I understand it relies on the memory of which inordinate delay obviously can impact but will in fact turn on. As I understand, [Mr Hughes’s submission concerns] whether those items imported by the defendant Mr. Hurlston fall within the statutory definition of controlled substances.
Magistrate McFarlane continued:
Where a case turns large on documentary evidence, delay is unlikely to cause prejudice to the accused. The deficiencies identified… properly can be remedied. Mr. Wedderburn pointed out, for example section 74 of the Criminal Procedure Code to the extent that charges need to be amended even following or during trial.
Regarding the comment about proposed amendments to the charges, it is understood that one of charges against Hurlston is to be changed by the DPP from a reference to “ganja” to a reference to “cannabinol derivative.”
The procedure for making the amendment is as follows:
Amendment of charge and variance between charge and evidence
74. (1) Where, at any stage of a trial it appears to the court that the charge is defective, either in substance or in form, the court may make such order for the alteration or addition of a charge, as the court thinks necessary to meet the circumstances of the case: Provided that where a charge is altered, added or substituted as aforesaid, the court shall thereupon call upon the accused person to plead to the altered or new charge:
Provided further that in such case the accused person shall be entitled, if the accused person so wishes, to have the witnesses (or any of them) recalled to give evidence afresh or to be further cross-examined by the defence, and, in such last mentioned event, the prosecution shall have the right to re-examine any such witness on matters arising out of such further cross-examination.
Depending on whether the DPP has further amendments after the above proposed amendment to correct mistakes, Hurlston’s case could be subject to further delays.
Pending any futher delays that could arise above, Magistrate McFarlane made a decision regarding case delays to date.
She said:
Delay alone cannot warrant the stay of proceedings.
There is a public interest in prosecuting offenses which transcends any consideration of punishing the prosecution for delay. If delay by the prosecution does not cause prejudice to the defense, then it will not be appropriate to stay the proceedings…
… whilst the delay brought about by the prosecution’s admitted negligence and inefficiency in their conduct of this matter is deprecated in the strongest term… the defense [has not satisfied me] that a fair trial is no longer possible.
Though unfortunate and regrettable, the fact that Mr. Hurlston has not been able to trade or operate his business in any meaningful way… does not without more amount or equate to prejudice in these proceedings. Nor does a failure the prosecution failure to engage with the defense in the circumstances amount to actual prejudice.
In applying the legal principles, it has not been shown that the defendant’s prospect of a fair trial has been prejudiced.
Turning to whether a stay of proceedings was necessary to protect the integrity of the criminal justice system due to the behaviour of the prosecution, one can look at the recent case of the King v McKeeva Bush, which considered issues of disclosure of information by the DPP and the DPP proceeding with a prosecution notwithstanding that a witness reportedly indicated a desire not to do so.
One of the points cited by the Honourable Mr Justice Stanley John in the Bush case was as follows:
In Hui Chi-Ming v R’, the Privy Council described an abuse of process as “something so unfair and wrong that the court should not allow the prosecutor to proceed with what is in all other respects a regular proceeding.”
After considering all relevant matters, the Honourable Mr Justice Stanley John concluded:
In light of the foregoing, I formed the view that the prosecutorial system was being misused by person/s with their own agenda. It is imperative that public confidence in the administration of justice must always be maintained, and the Court must never be seen to be abdicating that duty.
The manner in which the Prosecution was conducted in relation to [Y] caused me a great deal of disquiet, and I invoked my inherent jurisdiction to prevent any abuse of process.
While acknowledging the matters considered in the Bush case, Magistrate McFarlane referred to a further case where a judge “allowed that case to continue even where it was found that there have been mistakes, incompetence and… neglect but no malfeasance or dishonesty.”
Concering the Hurlston case, although there were delays to date and clumsy drafting suggesting a level of incompetence in respect of the DPP, no bad faith was alleged.
Regarding continuation of the Hurlston case, Magistrate McFarlane referred to the practice direction for the Summary Court, which requires that matters be concluded within 12 months of the first hearing date. She pointed out that the first hearing date in the Hurlston case was on February 13, 2024, and, accordingly, the 12-month limit has not yet been exceeded.
In the circumstances, Magistrate McFarlane concluded:
The threshold for exercising the court’s discretion to grant the stay of the proceedings has not been met in this case.
And it seemed to me ultimately that Mr. Hughes’s submissions focused more on the delay, which of course is accepted and failed to establish on the balance of probabilities that there was actual prejudice to the defendant as a result of the delay.
The case is going to continue… [and] as far as case management, there must be an urgent case management hearing.
This case management hearing is expected to occur in early January 2025.
Note to readers
It must be noted that if further delays occur, pushing the proceedings beyond February 13, 2025, the practice direction requiring Summary Court proceedings to conclude within 12 months is likely to be breached.
For a background of the Hurlston case, please see the chronology of events in the below story:
