Prominent local attorney-at-law Arthur Holder has raised the issue of “jurisdiction” for magistrates as it relates to recent “taking of guilty pleas”, a situation which could have implications for matters adjudicated over the past few weeks.
He also called for someone to point out to him the Act that “clothes” a district magistrate with jurisdiction to hear island-wide cases.
“There is a practice direction which gives magistrates’ jurisdiction for a Saturday and a Saturday only, so it clothes the magistrate with island-wide jurisdiction on a Saturday. That is simplistic, that is understood.
“But in the midst of this COVID-19 (pandemic) apparently different magistrates are coming to sit every two days. So, I have raised the issue as it relates to their jurisdiction to take guilty pleas,” the defence lawyer said moments after representing a client who had been charged with a number of drug offences which allegedly occurred in the District ‘C’ jurisdiction.
The prosecutor Sergeant Robert Jones had asked that charges of possession, possession with intent to supply and having a trafficable quantity of cannabis as well as cultivating the illegal substance be heard summarily in the District ‘A’ Court.
But Holder objected, arguing that such “an elective” could not be given at this time. “The CJ’s (Chief Justice) practice direction speaks only to Saturday. . . . So, the Chief Justice needs to remedy that ASAP.”
Speaking after his client’s case had been dealt with by Magistrate Graveney Bannister, Holder said that if a magistrate from District ‘C’ came to sit for two days at District ‘A’ the magistrate had jurisdiction only for District ‘C’. If an accused, he said, breached a curfew in the District ‘B’ jurisdiction, then the magistrate was “not clothed” with island-wide jurisdiction.
“So (the magistrate) cannot take a plea, he or she is not empowered in law to take a plea from a person who pleads guilty from District ‘B’, she is not an island-wide magistrate. The Chief Justice’s direction is specific for Saturday only.”
Asked what that meant for some of the cases that had been dealt with during the past three weeks especially some in which accused had been sentenced to time for breaching the national COVID-19 curfew, Holder responded: “I cannot answer that question, I was not the attorney-at-law for those people.”
He added: “It is a jurisdiction issue that has to be specific and the only way it can be rectified, and that the magistrate were so clothed with jurisdiction, is if there was a practice direction emanating from the Chief Justice or an amendment to the requisite Magistrates’ Court Act empowering the magistrate to have island-wide jurisdiction to hear matters.”
Holder revealed that he had in hand a copy of the practice direction from Chief Justice Sir Marston Gibson, relative to February 2019, in relation to island-wide jurisdiction on a Saturday but had seen nothing since then.
“Today happens to be Thursday, so what would vest the magistrate with jurisdiction on a Thursday, is there a new practice direction emanated from the Chief Justice? Well, I have seen none in circulation. It is possible that there could be one but I have not seen it and I am sure that none of the magistrates have it, none.”
On the matters where persons were sentenced, if there was in fact no jurisdiction to hear the cases, Arthur said those matters have be voided.
“If a magistrate is not clothed with jurisdiction then, it is absolutely null and void. Ab initio, from the beginning, they will have to be void.
“If you can show me a Practice Direction from the Chief Justice clothing magistrates’ with this jurisdiction, then case closed. Only the Chief Magistrate is clothed, he is vested with island-wide jurisdiction. He is empowered in law.”
fernellawedderburn@barbadostoday.bb
