Court of Appeals Reveal Cases of Missing Records

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Updated: June 16, 2017

The Court of Appeals handed down a ruling today in the case of Gilbert Henry who was convicted of dangerous harm and sentenced to five years in prison.  Henry appealed his conviction but his appeal did not come up until long after he had served his time incarcerated.  Attorney Kevin Arthurs was involved in this case and told the media that one of the most appalling issue in this story is that there are sixteen other cases just like this.

KEVIN ARTHURS

“This decision is a particularly refreshing one for me as a citizen because the courts tend to be very diplomatic, they tend not to rock the boat, they try to be as diplomatic and politically correct as possible and they try to very narrowly decide issues so as not to throw a cast net in areas that they probably didn’t intend to. In this case the court considered two primary grounds, the first was the issue of delay and how that delay affected his constitutional right to a fair trial. The second one was the absence of a full record because in this case, as in I told you the upcoming other sixteen case the transcript which is the record that the court should take which allows you to check, its like an exam did he get the answers correct? And so when you pass that on to a review person they can check your exam to see if you did well. That record of the exam was missing and could not be reconstructed and so they considered those two points in this appeal. Now what is interesting is that the court could have ruled on a very technical ground and that would have been sufficient but in the judgment what they did was comment on a systematic failure and the tone of it in my opinion is very condemning and I think that this judgment, the judges stepped out of what they normally do; their comfort zones and conventional ways of disposing with matters to be very strong in their language to say this is unacceptable and to send word in my belief of two things; we do not want this to happen again and fix the administrative inefficiencies and failures.”

Arthurs says that today’s ruling was refreshing as the court has sent a strong message to the judiciary to fix what is wrong.

KEVIN ARTHURS

“This judgment to me is a shot across the bow from the panel  from the Court of Appeal to say “go fix these things people are depending on you, you cannot have twice in its judgment,” the leading judge said ”listen it is unacceptable for a man to wait and serve out his entire appeal.” in this case his entire sentence which in this case was five years, “while waiting for his appeal.” That is ridiculous. Common sense will tell you that you would want for these things to be dispensed with quickly so that you can come to peace with it. One of the things that I had argued in this case was that there is a policy which is not recognized at the prisons that once you have an active appeal they do not consider you for parole, this was the instruction from my client; when you ask the prisons they will not tell you that but the unofficial position from, I don’t want to disclose the person, is that the reason they don’t do it is that because part of the consideration of your parole is that you have to show remorse and if you are appealing it their rationale is that you haven’t reached there as yet because you still think you ought not to have been convicted. So there is a domino effect that not hearing your appeal within a reasonable time causes because you know that there is a certain way to calculate time, remission at the prison for example so this is a very very important decision.”

The failure of the system has delayed justice for Henry as he has already served his time long before his appeal was heard.  It is a constitutional breach which Henry now has the option to seek legal recourse.

KEVIN ARTHURS

“The trial has been declared a nullity and the court said even it had not declared a nullity it would be constrained to quash the conviction and not order a retrial. On numerous occasions because as you said he had served out his entire sentence, on numerous occasions Mr.Henry was asked ‘you’ve already come out of jail, why are you still doing this.’ and he said that it was the principle. To answer your question directly in terms of what can he do next, numerous times during the proceedings we were asked by the panel ‘why don’t you take up a constitutional challenge’ and in doing so there could be a financial compensation to him. Mr.Henry wasn’t in court today and I’m sure when he sees this he will be elated that his principle stance was vindicated. From the person that I have known of him, and he is a happy man to be out working as last I saw him, I wouldn’t doubt that he would consider exploring a constitutional challenge to get redress for the constitutional breach. You remember some years ago some gentlemen from George Street had a case where they were compensated for being unlawful incarcerated. I don’t know if this would go so far but it would be interesting, necessary and I think helpful if that option of getting constitutional redress would be explored by him.”

Gilbert Henry was convicted on July 9, 2012 and filed his appeal nine days later, on July 18, 2012 on the grounds that he was not properly represented in court as his attorney had passed away.  Henry was charged for the death of Ellis Taibo following a stabbing incident on September 14, 2008.  Henry was on remand for about four years before his trial began.  In March 2016, there were similar cases before the Court of Appeal where portions of case records were missing for five defendants who sought to appeal their convictions ranging from carnal knowledge to rape, kidnapping and robbery.  Their appeal were not heard as the court would have had to reconstruct the records prior to their hearing.