Monday, March 02, 2009

Watching the river flow

Tomorrow, and tomorrow, and tomorrow,

Creeps in this petty pace from day to day ...

Unaccountable official delay in determining the appeal occurred in Elaheebocus v The State of Mauritius (Mauritius) [2009] UKPC 5 (25 February 2009). The case was not complex, and none of the delay was attributable to the appellant. The Supreme Court took 19 months between hearing the appeal and dismissing it. The judgment that was eventually delivered was brief, and the Privy Council noted (13) that the appeal had been hopeless and it could have been dealt with ex tempore. This 19 month delay (which was followed by a further 17 month delay before the Supreme Court refused the appellant's application for leave to appeal to the Privy Council) amounted to a breach of the constitutional guarantee of a hearing within a reasonable time.

A symbolic remedy was required. The Board was plainly tempted to simply hold that its decision finding a breach would be sufficient, but on balance it decided to make a modest reduction in the sentence: four years' imprisonment was reduced by six months.

The appellant had been on bail since before his trial, and naturally enough – as his case was apparently hopeless [Macbeth again: " ... full of sound and fury, signifying nothing"] – he had done nothing to hurry things along, such as asking when he might hear the result of his appeal (20); but he was not at fault for that: the delay was a matter of constitutional significance for which the authorities were responsible.

In addressing delay the Board applied the approach in Boolell v The State (Mauritius) [2006] UKPC 46 (blogged here 18 October 2006): three questions must be asked: is the case complex, has the defendant contributed to the delay, and has there been delay by the authorities?

Some of the delay in the present case didn't count because it occurred to accommodate the appellant's counsel's commitments: this was a three year period between the trial and the appeal to the Supreme Court.

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